2011u2243

In calculating the sum of the amount of gift tax contributed by minor shareholders, it is reasonable to calculate the amount of gift tax

Where there are not less than two minority shareholders who renounced the right to receive new stocks allocated under Article 39 (2) of the Inheritance Tax and Gift Tax Act or who obtained new stocks allocated in short of the number entitled to obtain the allocation under equal conditions in proportion to the number of their possessed stocks, one of the minority shareholders shall be deemed to have renounced his right or obtained the allocation insufficiently.

2013Guhap27586 Revocation of Disposition of Imposition of Gift Tax

OraA

The director of the tax office.

May 22, 2014

June 26, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On September 11, 2012, the Defendant revoked the disposition imposing OOO on the Plaintiff on June 13, 2007.

1. Details of the disposition;

가. 원고는 코스닥 상장법인 주식회사 제QQQ(구 주식회사 싸WWW, 이하'이 사건 회사'라 한다)가 2007. 6. 13. 실시한 유상증자(이하 '이 사건 유상증자'라 한다)에 제3자 직접배정방식으로 참여하여 000주(이하 '이 사건 주식'이라 한다)를 주당 1,225원(주당 액면가 500원), 총 000원에 취득하였다. 한편 이 사건 회사의 기존주주들은 이 사건 유상증자 과정에서 신주배정을 받지 아니하였다.

B. The Seoul Regional Tax Office conducted a survey on the change of shares in 2007 and 2008 with respect to the instant company, and determined that the Plaintiff acquired 000 won (=000 won x 386 won per share) by allocating a third party price as to the difference between KRW 1,611 and KRW 1,225 (386 won) of the share price per share of the instant company and KRW 1,611, which was lower than the average of KRW 2,704 per share after the said capital increase, and the share price per share of KRW 1,611 and the share price per share of the instant company purchased by the Plaintiff, and notified the Defendant of the taxation data.

C. On September 11, 2012, the Defendant notified the Plaintiff of gift tax of KRW 00 in accordance with the foregoing taxation data notification, and the Plaintiff requested the Tax Tribunal on April 19, 2013 but was dismissed on August 7, 2013, the Defendant appealed and filed the instant lawsuit on November 7, 2013.

[Ground for Recognition: Facts without dispute, Gap evidence 1, Eul evidence 1, purport of whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

1) The assertion that a tax cannot be levied

The existing shareholders who have waived the acquisition of new shares of this case and the plaintiff are not related to the related party. Therefore, it cannot be taxed unless the gift profit is at least 300 million won, or the difference between the appraised value of the shares of this case and the plaintiff's acquisition value of the shares of this case does not amount to 30% or more of the appraised value of the shares of this case.However, the assessed value of the profit accrued to the plaintiff due to the offering of new shares of this case is less than 300 million won, and the difference between the appraised value of the shares of this case (1,611 won) and the plaintiff's acquisition price of the shares of this case (1,225 won) is less than 483 won, which is less than 1,611 won, and this constitutes a case where no taxation is possible.

ii) argument that the tariff rate is erroneously applied.

In applying the gift tax rate, the amount of gift tax shall be calculated separately by each donor and each donee, and the Defendant, in rendering the instant disposition, deemed the entire existing minor shareholders who renounced the acceptance of new shares for the instant shares as one donor, and imposed tax by applying the high tax rate (minimum 20%) thereto. Therefore, this is unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Determination on the assertion that a case cannot be taxed

Article 39(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007; hereinafter "the Inheritance Tax and Gift Tax Act") provides that "in case where a corporation obtains any profits falling under one of the following subparagraphs as a result of issuing new stocks to increase its capital, the amount equivalent to such profits shall be the value of the property of the person who has acquired such profits." Paragraph (c) of the same Article provides that "in case where a person who is not a shareholder of the relevant corporation obtains any new stocks directly from the relevant corporation from the relevant corporation by allocating them to a third party, if a person who is not an existing shareholder of the relevant corporation acquires new stocks by the method of direct allocation from the relevant corporation, it is possible to levy taxation on the value of property donated, regardless of whether the existing shareholder or the underwriter of

In light of the above provisions, we examine the case back to this case. The plaintiff 3 from the company of this case.

The facts of acquiring the instant shares by means of direct allocation are as seen earlier. Therefore, whether the Plaintiff is related to the existing shareholders and specially related persons of the instant company, or whether it is possible to impose taxation on the value of donated property, regardless of the size of the value of donated property generated to the Plaintiff. Accordingly, the Plaintiff’s assertion on this part based on a different premise is unacceptable.

ii) argument that the tariff rate is erroneously applied.

According to the facts and evidence examined earlier, in the disposition of this case by the defendant as alleged by the plaintiff, all other existing shareholders apply tax rates individually by deeming them as one donor. However, minority shareholders (referring to shareholders who hold less than 1/100 of the total number of shares issued by the company of this case and whose total amount of face value is less than 300 million won) can be acknowledged as having applied the gift tax rate to all of them as one donor. However, in applying the provision of paragraph (1) 1, Article 39 (2) of the Inheritance Tax and Gift Tax Act provides that "where there are not less than two minority shareholders who renounced the right to receive new shares in applying the provision of subparagraph 1 of Article 1 of the Inheritance Tax and Gift Tax Act, or who did not meet the number entitled to receive new shares under equal conditions in proportion to the number of shares owned by them (including the case where new shares are not allocated), it shall be deemed that one minority shareholder has renounced or been allotted shares in the process of issuing new shares in this case, and thus, it shall not be accepted as a legitimate part of the plaintiff's disposition in this case.

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.