Madern 2013bu 5016

As it is difficult to recognize the face value per share, which is the transaction value, as the market price, a disposition that imposes tax on the value according to the supplementary assessment methods shall be justifiable.

The transaction value claimed by the claimant is the transaction example that exceeds the period of three months from the date of appraisal date of the stocks, and all the stock transaction value from the date of incorporation is equal to the face value and it cannot be deemed that the objective exchange value was properly reflected. Thus, a disposition that imposes tax on the value according to the supplementary assessment method is justifiable.

Article 35 of the Inheritance Tax and Gift Tax Act

2014Guhap22831 Revocation of Disposition of Imposing gift tax

AA

○ Head of tax office

July 2, 2015

August 13, 2015

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the Plaintiff

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 00,000,000 on October 2, 2013 against the Plaintiff was revoked.

1. Details of the disposition;

A. On January 5, 2010, the Plaintiff acquired 15,000 non-listed shares of the CCC Shipping Co., Ltd. (hereinafter referred to as “instant shares”) from BB to KRW 75,000 per par value at KRW 5,000 per share.

B. On October 2, 2013, at the time of the corporate joint investigation into the CCC Shipping, the head of the Pacific District Tax Office determined that the market price of the instant shares assessed in accordance with the supplementary assessment method prescribed by the former Inheritance Tax and Gift Tax Act (amended by Act No. 10411, Dec. 27, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”) was KRW 53,214 per share, and determined that the Plaintiff received profits by acquiring the instant shares at a low price, and notified the Defendant that the gift tax should be imposed on the Plaintiff on the taxable value.

C. On the same day, the Defendant rendered a disposition imposing gift tax of KRW 000,000,000 (including additional tax of KRW 00,000,000) on the same day as the taxable value of donated property (hereinafter “instant disposition”). The Plaintiff filed an appeal with the Tax Tribunal on November 26, 2013, but the said appeal was dismissed on August 19, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 10, 11, Eul evidence Nos. 1 and 2 (including provisional numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

1) In applying the constructive provision on gift tax due to low-price transfer, the supplementary assessment method should be applied only to cases where the market price is unclear. The instant disposition, which was imposed on the basis of the value calculated according to the supplementary assessment method, is unlawful, in light of the following: (a) there are cases where the stock transfer of this case was traded at a par value of KRW 5,000 per share per share, the same as the instant case on March 15, 2005 and March 12, 2007, which was the date of the acquisition of the instant shares; (b) there are many bad claims due to a small shipping company under the Decree, and in fact, the net asset is close to the math; and (c) the stock price of the shipping company with a much larger size than that of the instant shares is not high.

2) Even if the supplementary assessment method is applied, the disposition of this case is unlawful since the defendant calculated the market price of the stock of this case by including the above defective bonds in the asset value, although the defective bonds in the separate sheet No. 1, which are the defective bonds ofCCC Shipping, which are included in the assets on the statement of financial position, should be excluded from the asset value.

3) In addition, considering that the “CCC Shipping” has no fixed assets such as a ship and has no future value to be generated, and considering the fact that the net assets of the “CCC Shipping” should be evaluated as “0” and the operating rights should also be evaluated as “0” when considering the above inferior claims, it is erroneous that the Defendant included KRW 00,000,000 assessed as the operating rights in the asset value.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) Determination as to the first proposal

A) In the case of unlisted stocks with low market value, where there is a fact that they are traded, the value of the stocks shall be evaluated by considering the market value as the market value, and the value of the stocks shall not be evaluated by the supplementary evaluation method stipulated in the former Inheritance Tax and Gift Tax Act. However, since the market value means the objective exchange price formed through the general and normal transaction, in order to be recognized as the market value, the circumstances under which the relevant transaction is made in a general and normal manner, and the objective exchange value at the time of the donation shall be recognized (see Supreme Court Decision 2010Du26988, Apr. 26, 2012).

B) The following circumstances, which are acknowledged as comprehensive consideration of the purport of the entire pleadings in Gap's return to the instant case, Gap's evidence Nos. 3, 5, 8 through 12, Eul's evidence Nos. 3 and 4, i.e., (1) the case of the Plaintiff's trading of the instant shares was 3 to 5 years from the date of acquisition of the instant shares as 2 March 15, 2005, and 207, and (2) the case was 3 to 2003 since the commencement of annual sales since 2008 due to the rapid increase in 208, it is difficult to view that the Plaintiff's trading price of the instant shares was 0 billion won or more in net assets since it was difficult to calculate the market price of the instant shares at the time of the Plaintiff's trading of the instant shares as 30,000 won or more through an accounting corporation's reasonable market price of the instant shares under Article 6 of the Inheritance Tax and Gift Tax Act.

2) Determination as to the second proposal

A) In evaluating the value of non-listed shares, which are donated property, according to the supplementary evaluation method stipulated in Articles 60(3) and 63(1)1(c) of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the net asset value of the relevant corporation as of the date of donation cannot be included in the amount of accrued claims as of the date of donation. However, since the impossibility of collecting claims falls under exceptional grounds in the determination of taxable amount of gift taxes, the burden of proving such special grounds lies on the person liable for tax payment (see, e.g., Supreme Court Decision 2005Du5574, Aug. 23, 2007). In addition, whether claims are irrecoverable at the time of commencement of inheritance can not be recovered because the debtor was subject to the commencement of the procedure of bankruptcy, composition, company reorganization, compulsory execution, etc., or the situation of excess of his/her obligation continues for a considerable period of time due to business closure, missing, execution of punishment, etc.

B) According to the instant case’s return to and the statement in Gap evidence Nos. 15 through 21, △△ Credit Rating Co., Ltd., among defective bonds listed in the separate sheet No. 1 list, the fact that the △△ Credit Rating Co., Ltd. determined that each claim against DD Shipping Co., Ltd., FF, GG, HH, HH, III trade, and the KK is irrecoverable. However, it is recognized that the time when the △△ Credit Rating Co., Ltd. Co., Ltd. was assessed as to whether it is impossible to recover △△△ Credit Rating Information Co., Ltd., Ltd., the assessment date of November 5, 2013 to November 8, 2013, which is the assessment date of the instant shares under Article 60(4) of the former Inheritance Tax and Gift Tax Act, was made more than three years after the lapse of 3 years from January 5, 2010 to the appraisal date of the Plaintiff’s shares, the Plaintiff’s allegation that it is impossible to collect the above portion of shares is 15.

3) Determination as to the third proposal

Article 55 (3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the appraised value of goodwill shall be added to the asset value of the relevant corporation in calculating the net asset value unless the corporation under Article 54 (4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is under liquidation proceedings or it is deemed difficult to continue its business due to the death of the business operator, etc., unless the corporation under suspension or discontinuance of business is a corporation under suspension or discontinuance of business after the commencement of business, or a corporation with deficits for three years prior to the business year in which the evaluation base date belongs. Thus, there is no evidence to acknowledge

Therefore, it is legitimate that the defendant included 00,000,000 won in the asset value assessed as the operating right of the KCCCCC Shipping. Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.