Disposition Revocation of Gift Tax Imposition

원고와 문@@ 사이의 거래 이전에 행해진 이 사건 주식에 대한 거래사례들은 무상증자 이전에 행해진 것이어서 합리적인 경제인의 관점에서 무상증자 이후에도 무상증자 이전의 거래가액과 동일한 금액에 주식을 거래 할 것을 기대하기 어렵다.

[The former Inheritance Tax and Gift Tax Act (Amended by Act No. 13557, Dec. 15, 2015); Article 35 (Donation of Benefits from Transfer at Low and High Price)

2016 Gohap6098 Revocation of Disposition of Levying Gift Tax

@@희

BB Director of the Tax Office

1. The Defendant’s disposition of imposition of gift tax amounting to KRW 765,751,520 against the Plaintiff on February 1, 2015 is revoked. 2. The litigation cost is assessed against the Defendant.

The same shall apply to the order of the Gu office.

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1. Details of the disposition;

가. 원고는 @@@스하이텍 주식회사(이하 '이 사건 회사'라고 한다)의 대표이사로서 2012. 10. 15. 특수관계에 있지 않은 문@@으로부터 이 사건 회사의 주식(이하 '이 사건 주식'이라 한다) 362,174주를 1,210,747,682원(1주당 단가 3,343원)에 취득하였다(이하 '이 사건 거래'라고 한다).

나. 피고는 원고에 대하여 세무조사를 실시한 후 구 상속세 및 증여세법(2015. 12. 15. 법률 제13557호로 개정되기 전의 것, 이하 '구 상속세및증여세법'이라 한다) 제60조, 구 상속세 및 증여세법 시행령(2013. 3. 23. 대통령령 제24441호로 개정되기 전의 것, 이하 구 상속세및증여세법 시행령'이라 한다) 제49조 제1, 2항에 따라 이 사건 거래 당시 이 사건 주식의 시가를 1주당 9,000원으로 평가한 다음, 원고가 특수관계에 있지 않은 문@@으로부터 이 사건 주식을 위 시가보다 현저히 낮은 가액인 1주당 3,343원에 양수한 것은 구 상속세및증여세법 제35조에서 정한 재산의 저가양수에 따른 이익의 증여에 해당한다고 보고 그 증여 이익을 1,748,818,318원으로 평가하여, 2015. 2. 1. 원고에게 증여세 765,751,520원(가산세 포함)을 부과하였다(이하 '이 사건 처분'이라 한다).다. 원고는 이 사건 처분에 불복하여 2015. 4. 28. 조세심판원에 심판을 청구하였으나, 2015. 11. 11. 조세심판원으로부터 원고의 청구를 기각하는 결정이 내려졌다. 인정근거다툼 없는 사실, 갑 제1, 2, 4호증, 을 제1, 2호증, 을 제3호증의 1, 2의 각 기재, 변론 전체의 취지

2. Summary of the parties' arguments;

A. The plaintiff's assertion

- 3 - 이 사건 거래 당시 원고와 문@@은 구 상속세및증여세법 시행령이 정한 보충적 평가방법에 따라 이 사건 주식의 가액을 1주당 3,343원으로 평가하였고 장래에 행해질 합병이 이 사건 회사에 어떠한 영향을 미칠지 알 수 없어 합병 계획을 고려하지 않은 채 이 사건 주식의 거래가액을 정하는 것이 합리적이었으므로, 이 사건 거래에서 정한 거래가액은 거래 관행상 합리적인 교환가치로서의 시가에 해당한다. 구 상속세및증여세법 시행령 제49조 제2항은 시가로 보는 가액이 2 이상인 경우에는 평가기준일을 전후하여 가장 가까운 날에 해당하는 가액에 의한다고 규정하고 있는바, 이 사건 주식의 거래가액 중이 사건 거래일과 가장 가까운 날에 해당하는 거래가액은 이 사건 거래와 같은 날 행해진 문@@과 김AA 간의 거래가액인 1주당 3,343원이고, 이 역시 시가에 해당한다.

Therefore, the Plaintiff purchased the instant shares at the market price, not at a very low price.

After the instant transaction, the instant shares were traded in 9,000 to 10,000 won per share with a specialized investment company, etc. after the instant transaction was conducted only in accordance with the subjective analysis and expectation of the relevant specialized investment company for the merger and listing of the instant company, and thus, it cannot be deemed an objective exchange value of the instant shares.

Therefore, the Defendant’s deeming the market price of the instant shares as KRW 9,00 per share at the time of the instant transaction was unlawful.

B. Defendant’s assertion

1) 이 사건 거래 및 그와 같은 날 행해진 문@@과 김AA 사이의 거래에서 정한 이 사건 주식의 거래가액인 1주당 3,343원은 구 상속세및증여세법 시행령이 정한 보충적 평가방법에 따른 가액에 불과하므로 시가로 볼 수 없다.

- 4 - 반면 이 사건 거래일부터 불과 8일 이후에 원고가 특수관계에 있지 않은 주식회사 @@파트너스(이하 '@@파트너스'라고만 한다)에게 이 사건 주식을 1주당 9,000원에 양도하는 등 이 사건 주식은 투자전문회사 등에게 1주당 9,000원 내지 10,000원에 거래되었으므로, 구 상속세및증여세법 시행령 제49조 제1항이 정한 평가기간 내의 거래가액 중이 사건 거래일에 가장 가까운 날에 행해진 원고와 코원파트너스의 거래가액인 1주당 9,000원을 이 사건 주식의 시가로 봄이 타당하다.

2) The Plaintiff, as the representative director of the instant company, had information on the back of the instant shares at a location that can control the board of directors through voting rights, and sought the transfer of the instant shares at a lower price than the market price, and thus, the Plaintiff’s transfer of the instant shares at a lower price than the market price constitutes a case where there is no justifiable reason in light of trade practice

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Determination on the legitimacy of the instant disposition

A. The former Inheritance Tax and Gift Tax Act;

Article 35(1)1 of the former Inheritance Tax and Gift Tax Act provides that where a person acquires property from another person at a price lower than the market price, the difference between such price and the market price, which is equivalent to the profits prescribed by Presidential Decree, shall be deemed the value of the property acquired by the transferee as the donated property. Article 60 of the same Act provides that the value of the property subject to inheritance tax or gift tax under the same Act shall be in accordance with the market price as of the date the inheritance commences or the donation was made (hereinafter referred to as the “date of appraisal”) (Article 1) and the market price under paragraph (1) shall be in accordance with the ordinary market price as of the date of inheritance or donation (hereinafter referred to as the “date of appraisal”), and shall include - - 5

Article 49 (1) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "if there is a transactional fact on the relevant property, it shall be the value recognized as the market price under Article 60 (2) of the former Inheritance Tax and Gift Tax Act, the transactional value shall be excluded." Article 12-2 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "if there is a transactional fact on the relevant property, such transaction value shall be deemed objectively unfair due to a transaction with a related party falling under any of the subparagraphs of Article 12-2 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, it

B. Whether the transaction value determined by the instant transaction is lower than the market value

1) Even in a case of unlisted stocks with low market value, where there is a fact of trading, the value of the stocks shall be evaluated as the market value in view of the transaction value, and the market value means the objective exchange value formed by the general and normal transaction. Thus, if the relevant transaction is made in a general and normal manner and it can be deemed that the objective exchange value at the date of donation is adequately reflected, such transaction example can be recognized as the market value (see, e.g., Supreme Court Decision 2010Du26988, Apr. 26,

2) In full view of the purport of the entire pleadings, the following facts can be acknowledged in each entry of Gap evidence Nos. 5 through 11 (including all additional evidence attached thereto).

A) On January 4, 2011, the Plaintiff transferred 143,716 shares of the instant case to 10,000 won per share to 09-7 Korea Venture Association No. 15, and sold 175,000 shares per share to 2010 KIF-ASEAN Investment Association. At the time, the Plaintiff and the said companies sold 175,000 shares per share to 10,000 won. By January 4, 2014, the Plaintiff and the said companies met the external requirements for listing stocks in Korea or overseas markets.

- - Other

Share by transferee of the transferor on the transfer date;

양도가액(원) 주식 수(주) 비고 2010.12.28. 문@@ 원고 6,737 21,686 이 사건 거래일 전

More than three months but January 4, 2011

09-7

Korea Venture Association No. 15

10,000 143,716

2010 KIF-ASEAN

IT Specialized Investment Association

10,000 175,000

2011.1.31. 문@@ 김AA 6,737

Where corporate disclosure is delayed without any special reason, the Plaintiff within three months from January 4, 2014.

The Plaintiff may request the purchase of the shares in this case, and the Plaintiff may request the purchase of shares within one month from the date of the request for repurchase.

The agreement was made to accept the shares by paying the redemption price.

B) On May 16, 2012, the instant company conducted free increase in the number of stocks at the beginning.

From 1,929,750 shares to 5,789,250 shares.

C) On October 16, 2012, the day following the instant transaction, the instant company held a special shareholders’ meeting.

The merger with the RR Co., Ltd. (hereinafter referred to as the "RR") was decided on December 2012.

20. The RR was merged. The RR was calculated at the time of the merger under the former Inheritance Tax and Gift Tax Act for the purpose of calculating the merger ratio.

The shares value of the company and the RR were assessed respectively, and the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is stipulated by the former Enforcement Decree.

The value of the shares of this case according to the supplementary method of assessment was assessed to KRW 3,346 per share, and this was assessed to that effect.

Based on the merger ratio, the merger ratio was determined.

D) The transaction details of the instant shares before and after the instant transaction are as follows.

AA Partners, Future C&D Investment Companies, Desiring Investment Associations, NAN Investment Companies, all of them.

AAA partnership representative director is a private investment fund, and Haba rule is a representative director.

Schedule

- - Other

The transferor before the transfer date;

per share

Transfer Value (won)

number of shares (shares)

2012.10.15. 문@@ 김AA 3,343 100,000

This case

After the date of transaction

Within three months;

On October 23, 2012, 2012 Plaintiff AA partner 9,000 110,000

2012.11.5. 원고 함@@ 9,300 100,000

2012.11.6. 함@@ 미래@@@투자㈜ 10,000 100,000

2012.12.3. 원고 함@@ 9,100 150,000

2012.12.3. 함@@ 희망투자조합 10,000 120,000

2012.12.3. 김@@ 황@@ 3,343 235,457

2012.12.4. 함@@ 제미니투자㈜ 10,000 30,000

E) The instant company was listed on the KONEX market on December 10, 2015.

C. The stock price of this case, immediately after listing, has increased to 20,650 won per share, the highest price.

replacement of a policeman with the lower limit of 4,800 won per share, which is the lowest policeman of January 2016, to a policeman during the period of 2016.

The market value was formed between 4,000 won and 7,000 won per share.

3) 위 인정사실에 의하면, 이 사건 거래 당일 문@@과 김AA 사이에 이 사건 주

was traded in 3,343 won per share, and such a transaction is free between persons who are not specially related.

Unless there are special circumstances, the transaction value is deemed the market value of the shares of this case.

the corporation.

4) As to this, the Defendant shall not make a share of the instant shares within three months after the instant transaction.

A private equity fund is traded in KRW 9,000 to KRW 10,000, which is not a specially related person.

It shall be deemed that objective exchange value has been reflected, and the transaction value of KRW 3,343 per share shall be the transaction value.

The market price is merely the value under the supplementary assessment method prescribed by the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

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In the light of the following circumstances recognized by the above facts, one share

The transaction value of KRW 3,343 shall not be deemed to fall under the market value of the shares in this case.

① Prior to the instant transaction, the Plaintiff’s shares to specialized investment companies around January 4, 2011.

을 1주당 10,000원에 매도한 바 있고, 문@@은 2010년 12월경과 2011년 1월경 원고

The shares of this case are sold to 6,737 won per share and KimA, respectively. It shall thereafter be free of charge.

The number of outstanding shares issued by the company of this case was increased by three times, taking into account such circumstances.

면 문@@의 앞선 거래가액인 1주당 6,737원의 약 1/2에 해당하고 투자전문조합들의

Trading in 3,343 won per share, an amount equivalent to 1/3 of 10,000 won per prior trading value;

It does not seem unreasonable.

② 문@@과 김AA가 2012. 10. 15. 이 사건 주식을 거래하면서 정한 거래가액

3,343 won per share shall be a supplementary assessment method for the value of unlisted stocks as provided by the former Inheritance Tax and Gift Tax Act.

was determined by this, which was used in calculating the merger ratio of the plaintiff and the RR as it was.

and after the plaintiff began to sell the shares of this case to the private equity fund.

2012. 12. 3.에도 기존의 주주들인 김@@과 황@@ 사이에서는 위 거래가액을 기준으

(2) the transaction was made.

③ 비록 문@@과 김AA 간의 2012. 10. 15.자 거래 다음날인 2012. 10. 16. 원

The merger between the Plaintiff and the RR was resolved at the extraordinary general meeting of the company, but this Section 2 above

정에 비추어 문@@과 김AA 사이의 거래가 동등한 거래당사자의 지위에서 대등하고

It is difficult to view that the result of fair price negotiations is not the result.

④ 반면 원고와 투자전문회사들, 투자전문회사의 대표자인 함@@와 다른 투자

9,000 to 10,000 won per share, which is the trading value of the shares of this case between the specialized companies

- 9-

transaction is made after the merger with RR was decided at an extraordinary general meeting of the company, and such transaction is made after such merger is decided.

Amount of the investment fund shall be the expectation of business expansion due to merger and listing and estimated future profits of the investment fund.

at the time of the shares of this case, as it appears to have been determined by estimating investment values based on the

It is difficult to view that the objective exchange values are properly reflected.

5) Therefore, the market price of the instant shares at the time of the instant transaction is most likely to be the date of the instant transaction.

운 2012. 10. 15.에 행해진 문@@과 김AA 사이의 거래에서 정해진 거래가액인 1주

3,343 won per 3,343 won, and the plaintiff only acquired the shares of this case at the market price, whichever is more.

No person may be deemed to have taken over a remarkably low price.

(d) Whether there was no justifiable reason for a transaction practice.

1) The legislative intent of Article 35(2) of the former Inheritance Tax and Gift Tax Act is the transaction for the benefit of the other party.

benefits equivalent to the difference between the price and the market value by abnormal methods that manipulate the

When transferring to the other party, gift tax shall be imposed on the profits acquired by the other party to the transaction.

It is trying to cope with and promote the fairness of taxation.However, there is a special relationship.

In transactions between unrelated parties, there is a general conflict of interest between unrelated parties, and thus a consideration.

The reason that there is a difference between the market price and the other party to the transaction is deemed donated the difference.

Therefore, Article 35(2) of the former Inheritance Tax and Gift Tax Act does not apply to the special relationship between the parties.

for a transaction between persons without legitimate grounds in light of the practice of the transaction

In addition, the three requirements are added, taking into account these points, the property is transferred at a low price and acquired at a low price.

the parties have properly reflected their transaction value at a normal price that reflects objective exchange value.

A transferee shall not be deemed to have any reasonable ground to believe that there is no such ground.

It was improper from the viewpoint of a reasonable economic person to acquire the property through the transaction price.

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Even in cases where there is an objective reason that could not be seen, the provisions of Article 35(2) of the former Inheritance Tax and Gift Tax Act

It is reasonable to deem that “justifiable cause exists in light of transaction practice” (Supreme Court Decision 2013Du2013 Decided August 23, 2013).

5081(see, e.g., Supreme Court Decision 5081) It is proved by the tax authority that there is no justifiable reason

must be (see Supreme Court Decision 2011Du22075, Dec. 22, 2011).

2) Unlike recognized earlier, the market price of the instant shares is as claimed by the Defendant.

In terms of KRW 9,00 per share, the Plaintiff purchases the shares of this case at a price significantly lower than the market price.

3,343 won per share, which is the transaction value of the shares of this case, shall be deemed to have been paid under the former Inheritance Tax and Gift Tax Act.

Pursuant to the supplementary valuation methods for unlisted stocks, between the Plaintiff and RR

의 합병비율 산정 시 평가된 가액인 점, 원고와 문@@ 사이의 거래 이전에 행해진 이

The transaction cases of the shares in this case were conducted before the free capital increase and thus reasonable economic personnel

From the perspective, even after the free capital increase, stocks are traded with the same amount as the transaction before the free capital increase.

할 것을 기대하기 어려운 점, 원고와 문@@은 무상증자 이전에 이 사건 주식을 1주당

6,737 won has been traded without compensation, and the total number of shares issued by the company of this case has increased to three times.

3,343 won per share of the previous transaction amount in the instant transaction, which is up to one half of the previous transaction amount.

in light of the fact that it seems improper, the evidence and circumstances submitted by the Defendant are examined.

The transaction price determined by the transaction in the instant case does not have justifiable grounds for transaction practices.

lack of view as applicable and there is no other evidence to acknowledge it.

E. Sub-committee

Therefore, the property under Article 35(1) and (2) of the former Inheritance Tax and Gift Tax Act, which appears to be a single copy or the instant transaction

Since the lower price cannot be deemed as the acquisition by transfer, the instant disposition based on this premise is unlawful.

5. Conclusion

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Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.

section 3.