Early High Court Decision 2009Du4052 (No. 28, 2010)

It constitutes a stock title trust, and a disposition imposed by evaluating the market price as a supplementary assessment method is legitimate because it is not possible to confirm the market price.

In light of the fact that the plaintiff seems to have paid the acquisition price of shares, it is reasonable to deem that the company held the title trust of shares. Since the value of shares claimed by the plaintiff is deemed to be the general market price reflecting the objective exchange value, and it is insufficient to recognize the window dressing accounting, a disposition imposed by evaluating the value of shares as a supplementary evaluation

2010Guhap5708 Revocation of Disposition of Imposition of Gift Tax

LAA

○ Head of tax office

April 7, 2011

May 12, 201

1. The plaintiff's claim is dismissed.

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

The Defendant, on August 18, 2009, designated the Plaintiff as a joint and several taxpayer, and revoked the disposition of imposition of KRW 245,973,00.

1. Details of the disposition;

A. The largestA and the Plaintiff owned 1/2 (375,00 shares) each of the above company's non-listed shares of 750,000 shares as a joint representative director of ○○○ (the company of this case before December 17, 2001: hereinafter referred to as "the company of this case"). On October 29, 2001, the largestA transferred 375,000 shares of the above company's non-listed shares to 30,000 shares to 30,000 shares of 30,000 shares and 30,000 shares of the above company's shares (hereinafter referred to as "the shares of this case") to 30,00 shares and 112,50 shares (hereinafter referred to as "the shares of this case"), 200 shares and 30,000 shares of the above company's shares to 20,000 shares and 30,000 shares (hereinafter referred to as "the above shares of this case").

C. From November 1, 2005 to April 11, 2007, the Defendant conducted a tax investigation with respect to the above company, and assessed the price per share of the instant 1,2, and 109 won per share as the largest shareholder and applied 30% of the premium rate for 10,542 won, and subsequently, determined that each of the instant 1,2, and 3 shares was nominal in the name of the Plaintiff and returned to B, P, E, and D. Based on the supplementary method under the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as the “Inheritance Tax and Gift Tax and Gift Tax and Gift Tax Act”), the Defendant determined that the gift tax of the instant 1,2, and 300,542 won was the largest shareholder of the instant 8,109 won, and decided to 30,010,000 won per share of the instant 30,196,200

D. Accordingly, on October 9, 2007, AB and ACC filed a request with the Tax Tribunal for a trial, and on January 20, 2009, the Tax Tribunal rendered a decision to revoke the imposition of each gift tax on the grounds that it is unfair to deem the Plaintiff as the donor on the ground that the pertinent shares were owned by the LA from the beginning of the year, and that the transfer price was paid from the Plaintiff. However, the Tax Tribunal rendered a decision to revoke the imposition of each gift tax (the first instance court 2007ever 4022) on the grounds that the gift tax was unreasonable.

E. Accordingly, on May 7, 2009, the Defendant: (a) purchased the instant shares from the LA; and (b) deemed that the Plaintiff held title trust of the instant shares 1 and 2 to B and PCC; and (c) imposed KRW 204,109,500 on B as gift tax on the instant shares 1 and 2 on October 29, 2001; and (d) imposed KRW 95,291,000 on PCC, respectively.

F. Meanwhile, on August 18, 2009, the Defendant: (a) designated the Plaintiff as a person jointly and severally liable for tax payment of OD and imposed gift tax of KRW 245,973,000 on the Plaintiff, calculated as follows: (b) on November 30, 2009, on the ground that it was difficult to secure the tax claim due to the Plaintiff’s failure to reside in the domicile on his resident registration as of August 18, 2009; and (c) on November 30, 2009, the Plaintiff deemed that OD held the title trust of the instant three shares to OD and imposed gift tax of KRW 245,973,00 on the instant three shares on October 29, 201.

G. On October 29, 2001, the transfer date of the instant 1, 2, and 3 stocks, the date of appraisal as of October 29, 2001, the Defendant, using a supplementary assessment method under the Inheritance Tax and Gift Tax Act, on the ground that there is no data that can assess the market price of the instant company’s stocks as of the base date, calculated as 4,675 won per share (net value of profit and loss) based on the weighted average amount of net profit and loss for the latest three years, and calculated as 6,081,720,184 won per share calculated on the basis of the corporate tax return and financial statement as of the end of the year 200 of the instant company’s total number of issued stocks (net asset value) by applying 30% per share to 8,109 won of net asset value which is higher than the net profit and loss, and then assessed as 10,542 won per share by applying the premium rate of 30% per major shareholder.

H. The Plaintiff appealed and filed an appeal on November 17, 2009, but the Tax Tribunal dismissed the Plaintiff’s appeal on January 28, 2010.

[Reasons for Recognition] Facts without dispute, entry B in the evidence of Nos. 1 to 5 (including a tentative number) and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Main argument

Since the Plaintiff is not the Plaintiff, and the Plaintiff cannot be deemed to have held title trust with ASEAN, the instant disposition against which gift tax was imposed by designating the Plaintiff as a joint and several tax obligor is unlawful.

(2) Preliminary assertion

Even if the Plaintiff had held the title trust of the three shares of this case to OrD, ① the Plaintiff and OrB acquired approximately KRW 187,500,000 per share from the leastA as stated in the evidence No. 1 (Agreement), so the donation price of the one share of this case is KRW 6,400 per share (=120,000 + KRW 187,500 per share). In this case, the price per share should be recognized at the above price. ② Even according to the supplementary method, the company of this case had a separate accounting for sales in November and December of 201 and over-sale of inventory assets for 2001, but the Defendant assessed the net asset value of the company of this case from the net asset value of KRW 36,00 per share for 30,000 per share without reflecting it in applying the supplementary method of appraisal at the time of calculating the value of the property. Accordingly, the net asset value of the company of this case from the 2016,614,016,2016.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

(1) Judgment on the main argument

As seen earlier, ADD did not have the ability to pay the acquisition price of the shares as a delinquent taxpayer at the time of acquiring the shares of this case, until now, it is unclear whether the acquisition price of the shares of this case was paid or not, and financial data related to the payment was not submitted at all. OB, EB, and ECC appears to have not paid the purchase price of shares of this case to LA. In the end, the Plaintiff appears to have paid the purchase price of shares of this case on behalf of OB, ECC, and EA, EB, EA, and ECC. It appears to have paid the purchase price of shares of this case to LA. In the end, IB did not report and pay gift tax on the acquisition price of shares of this case on behalf of OB, EA, and OB had received shares from the Plaintiff. In light of the fact that EA was unable to clarify the payment of the purchase price of the shares of this case, and the status relationship between the Plaintiff, LA, LB, and OD, the Plaintiff’s assertion that each part of this case is reasonable.

(2) Judgment on the conjunctive assertion

(A) As to Section (1):

In the case of unlisted stocks not listed on the Korea Stock Exchange, if there is an example of the transaction that seems to properly reflect the objective exchange values, such price shall be deemed the market price. However, if there is no such example or it is difficult to calculate the market price in any other way, the value thereof shall be assessed in accordance with the complementary evaluation methods under the Act. Here, the market price refers to the objective exchange price formed through normal transaction in principle, and there is a reason to view that the transaction price falls under the market price at the time of donation as an objective view of the objective transaction price, and that the transaction price properly reflects the general and normal exchange value (see Supreme Court Decision 9Du2505, Feb. 11, 200).

According to the Gap evidence No. 1 (Agreement), the plaintiff and GapB decided to acquire 187,500 shares of the company of this case from the LA on August 20, 201. The plaintiff and Eul paid 200 million won to LA until the end of August 2001, 12, and 200 million won until the end of June 2002, and transferred 30 billion won to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ③ It is acknowledged that the plaintiff's wife, the plaintiff and specially related persons as the plaintiff and the plaintiff, the market price of the shares of this case were 1,200 million won at the time of transfer, and there is no objective reason to acknowledge that the market price of the shares of this case was 1,300 billion won at the time of transfer.

(b)As to Section B:

1) Article 60(1) of the Inheritance Tax and Gift Tax Act provides that "the value of an asset on which gift tax is levied under this Act shall be based on the market price as of the date of donation (hereinafter referred to as "the base date for appraisal")," Paragraph (3) provides that "in cases where it is difficult to calculate the market price in the application of the provisions of paragraph (1), it shall be based on the appraised value under Articles 61 through 65 in consideration of the type, scale, transaction circumstances, etc. of the asset in question," and Article 63(1)1 (c) of the Inheritance Tax and Gift Tax Act provides that "in cases where it is difficult to calculate the market price, the value according to the so-called supplementary valuation methods" shall be deemed to be "the net asset value per share of the corporation and the net asset value per share in the latest 6th anniversary of the net asset value of the corporation" as "the net asset value per share" calculated by dividing the value of the non-listed stocks by the weighted average of 3 years per share into "the net asset value per share" and the net asset value per share.

Meanwhile, the burden of proving the net asset value is, in principle, a tax authority. However, in calculating the net asset value of the relevant corporation as of the date of transfer, exceptional circumstances, such as where the assets of the relevant corporation are different from the balance sheet or where the assets of the relevant corporation exist, are disputed (see Supreme Court Decision 2002Du12458, May 13, 2003).

2) The Plaintiff asserted that there was a window dressing accounting prior to the business year 2002. However, the Plaintiff only asserts the possibility of window dressing accounting, and there is no assertion or proof as to which account is divided to some extent (the above appraisal result is difficult to accept as it is because there is an issue of excessive appropriation). According to the evidence No. 2, the court appraiser Park Jong-E in the related case is calculated as KRW 3,120,406,538 of the company's sales from January 2001 to October 10, 200-3,120,406,538 of the company's profits and losses for the limited period. However, the above appraisal is dependent on the materials and statements submitted by the company of this case, and there is no proof that there is a difference in the sales amount that has not been a long time, and it is difficult to accept the above appraisal result as it is, and there is no evidence to find that there is no other evidence that the Plaintiff's net assets of this case were 3,000,00.

3. Conclusion

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