early 201J 3102 (Law No. 112, 2012)

The special taxation of gift tax on family business succession does not apply to the partner's share.

It is clear that the gift tax exemption on succession to a family business is applicable to cases where a corporation succeeds to a family business after receiving a donation of the corporation’s stocks or equity shares, and it cannot be interpreted that it also applies to cases where a person donates his/her shares as a member and allows a family business to succeed to a family business.

2012Guhap5238 Revocation of Disposition of Imposition of Gift Tax

KimA

Head of Sungnam Tax Office

June 22, 2012

July 20, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of gift tax of KRW 000 against the Plaintiff on January 3, 201 shall be revoked.

1. Details of the disposition;

A. The Plaintiff received 168/8230 shares (hereinafter “the instant gift”) from the KimB, which was put before February 24, 2010, among 1/2 shares in each of the buildings, such as 000 00 miscellaneous land and 1,989 square meters and above ground air conditioners, 1/2 shares of 4 forest and 8,230 square meters in each of the buildings (hereinafter “instant real estate”). (hereinafter “the instant gift”).

B. On May 31, 2010, the Plaintiff filed a gift tax base return on the following grounds: (a) the instant donation constitutes a special taxation for gift tax on succession to a family business under Article 30-6 of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010; hereinafter “Special Taxation Restriction Act”); (b) the Defendant denied this and notified the Plaintiff on January 3, 201 (hereinafter “instant disposition”).

C. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection on April 29, 201 and filed an appeal with the Intellectual Property Tribunal on August 29, 2011, but was dismissed on February 6, 2012.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 to 3, and Eul evidence, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff received the gift of this case in order to succeed to the family business upon donation of the instant real estate corresponding to the shares of the EEEB operated by KimB for at least 10 years from NAD, and the provisions of Article 30-6 of the Restriction of Special Taxation Act apply to the case of donation of property equivalent to the shares of an individual entrepreneur’s joint business in its interpretation. Thus, the disposition of this case denying the application of the special taxation of this case and its disposition is unlawful

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 30-6 (1) of the Restriction of Special Taxation Act provides that "in cases where a donee succeeds to a family business as prescribed by Presidential Decree, by December 31, 2010, his/her shares or equity shares are donated from his/her father who has run the family business for at least 10 consecutive years and succeeds to a family business as prescribed by Presidential Decree, the gift tax shall be imposed after deducting 00 won from the taxable value of donated property and 10/100," while Article 27-6 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22953, Jun. 3, 201; Presidential Decree No. 22953, hereinafter referred to as the "Enforcement Decree of the Restriction of Special Taxation Act") provides that "in cases where a donee succeeds to a family business as prescribed by Presidential Decree, means cases where a donee engages in the family business within the deadline of new base of gift tax under Article 68 of the Inheritance Tax and Gift Tax Act within five years from

(2) In full view of the foregoing provisions and the Enforcement Decree of the Restriction of Special Taxation Act and the Restriction of Special Taxation Act, and the following circumstances, it is clear that the special case of gift tax is subject to the case where a corporation succeeds to a family business after receiving a donation of the corporation’s stocks or equity shares, and it cannot be interpreted that the special case of gift tax also applies to the case where an individual succeeds to a family business as one of its partners.

① In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws is to be interpreted as the text of the law, barring any special circumstances, and it is not allowed to expand or analogically interpret without any reasonable reason, and in particular, it is also consistent with the original rules of tax equity to strictly interpret the provisions that are clearly preferential in terms of the requirements for tax exemption and exemption (see Supreme Court Decision 2001Du731, Apr. 12, 2002). In cases of family business by donation, solely on the sole ground that the corporation can be treated more favorable than an individual, it cannot be said that the instant special taxation should be applied in cases where it succeeds to the family business after receiving shares from an individual entrepreneur in the same relationship.

② The special taxation of this case was newly established through each provision of Article 30-6 of the Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007) and Article 27-6 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20620 of Feb. 22, 2008). According to the amendment of the National Assembly Financial Economy Chairperson of the Act on the Restriction of Special Taxation (amended by Presidential Decree No. 20620 of Feb. 2, 2008), the term "the special taxation of this case" as the main contents of the special taxation of this case, "the special taxation of this case is "the special taxation of the gift tax on inheritance prior to the death of a small and medium enterprise" as "the special taxation of the special taxation of this case, where a parent who is over 60 years old, donates to a child of 18 years old or older for the purpose of succeeding to a small and medium enterprise for the purpose of 10 years or more, it refers to 30 billion shares or shares.

③ The special taxation of this case limits the object to ‘where stocks or equity shares are donated', and in the way of family business succession, the donee requires that the donee be appointed to the representative director within five years from the date of donation to meet the special requirements of the corporation.

(3) Therefore, the provision of Article 27-6 (1) of the Enforcement Decree of the Restriction of Special Taxation Act, which stipulates the appointment of the representative director within five years from the date of donation as the requirement for family business succession, cannot be deemed as invalid beyond the scope of delegation under Article 30-6 (1) of the Restriction of Special Taxation Act, which is the mother, and the disposition of this case imposing gift tax on the gift of this case is legitimate.

3. Conclusion

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