취득세등부과처분취소
All appeals are dismissed.
The costs of appeal are assessed against the participating administrative agency, and the remainder is assessed against the Defendants.
The grounds of appeal are examined.
1.(a)
The former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) provides that "property acquired through division meeting the requirements under each subparagraph of Article 46 (1) of the Corporate Tax Act (Article 47 (1) of the same Act in cases of spin-off) shall be exempted from registration tax and acquisition tax (Article 119 (1) 10 and Article 120 (1) 9 of the same Act in cases of spin-off)."
The provision on taxation deferment of physical division was prepared in the introduction of corporate restructuring tax system, such as merger and division, by the amendment of the Corporate Tax Act on December 28, 1998. The purpose of this provision is to support corporate restructuring through corporate division, in the event there was a structural change in which part of the existing business is divided into a separate complete subsidiary, but there was no substantial change in the interests of the company, including the equity relationship, if there was no change in the interests of the company.
The individual requirements of the former corporate tax law, which are seen below, are the concrete standards of substantial identity.
The requirement of “a business division which can be operated independently” [the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22184, Jun. 8, 2010; hereinafter the same shall apply].
Article 82(3)1 of the Act refers to the division of a business division that can independently conduct the existing business activities after division from a functional point of view.
It will be distinguished from cases where only individual assets that cannot be independent business activities are transferred and realizing gains on transfer.
If the project is independently possible, it is possible to divide part of a single business division.
Article 82 (3) 2 of the former Enforcement Decree of the Corporate Tax Act provides that the assets and liabilities of the divided business division shall be comprehensively succeeded (Article 82 (3) 2 of the former Enforcement Decree of the Corporate Tax Act).