증권거래소에 상장된 법인의 제3자 배정 유상증자에서의 증여세 과세

Gift tax imposition in newly stocks issuing to the third party by company listed on the korea stock exchange

In interpretation of the tax regulation in which private law's term is used, it is problem whether we interpretate the term in accord with the interpretation method of the term constructed in such private law field, or on the tax's own interpretation method in considering the tax-law's acting objective(etc.). The Seoul High Court followed the latter method. The Gift-tax Act §39 ① 1 has the provision that gift tax can not be imposed when newly stocks issuing to the third party is conducted by the method of public offering in compliance with securities exchange act §2 ③. By the way, the Presidential decree §2-4 ④ related to the Securities Exchange Act §2 ③ regulates that so-called ‘regarded-public offering’ is also one of the public offering methods in Securities Exchange Act. Therefore, I think that the provision of the above tax-law is expressing explicitly that the concept of the ‘stocks allocation by the method of securities public offering in accordance with the Securities Exchange Act §2 ③'(hereinafter as to 'problem provision') has to be interpreted in accordance with the interpretation method of Securities Exchange Act field. So stock issuing by the way of ‘regarded-public offering’ is also a method in which gift tax is exempted. Nevertheless, the court interpreted the problem provision in discord with the interpretation method of it in securities exchange act, only in considering the purpose of the problem provision. I think the view of the court is not correct, because it can invade the law-stability and the prediction possibility. Meanwhile, in calculating the gift profit(the difference between the issued new stock price and the stock's market value), according to the Gift-tax Act(§63 ① 1, the Presidential decree §29 ④), we have to calculate the price of a stock before issuing stocks(as the stock's market value), and then the price has to be calculated in the standard of thestock price as of payment day of allocated-stocks(not as of the board of director's resolution day). In some cases, this will bring out increase of tax-burden increase to the allocated stock-purchasers. Because, according to Securities Exchange Act, when listed company in The Exchange wants to issue new shares, it has to issue new shares in accordance with the price in the standard of the stock's market price of that company's board of director's resolution day, and then, if the stock price rises up rapidly after the resolution day, it means increase of the price of a standard stock price in calculating of gift profit. Therefore, in my opinion, it is proper to revise the present relevant Gift-tax Act provision into the provision that calculates gift profit in standard of the stock price as of the resolution day.