2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 1,317,29,440 for the Plaintiff on September 12, 2014 shall be revoked.

가. 원고는 1982. 1. 4.부터 '@@@@@@연구소'라는 상호로 일반가스, EO가스 제조및 도소매업을 영위하다가, 2012. 6. 30. 위 개인사업체를 법인으로 전환하기 위해서위 개인사업체의 사업용 고정자산인 00시 00구 0동 65-1, 65-2 공장용지 2,959㎡와 그 지상 건물 1,265.77㎡ 및 기계기구 등 사업장 일체(이하 통칭하여 '이 사건 사업장'이라 한다)를 주식회사 @@@@(이하 '이 사건 법인'이라 한다)에 현물출자하였다.

B. At the time of investment in kind, the Plaintiff acquired assets and liabilities of the instant business establishment as KRW 9,001,841,381, and net asset value of KRW 56,290,000 at the time of the establishment of the instant business establishment. At the time of investment in kind, the Plaintiff acquired 11,258 shares in return for investment in kind (i.e., the net asset value of the instant business establishment at KRW 56,290,000 (the total number of issued and outstanding shares 61,258 x face value 5,000), and the Plaintiff acquired 11,258 shares in return for investment in kind (i.e., the net asset value of the instant business establishment at KRW 56,290,000 per share 5,000), and the remaining 50,000 shares were acquired by the Plaintiff.

C. The Plaintiff established the instant legal entity on July 1, 2012. Upon filing a preliminary return of capital gains tax on October 25, 2012, the Plaintiff applied for taxation carried forward under Article 32 of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013; hereinafter the same shall apply) and Articles 29(5) and 28(1)2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 24368, Feb. 15, 2013; hereinafter the same shall apply) with respect to the capital gains tax on the instant business establishment, the Plaintiff applied for taxation carried forward under Article 34(1)2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 24368, Feb. 15, 2013; 200, the Defendant did not meet the net asset value of the instant business establishment, 300,000.

D. On February 16, 2015, the Plaintiff filed an objection. As a result of a reinvestigation against the Plaintiff, the Defendant determined the net asset value of the instant place of business as KRW 1,878,738,00, and notified the Plaintiff of the result of tax investigation that the initial disposition was justifiable on the ground that the instant place of business still fails to meet the requirements for carried-over taxation of capital gains tax. The Plaintiff filed a tax appeal on May 8, 2015, and received a dismissal ruling on October 17, 2016.

[Ground of recognition] Unsatisfy, Gap 1-15 (including virtual number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the Plaintiff’s assertion

(1) In calculating the net asset value of the instant place of business, illegality other than the instant debt

In the assessment of the net asset value of fixed business assets, there is no provision that excludes liabilities unrelated to business in the assessment of the net asset value of the fixed business assets. Thus, in light of the fact that even short-term loans unrelated to business under the principle of no taxation without law, the net asset value should be assessed by including the liabilities of fixed business assets in the calculation of the net asset value of the fixed business assets. In determining whether the requirements for carryover taxation of transfer income tax for corporate conversion are satisfied, the net asset value of the individual company as of the date of conversion into the corporation should be calculated as of the date of conversion into the corporation, and it is not necessary to consider the use of liabilities

(2) Requirements to carry forward capital gains tax when including additional liabilities related to the instant business establishment are satisfied.

Even if the debt amount of this case is excluded from the debt amount of the business place of this case, if the net asset value, including the following additional debt, is re-calculated, it shall be KRW 88,00,000, and it shall not exceed KRW 306,290,000, which is the capital amount of the corporation of this case. Thus, the plaintiff still satisfies the taxation requirement of

㈎ 이 사건 사업장과 관련하여 장부상 계상되지 아니하였던 마이너스 통장의 부채 515,445,348원(이하 '이 사건 부외부채'라 한다)은 법인전환 당시 장부상 부채로 계상되지는 않았으나 이 사건 사업체의 부채에 해당하므로, 이 사건 사업장의 순자산가액을 산정함에 있어 부채로 포함되어야 한다.

㈏ 이월된 양도소득세 채무 합계 1,308,000,000원(이하 '이 사건 이월세액'이라 한다)은 사업용 고정자산의 양도행위로 인하여 양도소득세의 과세요건이 충족됨으로써 이 사건 법인의 채무가 되는 것이고, 이월과세의 개념이나 국세기본법 제20조가 정한 기업회계의 존중 개념에 비추어 보더라도 위와 같은 이월세액은 사업장의 순자산가액 을 산정함에 있어 부채로 포함되어야 한다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the method of calculating the net asset value of the instant place of business is legitimate

㈎ 관련 법리

Article 2 (1) 6 of the former Restriction of Special Taxation Act provides that "where an individual transfers fixed assets, etc. used for the relevant business to a corporation by investing in kind, etc. such fixed assets, etc. for business, the transfer income tax shall not be imposed on the individual who transfers such fixed assets, etc. for business, and instead, where the transferee corporation transfers such fixed assets, etc. for business, it shall mean that the individual pays as corporate tax the amount equivalent to the calculated amount of capital gains tax calculated by deeming that no other asset has been transferred to the corporation in the taxable period to which the date of transfer the previous fixed assets, etc. for business belongs, and Article 32 (1) provides that "where a resident makes an investment in kind in a corporation (excluding any corporation that runs the consumptive service business prescribed by Presidential Decree) or is converted into a corporation (excluding any corporation that runs such consumptive service business prescribed by Presidential Decree) not later than December 31, 2012, Article 2 (2) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 25103, Dec. 28, 2010, 201) shall apply only to the net assets converted into the market value of the corporation.

As such, the reason for stipulating that the capital of a newly established corporation should be higher than the net asset value of a place of business converted into a corporation as a requirement for carrying forward taxation of capital gains tax is that the same business owner actually changes the type of business operation. In order for the same business owner to be evaluated as changing only the type of business operation (see Supreme Court Decision 2012Du17865, Dec. 13, 2012) to be seen as changing the type of business operation, the purpose of the carry-over taxation system as above is to encourage the conversion of a private company into a corporate entity, and to prevent the individual business owner from unfairly reducing the amount of investment in the process (see Supreme Court Decision 93Nu20160, Nov. 18, 1994). Therefore, it is reasonable to apply the carry-over taxation of capital gains tax to each business establishment, namely, the net asset value, which is the requirement for carrying-over taxation, the net asset value of assets appraised at the current market price, or assets related directly to the business or liabilities.

㈏ 검토

According to the facts and the purport of the entire arguments as stated in Paragraph (1) above, the Plaintiff obtained loans of KRW 1,855,000,000 in its own name on the day immediately before the date of investment in kind for corporate conversion and succeeded to the instant legal entity. However, since the above loans of KRW 1,846,00,000 (the instant liabilities) were used for a purpose not directly related to the instant business place (the Plaintiff is not specially disputing this), it is difficult to view the instant liabilities as liabilities directly related to the instant business, and it is difficult to conclude that the Defendant’s act was unlawful, excluding the instant liabilities from the calculation of net asset value in determining the requirements for carried-over taxation of transfer income tax with respect to the instant business place.

(2) The addition to the additional liabilities regarding the instant workplace

㈎ 이 사건 부외부채의 산입 가부

1) Relevant legal principles

In cases where some of the assets and liabilities of the existing place of business are excluded from those subject to the transfer of business, the net asset value of the place of business converted into a corporation under Article 29 (4) of the former Enforcement Decree of the Restriction of Special Taxation Act is not the net asset value of the existing place of business, but the net asset value of the existing place of business included in those subject to the transfer of business under Article 29 (2) of the same Act (see Supreme Court Decision 2012Du17865, Dec. 13, 2012). In addition, the foregoing legal principle is the same as in cases where Article 32

(ii) review;

First of all, the burden of proof for the net asset value, which is the requirement for carry-over taxation, is imposed on the tax authority, but the fact that there are foreign liabilities not included in the account book, such as the statement of financial position, etc. in calculating the net asset value of the relevant place of business as of the date of investment in kind belongs to exceptional reasons. Therefore, the burden of proof for such special reasons exists on the taxpayer. In light of the reasons for submission, etc., it is difficult to readily conclude that the

Furthermore, according to the aforementioned evidence and the purport of the entire argument, it is insufficient to recognize that the Plaintiff’s foreign debt was subject to investment in kind in special circumstances, such as omitting error in the above specification, even though the Plaintiff intended to acquire the foreign debt as part of the instant business establishment, and the corporation also intended to acquire it as part of the instant business establishment, and there is no other obvious evidence to acknowledge it. Accordingly, the Plaintiff’s assertion on this part is rejected on different premise.

㈏ 이 사건 이월세액의 산입 가부

1) Relevant legal principles

The carried-over taxation under Article 2 (1) 6 of the former Restriction of Special Taxation Act is to pay as corporate tax the amount equivalent to the calculated capital gains tax calculated by deeming that no other asset has been transferred in the taxable period to which the date of transfer of the previous business assets to the corporation belongs if the corporation, which received the contribution in kind, transfers the fixed assets for business, etc. Therefore, corporate tax (amount equivalent to the calculated capital gains tax) based on carry-over taxation is, in principle, a debt to be borne by the corporation when the corporation re-transfers the fixed assets for business after conversion to the corporation under special circumstances such as conversion into the corporation of the individual company, and it is difficult to view it as a debt to be

Even if the above amount of taxation carried forward can be deemed directly related to an individual enterprise, if the corporation does not transfer the above fixed assets, etc. for business, the liability for payment does not occur, and Article 32 (5) of the same Act does not occur if the corporation established pursuant to paragraph (1) discontinues its business or reduces 50/10 or more of the capital at the time of conversion into the corporation within five years after the conversion into the corporation (Article 32 (1) (Article 1) within five years after the conversion into the corporation, notwithstanding paragraph (1), the amount of capital gains tax calculated as prescribed by Presidential Decree shall be collected from the relevant resident, notwithstanding paragraph (1). In light of the circumstances such as the fact that it is reasonable to deem that the corporation does not have the liability to pay the unpaid amount of tax and the amount of tax, even if the former fixed assets, etc. for business are collected by the individual, even if the act of investing in kind is completed, it cannot be deemed that the corporation is liable to pay the amount equivalent to the capital gains tax carried forward.

(ii) review;

In light of the relevant legal principles, it is reasonable to view that the carried-over tax amount of this case is not directly related to the business place of this case and is not included in the debt in calculating the net asset value of the business place of this case as of the date of investment in kind in the business place of this case, and there is no clear evidence to acknowledge otherwise (this case’s carried-over tax amount should be included in the debt in calculating the net asset value of the business place of this case, as seen earlier, unless the foreign debt of this case is included in the net asset value of the business place of this case’s business place of this case’s business, the corporation’s capital still does not reach the net asset value of the business place of this case’s business

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.