Seocho 2012west 1328 (No. 21, 2012)

It is the fact that the profit from donation is generated by participating in capital increase increase through the third party allocation method.

It shall not be deemed that there was no profit from donation deemed to have been accrued solely on the ground that the issue price at the time of capital increase does not exceed the scope of the discount rate under the Securities Issuance Regulations or that there was approval

2012Guhap31809 Revocation of Disposition of Imposing gift tax

KimA

The head of Yangcheon Tax Office

March 8, 2013

April 5, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 000 against the Plaintiff on August 1, 2011 shall be revoked.

1. Details of the disposition;

A. On July 27, 2006, the Plaintiff participated in the capital increase by a third party allotment method of the BBB Tech Co., Ltd. (former trade name is CCC Co., Ltd., and hereinafter referred to as 'the non-party company') (hereinafter referred to as 'the new shares' in this case) and then acquired 806,451 shares per common share (this 'the new shares' in this case) and paid 000 won per share. The Seoul Regional Tax Office notified the Defendant of the details of the investigation by considering the difference between the shares of the non-party company and the acquisition price of the new shares in this case falls short of the market price pursuant to the provisions of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act").

C. Accordingly, the Defendant imposed KRW 000 on the Plaintiff on August 1, 201, pursuant to Article 39(1)1(c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007) (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed a request with the Tax Tribunal on March 2, 2012 on November 1, 201, but the Tax Tribunal dismissed the Plaintiff’s request on June 21, 2012.

[Reasons for Recognition] Unsured Facts, Gap evidence 1, Eul evidence 1, 2, and 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The term "donations under the Inheritance Tax and Gift Tax Act" means the transfer of tangible or intangible property that can calculate economic value to another person without compensation or by means of direct or indirect means, or the increase of property value of another person by contribution. Thus, in order to be lawful the disposition of this case, the plaintiff must have received the transfer of the shares of this case without compensation or at a very low price. However, 00 won, the issue value per share of the new shares issued at the time of the offering of this case, was repealed by Article 2 of the Addenda of the former Regulations on Issuance and Public Notice of Securities (Act No. 209-14, Feb. 4, 2009) with the Financial Services Commission, and the non-party company conducted the offering of new shares with the approval of the Financial Supervisory Service. Accordingly, since the issue value of the new shares of this case is legally calculated according to the Securities Issuance Regulations and the approval of the Financial Supervisory Service, and thus, the related laws and regulations or dispositions of this case are unlawful.

It is as shown in the attached Form.

C. Determination

Article 57(2) of the Securities Issuance Regulations provides that the issue price of new shares issued at the corner of a stock-listed corporation shall be calculated by applying a discount rate of less than 10/100 to the base price. However, in order to ensure the fairness and transparency in the conditions for issuing new shares and the procedure for soliciting subscription, the above provision limits the average closing price for a certain period retrospectively to the base price to be discounted to a certain amount within a certain range (the above provision places a more strict restriction on the degree of discount on the premise that there is a high possibility of allocating profits through public offering in the event of a third party’s capital increase, rather than the general public offering). However, the Plaintiff’s assertion that the issue price at the time of this case’s capital increase did not exceed the scope of discount rate under the above provision, or that there was an approval of the Financial Supervisory Service, cannot be deemed that there is no gift interest deemed to be a donation interest under the Inheritance Tax and Gift Tax Act. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

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