[법인세등부과처분취소][공1990.2.15(866),386]
The case holding that there was an error of incomplete deliberation and violation of the rules of evidence as to whether the stock transfer value is a "normal price"
The court below should have examined whether there was a reasonable reason in the case where the plaintiff, who is a transfer of shares, did not change the corporate management performance of the company that issued shares, was either 1,300 won per share, and 240 won per share, which became the first shareholder of the company that issued shares, was disposed of as a shareholder of the company that held the preemptive right. In addition, if the plaintiff either acquired or transferred the shares of this case regardless of the market price of the shares, the court below should have determined whether the market price at the time of transfer was lower than the normal price without justifiable reasons.
Article 40 (1) 2 of the Enforcement Decree of the Corporate Tax Act
Law Firm Dol (Attorney Yoon-young et al., Counsel for defendant-appellant)
The director of the tax office
Seoul High Court Decision 88Gu2221 delivered on November 11, 1983
The judgment of the court below is reversed.
The case is remanded to Seoul High Court.
The grounds of appeal by Defendant Litigation Performers are examined.
1. The lower court determined that the Plaintiff’s acquisition of 1,50,000 shares, which were 100 won or more for each of the above 00 shares and 1,60 won or more for each of the above 1,500 shares or more as 00 won or less for each of the above 1,600 shares or 1,00 won as 00 won or more for each of the above 00-use shares or 60-use shares or more for each of the above 1,60-use shares or 60-use shares or less as 0-use shares or 1,50-use shares or 60-use shares or more for each of the above 0-use shares or 1,000 shares or more as 0-use shares or 60-use shares or more for each of the above 0-use shares or 1,000-use shares or more as 1,000 won shares or more for each of the 1,000-use shares or more shares.
2. According to Article 40 (1) 2 of the Enforcement Decree of the Corporate Tax Act, "the amount deemed to have been actually donated out of the difference shall be deemed to be a donation not to be included in deductible expenses under Article 18 of the Corporate Tax Act by transferring the assets at a price below the arm's length price (the price within the scope of adding 30/100 to the market price or deducting 30/100 to the market price) or by purchasing the assets at a price above the arm's length price without just cause to a person who has no special relationship provided for in Article 46 (1) of the Enforcement Decree of the Corporate Tax Act. In applying Article 16-2 of the Enforcement Decree of the Corporate Tax Act, where the market price is unclear, the appraised value by the appraisal company authorized pursuant to Article 6 of the Act on Appraisal and Assessment or the appraised value by applying Article 5 (2) through (6) of the Enforcement Decree of the Corporate Tax Act, but it is difficult to accept the decision of the court below as the justifiable reason for the plaintiff to dispose of the stocks at the following price.
3. According to the statements in Eul 2 through 12, testimony of non-party 1 (certified public accountant) and non-party 2 (accounting Director of plaintiff company), etc. which the court below rejected, the plaintiff acquired 1,000 won per face value of the stocks of this case, taking into account the profitability, future prospects, goodwill, etc. of business other than net assets of lot board, as well as the influence of the control or management of the company, etc., but transferred 240 won per share to Doll, which had been the shareholders of the first lot board after 1 year 7 and 8 months, after which the court below had originally held preemptive rights as shareholders of lot board. Since it can be acknowledged that the plaintiff's corporate management and assets of lot board, etc. of this case at the time of transfer of the stocks of this case were considerably better than that of the time when the plaintiff acquired the stocks of this case, the court below's appraisal price of the stocks of this case should not be determined based on the market value of the non-party 1, including the above big witness.
Therefore, the court below should have examined whether the plaintiff's acquisition of the shares of this case by 1,00 won per share and 240 won per share per year and 7,8,000 won per share even though the company did not have corporate management performance. It should have examined whether there were reasonable grounds to dispose of the shares of this case to the newly acquired shareholders of this case, and if the plaintiff acquired or transferred the shares of this case regardless of the market price of the shares of this case, the court below should have determined whether the plaintiff transferred the shares of this case at a price lower than "the normal price" of this case without any justifiable reasons, and the court below should have determined whether the plaintiff violated the rules of evidence, and the court below should have determined whether the plaintiff did not dispose of the shares of this case at a price lower than "the normal price" of this case as "the net assets of this case without any justifiable reasons to dispose of the remaining shares of this case by 4,000 won per share after the adjustment of the net assets of this case."
4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating judges.
Justices Lee Jae-sung (Presiding Justice)