Where the capital increase has been made by a bondholder who has issued preemptive rights by exercising the preemptive rights, it shall be limited to an inappropriate case under the proviso of Article 63 (1) 1 (a) of the Inheritance Tax

The proviso of Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act does not stipulate "whether the capital is a capital increase accompanying the ex-rights" as a requirement for its application, and since the exercise of preemptive rights by a bondholder with preemptive rights shows the effect of dilution of the shares that are lower than the previous price, it is reasonable to view that the proviso does not affect the share price, thereby falling under the provisions of the proviso.

2013Guhap2433 Revocation of Disposition of Imposition of Gift Tax

Gangwon A

BB Director of the Tax Office

July 5, 2013

September 6, 2013

1. The plaintiff's claim is dismissed.

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

On January 2, 2012, the Defendant revoked the part of the imposition of gift tax OOO on the Plaintiff exceeding KRW OO in the imposition of gift tax.

1. Circumstances of dispositions;

A. On January 15, 2007, the Plaintiff participated in the CC Co., Ltd. (the trade name before the modification is 'CCC Co., Ltd.'; hereinafter 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the ''' was 'the 'the 'the 'the 'the 'the 'the ' the ' the ' the ' the ' the ' the ' the ' the ' the ') of the 'the ' the '

B. On the other hand, on January 10, 2007, before the Plaintiff acquired the instant shares, 383,800 shares were issued by Nonparty Company’s exercise of the preemptive rights by Nonparty Company’s bearers, and 1,402,416 shares were issued by Nonparty Company’s exercise of the preemptive rights by Nonparty Company’s holders, and 1,402,416 shares were issued after the Plaintiff acquired the instant shares.

C. In order to calculate profits from capital increase under Article 39 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007, hereinafter referred to as the "Inheritance Tax and Gift Tax Act") and Article 29 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 19899 of Feb. 28, 2007, hereinafter referred to as the "Enforcement Decree of the Inheritance Tax and Gift Tax Act"), the defendant calculated the "evaluation value per share before and after the capital increase under Article 29 (3) 1 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act" on the ground that the capital increase was made more than twice before and after January 15, 2007, the issue value of the shares in this case should be calculated by considering the "O20, 1000 won and 20,000 won per share ("O20,000 won and 17,000 won per share).

D. The Plaintiff sought a judgment on March 16, 2012, while the Tax Tribunal dismissed the Plaintiff’s request on October 30, 2012.

[Ground of Recognition] Unstrifed Privateities, Gap evidence 1 to 4, and Eul evidence 1 (each number includes numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The proviso of Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act may apply only to cases where there exists "the capital increase accompanied by the acquisition of rights" before and after the evaluation base date. In this case, two times before and after the acquisition of the shares of the non-party company is based on the exercise of the preemptive rights by the non-party company's holders. Thus, the proviso of Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act cannot be applied since the above capital increase caused a change in the stock price by the non-party company's preemptive rights. Therefore, "the evaluation value per share before and after the capital increase under Article 29 (3) 1 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act" should be calculated based on the average market price at the Korea Stock Exchange, which is published before and after the evaluation base date under the main sentence of Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act, and accordingly, the defendant calculated the market price of the shares as the market price of the non-indicted's.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) 상속세및증여세법 제39조 제1항 제1호 다목은 법인이 자본을 증가시키기 위하여 새로운 주식 또는 지분을 발행함에 있어 신주를 시가보다 낮은 가액으로 발행하는 경우， 당해 법인의 주주가 아닌 자가 당해 법인으로부터 신주를 직접 배정받음으로써 얻은 이익에 상당하는 금액을 증여받은 것으로 규정하고 있고， 같은 법 시행령 제29조 제3 항 제l호， 제4항은 위 이익은 주금납입일을 기준으로 하여 ㉮ "[(증자 전의 1주당 평가가액 × 증자 전의 발행주식총수) + (신주 1주당 인수가액 × 증자에 의하여 증가한 주식 수)] + (증자 전의 발행주식총수 + 증자에 의하여 증가한 주식 수)"의 산식으로 계산한 1주당 가액과 증자 후 1주당 평가가액 중 적은 금액에서 ㉯ 신주 1주당 인수가액 을 차감한 후，㉰ 배정받은 신주 수를 곱하여 계산하도록 규정하고 있다.

Meanwhile, Article 60 (1) of the Inheritance Tax and Gift Tax Act provides that the value of property on which gift tax is levied shall be the market price as of the date of donation (hereinafter referred to as the "base date for appraisal"), and that the value evaluated by the method of appraisal under Article 63 (1) 1 (a) of the Enforcement Decree of the same Act shall be deemed the market price, and Article 63 (1) 1 (a) of the same Act provides that stocks and equity shares traded on the Korea Stock Exchange shall, in principle, be evaluated as the average value of the closing price ( regardless of whether they have transaction records) at the Korea Stock Exchange before and after the base date for appraisal, and that, in cases where it is inappropriate to calculate the average amount, due to a cause such as a increase or merger during two months before and after the base date for appraisal, the average amount of the period calculated under the conditions as prescribed by the Presidential Decree between the two months after the base date for appraisal and the date before or after the base date for appraisal, and Article 52-2 of the Enforcement Decree of the same Act provides that the same Act shall be calculated under the following provisions:

(2) 이 사건에 관하여 샅피건대， 앞서 본 사실관계에 이러한 법령의 규정 형식， 문 언 및 체계를 비롯하여 상속세및증여세법 제63조 제1항 제1호 가목 단서의 입법취지 등을 종합하여 알 수 있는 다음과 같은 사정들을 고려해 보면， 신주인수권부 사채권자가 신주 인수권을 행사하여 증자가 이루어진 경우는 상속세및증여세법 제63조 제1항 제1호 가목 단서 소정의 '평균액계산에 있어서 평가기준임 이전 ・ 이후 각 2윌간의 기간 중에 증자 ・ 합병 등의 사유가 발생하여 당해 평균액에 의하는 것이 부적당한 경우'에 해당한다고 봄이 타당하다.

① Under the proviso to Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act and Article 52-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the method of calculating the appraised value of shares traded on the Korea Stock Exchange according to the average amount of the period calculated under Article 52-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the method of calculating the appraised value of shares when new shares are issued due to capital increase or merger, etc., it is necessary to apply the provisional average value of shares in the same state as the shares as of the evaluation base date, taking into account these factors.

② The proviso of Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act does not stipulate "whether the capital is a capital increase accompanying the acceptance of rights" as a requirement for its application, and only the case where it is inappropriate to be based on the average amount in question due to the occurrence of reasons such as capital increase or merger."

(3) The acceptance of a right refers to a measure to decrease the price of a right, which is a theoretical price calculated as a result of the extinction of a preemptive right conferred on the Gu after the lapse of the date on which new stocks are allocated, and the acceptance of a right is premised on the acceptance of new stocks by a third party other than the former shareholder, and there is no concept of the acceptance of a right in cases where new stocks are underwritten by the former shareholder.

④ However, in the event that a third party who is not the former shareholder receives new shares, the former shareholder’s right to control the company in proportion to the shares is weakened, and the net asset value per share formed by mixing new and old shares with new and new shares due to the occurrence of new shares shows the effect of dilution of the shares that are lower than the previous price, and thus, it cannot be deemed that this does not affect the share price.

(5) Where a bondholder who has issued preemptive rights has acquired new stocks by exercising the preemptive rights, the previous bonds shall continue to exist as they remain, and thus the price for new stocks is introduced into the capital of the company issuing new stocks and the number of stocks increases, thereby affecting the existing stock price.

(6) The Plaintiff asserts that capital increase by the third party falls under the proviso to Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act, and that capital increase by the exercise of the preemptive rights by the third party does not fall under the proviso to the above, but there is no concept of the revocation of rights, and that both capital increase by the third party allocation method and the capital increase by the exercise of the preemptive rights by the preemptive rights-holder themselves affect the price fluctuation, and there is no reasonable

7. General Rule 63-02(1) of the Inheritance Tax and Gift Tax Act provides that “the day following the day on which the said cause occurred” under Article 52-2(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to the day on which the said cause has occurred, but this can be interpreted as the day following the day on which the cause of the increase in the capital occurred in the case of an increase in the capital which requires the ex-right, and it is difficult to interpret that the proviso of Article 63(11)1(a) of the Inheritance Tax and Gift Tax Act provides the same as the day of ex-right

(3) Therefore, the Defendant’s assessment of the value per share before and after the capital increase in the instant shares under the proviso to Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act is justifiable in calculating the donation profits at the market price calculated accordingly, and the Plaintiff’s aforementioned assertion on a different premise is without merit.

3. Conclusion

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