Whether it is legitimate to include the amount of real estate transferred in the value of the property

Since the right to be paid by the non-party company as of the date of donation cannot be deemed to be the final value of the property, the disposition imposed by including it in the value of

Article 60 of the Inheritance Tax and Gift Tax Act:

Article 63 of the Inheritance Tax and Gift Tax Act

1. The part of the judgment of the court of first instance against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s disposition of imposition of gift tax of KRW 34,841,470 against the Plaintiff on March 1, 2004 that exceeds KRW 6,642,518 shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be five minutes, one of which shall be borne by the plaintiff, and the remainder by the defendant.

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of gift tax of KRW 34,841,470 against the Plaintiff on March 1, 2004 shall be revoked.

We examine the grounds of appeal.

1. Details of the disposition;

The following facts may be acknowledged in the absence of disputes between the parties or in full view of the purport of the whole pleadings in the statement in one to three of subparagraph 1 above.

A. On March 31, 1999, the Plaintiff donated 3,00 shares of the non-party company, a non-listed stock company, ○○○, a representative director of ○○○ Company (hereinafter “non-party company”), and assessed the price per share of the shares of this case as KRW 8,357, and reported and paid gift tax amounting to KRW 3,966,634 on June 30, 199.

B. On April 1, 199, the Defendant: (a) deemed that the right to receive the instant shares as of the donation date of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 79 of May 7, 1999; hereinafter referred to as the “Enforcement Rule of the Act”); (b) deemed that the non-party company’s ○○○ and 1.1 billion won (hereinafter referred to as “the instant issue amount”) donated by the non-party company to ○○ and her husband, the husband of the non-party company, falls under the final value of the instant shares as of the donation date of the instant shares; and (c) added it to the appraised asset; and (d) accordingly, adjusted the net asset value of the instant shares to 42,968 won to assess the price per share of the instant shares as 42,968 won; and (d) imposed the amount equivalent to KRW 60 million (hereinafter referred to as “the instant gift tax”) out of the Plaintiff’s capital increase for consideration on 19.

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

(1) Plaintiff

(A) It was true that ○○○ deposited the issue amount of this case into the non-party company on April 1, 199. However, ○○○ and the previous ○○ did not declare that the instant issue amount was donated to the non-party company by March 31, 1999, which was the date of donation of the instant shares to the Plaintiff, or concluded a donation contract with the non-party company. Thus, the key amount of this case does not constitute the determined value of the right to be paid as of March 31, 199, which is the date of donation of the instant shares.

(B) In addition, on April 19, 199, ○○○ paid the instant capital increase to the Nonparty Company instead of the Plaintiff, but on April 23, 1999, the Plaintiff paid KRW 60 million to ○○○○ through Kim○ on April 23, 199.

(C) Therefore, under the premise against this, the instant shares were assessed by adding the key amount to the assets of the non-party company, and the instant disposition that deemed that the Plaintiff was donated with the subscription price for new shares was unlawful.

(2) Defendant

The donation date of the instant shares is April 1, 199, and the amount of the instant shares deposited in the non-party company is part of KRW 2.3 billion, which was donated by the non-party company from ○○○ and Jeon○○, a major shareholder, and the right to receive the instant shares was already determined before the donation date, and thus, the amount of the instant issue should be added to the non-party company’s assets at the time of assessing the value of the instant shares. In addition, since the instant shares issued was donated to the Plaintiff, the instant disposition is lawful.

(b) Related statutes;

Attached 1. The entry of "relevant Acts and subordinate statutes" is as follows.

C. Determination

(1) Facts of recognition

The following facts are not disputed between the parties, or there is no dispute between the parties, Gap evidence Nos. 1, 2, 3-1 evidence Nos. 3, Gap evidence Nos. 4, 5-1 through 4, Gap evidence Nos. 6 through 8, Gap evidence Nos. 9, 10-1, 2, Gap evidence Nos. 14, 15, 16-1, 2, Gap evidence Nos. 17, 17, 20-4, and 18, 19, part of the evidence Nos. 18, 00, and 00 testimony No. 18, 19-1, and part of the testimony No. 19-1, 19-1, 19-2, and 00-1, 19-18, 19-2, and 19-2, and the testimony of the court of first instance is not contrary to the purport of the whole pleadings.

(A) Around 1998, Non-Party Company was responsible for debt obligations, such as the low business performance and the failure to receive money from its customers. In 1999, it was necessary to improve the financial structure due to the aggravation of the financial structure by ○○ Bank’s book and its loan obligations for ○○ Bank’s bookbook and ○○ Bank’s bookbook, which had already arrived or will have arrived at the early maturity of 1999. For this purpose, the consultation on the improvement of the financial structure, such as repayment of loans, was conducted between ○○ and the above banks on March 199.

(B) ○○○ and Jeon Soo-dong jointly owned ○○○○○○○○○, Seoul, and 502.2m2m2 and the 5m2m2 above ground (hereinafter “the instant real estate”) and offered the instant real estate as collateral for loans to the above banks of the non-party company. On March 12, 1999, the instant real estate was sold to ○○○ on March 13, 1999, and then the non-party company paid KRW 80 million to the non-party company on March 13, 199, KRW 40 million on March 31, 199, and KRW 110 million on April 1, 199 to repay each of the loans to the non-party company to the above banks.

(C) On March 24, 1999, ○○○ is the representative director and the major shareholder of the non-party company, who repaid the loans of the non-party company to the above bank amounting to KRW 2.3 billion, and prepared “the restructuring plan for the non-party company in 1999 to improve the financial structure by increasing the capital by 200% during April 199.” On March 27, 1999, ○○○ obtained each approval from ○○ Bank’s Seodaemun branch around March 29 and around March 29, 199.

(D) On the other hand, ○○○○ and ○○○○ drafted a gift contract stating that 2.3 billion won will be donated to the non-party company for the sale price of the instant real estate (Evidence No. 2). The date of preparation is indicated as “ April 1, 1999,” and ○○○ prepared a gift contract stating that ○○○ shall give the Plaintiff the shares of this case by April 1, 199 (Evidence No. 7) and did not specify the date of preparation under the gift contract.

(E) On April 19, 199, the non-party company offered capital increase with new shares in accordance with the restructuring plan. The non-party company paid 60 million won out of the new shares paid to the Plaintiff by ○○○.

(F) Meanwhile, since April 29, 1998, ○○ is holding 5,332 shares of the non-party company while serving as a director of the non-party company.

(2) Determination

(A) The donation date of the instant shares

In light of the above facts and the above evidence, the list of shareholders of the non-party company was prepared on April 1, 199, and the date of non-party company's "Gift Tax Base and the date of non-party's donation" submitted to the defendant is stated on April 1, 1999, but the contract was prepared on April 1, 199 to give the plaintiff the shares of this case and the date of the donation was not stated on the date of preparation under the donation contract. The above "Gift Tax Base and the date of the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party 9's non-party 9.

(B) Whether the issue amount of this case deposited in the non-party company on April 1, 1999 falls under the determined value of the right to be paid as of the base date of appraisal under the Enforcement Rule of the Act

However, even if ○○○○○○○○ Company’s representative director sold real estate and obtained an improvement plan to use 2.3 billion won for the repayment of obligations to the above banks, and even if the remainder of 2.3 billion won was deposited in the Nonparty Association prior to the Plaintiff’s donation of the shares, the following circumstances revealed in the above recognition, i.e., (1) the time when the Plaintiff’s donation was actually made after March 31, 199; (2) the time when the ○○○○○○ and the ○○○○○○○○○ Company’s donation of real estate to Nonparty Company’s 9 was indicated in the above ○○○○○ Company’s plan to dispose of the above real estate as collateral, and there was no evidence to view that the ○○○○○ Company’s act of selling the real estate to the ○○○○○ Company’s 900 million won prior to the execution of its obligations; and (3) the 9000 million won was not subject to separate disposal of the real estate.

(C) Whether the price for issuing new shares constitutes a gift

As seen earlier, in full view of the following facts: (a) ○○○ paid the instant shares to the Plaintiff on behalf of the Plaintiff, who is an son; (b) the Plaintiff donated the instant shares to the Plaintiff on the basis of the donation; and (c) there is no objective evidence to deem that the Plaintiff paid the instant shares after the loan between the Plaintiff and the Plaintiff immediately before or after the payment by substitute, it is reasonable to deem that ○○○ donated the instant shares to the Plaintiff; and (b) there is no evidence to deem that the Plaintiff gave rise to the donation of the instant shares to the Plaintiff; and (c) there is no evidence to believe that each part of the evidence No. 18 and No. 19 of the evidence No. 18 and No. 19 of the

(d) a reasonable amount of tax

As seen earlier, the instant disposition, which included KRW 128,904,00, which is the value of donated property calculated under the premise that the right to receive payment of the non-party company as of the date of donation of the instant shares, in the taxable value, is unlawful within the aforementioned scope. Accordingly, once calculating the amount of reasonable deduction and notice of the Plaintiff, it would be KRW 6,642,518, which is the legitimate amount of tax on the attached Table 2.

3. Conclusion

Therefore, the part of the disposition of this case exceeding the above 6,642,518 won is unlawful and thus it shall be revoked. Since the part against the plaintiff as to the above 6,642,518 won in the judgment of the court of first instance is unfair, the part against the plaintiff as to the above 6,642,518 won shall be revoked partially by accepting the plaintiff's appeal and the remaining appeal of the plaintiff

1

Relevant statutes

Article 60 of the Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 1999)

(1) The value of property on which an inheritance tax or a gift tax is levied under this Act shall be based on the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as "date of appraisal"). In such cases, cases falling under the provisions of Article 63 (2) shall be excluded herefrom)

(3) In the application of paragraph (1), where it is difficult to calculate the market price, the value assessed by the methods prescribed in Articles 61 through 65 in consideration of the type, size, transaction conditions, etc. of the relevant property shall be followed.

Article 63 (Appraisal of Oil Prices, etc.)

(1) The appraisal of pay securities, etc. shall be conducted by 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 according to the method prescribed by the Presidential Decree in consideration of corporate assets and revenues

Article 23 of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 16660 of Dec. 31, 199)

(2) In the application of the provisions of paragraph (1), if the assets donated are stocks or investment shares (hereafter referred to as "stocks, etc." in this paragraph), it shall be deemed that the receipt date is the date objectively confirmed that the relevant stocks, etc. have been transferred by payment of dividends, exercise of shareholder's rights, etc.: Provided, That in case where the date of receiving the relevant stocks, etc. is unclear or the address, name, etc. of the acquisitor are entered in the register of stockholders or the register of members before receiving the relevant stocks, etc., such date of transfer or entry shall be the date of entry.

Article 54 (Appraisal of Unlisted Stocks)

(1) Stocks and equities (hereafter referred to as "non-listed stocks" in this Article) that are not listed on the Korea Stock Exchange under Article 63 (1) 1 (c) of the Act shall, except in the case of paragraph (2), be the value assessed by the following formula:

The value per share = The net asset value of the relevant corporation / the total number of issued stocks of the relevant corporation (hereinafter referred to as “net asset value”) + + (hereinafter referred to as “net value of profit and loss”) ± (hereinafter referred to as “net value of profit and loss”) ± 2 in consideration of the average interest rate formed in the financial market for the latest three years per share.

(2) Where any of the following applies to unlisted stocks, the appraised value according to net asset value shall be based on the value of unlisted stocks:

4. Stocks or equity shares the net value of which per share is less than 50/100 of the net asset value per share;

Article 55 (Calculation Method of Net Asset Value)

(1) The net asset value under Article 54 (1) shall be the value calculated by subtracting liabilities from the value appraised under Articles 60 through 66 of the Act as of the evaluation base date.

(2) In applying the provisions of paragraph (1), the amount related to the appraisal of assets and liabilities, such as deferred assets, reserves and allowances, etc., as prescribed by the Ordinance of the Ministry of Finance and Economy, shall be deducted or added from the value of assets

○ Enforcement Rule of the former Inheritance Tax and Gift Tax Act (amended by May 7, 1999)

Article 17 (Appraisal, etc. of Unlisted Stocks)

(3) In the evaluation of assets and liabilities, such as deferred assets, reserves, allowances, etc. under the provisions of Article 55 (2) of the Decree, the methods of deducting or adding the assets or liabilities of the relevant corporation shall be as classified in the following subparagraphs:

1. The value of a right to be paid as of the evaluation base date shall be calculated by adding it to the assets;

2

Justifiable Tax Amount

Classification

Amount (won)

Jinay

Value of donated

85,071,000

25,071,00 won + 60,000,000 won

Value of non-taxable property (-)

0

Value not to be included in taxable value (-)

0

Amount to be borne by obligations (-)

0

Amount of gift tax

85,071,000

The additional amount of the re-donation (+)

56,840,000

Gift tax deduction (-)

30,000,000

Tax Base

111,911,00

세율(х)

20%

calculated tax amount

12,382,200

(1억 원х10％)+(1억 원 초과분х20％)

Tax Credit (-)

3,583,930

Amount of final tax

8,798,270

Penalty tax (++)

1,810,882

1,327,719 won (additional tax on negligent tax returns)

+483,163 won (additional tax for unfaithful payment)

Total final tax amount

10,609,152

Voluntary Payment Tax Amount (-)

3,966,634

Amount of tax notified after deduction

6,642,518