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

가・ 원고(종전 상호는 주식회사 ♧♧인터내셔널이었다가, 2007. 10. 26.경 현재의 상호로 변경되었다. 이하 구별 없이 '원고'라 한다)는 1994. 9. 26.경 방송프로그램 제작업, 엔터테인먼트 연관사업 등을 영위할 목적으로 설립되었는데, 2005. 10. 15. 원고와 특수관계가 없는 주식회사 ▼▼▼▼시네마(이하 '피합병법인'이라 한다)의 최대주주인 곽★★으로부터 그가 소유하고 있던 피합병법인의 주식 61,000주(이하 '이 사건 포합주식'이라 한다)를 5,612,000,000원에 취득한 후, 2006. 3. 6. 피합병법인을 흡수합병하였다.

B. In calculating the liquidation income of a merged corporation on June 9, 2006, the Plaintiff reported 6,693,304,929, and KRW 1,661,326,230,230 of the corporate tax on the liquidation income of the merged corporation by deducting the acquisition value of the combined stocks issued by the merger from KRW 39,418,50,00,000, the actual acquisition value of the stocks, which is added to the liquidation income, from KRW 5,612,50,00, and the total amount of the merger cost calculated by adding the amount of the corporate tax paid in lieu of the corporate tax, etc. to the liquidation income, from KRW 7,825,79,779,75, which deducts the total amount of KRW 1,132,474,926, which is the total amount of equity capital of the extinguished corporation.

C. On July 25, 2007, in calculating the amount of liquidation income against the Defendant, the Plaintiff asserted that the acquisition value of the combined stocks, etc. added to the total cost of the merger should be calculated on the basis of the face value of the shares of the merged corporation acquired by the Plaintiff under the proviso of Article 122(1)2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19422, Mar. 29, 2006; hereinafter “Enforcement Decree of the Corporate Tax Act”), and pursuant to the proviso of Article 80(2) of the former Corporate Tax Act (amended by Act No. 7908, Mar. 24, 2006; hereinafter “the Act”), the amount of acquisition value of the combined stocks issued by the merger from 399,418,500 won should be deducted from the total amount of the acquisition value of the combined stocks to 399,418,500 won and the amount of corporate tax already paid by the merger should be refunded.

D. On October 17, 2007, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim for correction on the ground that the Plaintiff failed to meet the requirements under Article 122(1)2(b) of the Enforcement Decree of the Act.

E. On November 16, 2007, the Plaintiff filed an appeal with the National Tax Tribunal on the instant disposition, but was dismissed on May 16, 2008.

[Ground of recognition] Facts without dispute, Gap 1, 2, Eul 1, Eul 3-1 to 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the Plaintiff is deemed to have satisfied the requirements under Article 122(1)2(b) of the Enforcement Decree of the Act. Thus, the Defendant’s disposition that did not regard the face value of the merged corporation’s stocks as the acquisition value of combined stocks is unlawful.

(1) Since the combined stocks stipulated in Article 80(2) of the Act can be held by only the merged corporation, it is consistent with the principle of strict interpretation that the "shareholders of the merged corporation" who can transfer combined stocks as stipulated in Article 122(1)2(b) of the Enforcement Decree of the Act refer to the merged corporation.

(2) A shareholder of an extinguished corporation, who transferred the stocks of an extinguished corporation to a merged corporation, is not in the position to receive new stocks through the transfer of the stocks in question, and if the stocks of the extinguished corporation are not transferred by the time of the merger, the merged corporation may receive the merged corporation’s stocks according to the initial equity ratio after the registration of the merger. Thus, as provided by Article 122(1)2(b) of the Enforcement Decree of the Act, there is no reason to acquire the merged corporation’s stocks equivalent to 95/100 or more of the transfer amount of the stocks in question within seven days after the transfer of the stocks in the merged corporation to the merged corporation, and in fact, the issuance of new stocks in the ordinary course of the merger merger is practically impossible to acquire the merged corporation’s stocks within seven days since the registration

(3) There is no reason to distinguish the interpretation of Article 122(1)2(b) and (c) and Article 44(1)2 of the Enforcement Decree of the Act, and there is no reason to distinguish the interpretation of “shareholders, etc. of the merged corporation” from “shareholders, etc. of the merged corporation.” Unlike the premise that item (a) of the same Article is at the time of acquisition of combined stocks, it shall be deemed that both are premised on the situation at the time of

(4) The "transfer of combined stocks, etc." under Article 122 (1) 2 (b) of the Enforcement Decree of the Act includes the merger of corporations, and the "acquisition of the stocks of the merged corporation" shall be deemed to include the delivery of the merger new stocks to the stockholders of the extinguished corporation according to the equity ratio after the registration of the merger.

(5) 곽★★이 이 사건 포합주식을 원고에게 양도한 후 이미 양도소득세를 신고ㆍ납부했음에도, 합병에 의한 청산소득금액의 계산에 있어서 또다시 이 사건 포합주식의 취득가액을 가산하는 것은, 동일한 소득에 대하여 중복하여 피합병법인의 청산소득으로 과세하는 것으로서 이중과세의 문제를 발생시킨다.

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) 원고는 1994. 9. 24.경 설립되어 영화제작 및 연예대리업 등을 영위하는 회사로서, 2002. 3.경 코스닥에 등록된 법인이고, 피합병법인은 2003. 5.경 설립되어 영화제작업 등을 영위하는 비상장법인으로서, 그 대표자는 곽★★이었다.

(2) On December 14, 2005, the Plaintiff merged with the merged corporation, and the Plaintiff newly issued registered common shares 1,571,479 shares (the face value of 500 won) to deliver the merged owner to the shareholders of the extinguished corporation, and entered into a merger contract with the Plaintiff and the merged corporation with the content of determining the merger ratio between the Plaintiff and the merged corporation 13.09565927.

(3) The current status of the Plaintiff’s stock ownership before and after the merger with the merged corporation and the details of issuance of the Plaintiff’s new stocks after the merger are as listed below.

On December 14, 2005, the Plaintiff merged the merged corporation through the resolution of the board of directors on December 14, 2005, and March 3, 2006

9.경 합병등기를 마쳤다. 원고는 피합병법인의 주주에게 합병신주를 교부하기 위하여 기명식 보통주 1,571,479주(액면가 500원)를 발행하여 기말 주식 소유비울에 따라 주식 을 교부하였는데, 원고가 보유하고 있던 이 사건 포합주식에 대하여 위 합병신주 중 798,837주를 교부하는 것으로 처리하였고, 곽★★에게는 위 합병신주 중 7.5%에 해당하는 117,862주를 교부하였다.

(5) On June 9, 2006, the Plaintiff reported and paid corporate tax of KRW 1,661,326,230 on liquidation income of an extinguished corporation, and resident tax of KRW 166,132,623, etc.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 3-3 and 5, the purport of the whole pleadings

D. Determination

(1) According to Article 80(1) of the Act, where a domestic corporation is dissolved due to a merger, the amount of liquidation income by the merger shall be the total sum of the price that the stockholders, etc. of the extinguished corporation receive from the merged corporation minus the total amount of equity capital of the extinguished corporation as of the date of the registration of the merger. According to Article 80(2) of the Act, in calculating the total sum of the cost of the merger, where the merged corporation acquires stocks, etc. of the extinguished corporation within two years before the date of the registration of the merger (hereinafter referred to as "combined stocks, etc."), and where stocks, etc. are delivered to such combined stocks, etc., the amount calculated by deducting the value of the stocks, etc

According to the proviso of Article 122 (1) 2 of the Enforcement Decree of the Act as delegated pursuant to Article 80 (4) of the Act, "acquisition value of combined stocks, etc." at this time means that ① a merged corporation and a merged corporation are not specially related persons at the time that the merged corporation acquires combined stocks, etc. under Article 80 (2) of the Act from the stockholders, etc. of the merged corporation (i) the merged corporation and the merged corporation at the time that the merged corporation acquire the combined stocks, etc. under Article 80 (2) of the Act from the stockholders, etc. of the merged corporation (ii) the merged corporation shall acquire stocks, etc. (referring to the stocks newly issued by the merged corporation) equivalent to 95/100 or more of the transfer value of combined stocks, etc. within seven days after the stockholders of the merged corporation transfer the combined stocks, etc. to the merged corporation (i) the merger corporation under Article 44 (1) 1 and 2 of the Act; and (ii) the acquisition value of stocks, etc. at least 95/4 of the transfer value of the merged corporation.

(2) The purport of the special case concerning the calculation of the acquisition value of combined stocks, etc. added to the amount of liquidation income due to a merger under the proviso of Article 122(1)2 of the Enforcement Decree of the Act is as follows: ① In the case of a merger between non-related corporations, the merged corporation first acquires the stocks of the merged corporation and acquires the management right, and the liquidation income taxation system for combined stocks does not lead to the merger; ② in the case where the stockholders of the merged corporation acquire the stocks newly issued by the merged corporation in return for the transfer of stocks before the merger (share swap) and the merged corporation newly issued by the merged corporation, it is reasonable to calculate the merged corporation into the face value of the merged corporation in the same way as the merged corporation was received by the merged corporation at the time of the merger; ③ in consideration of the fact that the exchange of stocks between the acquiring corporation and the acquiring corporation is recognized only when the stocks of the merged corporation are acquired by 100% under the current Commercial Act, it shall be supported equally with the merger and other tax support requirements.

(3) In this case, the issue is whether the Plaintiff can be deemed to have satisfied the requirements under Article 122(1)2(b) of the Enforcement Decree of the Act. In light of the above facts of recognition and the purport of the entire relevant laws and regulations as seen earlier, the Plaintiff cannot be deemed to have satisfied the requirements under Article 122(1)2(b) of the Enforcement Decree of the Act for the following reasons.

(A) According to the literal interpretation, it is reasonable to view that the shareholder of an extinguished corporation under Article 122(1)2(b) of the Enforcement Decree of the Act refers to the shareholder of the extinguished corporation who transfers combined stocks to the merged corporation. If the shareholder of the extinguished corporation is to be deemed only the merged corporation, as alleged by the plaintiff, the shareholder of the merged corporation must have directly defined the merged corporation as referred to in item (a) of the same subparagraph. The shareholder of the merged corporation is a shareholder of the extinguished corporation, who is a shareholder of the extinguished corporation, transfers the stocks of the extinguished corporation to the merged corporation within two years before the date of registration of the merger, and the shares of the extinguished corporation held by the merged corporation are considered to be the "combined stocks, etc." as referred to in Article 122(1)2(b) of the Enforcement Decree of the Act. In light of the legal text

(B) In accordance with the legislative intent of the special provisions as seen earlier, unlike Article 122(1)2(b) of the Enforcement Decree of the Act, Article 122(1)2(b) of the same subparagraph (i.e., where the stockholders of an extinguished corporation receive the stocks of the merged corporation at the time of merger with the price for the merger) puts the case where the stockholders of the extinguished corporation acquire the stocks newly issued by the merged corporation in return for the transfer of the stocks to the “before the merger.” Therefore, the “transfer of combined stocks, etc.” under Article 122(1)2(b) of the Enforcement Decree of the Act cannot be deemed to include the merger of corporations, and the “acquisition of the stocks of the merged corporation” shall not include

(C) In light of the process of corporate merger, it is difficult to conclude that it is impossible for a shareholder of an extinguished corporation to acquire new issued stocks of the merged corporation within seven days in return for transferring stocks to the merged corporation before the merger.

(D) As pointed out by the Plaintiff, the non-listed shares, which are non-listed shares, have already been imposed capital gains tax on the transfer margin when the shareholders of the merged corporation transfer the relevant shares to the merged corporation (see, e.g., Articles 94(1)3 and 104 of the Income Tax Act). In addition to the acquisition value of the combined shares in the amount of liquidation income, if the transfer income tax is imposed as the amount of liquidation income, it may be deemed that the problem of double taxation arises. However, the taxation on the transfer margin of the combined shares and the taxation on the liquidation income can be deemed as separate from each other in terms of the purpose of taxation and the burden of tax liability. Even if the double taxation is at issue, this is merely a matter requiring legislative improvement in relation to the taxation of liquidation income due to the merger. Such circumstance alone does not mean that the provisions of Article 122(1)2 (b) of the Enforcement Decree of the Act are invalid or that the Plaintiff’s case, as argued by the Plaintiff

(4) 따라서, 위 인정사실에 의하면, 피합병법인의 주주인 곽★★이 원고에게 이 사건 포합주식을 양도한 후 7일 이내에, 양도금액의 100분에 95 이상에 상당하는 합병법인 주식(원고가 새로이 발행한 주식)을 취득한 것으로 볼 수 없으므로, 원고가 법 시행령 제122조 제1항 제2호 나목에서 정한 요건을 충족하지 못한 것으로 보아 포합주식 등의 취득가액을 합병법인 주식의 액면가액으로 인정하지 아니한 피고의 이 사건 처분은 적법하다.

3. Conclusion

The plaintiff's claim is not justified.