Cho High Court Decision 2013west0349 ( October 28, 2013)

Since the transfer cost is unclear, the disposition imposing gift tax is unlawful, deeming that there was a gift of profits from transfer at a higher price.

It is difficult to deem that the Plaintiff transferred the shares at a price significantly higher than the market price because it is unclear that the Plaintiff did not actually belong to the Plaintiff and what the Plaintiff received in return for the transfer of shares, such as the payment of the total amount of the deposited transfer price and the payment to the transferee, etc.

Inheritance Tax and Gift Tax Act Article 35(1) of the Inheritance Tax and Gift Tax Act: Donations of profits from transfer at low price

2013Guhap59835 Revocation of Disposition of Imposition of Gift Tax

IsaA

Samsung Head of Samsung Tax Office

March 20, 2015

May 15, 2015

1. The Defendant’s imposition of gift tax of KRW 9,529,682,770 (including additional tax) against the Plaintiff on March 21, 2012 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On December 12, 2006, the Plaintiff entered into a contract for acquisition of stocks and management rights to transfer 56,400 shares (60% of all shares) issued byCC (hereinafter referred to as “CC”) to OOO(OOO) on a stock company BB (hereinafter referred to as “B”), and reported and paid capital gains tax OOOO in accordance with the transfer value of the above shares on May 31, 2007.

B. The director of the Central Regional Tax Office of China conducted an integrated investigation against BB and notified the Defendant of the relevant taxation data by deeming that BB, in light of the complementary assessment methods as stipulated by the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “Gift”), was an OO but was not a related party, received stocks of the saidCC at a price considerably higher than the market price without justifiable grounds in light of transaction practice.

C. On March 21, 2012, the Defendant imposed on the Plaintiff the gift tax and the additional tax OOOO (the deduction of the pre-paid OOOO won, such as paragraph (b)) (hereinafter “instant disposition”).

D. On November 21, 2012, the Plaintiff filed a request for an inquiry with the Tax Tribunal, but was dismissed on June 28, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 12, and Eul evidence 7 (including provisional number; hereinafter the same shall apply)

2. Whether the instant disposition is lawful

(a) Relevant statutes;

It is as shown in the attached Form.

(b) Fact of recognition;

1) Around November 2006, UND, DoE, KimF (owned in the name of GG), HH, Kim II, and J owned 100% of the shares of KK Co., Ltd. (hereinafter “K”), the Plaintiff owned 60% of the shares of CC, and the HongL owned 100% of the shares of MF Co., Ltd. (hereinafter “M”). At the same time, MM was holding approximately 26.07% of the shares of 26.07%, and RedLL secured management rights.

2) On November 16, 2006, K’s shareholders and UND representing the Plaintiff agreed to acquire all of K’s shares and 60% of the Plaintiff’s shares, and red LL agreed to transfer all of the shares of K to UDR to JJ, etc. (as for K’s shareholders who did not participate in the following series of processes, cash OOOOOOs are refunded).

3) In accordance with the above agreement on December 12, 2006, UND et al. transferred K K 3,251,652 shares (100% of the issued shares) to OOO(OOA) on December 2B, 2006, and the Plaintiff, who participated in the above agreement, transferred 60% of theCC shares to BB on the same day.

4) The cash flow pertaining to the above stock acquisition agreement on December 13, 2006 is as follows.

○○ B transferred OOOwon to the account of UD and H, and OOOOOwon to the Plaintiff’s account. UD, HH, and the Plaintiff transferred OOOwon in the form of a loan to NN Co., Ltd. (hereinafter “N”) according to the RedL proposal. N also remitted OOwon to NM in the form of a loan.

○○ MM paid out of the above OOO as the price for subscription for new shares (2.9 million shares) to BB, and the remaining OOO paid to HongL.

5) On December 21, 2006, BB remitted a total of OOOO won to the account of UD as the price for acquisition of the above stocks to the account of OOO or H. On the same day, OOO won was withdrawn from the account of OO or H as the check and the total sum of OOO was paid to Y.

6) On December 22, 2006, UDR took over redL and 100,000 shares of MM (10% of the shares issued), BB shares 4,125,72 shares (39% of the shares issued shares) to OO. However, UDR entered into a contract on acquisition of shares and management with the condition that the shares of PPP corporation (hereinafter “PP”) owned by B transfer 3,083,33 shares of PP corporation (hereinafter “PP”) to a person designated by SPL or RedL, and the Plaintiff did not acquire shares, although the shares were transferred to a person designated by UDR around June 5, 2007.

7) The cash flow pertaining to the instant stock acquisition agreement on December 22, 2006 is as follows.

○ B transferred the Plaintiff’s account as the purchase price of the instant shares to the Plaintiff’s account, including the sum of the OOO directors and OOO directors, to the Plaintiff’s account.

○ HeadH withdrawn the total amount of the above money and paid OOO Won as the subscription price for BB convertible bonds under the name of the minority shareholders of KK.

○ B transferred the Plaintiff’s account as the purchase price of the instant shares to the Plaintiff’s account, OOO and DoE’s account, and OOO and DoE’s account in Kim II.

○ The head of H paid OOOO to HongL after withdrawing the full amount of the above money.

8) On January 11, 2007, BB remitted OOO to the account of UDR as the purchase price of the instant shares, and UDR withdrawn OOOO on the same day, and paid KOOOO as the transfer price to JJ by withdrawing OOO, and OOOO as of the following day.

9)CC was exempted from default upon receiving approximately OOOO funds from BB during the above transaction process.

10) From September 11, 2007 to March 31, 2011, the Plaintiff’s account was transferred from MM and N to the Plaintiff’s account.

11) Meanwhile, at the time of the stock acquisition agreement, the acquisition price per share by means of complementary assessment methods is an OOO.

[Reasons for Recognition] A without dispute, entry of Gap evidence 13 through 26, 28 through 30, and statement of H by a witness

C. Determination

1) In cases of transfer or acquisition of property between a person who is not a specially related person, if property is transferred or acquired at a price considerably higher than the market price without justifiable grounds in light of transactional practices, the amount equivalent to the difference between the price and the time should be presumed to have been donated (Article 35(2) of the Inheritance Tax Act). The tax authority should prove that the transfer of property at a price considerably higher than the market price was made and that there is no justifiable reason in light of transactional practices (see Supreme Court Decision 2011Du22075, Dec. 22, 201)

Therefore, this paper first examines what the plaintiff received the transfer price ofCC shares, and then examines whether the price constitutes a " significantly high price" if there is such price, or a " significantly high price" if there is no justifiable reason in light of transaction practices.

2) As a result of a series of trade processes, including a stock acquisition agreement, etc. in the instant case, the circumstances of interested parties, other than the Plaintiff, are as follows:

The shareholders, i.e., UD, HH, DoE, and KimF, of KK acquired MM shares in return for transferring K shares to BB, and through MM, K again can be controlled by B and B through B.

○ Hong L acquired the cash of the PP stocks and the OOO of the stocks in return for the transfer of MP’s stocks to the shareholders of KK.

○ BB paid approximately KRW OO as the acquisition price of the above stock acquisition agreement, but collected approximately KRW OO(OO, approximately OOO, and KRW P stock transfer price) among them, and KK andCC acquired shares and management rights.

○CC was able to avoid the crisis of insolvency by receiving funding from BB by OOO members.

In full view of the above points, the acquisition price for the shares by the shareholders of K, such as UD, for the shares of K is not KRW OO, which is the acquisition price for the shares of K, but KRW M shares. The change in the corporate governance structure of K,CC, B, and MM through the aforementioned series of transactions was caused through the above series of transactions, andCC could escape from the insolvency crisis by receiving financial support from BB due to the change in the governance structure. Ultimately, according to the management judgment of the parties to each transaction, the above share acquisition contract was concluded, and the price is determined.

3) Meanwhile, the flow of cash deposited in the Plaintiff’s account is as follows.

○ B transferred the Plaintiff’s account to the Plaintiff’s account on December 13, 2006, and the sum of OOO directors on December 22, 2006, but the said money was fully withdrawn and paid to B or HongL.

In particular, an OOOO member deposited into the Plaintiff’s account on December 22, 2006, was transferred in sequence from the Plaintiff’s account to N and MM’s account in the form of loan on the same day. MM paid this amount to BB as the capital increase. However, N is an enterprise introduced to avoid the bypass listing regulation if the red LL amount from BB is immediately made to MM, and it is an enterprise introduced to avoid this regulation. In light of the fact that the Plaintiff, N, and MM did not have claimed the payment of principal and interest between the Plaintiff, N, and MM, it appears that the form of loan was used to keep a stalking of monetary transactions.

○ Meanwhile, from September 11, 2007 to March 31, 2011, the Plaintiff’s account was transferred from MM and N to March 31, 201, however, considering that HH stated that the said money was used to pay the costs incurred during a series of transactions and the Plaintiff’s capital gains tax, it is difficult to view it as compensation for the Plaintiff’s stock transfer.

The cash flow of the Plaintiff’s account does not actually belong to the Plaintiff. The amount of money deposited into and withdrawn from the Plaintiff’s account was dealt with by H, and the Plaintiff did not acquire MF’s shares, unlike other KS shareholders. Although CC, which it operated, obtained the benefit that it would have been able to escape from default by receiving financial support from BB, it would be the benefit accrued by the change of corporate governance through a series of transaction processes rather than the price that the Plaintiff acquired. The evidence submitted by the Defendant alone is difficult to deem that the Plaintiff had proved that the Plaintiff transferred CC shares at a price significantly higher than the market price, and it is unclear what it received in return for the transfer of shares, and there is no specific data for calculation of the price.

4) In full view of such a series of processes and circumstances, it is difficult to view that the Plaintiff acquired gift benefits by transferringCC stocks to BB at a very high price without justifiable grounds, and thus, the instant disposition based on such premise is unlawful.

3. Conclusion

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