National Tax Service Review and Transfer 2010-0271 ( October 17, 2011)

It is legitimate to apply the rule of wrongful calculation based on the transfer of low-price by reliance on the market price as a supplementary method.

It is legitimate to calculate the market price according to the supplementary method of assessment, since it is difficult to view that the transaction value is the result of reasonable price negotiations by transferring stocks to a child with a special relationship, and it is difficult to view that the market price calculated by the accounting firm falls under the market price at the time of transaction in violation of

Article 101 of the Income Tax Act

Article 35 of the Inheritance Tax and Gift Tax Act

2011Guhap26992 Revocation by imposing capital gains tax

xx 1 other

Samsung Head of Samsung Tax Office

June 12, 2012

July 19, 2012

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 000 and securities transaction tax of KRW 000 as of July 1, 2010 against Plaintiff A, which was made against Plaintiff A, and the imposition of KRW 000 and securities transaction tax of KRW 000 against Plaintiff AB as of July 1, 2010, and the imposition of KRW 000,000, which was made against Plaintiff BCC on July 1, 2010, respectively.

1. Details of the disposition;

A. The plaintiff Dog-A transferred 50,00 won per share to 20,000 won per 20,000 won per 10,000 won per 20,000 won (hereinafter "the shares of this case") for non-listed shares issued at 20,000 won per 30,000 won per 20,000 won per 20,000 won per 20,000 won per share under the Inheritance Tax and Gift Tax Act (amended by Act No. 81, Dec. 1, 2007; 200,000 won per 20,000 won per share) and 10,000 won per share (amended by Act No. 816, Sep. 12, 2007); the plaintiff Dog-B transferred 20,000 won per share to 30,000 won per share under the former Inheritance Tax and Gift Tax Act (amended by Act No. 1810, respectively).

[Ground of recognition] The facts without dispute, Gap evidence 1-5, Gap evidence 1-2, Eul evidence 1, 2-3, Eul evidence 3, Eul evidence 1-1-1-13, Eul evidence 2, Eul's 1-2, Eul evidence 1-8, Eul evidence 4-1-6, Eul evidence 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

① In light of the fact that the transaction situation of the non-party company’s stocks per share was significantly deteriorated due to the invasion of real estate competition, excessive debts, failure of construction cost, etc. at the time of the transaction of the stocks of this case, the non-party company constitutes the market price since the transaction price of the stocks of this case reflects objective exchange value. Therefore, the disposition of this case by the defendant applying the supplementary appraisal method by deeming that the transaction price of this case cannot be deemed as the market price on the ground that the transaction price of this case cannot be deemed as the market price on the ground that the transaction was between related parties.

② Article 54(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20261, Feb. 22, 2008; hereinafter “Enforcement Decree of the Inheritance Tax and Gift Tax Act”) provides that the net value-added rate applied to the calculation of net value of non-listed stocks shall be 10% on a daily basis without considering the company’s financial standing or credit rating. This goes against the concept of “market value of assets subject to taxation under Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act, which is the basic principle of the assessment of assets subject to taxation under Article 60(1) and (2) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act, and thus, the disposition of this case is unlawful by calculating the market value of the stocks in this case by applying the rate of net value-added value of the stocks publicly notified by the Commissioner of the National Tax Service, and thus, it is unlawful in calculating the net value of the stocks in this case at the time of delegation under Article 63(1) of the former Enforcement Rule.

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

(c) Fact of recognition;

1) On November 25, 2010, at the request of the plaintiffs who are non-party companies and shareholders, the SS accounting corporation estimated the value of the stock per share of the non-party company as KRW 000 under the title "the presumption of the market price of the non-party company as of 2007 reflecting the risk of credit risk and litigation risk of the company." The main contents of the calculation method and grounds are as follows.

① The supplementary assessment method of unlisted stocks under the Inheritance Tax and Gift Tax Act does not take into account the risks associated with the credit of the relevant corporation and the risks associated with the lawsuit. Based on the information provided by the Nonparty Company, it reflects the net profit and loss exchange rate at the time of calculating the net profit and loss in consideration of the credit risk, etc. of the Nonparty Company, and reflects contingent liabilities associated with the lawsuit on the credit assessment report at the time of calculating the net asset value, the

② At the time of estimating the stock value per share of the non-party company, the risk factors and litigation-related risks of the non-party company were considered as follows:

i) Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act applied to calculating the net profit and loss per share in the calculation of the net profit and loss value per share is 10% at the interest rate determined and publicly notified by the Commissioner of the National Tax Service, taking into account the distribution rate of three-year corporate bonds guaranteed by the financial institution, and there is a difference in the loan guarantee, management status, credit standing, etc. for each malicious company, and accordingly, it is unreasonable to uniformly determine the net profit and loss exchange rate by 10% even though there is a difference in the debt repayment risk, liquidity, etc. for each company. In the case of the non-party company, according to the credit meteorite report issued by the Korea Credit Rating Co., Ltd., the comprehensive credit rating as of 2007, which was at the time of the enhancement of the shares in this case, was assessed as CCC0, which requires a common credit rating below, and the yield rate of three-year corporate bonds with the credit rating of 30.97% at a certain family rate is presumed to be 30% per share value per share.

ii) According to Article 17-2(4) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act, even if any contingent debt exists in a corporation, if the amount of the contingent debt and the obligation to pay are not confirmed, it shall not be reflected in the net asset value assessment in calculating the net asset value. However, in the case of the non-party company, it is reasonable to comprehensively consider and calculate the estimated amount of contingent debt related to the lawsuit in calculating the transfer value in the transaction of stocks, and the possibility of the occurrence thereof. According to the credit seat report issued by the Korea Credit Rating Information Co., Ltd. in the case of the non-party company, as of the end of 2007, the non-party company was the defendant as of the resolution of the enhancement of stocks in this case, and the total litigation amount is KRW 00,000,000,000,000.

2) It appears that there was no sale, appraisal, expropriation, auction, or public sale of the instant shares, other than the instant shares, for three months before and after each of the instant transactions.

[Ground of recognition] Facts without dispute, Gap evidence 4-1 and 2, the purport of the whole pleadings

D. Determination

1) Determination on the first argument

Article 60 (1) of the Inheritance Tax and Gift Tax Act provides that the value of the property on which gift tax is levied shall be the market price as of the date of donation [Article 167 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 2, 2012; hereinafter "Enforcement Decree of the Income Tax Act") provides that the market price shall be the value appraised by applying mutatis mutandis the provisions of Articles 60 through 64 of the Inheritance Tax and Gift Tax Act in calculating unjust act of transfer-oriented income. Article 60 (2) of the Inheritance Tax and Gift Tax Act provides that the market price shall be the value deemed to be normal if a transaction is made freely between many and unspecified persons, and shall be deemed to be the market price as prescribed by Presidential Decree. Article 49 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the market price shall be deemed to be the market price if there is an objective transaction price reflecting the normal appraisal, auction, or public sale price before or after the appraisal date.

In light of the above legal principles, the following circumstances are acknowledged as follows: ① The plaintiffs transfer or take over the shares of this case between persons with a special relationship under Article 98(1)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 2, 2012) and Article 19(2)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. At the time of the transaction, Does which were taken over the shares of this case from Does are three years of age and are merely those of 1 years of age; ② The transaction value of the shares of this case is the result of reasonable price negotiation; ② since each transaction of this case was made at a time similar to three years of age, it cannot be deemed as a normal transaction between many and unspecified persons; ③ the transaction value of the shares of this case can not be deemed as the market value of the shares of this case under Article 90(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and Article 19(2)1 of the Enforcement Decree of the same Act.

On November 25, 2010, the Plaintiff calculated the stock value per share as at the time of the transaction of the non-party company's each of the instant shares. At the time of the transaction of the instant shares, the non-party company's transaction price of KRW 000 or KRW 000 per share is the market value at the time of the instant shares because of the fact that the management situation has significantly deteriorated due to the invasion of real estate competition, excessive debts, failure to recover construction cost, etc. However, the appraisal by the SSS accounting corporation constitutes the market value at the time of the instant shares. However, as seen earlier, it is difficult to view the above 0-year rate for calculating the net value per share of the instant shares under Article 54 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which is applied to calculating the net value per share of the instant shares under the above provision as 0-year rate for calculating the net value per share of 3-year corporate bonds guaranteed by the financial institution, not only the interest rate publicly announced by the Commissioner of the National Tax Service, but also 000-year rate per share.

Therefore, the disposition of this case by the Defendant calculated the market price at the time of the transaction of the shares according to the supplementary evaluation method under the Inheritance Tax and Gift Tax Act is legitimate, and this part of the Plaintiffs’ assertion is

2) Determination on the second and third arguments

According to Articles 60(3) and 63(1)1(c) of the Inheritance Tax and Gift Tax Act, the value of unlisted stocks shall be calculated at the market price as of the base date of appraisal, but in cases where it is difficult to calculate the market price, it shall be assessed by the method prescribed by the Presidential Decree considering the assets and earnings of the relevant corporation. Accordingly, Article 54(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the weighted average value of the profit and loss per share and the net asset value per share with respect to the method of appraisal of unlisted stocks shall be calculated by the amount calculated by dividing the weighted average value of the profit and loss per share for the preceding three years by the interest rate prescribed and publicly notified by the Commissioner of the National Tax Service in consideration of the distribution rate of the company with three-year maturity corporate bonds guaranteed by the pride convergence institution. Meanwhile, according to Articles 54(2) and 55(1)1(2) of the Enforcement Decree of the same Act, the value of the above net asset value per share shall be calculated by dividing the net asset value of the relevant corporation by the net asset value of the relevant corporation, and the amount of the intangible assets.

살피건대, ① 국세청장의 전문적 ・ 기술적 능력의 한계 및 시간적 적응능력의 한계로 인하여 국세청장이 해당 법인의 신용도나 재정상태 퉁을 개별적으로 고려하여 순손익가치환원율을 정하여 고시하는 것은 사실상 불가능할 뿐만 아니라 정세의 효율성이라는 조세정책적, 기술적 요구에도 반한다고 보이는 점, ② 한편, 상속세및증여세법 시행령 제55조 제1항, 제2항에 의하여 비상장주식의 가액을 평가하기 위하여 순자산가액을 산정함에 있어 자산가액에서 공제되는 부채는 그 산정 당시 당해 법인이 종국적우로 부담하여 이행하여야 할 것이 확실하다고 인정되는 채무를 뜻한다고 봄이 상당하고(대법원 2003. 5. 13. 선고 2002두12458 판결 참조), 상속세및증여세법 시행규칙 제17조의2 제1호에의 하면 평가기준일 현재 지급받을 권리가 확정된 경우에 한하여 그 가액을 자산에 가산 하여 계산하도록 규정하고 있어 위 상속세및증여세법 시행규칙 제17조의2 제4호에서 평가기준일 현재 비용으로 확정된 충당금에 한하여 부채에 가산하여 계산하도록 한 경우와의 균형을 맞추고 있고, 한편, 법인세법 제40조 제1항은 내국법인의 각 사업연도의 익금과 손금의 귀속사업연도는 그 익금과 손금이 확정된 날이 속하는 사업연도를 기준무로 하도록 규정함으로써 법인세법 역시 손익의 귀속시기에 관하여 권리의무확정주의를 채택하고 있는 점 등에 비추어 볼 때, 상속세및증여세법 시행령 제54조 제1항, 상속세및증여세법 시행규칙 제17조의2 제4호의 각 규정 및 순손익가치환원율에 관한 국세청장의 고시 규정이 모법인 상속세및증여세법 제63조 제1항 다목 규정이나 상속세및증여세법 제60조 제1항j 제2항에서 정한 '시가' 개념에 어긋난 것￡로서 상속세및증여세법이 정한 위임의 한계를 벗어나 무효라고 볼 수 는 없으므로, 원고들의 이 부분 주장도 이유 없다.

3. Conclusion

The plaintiffs' claims are dismissed in entirety because they are without merit.