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Title
Appropriateness of deemed donation for the cultivation of forfeited stocks due to capital increase;
Summary
The benefit acquired by the waiver of new shares is deemed to have occurred by accepting forfeited shares, and the object of taxation is not limited to the direct benefit arising from the waiver of new shares. Therefore, the tax disposition is legitimate.
Related statutes
Donation due to capital increase under Article 39 of the Inheritance Tax and Gift Tax Act
Text
1. All of the plaintiffs' claims are dismissed.
2. The costs of lawsuit are assessed against the plaintiffs.
Purport of claim
The Defendant’s imposition of KRW 116,353,300 of the gift tax on May 2, 2005 and KRW 869,020 of the gift tax on Plaintiff Lee ○○○ and the gift tax on Plaintiff U20 shall be revoked in entirety.
Reasons
1. Details of the disposition;
A. On November 2, 2002, the director of the Daejeon Regional Tax Office confirmed that ○○○○○○ (hereinafter referred to as “○○○○”) acquired shares of 34,200 shares (hereinafter referred to as “instant shares”) of the Plaintiffs, which were existing shareholders, at the time of issuing new shares on November 2, 2002 (hereinafter referred to as “instant shares”) to acquire 20,00 won per share of 20,00 shares (hereinafter referred to as “instant shares”) and notified the Defendant that ○○○ (hereinafter referred to as “○○”) acquired shares of 33,750 shares, Plaintiff U20 shares, 450 shares, and 5,00 shares at a face value (hereinafter referred to as “instant shares”) were equivalent to 0,00 won per share, thereby notifying the Defendant of the taxation data under the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as “instant shares”).
B. According to the above notification, the Defendant deemed that the Plaintiffs received 471,754800 won from ○○○○, and thus, on May 6, 2005, the Defendant imposed 869,020 won for the gift tax of KRW 116,353,300 for the gift tax of KRW 465,547,50 on November 2, 2002, and the gift tax of KRW 116,353,300 for the gift tax of KRW 6,207,30 for the gift tax of KRW 6,207,30 for the gift tax of KRW 869,02 on the Plaintiff U2○○ on November 2, 200 (hereinafter “instant disposition”).
C. On the other hand, on February 13, 2007, the Defendant changed the ground for the instant disposition into Article 39(1)2(c) of the Act, Article 29(3)2(a) of the Enforcement Decree, and Article 29(3)3 of the Enforcement Decree (hereinafter “Enforcement Decree of the instant case”).
(In fact that there is no dispute, Gap 1, 2, Eul 1 through 3 (including more than one number), the purport of the whole pleadings.
2. Whether the instant disposition is lawful
A. The plaintiffs' assertion
(1) The issue price of the instant shares is the value calculated by fully taking into account the outlook of the remote medical business at the time, the case of capital increase in the remote medical business, the interests of ○○○○ and ○○ shareholders, who are other major shareholders of ○○○○○, and other factors, and cannot be deemed to have been issued higher than the market price, and thus, cannot be deemed to have been issued at a higher level than the market price under the general and normal transaction, and thus the instant disposition is unlawful.
(2) Although Article 29(3)5 of the Enforcement Decree of the Act provides that, although Article 39(1) and 2(c) of the Act provides for the benefit of the Plaintiffs subject to taxation, the former shareholder who renounced the subscription of new shares is obliged to acquire new shares on the premise that the existing shareholder has a duty to acquire the new shares, the economic benefit that would be exempted from the loss incurred when the existing shareholder acquired the new shares is subject to taxation, and the tax base is expanded by treating the portion exceeding the direct benefit arising from the waiver of the subscription of new shares as the object of taxation. Thus, it is invalid because it deviates
Therefore, the disposition of this case, which is based on the provision of the Enforcement Decree of this case which is null and void, is unlawful (However, although the defendant changed the grounds for disposition, the plaintiffs did not separately assert the invalidity of the provision of the grounds for disposition after changing the grounds for disposition, it shall be deemed to have been asserted in the same ordinary plane as the grounds for disposition after changing the validity by using the previous claim against the defendant at the third day of pleading of this case
(3) The Plaintiffs invested KRW 965,00,000 in ○○○ (○○○○○) as a provisional or short-term loan. Among them, only KRW 696,00,000 could have been recovered, and even if the remaining amount was considered to have incurred investment losses, applying the provision on deemed donation without considering such circumstances is in violation of the substantial taxation principle.
(b) Related statutes;
It is as shown in the attached Form.
(c) Fact of recognition;
(1) At the time of issuing new shares, ○○○○○’s representative director (Resignation on July 29, 2003) at the time of issuing new shares, and the Plaintiff U2○ was the Plaintiff’s spouse, who was the ○○○○○’s auditor.
(2) There was no case where ○○ stocks were sold or appraised within 3 months before or after the date of the instant similar certificate.
(3) Five existing shareholders, including the Plaintiffs, renounced the subscription of new shares at the time of the instant subscription for new shares, and ○○ acquired KRW 45,000 per share that the said existing shareholders renounced.
Stockholders
Prior to the issue of this case
At the time of the instant subscription
Number of Stocks
Equity ratio (%)
Number of Rights Shares
Allocation
Number of Stocks
Equity ratio (%)
○ ○
75,000
75
3,750
Waiver of Acceptance
75,000
51.72
Maap○
20,000
20
9,000
“The”;
20,000
13.79
west ○
3,000
3
1,350
“The”;
3,000
2.07
○○
1,000
1
450
“The”;
1,000
0.69
Han ○
1,000
1
450
“The”;
1,000
0.69
○
45,000
45,000
31.03
Total
100,000
100
45,000
45,000
145,000
100.00
(4) The Defendant calculated the profits (the constructive value of donation) that the Plaintiffs received by distribution from ○○, a person with a special relationship, due to the acquisition of the instant shares by ○○○○, as indicated below, and disposed of the instant disposition.
(1) The appraised value per share after capital increase by issuing new stocks under Article 29 (3) 3 (b): 6,206 won.
(2) Amount of deemed donation: Plaintiff Lee ○○○ 465,547,500 [20,000 won - 6,206 won] X 33,750 shares], Plaintiff U-○ 6,207,300 won [20,000 won - 6,206 won] X 450 shares
(5) Meanwhile, in the case where the share value per share after the capital increase is KRW 0,206 per share, and the share value per share after the capital increase is KRW 6,206, the damages arising from the increase in the shares of the plaintiffs and existing shareholders (the profits of the existing shareholders, etc. are referred to as the result of the increase in the shares (the individual profits of the existing shareholders, etc.) and the high-priced acquisition of ○○○○ shall be as follows: Provided, That the difference in the total profits and losses indicated below -130,00 won per share after the capital increase is calculated as the share value per share after the capital increase is 6,206.8966 won per share (=90,000,000 won/145,000 won per share). The difference arising from the increase in the shares value per share after the capital increase is calculated as 6,206 won (6,206 won per share).
Stockholders
★증자전
Value of shares
After the issue of this case
Number of acquired shares
Acceptance Price
Number of Stocks
Stock Value (ShareX 6,206)
Profits and Losses
○ ○
0
0
0
75,000
465,450,00
465,450,00
Maap○
0
0
0
20,000
124,120,000
124,120,000
west ○
0
0
0
3,000
18,618,00
18,618,00
○○
0
0
0
1,000
6,206,000
6,206,000
Han ○
0
0
0
1,000
6,206,000
6,206,000
○
0
45,000
★★900,000,000
45,000
279,270,000
★★★-620-730-000
Total
100,000
45,000
145,000
89,870,000
-130,000
★ 증자전 주식가치 = 증자전주식수 X 1주당주가, 1주당 주가 =0
★★ 900,000,000 = 45,000X20,000
★★★ -620,730,000 =279,270,000-900,000,000
Facts without dispute, Gap evidence 1, 2, Eul evidence 1 through 3 (including more than one number), the purport of the whole pleadings
D. Determination
(1) Determination on the stock value before and after the capital increase
According to the above evidence and relevant laws and regulations, the value per share of ○○○○ stocks prior to the capital increase is zero won, and the value per share after the capital increase is 6,206, and each statement on the evidence of 3 through 12 (including the above number) is difficult to view that the value per share of ○○○’s acquisition value per share falls under the market price. Thus, this part of the allegation is without merit.
(2) Determination as to the invalidity of the enforcement decree of this case
(A) Determination as to the assertion of inconsistency with profit and loss
Where a corporation issues new stocks or shares (hereafter referred to as "new stocks" in this Article) at a price higher than the market price of the new stocks in order to increase its capital, the legal provision of this case provides that where a shareholder of the relevant corporation waives all or part of the right to receive new stocks, and allocates forfeited stocks, the amount equivalent to the "interest acquired by the person who renounced the new stocks in a special relationship with him/her by accepting the right to receive the new stocks shall be deemed to have been donated."
However, according to the provision of the Enforcement Decree of this case, since the provision of this case provides that the value of the new shares is 3,750 shares per stock (i.e., the value of the new shares issued before the increase) before the increase in the capital / [the total value of the new shares issued before the increase in X 1 + (the number of shares increased by the increase in X 1 shares) ± (i.e., the value of the new shares issued before the increase in the increase in the capital + the number of shares increased by the increase in the total number of new shares before the increase in the capital / (6,206) before the increase in the total number of shares issued by the shareholders who renounced the increase in the capital / (3,750 shares in this case, 45,00 shares in this case) before the increase in the total number of shares issued by the shareholders who renounced the increase in the capital / (400 shares in this case) before the increase in the value of the new shares issued by the shareholders /
Therefore, the value obtained by subtracting the value of Article 29(3)3 (b) of the Enforcement Decree from the value of new shares under Article 29(3)3 (a) of the same Enforcement Decree is the value obtained by subtracting the value of one share after the increase of the new shares from the value of acquisition of the new shares. The economic meaning of such value is the amount of loss incurred by the acquisition of one share under the premise that all new shares are acquired either by anyone or by another group. Therefore, if the number of forfeited shares is multiplied by the number of forfeited shares of the shareholders who renounced the subscription of new shares, the economic meaning of such value is clear that the “economic loss” value refers to the value that a shareholder who renounced the subscription of new shares is relieved by the waiver of the subscription of the new shares. The value obtained by dividing the number of forfeited shares by the number of forfeited shares to the total number of forfeited shares is the economic profit that a shareholder who renounced the subscription ( how to grasp it is a separate issue) which refers to the portion of contribution made by the forfeited shareholders to the forfeited shareholders.
According to such analysis, the provision of the Enforcement Decree of this case is understood to be "loss that a shareholder who renounced the acceptance of new shares was donated to a shareholder who renounced the acceptance of new shares from a special party in the case of high-priced issuance" as "loss that a shareholder who renounced the acceptance of new shares sustained".
However, as in the instant case, the number of new shares was not owned by the company included in the total number of shares issued (i.e., 00 won) and all existing shareholders have renounced the acquisition of new shares and acquired them by a third party (i.e., losses incurred by the shareholders who have renounced the acquisition of new shares due to an elevated value of the new shares) and losses incurred by the purchaser of new shares by acquiring existing shares (i.e., e., 00 won if the issuing company owns its own shares or partially acquired forfeited shares) are equal to the losses incurred by the purchaser of the existing shares (i., e., 60 won, 60 won and 60 won and 60 won and 60 won and 60 won and 60 won and 60 won and 60 won and 60 won and 40 won and 60 won and 60 won and 60 won and 60 won and 600 won and 60 won and 600 won and 750 won and 600 won and -606 won and -206 won and -206 won and -36060 won and won and value of the value of the Plaintiffs calculated pursuant to the above facts.
Therefore, even though the provision of the Enforcement Decree of this case focuses on the same value as the gift amount subject to taxation, even though the loss incurred in the case where the shareholder, who is the preemptive right holder, acquired new shares, was aware of the acquisition of new shares, which is conceptually different in terms of the concept, and thus, the provision of the Enforcement Decree of this case cannot be deemed null and void only for such reasons as in this case.
(B) Determination as to the assertion of taxation on benefits not directly related to the waiver of new shares
However, based on the above discussions, the economic loss of ○○○○○○○ upon the Plaintiffs’ waiver of new shares can be deemed to have occurred from the acquisition of 45,00 shares. Of these profits, ○○○○○○’s profit derived from the waiver of the Plaintiffs’ acceptance of new shares and the acquisition of the new shares by ○○○○○○ constitutes 349,087,498 won (i.e., 465,450,000 won X 33,750,750 won and less than KRW 460,500). From the perspective of the above, ○○○○○○○○○○○○○’s profit, 60,600 won and 606, 606, 606, 4605, 606, 606, 4605, 605, 606, 4605, 605, 606, 4605, 6060
On the other hand, the provision of the Enforcement Decree of this case provides that the shareholder who is the preemptive right holder, not only the direct profit accrued from the waiver of the subscription for new shares, who has acquired new shares, shall be bound to pay the full loss resulting from the acceptance of new shares as the gift amount subject to taxation.
Furthermore, according to the legal provisions of this case, where a shareholder of the pertinent corporation waives all or part of the right to receive allocation of new shares in the case of high-priced issuance of new shares, and where the forfeited shares are allocated, the relevant person who received allocation of forfeited shares shall be deemed to have received the amount equivalent to the benefits acquired by the person who renounced the forfeited shares. Thus, the benefits acquired by the person who renounced the new shares shall be deemed to have been acquired by accepting the forfeited shares, and the said legal provisions are not limited to the direct benefits accrued from the waiver of the subscription of new shares.
In the end, the corporation issued new shares at a price higher than the market price, and the shareholder of the corporation given up the right to receive the new shares, and allocated forfeited shares to the person who given up the right to receive the new shares. If the forfeited shares are acquired at the higher price by the person who given up the new shares, property gains equivalent to the economic losses issued by the person who acquired the forfeited shares will be transferred to the person who given up the new shares as they are (except where a part of the loss is transferred to the issuer who is not the person who given up the new shares, as in this case, on the premise that the profits and losses are the same as in this case). As above, there are parts other than the portion directly contributed by the person who given up the new shares, but this is deemed to be a donation under special provisions in the law, and even if it is imposed on the person who given up the new shares, it is difficult to see that it is unfair to impose the profits already issued in light of the system
Therefore, this part of the argument, which is written on different premise, is not reasonable.
(3) The assertion that the substance over form principle is violated
Although the plaintiffs asserted that the disposition of this case violates the substance over form principle, the disposition of this case cannot be deemed to violate the substance over form principle solely on the grounds alleged above by the plaintiffs (the legal provision of this case aims to regulate the acts of compensating for losses or giving profits by making the plaintiffs acquire the new shares of a company with a special relationship, such as the plaintiffs, at a higher price, and this part of the allegation is without merit.
3. Conclusion
Therefore, the disposition of this case is legitimate, and each of the plaintiffs' claims is without merit, and it is dismissed. It is so decided as per Disposition.
public official law, order of law,
1. The former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002);
○ Donation due to capital increase under Article 39 of the Inheritance Tax and Gift Tax Act
(1) Where a corporation issues new stocks or equity shares (hereafter in this Article, referred to as “new stocks”) to increase its capital (including the amount of investment; hereafter in this Article and Article 39-2, the same shall apply), a person who obtains benefits falling under any of the following subparagraphs, shall be deemed to have received a donation of the amount equivalent to such benefits:
2. In case where new stocks are issued at a price higher than the market price, the benefits falling under any of the following items:
(a) In case where the stockholders of the relevant corporation have renounced wholly or partially the right to receive new stocks, and where the forfeited stocks are allocated, the benefits acquired by the person who received such allocation, by accepting it, from the person who renounced the new stocks in a special relationship;
(b) In case where the stockholders of the relevant corporation have renounced wholly or partially the right to receive the allocation of new stocks, and where the forfeited stocks are not allocated, the benefits acquired by the person who has renounced the new stocks in a special relationship with him;
(c) Profits acquired by a person who is not the stockholders of the relevant corporation from obtaining directly an allocation of new stocks from the relevant corporation, or by taking over directly new stocks in excess of the number entitled to receive an allocation under equal conditions in proportion to the number of the relevant stocks; and
(2) In applying the provisions of paragraph (1) 1, in case where there are not less than 2 minor shareholders who renounced the right to receive new stocks allocated or who obtained the allocation in short of the number entitled to obtain the allocation under equal conditions in proportion to the number of their possessed stocks (including the case where new stocks are not allocated), the benefits shall be calculated by considering that one of the minor shareholders has renounced or obtained the allocation insufficiently
(3) Persons with a special relationship under paragraphs (1) and (2), the scope of minority shareholders, method of calculating profits, and other necessary matters shall be determined by the Presidential Decree.
Article 60 of Inheritance Tax and Gift Tax Act: Principles, etc. of Appraisal
(1) The value of property on which an inheritance tax or a gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 6
(2) The market price under paragraph (1) shall be the price which is considered to be normal in the case of free trade between many and unspecified persons, and shall include the expropriation and public auction price, appraisal price, and others which are recognized as the market price under Presidential Decree
(3) In applying paragraph (1), where it is difficult to compute the market price, the value assessed by the methods prescribed in Articles 61 through 65 in consideration of the type, scale, transaction status, etc. of the relevant property.
(4) In applying the provisions of paragraph (1), the value of the donated property to be added to the value of the inherited property pursuant to the provisions of Article 13 shall be the market price as of
Article 63 of Inheritance Tax and Gift Tax Act: Appraisal of Securities, etc.
(1) The appraisal of securities, etc. shall be made according to the following methods:
1. Appraisal of stocks and investment shares:
(c) Stocks and equity shares not listed on the Korea Stock Exchange other than those under item (b) shall be appraised by the method as prescribed by the Presidential Decree in consideration of corporate assets and revenues
2. The former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17791, Dec. 05, 2002);
Article 29 (Calculation Method, etc. of Value Deemed Donation upon Capital Increase
(1) For the purpose of Article 39 (1) of the Act, the term “person in a special relationship”, and “a person who has accepted or renounced new stocks or forfeited stocks,” means a person who has a relationship falling under one of subparagraphs of Article 19 (2), with the person who does not accept
(3) The benefits which are deemed to have been donated under Article 39 (1) of the Act shall be the benefits which are calculated according to the following classification:
3. Profits prescribed in Article 39 (1) 2 (a) of the Act: An amount calculated by multiplying the amount obtained by subtracting the amount referred to in item (b) from the amount referred to in item (a) by the forfeited
(a) The value of subscribed stocks per stock;
(b) Value per stock calculated by the following formula: Provided, That in case of a corporation falling under any subparagraph of Article 22 of the Enforcement Decree of the Income Tax Act, where the appraised value per stock after the capital increase is larger than the value per stock calculated by the following formula, the relevant value
[The number of stocks increased by the person X increase in the subscription price per new stock] + (the number of stocks increased by the person X increase in the subscription price per new stock)] ¡À(the number of stocks issued prior to the increase + the number of stocks increased by the increaseer).
(c) Number of forfeited stocks by stockholders who have waived subscription for new stocks;
The number of forfeited stocks acquired by a person with a special relationship with a waived stockholder;
X - Profit 】 Profit
Total Number of forfeited Stocks
5. Profits under Article 39 (1) 2 (c) of the Act:
(The value of subparagraph 3 (a) ? Value of new stocks ? Value of subparagraph 3 (b) ? Value of new stocks, or value of new stocks to be allocated under equal conditions, or the number of new stocks to be allocated in short of that,
A special relationship with a stockholder who has not been allocated new stocks or been allocated insufficiently;
number of new shares acquired by such person
XLLL Sheet profit
new shares allocated to persons other than shareholders and the shareholders of such corporation under equal conditions;
Total number of new shares subscribed in excess of the allocated number of new shares
Article 49 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act
(1) For the purpose of Article 60 (2) of the Act, the term “those recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation, public auction price, appraisal value, and appraisal value, etc.” means, in case of sale, appraisal, expropriation, auction (referring to an auction under the Civil Procedure Act; hereafter in this paragraph, the same shall apply) or public auction during a period of not more than 6 months (3 months in the case of donated
1. If the fact of sale and purchase of the relevant property exists, the transaction value: Provided, That this shall not include cases where the transaction value is deemed objectively unfair, such as transactions with persons with a special relationship as referred to in Article 26 (4);
2. In case where there exist the appraisal values of the relevant property (excluding the properties prescribed in Article 63 (1) 1 of the Act) by the reliable appraisal institutions as prescribed by the Ordinance of the Ministry of Finance and Economy (hereinafter referred to as the “appraisal institutions”), the average value of such appraisal values: Provided, That in case where there exist the appraisal values which are appraised by the relevant appraisal institutions as prescribed by the Ordinance of the Ministry of Finance and Economy (hereinafter referred to as “appraisal institutions”), those falling under any one of the following items shall be excluded, and in case where the relevant appraisal values fall short of 80/100 of the values appraised pursuant to the provisions of Articles 61, 62, 64 and 65 of the Act, the head of a tax office (including the regional tax office, etc.;
(a) Values which are not suitable for the payment purpose of inheritance tax and gift tax, such as the assessment of relevant property on the condition that certain conditions are met;
(b) Value of the relevant property not appraised in the original form as of the standard date of appraisal;
3. Where there exists a fact of expropriation, auction or public sale of the property concerned, the amount of compensation, the amount of auction or public sale;
(5) The Commissioner of the National Tax Service may determine detailed matters on the criteria, methods, procedures, etc. for appraisal by property in order to ensure fairness in appraisal of inherited or donated property.
○ Evaluation of Non-listed stocks Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act
(1) Stocks and contribution shares not listed on the Korea Stock Exchange (hereafter in this Article, referred to as “nonlisted stocks”) under Article 63 (1) 1 (c) of the Act shall be the value assessed by the following formula:
The value per share = The weighted average amount of net profits and losses for the latest three years per share ± the rate prescribed by the Ordinance of the Ministry of Finance and Economy in consideration of the average interest rate formed in the financial market (hereinafter referred to as the “net value of profits and losses”).
(2) Where the value of unlisted stocks appraised under paragraph (1) falls short of the value appraised by the following formula, the value shall be the value appraised by the following formula:
The value per share = the net asset value of the corporation ± (hereinafter referred to as the “net asset value”).
(3) In applying the provisions of paragraphs (1) and (2), where a corporation which has issued stocks or investment shares under Article 63 (1) 1 (c) of the Act owns stocks or investment shares not more than 10/100 of the total number, etc. of outstanding stocks of a corporation which has issued other unlisted stocks, the evaluation of the other unlisted stocks may be based on the acquisition value provided for in Article 74 (1) 1 (e) of the Enforcement Decree of the Corporate Tax
(4) In applying the provisions of paragraph (2), “total number of issued stocks” shall be based on the total number of issued stocks as of the evaluation base date.