Seoul High Court 2009Nu25622 (25 March 25, 2010)

Examination transfer 208-023 ( December 12, 2008)

The net asset value at the time of the evaluation of unlisted stocks does not include the unrecoverable claims;

Since it is argued that the default bill should be excluded when assessing the net asset value, it is necessary to further examine and determine whether the above default bill and other claims are included in the net asset value and whether it is possible to recover them.

The contents of the decision shall be the same as attached.

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The judgment below is reversed and the case is remanded to Seoul High Court.

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The grounds of appeal are examined.

1. In assessing the value of non-listed stocks according to the supplementary assessment methods stipulated under Article 63(1)1(c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007) and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621 of Feb. 22, 2008), the net asset value of the corporation as of the base date of appraisal, one of the calculation elements, shall not be included in the amount of non-listed stocks as of the base date of appraisal (see Supreme Court Decision 2005Du5574 of Aug. 23, 2007). The issue of whether an irrecoverable claim is an irrecoverable claim should be determined by taking into consideration the circumstances related to the debtor's ability to repay debts, such as the debtor's financial status, financing ability, social status, occupation, etc. and company's management status, causes, amount, timing, etc. (see Supreme Court Decision 2009Nu3838, Oct.).

2. According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, the court below determined that the assessed net asset value per share based on the weighted average amount of net profit and loss for the last three years, 62,914 won per share as of the year 2005, and the assessed value per share based on the weighted average amount of net profit and loss for the last three years, is 65,706 won, and eventually, the assessed value per share under the Inheritance Tax and Gift Tax Act is 64,589 won (=((62,914 x 2+ 65,706 x 3) x 3) / 5). The plaintiff's following arguments (i.e.,, the non-party company had an impossible collection of the outstanding bill and check amount of KRW 79,900,000 won at the time of 205, and thus, the defendant should have assessed the value of the stocks of this case as a bad debt.

3. However, we cannot accept the judgment of the court below for the following reasons.

A. First, in assessing the value of the shares of this case according to the supplementary evaluation method, it is clear that the defendant's above assertion was an excessive assessment of the value of the shares of this case due to the failure to exclude the above claims, such as default bills, which were irrecoverable, from the net asset value even if they were stated in the free sheet. Thus, the court below erred by misapprehending the purport of the plaintiff's assertion to reject the above assertion on the grounds that the claims, such as the above default bills, are included in the financial statements of the non-party company.

B. However, according to Gap evidence Nos. 4, Eul evidence Nos. 1, 2, Eul evidence Nos. 3-1, 2, Eul evidence Nos. 4, 6, and 7, etc., the non-party company is holding a promissory note and a check of the unit value, which was issued from 1994 to 2001, total face value of the non-party company's 79,222,367 won, and the defendant's supplementary method of assessment of the value of the shares of this case, and the non-party company's 376,343,419 won as of December 204, which appears to be taken into consideration in assessing the value of the shares of this case by the supplementary method of assessment. In light of this, it is highly probable that some of the above non-party company's claims, such as the above default bill, etc., which were held by the non-party company, would be included in the net asset value of the non-party company which became the basis for assessing of the value of the shares of this case.

C. Therefore, the court below should have judged the legitimacy of the plaintiff's assertion by further examining whether the above non-party company's claim, such as the payment of outstanding bills, was included in the net asset value of the non-party company, and whether it is possible to recover, but the court below rejected the plaintiff's assertion only for the reasons stated in its holding. The court below erred by misapprehending the legal principles on the appraisal of unlisted

4. Meanwhile, it is apparent in the record that the Plaintiff’s assertion that the net asset value was excessively appropriated due to the lack of allowances for severance benefits when evaluating the value of shares in the instant case among the grounds of appeal, was insufficient. As such, it cannot be a legitimate ground of appeal, since the allegation that the allowances for severance benefits were not reflected in the calculation of the value of shares in the instant case.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

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