Seoul High Court 2013Nu21757 (201.08)

Whether the calculation of the gift value of this case is appropriate

If the board of directors and public notice made on the same day and each share price newly formed due to the primary capital increase and the secondary capital increase cannot be divided, the "value per share before the secondary capital increase" shall be calculated on the basis of the day preceding the payment date of the share price as the closing average amount for the period from May 21, 2009 to July 20, 209, which is the day preceding the payment date of share price, from May 2009 to the day preceding the payment date of share price.

Donation of profits from capital increase under Article 39 of the Inheritance Tax and Gift Tax Act

2014Du2560 Revocation of Disposition of Imposing gift tax

Note AAA foreign1

Samsung Head of Samsung Tax Office 1

Seoul High Court Decision 2013Nu21757 Decided 08, 2014

oly, 2016.28

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Defendants are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the assessment method of the instant shares

A. Article 39(1)1 (c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9269, Jan. 1, 2010; hereinafter "the Inheritance Tax and Gift Tax Act") provides that in case where a corporation issues new stocks to increase its capital, a person who is not a shareholder of the relevant corporation obtains profits by directly obtaining allocation of such new stocks from the relevant corporation, the amount equivalent to such profits shall be deemed the value of donated property to the person who has acquired such profits. In addition, Article 29(3)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter "Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that the amount calculated by subtracting the acquisition value per share by 'the number of new stocks issued 】 (the number of new stocks issued 】 the number of stocks increased by 'the number of new stocks issued 'the number of stocks issued 'the number of new stocks issued ')' ' per share.

Meanwhile, the latter part of Article 60(1) of the Inheritance Tax and Gift Tax Act provides that the value of donated stocks and equity shares shall be the value appraised by the method of appraisal as stipulated in Article 63(1)1(a). Article 63(1)1(a) of the Inheritance Tax and Gift Tax Act provides that “The average amount of stocks and equity shares traded in the Korea Securities and Futures Exchange shall be the closing price of the Korea Securities and Futures Exchange ( regardless of whether or not there is a transaction record) every day before and after the appraisal base date: Provided, That in calculating the average amount, where it is inappropriate to determine the average amount on the basis of a cause such as an increase or merger during two months before and after the appraisal base date, the average amount of the period calculated as prescribed by the Presidential Decree between the two months before and after the appraisal base date, and where the cause such as an increase or merger occurs before and after the two months before the appraisal base date, the average amount of the period calculated as prescribed by the Presidential Decree before and after the merger (referring to the date before the appraisal base date; hereinafter the same shall apply):

나. 원심은 ① 주식회사 ●●(이하 '이 사건 법인'이라 한다)가 2009. 7. 7. 제3자 배정방식의 유상증자(배정대상자: 조△△와 안▲▲, 발행가액 1주당 ○○,○○○원, 발행주식수 ●●,●●●주, 주금납입일 2009. 7. 9., 이하 '1차 증자'라 한다)를 결의하고 공시한 사실, ② 이 사건 법인은 2009. 7. 8. 제3자 배정방식의 유상증자(배정대상자: 원고들을 비롯한 7인, 발행가액 1주당 ○○,○○○원, 발행주식수 ●●●,●●●주, 주금납입일 2009. 7. 21., 이하 '2차 증자'라 한다)를 결의하고 공시한 사실, ③ 원고들은 2009. 7. 21. 주금을 납입하고 신주를 각 취득한 사실, ④ 피고들은 '2차 증자 전 1주당 평가가액'을 1차 증자 주금납입일 다음날인 2009. 7. 10.부터 평가기준일인 2차 증자 주금납입일 전날인 2009. 7. 20.까지의 종가평균액 ○○,○○○원을 기초로 '2차 증자 후 1주당 평가가액'을 ○○,○○○원으로 계산하여 증여재산가액을 산정하고, 원고들에게 증여세를 부과하는 이 사건 각 처분을 한 사실 등을 인정하였다.

Furthermore, the court below held that since the first capital increase and the second capital increase have been made through a separate resolution by the board of directors and they have no choice but to be viewed as separate capital increase due to different conditions such as the participant, issue price, payment date of stock price, and resale limit, the first capital increase and the second capital increase have to be made through a separate resolution by the board of directors, so long as the first capital increase and the second capital increase are made through a separate resolution by the board of directors and they have to be seen as the first capital increase, the court below calculated the first capital increase from July 8, 2009 to July 20, 2009, the day following the public notice by the board of directors concerning the first capital increase and from July 20, 2009 to the day before the payment date of the second capital increase and the second capital increase from July 20, 2009 to ○○○○○○, the second capital increase in excess of the second capital increase and the second capital increase in excess of ○○○.

C. However, such determination by the court below cannot be accepted for the following reasons.

(1) Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act provides that the value of the listed shares shall be calculated as the average value of the shares stablely formed during the period of two months before and after the evaluation base date, but the period of such evaluation shall be excluded from the evaluation period. Meanwhile, Article 29(3)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the gains from the acquisition of new shares due to the dilution of the shares at low price shall be calculated by multiplying the value obtained by the 'value of shares per share after the dilution of the shares occurs' less the 'value of new shares per share after the 'value of shares issued' per share after the 'value of shares issued after the increase in the 'value of shares per share before and after the increase in the 'value of shares per share' by the 'value of shares per share before and after the increase in the 'value of shares per share' under Article 63(1)1 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act shall not be included in the valuation period before and after the 1).

However, the proviso of 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 require the evaluation of listed shares except for the period prior to or after the occurrence of a cause of capital increase or merger, etc. within the evaluation period, due to such cause’s significant influence on the share price formed on the securities market, thereby causing substantial difference between the share price during the evaluation period to which the base date belongs. In the case of a third party’s allocation method, there is considerable influence on the share price when the third party’s resolution and public announcement are made. Thus, in the case of a third party’s allocation method, it is difficult to view the third party’s allocation method as “the day following the date of increase or public announcement of the board of directors and public announcement on the first one’s capital increase,” and thus, even if the second party’s issuance method and public announcement method are different from the second one’s average share price before the second day’s second day’s issuance date, the second day’s issuance method and public announcement method should be different from the second day’s issuance method.

(2) According to the evidence duly adopted by the court below, the corporation of this case, which is a securities market, has passed a resolution of the board of directors on July 7, 2009 with respect to the increase of the primary capital on the basis of the procedure for small-value public offering (the number of shares allocated to ○○, ○○○○, ○○○○○, 10% per issue value, ○○○○, ○○○○, ○○○○, ○○○, ○○○○, ○○○○), and the public notice was given to correct the issue value and allocated shares on July 8, 2009 (the number of shares allocated to ○○,○○, ○○○, ○○○, ○○○○, ○○○, ○○○, ○○○, ○○, and ○○○, ○○, and ○○, ○○, and ○○, 2009).

In light of these facts, there is a high room for distinguishing each share price newly formed due to the same date as the resolution of the board of directors and the publication of the second capital increase and the second capital increase. Therefore, the court below clearly stated whether the first capital increase and the second capital increase were made simultaneously on the same date, and whether each share price newly formed due to the correction can be divided, by clarifying the relationship between the resolution of the board of directors and the publication of the second capital increase and the publication of the correction, etc., and if the first capital increase and the second capital increase are made on the same date, the first capital increase and the publication of the resolution of the board of directors can not be divided into the first capital increase and the second capital increase, the "evaluation value per share before the second capital increase shall be the average amount for the period from May 21, 2009 to July 20, 2009, which is the day preceding the payment date of the stock price.

Nevertheless, solely on the grounds stated in its reasoning, the court below concluded that the resolution of the board of directors and the public notice on the first and second capital increase were made on different dates respectively, and held that the "value per share before the second capital increase" should be calculated as an average amount on the basis of the closing price for the second capital increase from the day following the public notice date of the resolution of the board of directors concerning the second capital increase until the day before the payment date of the stock price for the second capital increase. In so doing, the court below erred by misapprehending the legal principles on "value per share before the capital increase" under Article 29 (3) 1 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act or "the day following the day on which the cause for capital increase occurred" under Article 52-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and by failing to exhaust all necessary deliberations. The plaintiffs' argument in the grounds of appeal pointing this out is justified, and on a premise different from the aforementioned legal principles, the following day after the date of the

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part against the plaintiffs among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendants' appeals are all dismissed. It is so decided as per Disposition by the assent of