포합주식 전체의 취득가액을 합병대가의 총 합계액에 합산하여 법인세를 과세한 처분은 적법함[국승]
Seoul Administrative Court 201Guhap426 ( October 28, 2011)
Seocho 209west 1743 ( October 07, 2010)
The disposition imposing corporate tax on the aggregate of the total acquisition value of all shares of merger is legitimate.
Whether the requirements of Article 122(1)2(b) of the former Enforcement Decree of the Corporate Tax Act are met should not be determined on the basis of the whole stockholders who transfer combined shares, not on the basis of the group of stockholders of the merged corporation. Thus, the disposition imposing corporate tax by adding the total acquisition value of all combined shares to the total
2011Nu1918 Revocation of Disposition of Imposing Corporate Tax
AAAAA
The director of the tax office.
Seoul Administrative Court Decision 2011Guhap426 decided April 28, 2011
May 1, 2013
May 29, 2013
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant revoked the disposition of imposition of KRW 000 of the corporate tax for the business year of 2008 against the plaintiff on December 10, 2008 (which is smaller than the complaint on December 18, 2009).
1. cite the judgment of the first instance;
The reasoning of the court's decision is as follows, and the following is the reason for the court's decision to further determine whether the disposition of this case is legitimate. Thus, the court's decision is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.
After completing the merger registration on January 4, 2008, 1208, the first 3th and third 1208, the merged corporation issued new shares on January 23, 2008 to the effect that it issued the Plaintiff’s new shares on January 23, 2008 after completing the merger registration on January 4, 2008.
○ 6th to 13th, asserts as follows:
[The requirement of Article 122 (1) 2 (b) of the former Enforcement Decree is not to be determined by the shareholders of the merged corporation, but to be determined based on the whole shareholders who transfer combined stocks. Therefore, it is difficult to accept any other plaintiff's assertion. In addition, Article 122 (1) 2 (b) of the former Enforcement Decree requires that the shareholders of the merged corporation acquire shares of the merged corporation (referring to shares newly issued by the merged corporation) equivalent to at least 95/100 of the transfer amount of combined stocks within seven days after the shareholders of the merged corporation transfer combined stocks, etc. to the merged corporation. In this case, the small big 4 investment association did not acquire shares of the merged corporation within seven days after the transfer of combined stocks, etc., and this provision does not apply.
○ 7 up to the 8th fiveth day below the 3th day below the 7th day is as follows:
[Therefore, it is difficult to accept the Plaintiff’s assertion that is different from this premise. The instant disposition is legitimate.]
2. After further determination as to the legitimacy of the instant disposition, we examine the two arguments of the Defendant.
Article 122(1)2(b) of the former Enforcement Decree requires that a merged corporation acquire stocks of at least 95/100 of the total amount of transfer of combined stocks (referring to the stocks newly issued by the merged corporation) within seven days after the shareholder of the merged corporation transfers the combined stocks to the merged corporation. The literal meaning of the provision itself and the above provision in cases where the merged corporation acquires the stocks of the merged corporation within seven days after the transfer as stated in the above provision means that the merged corporation newly purchased the stocks of the merged corporation due to the transfer of the stocks before the merger by the merged corporation, the merged corporation newly issued the stocks of the merged corporation at the time of the merger without any economic difference between the acquisition of the stocks of the merged corporation and the acquisition of the new stocks of the merged corporation by the merged corporation at the time of the merger (see, e.g., Supreme Court Decision 201Du1062, Feb. 15, 2013).
3. Conclusion
The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.