[2] The case holding that in a case where Gap corporation merged its affiliates in the same group with Eul corporation and appropriated its losses in the accounting book in accordance with corporate accounting standards, but the corporate tax return did not constitute the goodwill under the tax law, and the tax authority imposed corporate tax on Gap corporation on the premise that the amount should be included in the profit from the merger evaluation and the depreciation should be made on the premise that the above amount constitutes the goodwill under the tax law, the corporation's goodwill included in the accounting book cannot be deemed as satisfying the requirements for the recognition of assets under the tax law

1. A. In case where the merged corporation succeeds to the evaluation of assets from the merged corporation, the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter the same shall apply) shall be imposed as a merger evaluation marginal profit [Article 17(1)3 proviso; Articles 15(2) and 12(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22184, Jun. 8, 2010; hereinafter the same shall apply] of the value of the assets, the portion exceeding the book value of the merged corporation should be considered as the depreciation asset (Article 24(4) of the former Enforcement Decree of the Corporate Tax Act). In case of a merger, where the merged corporation evaluates and succeeds to the evaluation of the assets of the merged corporation, the business right appropriated by the merged corporation shall be limited to the depreciation asset paid for business value with the trade name, transaction relationship, and other trade secrets, etc. of the merged corporation

B. According to the relevant laws and regulations, in order to impose the value of business rights as a merger evaluation marginal profit in the case of a merger of corporations, the merged corporation is deemed as an intangible asset value that can obtain excess profits from the trade name, etc. of the merged corporation and evaluated its business value and paid compensation. The evaluation of business value in this case shall be objectively determined by comprehensively taking into account various circumstances, such as the details and motive of the merger, the current business status of the merged corporation and the merged corporation at the time of the merger, and the details of tax returns after the merger, etc., and the business rights shall not be inferred solely on the basis that the business

(1) In order to be taxed as a merger evaluation marginal profit of a merged corporation, it should be recognized as the assets of the merged corporation in the first place. Even if a corporation creates an intangible business right due to its internal business activity, it is not recognized as an asset under tax law, and it is recognized as an asset of the merged corporation only if it satisfies the requirements under the former Enforcement Decree of the Corporate Tax

Tax law and corporate accounting have different purposes and purposes and separately provided for in the corporate tax law. In the event of a merger, the requirements for recognition of goodwill are also included in such cases. The requirements for evaluation of business value with respect to goodwill under the Enforcement Decree of the Corporate Tax Act were introduced to be limited to the recognition of goodwill under the tax law at the time of amendment of the Enforcement Decree of the Corporate Tax Act on December 31, 1998, and the framework for the imposition of the merged taxation is also maintained under Article 80-3(2) of the Enforcement Decree of the Corporate Tax Act as amended on June 8, 2010.

(2) In the case of a merger, the issue of requirements for recognizing a business right as an asset under the tax law is different from the issue of whether it is appropriate to calculate the business right in excess of the net asset value of the merger price when determining the appropriateness of the detailed evaluation method. Therefore, it is not inconsistent with the precedents that affirms the appropriateness of the business right evaluation based on the difference theory to require the evaluation of the business value of the trade name, etc.

(3) The taxation of merger evaluation marginal profit is imposed upon the acquisition of profits generated from tangible and intangible assets held by the merged corporation prior to the merger with a certain requirement. As such, Article 15(2) of the former Enforcement Decree of the Corporate Tax Act only refers to the calculation method under which Article 12(1)1 of the former Enforcement Decree of the Corporate Tax Act is accepted, and there is no relation to the capital reserve [Article 16(1)2(a) of the former Corporate Tax Act] under the concept. The merger marginal profit, which is the simple difference between the net asset value transferred by the merged corporation and the face value of the merged stocks, cannot be the requirement for taxation of merger evaluation marginal

2. A. The reasoning of the lower judgment and the record reveal the following facts.

(1) On September 30, 2008, the Plaintiff entered into a merger agreement that absorbs and merges Korea-U.S.P. (hereinafter “Korea-U.S.P.”) with an affiliate company within the same group (hereinafter “Korea-U.S.P.”) and completed the merger registration on December 1, 2008.Korea-U.S. common shares (the face value of KRW 5,000 per share) were allocated new shares per 14 common shares (the face value of KRW 500 per share), and the merger grant was not paid separately.

(2) At the time of the merger, Korea-U.S.A.F. had a cumulative loss in capital (property KRW 33.7 billion, debt KRW 59.2 billion), and the Plaintiff, according to the corporate accounting standards, included approximately KRW 25.4 billion in the account book as business rights. However, when filing a corporate tax return for the business year 2008, the above difference does not constitute the business rights under the tax law, and was voluntarily subject to tax adjustment, such as denying the depreciation of business rights.

(3) However, the Defendant, on March 14, 2014, imposed corporate tax of KRW 9.4 billion (including additional tax) on the Plaintiff for the business year 2008 on the premise that the said amount constitutes a business right under the tax law, deeming that it ought to be included in the gross income as a merger evaluation marginal profit and depreciation.

B. Examining the above facts in light of the legal principles as seen earlier, the above amount appropriated as a goodwill in the account book is merely deemed to be in accordance with the relevant corporate accounting standards, and it is difficult to deem that the Plaintiff is an intangible asset value with excessive profits, such as the trade name, transaction relationship, and other trade secrets, etc., which are an extinguished corporation, and paid the consideration by evaluating its business value, and thus cannot be deemed to meet the requirements for recognition of business goodwill under tax law. As such, in the case of a corporate merger of corporations, since it does not meet the requirements for recognition of business goodwill, it is not allowed to impose tax on deeming the amount of accounting on business goodwill as a merger evaluation marginal profit. The precedent cited in the grounds of appeal is related to the appropriateness

The judgment of the court below as above is partly inappropriate, but it does not contain any error of law that affected the conclusion of the judgment, such as misunderstanding of legal principles as to goodwill under tax law, as alleged in the grounds of appeal

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)