Judgment prior to remand

Seoul High Court Decision 2012Nu14660 Decided October 19, 2012

2. On March 12, 2010, the Defendant’s notice of change in the amount of income as stated in the attached specification attached hereto issued to the Plaintiff shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The reasoning of this court's judgment is as follows: Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act are as follows, except that the court of first instance 5, 5, 8, 8, 5, 8, and 5, and 420, less

2. The judgment of this Court

Article 67 of the former Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007; hereinafter the same) provides that, in filing a report on the corporate tax base or determining or revising the corporate tax base, the amount included in the calculation of earnings shall be disposed of as bonus, dividends, and other outflow from the company, reserve of company, etc. according to the person to whom the income accrue under the conditions as prescribed by the Presidential Decree, and the main sentence of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19891 of Feb. 28, 2007; hereinafter the same shall apply) provides that "where it is clear that the amount included in the calculation of earnings under Article 67 of the Act has leaked out of the company, it shall be disposed of as dividends, bonuses, other income, or other outflow from the company according to the person to whom the income belongs, or where the following amount is evaluated as an unfair calculation method under Article 88 (1) 8 of the former Enforcement Decree of the Corporate Tax Act (i).

In the transaction that increases the corporation's capital, "the case where the right to allocate and acquire new stocks is renounced or the new stocks are acquired at a price higher than the market price" is cited in the item (c).

Article 42(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same) provides that "the profits acquired by the increase or decrease of the capital (including the amount of investment) of a corporation, such as investment, reduction of capital, merger (including division and merger), division, and convertible bonds, etc. under Article 40(1) (hereinafter referred to as "stock conversion, etc.") or the profits acquired by transfer, acquisition, and exchange of business, business exchange, or change of the corporation's formula, etc." as part of the donated profits. In such cases, the relevant profits shall be the value calculated by subtracting the value of stock conversion, etc. from the value of stocks at the time of stock conversion, etc. in cases of stock conversion, etc., and in cases other than stock conversion, it shall be the appraised difference of the relevant assets before and after the change in the shares or the value thereof."

On the other hand, an all-inclusive share swap under Article 360-2 of the Commercial Code is combined between the transaction in which the shares of the company becoming a wholly owned subsidiary are transferred and the transaction in which the shareholders of the company becoming a wholly owned subsidiary become a wholly owned subsidiary are allocated new shares related to the shares of the company becoming a wholly owned subsidiary from the company becoming a wholly owned subsidiary, and the transaction in which the shareholders of the company becoming a wholly owned subsidiary become the shareholders of the company becoming a wholly owned subsidiary. Therefore, an all-inclusive share swap has the nature of "transaction in which the capital of the company increases basically," but since such an investment is made by the kind of shares of the company becoming a wholly owned subsidiary, it is also different from the transaction in which the assets are transferred for consideration to such extent.

As such, since an all-inclusive share swap is characterized as a transfer of assets at a cost, if a company that becomes a complete parent company through an all-inclusive share swap acquires the shares of a company that becomes a complete subsidiary at a price higher than its market price, the assets of the corporation are excessively appropriated, so the amount in excess of its market price is excluded from the acquisition price of assets by wrongful calculation under Article 88(1)1 of the former Enforcement Decree of the Corporate Tax Act, and the amount is included in the gross income

Article 106(1)3 of the former Enforcement Decree of the Corporate Tax Act provides that where it is inappropriate to impose a liability to pay income tax on a person to whom the same income has already accrued, such as where the amount included in the gross income of a corporation has already been disclosed outside of the company, it shall be disposed of as "other outflow from the company without disposition of income on the person to whom the same income has already accrued." However, the purpose of Article 106(1)3 of the former Enforcement Decree is to ensure that a person to whom the same income has already accrued is determined as "other outflow from the company without disposition of income on the person to whom the same income has already accrued." However, the profit gained by the shareholder of a company to become a complete subsidiary through an all-inclusive share swap is a donation of profits from transactions that increase the capital of the

Therefore, as a company becoming a complete parent company through an all-inclusive share swap acquires the shares of the company becoming a complete subsidiary at a price higher than its market price, the amount to be included in the corporation's gross income due to the denial of wrongful calculation should be disposed of as "other outflow from the company" in accordance with Article 88 (1) 8 of the former Enforcement Decree of the Corporate Tax Act, and it cannot be disposed of as dividends, bonuses, or other income to the person to whom the shares belong. The dispositions

3. Conclusion

The judgment of the first instance shall be revoked, and the disposition of this case shall be revoked.