2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

가. 원고는 〇〇 〇〇구 〇〇동 〇〇번지 소재 사업장(이하 '이 사건 사업장'이라 한다)에서 '〇〇빌딩'이라는 상호로 임대사업을 영위해오다가, 〇〇 〇〇구 〇〇동 〇〇번지 외 2필지 토지 및 그 지상 건물(이하 '이 사건 부동산'이라 한다)을 비롯한 이 사건 사업장의 사업용 자산 및 부채 전부를 현물출자(이하 '이 사건 현물출자'라 한다)하여 주식회사 〇〇개발(이하 '이 사건 법인'이라 한다)을 설립하였다.

B. On February 28, 2012, when the Plaintiff reported the transfer income tax to the Defendant, the Plaintiff applied for a carried-over taxation of the transfer income tax on the conversion into a corporation pursuant to Article 32 of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 2011; hereinafter the same) regarding the instant investment in kind.

C. On June 11, 2013, the Defendant imposed capital gains tax of KRW 4,543,525,530 (including additional tax of KRW 577,089,564) on the Plaintiff on June 11, 2013, on the ground that the instant investment in kind does not constitute a requirement for carryover taxation under Article 32 of the former Restriction of Special Taxation Act requiring that the corporate conversion due to the investment in kind would be above the net asset value of the place of business to be converted into a corporation (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on August 21, 2013, but was dismissed on June 30, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 8, 9, 11 through 13 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2 and 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) If the value of the instant real estate is assessed as KRW 19,58,595,040, the issue of the instant real estate would inevitably result in an excess of five billion won, and the capital stipulated in Article 32(2) of the former Restriction of Special Taxation Act means the total amount of capital, including an excess of the issue of stocks. Accordingly, according to this, the total amount of the capital and the amount in excess of the issue of stocks (19,086,590,000) of the instant corporation’s capital and the amount in excess of the issue of stocks (19,046,594,144) exceeds the net asset value of

2) In calculating the net asset value of the instant place of business, the court’s assessed value should be reflected. According to this, the pertinent corporation’s capital (14,086,590,000 won) or the total amount of capital and issued stocks (19,086,590,000 won) exceeds the net asset value of the instant place of business (14,046,594,144 won), thereby satisfying the requirements for taxation carried forward.

If the court’s assessed value cannot be recognized, it constitutes a case where there is no appraised value for the real estate of this case, and thus, the officially assessed value, etc. under Article 61 of the Inheritance Tax and Gift Tax Act should be applied. In such a case, the real estate value of this case is merely 12 billion won and thus its capital (14,086,590,000) or the total amount of capital and issued stocks (19,086,590,000) exceeds the net asset value.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The instant real estate and the establishment registration of a mortgage

가) 이 사건 부동산은 〇〇 〇〇구 〇〇동 〇〇번지 대지 543.5㎡, 같은 동 〇〇번지 대지 529.5㎡, 같은 동 〇〇번지 대지 389.8㎡ 및 그 지상 건물인데, 이 사건 부동산에는 1989. 12. 11. 채권자 주식회사 〇〇은행(이하 '〇〇은행'이라 한다), 채무자 〇〇설비 주식회사(이후 주식회사 〇〇〇〇〇〇〇로 상호가 변경되었다, 이하 '〇〇〇〇〇〇〇'라 한다), 채권최고액 7억 5,000만 원인 근저당권설정등기가, 1993. 4. 27. 채권자 〇〇은행, 채무자 〇〇〇〇〇〇〇, 채권최고액 22억 5,000만 원인 근저당권설정등기가, 1993. 11. 3. 채권자 〇〇은행, 채무자 〇〇〇〇〇〇〇, 채권최고액 10억 원인 근저당권설정등기가, 1994. 9. 6. 채권자 〇〇은행, 채무자 〇〇〇〇〇〇〇, 채권최고액 10억 원인 근저당권설정등기가 각 마쳐져있다(이하 위 각 근저당권을 통틀어 '이 사건 근저당권'이라 하고, 이 사건 근저당권의 채권최고액 합계 50억 원을 '이 사건 채권최고액'이라 한다).

나) 〇〇〇〇〇〇〇의 최대주주는 원고와 특수관계인으로 2010. 12. 31. 현재

78% shares are owned.

(ii) the details of the investment in kind and the court order of correction;

가) 원고는 2011. 9. 1. 〇〇중앙지방법원에 아래와 같이 평가한 현물출자 등의 증명에 관한 감정결과보고서 및 감정인의 감정보고서를 제출하였다. 위 각 보고서에 의하면, 이 사건 부동산의 감정평가액은 19,558,595,040원이고, 감정인은 '〇〇〇〇〇〇〇의 2010. 12. 31.자 감사보고서의 내용 및 재무상태에 비추어 채무상환능력이 충분하므로 이 사건 근저당권의 실행으로 인한 원고의 채무 대위변제 가능성이 없다'고 판단하였다.

Classification

Amount and number of stocks

Jinay

The value of the instant real estate (A)

19,558,595,040 won

Maximum Amount of Claim of this case

Other assets (B)

47,484,723 won

Debt(C)

523,873,496 won

Investment in kind (D =A +B-C)

19,082,206,267

Capital stock (E =D-Cod amount 1,267 won)

19,082,205,000 won

Return of fractional shares below 5,000 won

Number of outstanding shares (E/500)

3,816,441 Shares

나) 이에 대해 〇〇중앙지방법원은 2011. 9. 30. '현물출자의 대상인 이 사건 토지 및 건물에 대한 근저당권상의 채권최고액에 해당하는 금액은 현물출자액에서 공제한 후 현물출자자에게 부여할 주식수를 산정하라'며 보정명령을 하였다.

다) 원고는 2011. 11. 24. 〇〇중앙지방법원에 이 사건 채권최고액을 공제하지 아니한 감정결과 보고서를 다시 제출했고, 위 법원은 2011. 12. 11. '이 사건 채권최고액을 공제하라'며 보정명령을 하였다.

라) 원고는 〇〇중앙지방법원에 아래와 같이 이 사건 부동산에 대한 감정가액에서 이 사건 채권최고액 50억 원을 공제한 금액으로 이 사건 부동산의 가액을 평가하여 현물출자 등의 증명에 관한 감정결과보고서를 제출하였고, 위 법원은 2011. 12. 29. 이를 인가를 하였다.

Classification

Amount and number of stocks

Jinay

The value of the instant real estate (A)

14,558,595,040 won

Maximum Amount Deduction of this case

Other assets (B)

47,484,723 won

Debt(C)

523,873,496 won

Investment in kind (D =A +B-C)

14,082,206,267

Capital stock (E =D-Cod amount 1,267 won)

14,082,205,000 won

Return of fractional shares below 5,000 won

Number of outstanding shares (E/500)

2,816,441 Shares

E) The Plaintiff finally assessed the amount invested in kind as follows, and entered into an investment in kind with the instant corporation established on December 30, 201. On December 30, 201, the instant corporation was registered of incorporation on December 30, 201, and thereafter, the Plaintiff acquired 8,000 shares by investing KRW 40,000 in cash to the instant corporation, taking into account the fact that the assets are reduced due to the collection of outstanding amounts.

Classification

Amount and number of stocks

Jinay

The value of the instant real estate (A)

14,558,595,040 won

Maximum Amount of Claim of this case

Other assets (B)

1,872,600 won

Debt(C)

523,873,496 won

Investment in kind (D =A +B-C)

14,046,594,144 won

Capital stock (E =D-Cod amount 1,267 won)

14,046,590,000 won

Return of fractional shares below 5,000 won

Number of outstanding shares (E/500)

2,809,318 Shares

3) Application for taxation carried forward and request for correction by the Defendant

A) On February 28, 2012, the Plaintiff reported the transfer value of the instant real estate to the Defendant as KRW 14,558,595,040, and applied for a carried-over taxation of transfer income tax on the conversion of the instant real estate into the corporation.

B) The Defendant demanded the Plaintiff to revise the transfer value of the instant real estate at KRW 19,558,595,040, which did not deduct the amount of the instant claim. Accordingly, the Plaintiff filed the revised return of tax base with the transfer value of the instant real estate at KRW 19,558,595,040, May 23, 2012.

C) The standard balance sheet for the business year 201 of the instant legal entity submitted by the Plaintiff (Evidence B No. 7-2) includes 14,58,595,040 won in total, including tangible assets, and the total amount of KRW 14,603,869,460 in total, and the total amount of KRW 720,126,350 in total, and capital 14,086,590,000 in total, including tangible assets.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 13, Eul evidence 5 and 7, the purport of the whole pleadings

D. Determination

1) Article 2(1)6 of the former Restriction of Special Taxation Act provides that where an individual transfers fixed assets for business, etc. used for the pertinent business to a corporation by means of investment in kind, etc., capital gains tax shall not be imposed on the individual who transfers the fixed assets, etc. for business; instead, where the acquiring corporation transfers the fixed assets, etc. for business to the relevant corporation, it refers to paying as corporate tax the amount equivalent to the calculated capital gains tax calculated by deeming that there is no other transferred assets, etc. for the previous business to be transferred to the relevant corporation in the taxable period to which the date of transferring the fixed assets, etc. for business belongs; pursuant to Article 32 of the former Restriction of Special Taxation Act and Articles 28(1)2 and 29(5) of the Enforcement Decree of the Restriction of Special Taxation Act, where a resident converts fixed assets for business into a corporation by investment in kind, it shall be subject to taxation carried forward on the fixed assets for business, and it shall be applicable only

2) As to the instant case, the “net asset value”, which is the requirement for carrying forward taxation, shall be calculated as the “amount obtained by deducting the total amount of liabilities including the allowances, from the total amount of assets appraised at the current market price.” However, in light of the accounts, it is reasonable to deem that the Defendant’s disposition based on the premise that the amount of net assets of the instant workplace does not meet the requirement for carrying forward taxation, considering the net asset value of the instant workplace as 14,046,590,00 won, in calculating the net asset value, in light of the following circumstances revealed by comprehensively taking into account the purport of the entire arguments as seen earlier, in light of the following circumstances. Therefore, it is reasonable to deem that the corporation’s capital is 14,086,590 won, and the net asset value of the instant workplace is 14,046,594,144 won after deducting the maximum debt value of the instant workplace from the maximum debt amount of the instant case.

① Carry-over taxation applies only to cases where an enterprise, which is managed by an individual as the subject of rights and obligations, as the subject of rights and obligations, is changed in the corporate form to be managed by an independent corporation as the subject of rights and obligations. The purport of the law requiring that the capital be higher than the net asset value is to change substantially only the type of business operation. In order for the same business operator to be evaluated as changing only the type of business operation, the net asset value subject to investment in kind should be succeeded as it is to the newly established corporation. The Plaintiff established the instant corporation by investing in kind the entire business assets of the instant business establishment, including the instant real estate, and there was no partial exclusion from the assets and liabilities of the existing business establishment. Thus, it is evaluated that the net asset value subject to investment in kind is transferred to the newly established corporation and the same business operator

② 현물출자에 관하여는 법원에 감정인의 감정결과 등을 보고하여야 하고 법원은 이를 심사하여 인가 또는 변경결정을 하게 되는데(상법 제299조의2, 제300조 등), 앞서 본 바와 같이 이 사건 현물출자를 심사한 〇〇중앙지방법원은 이 사건 부동산에 근저당권이 설정되어 있다는 이유로 이 사건 채권최고액을 현물출자액에서 공제하도록 권고하였고, 원고가 이에 응하여 이 사건 부동산 평가액을 14,558,595,040원, 이 사건 현물출자액을 14,082,206,267원, 자본금을 14,082,205,000원으로 수정하여 위 법원의 인가를 받았는바, 결국 위 법원은 이 사건 사업장의 가치를 14,082,206,267원으로 평가한 것이고, 원고로서는 현물출자를 통해 법인전환을 하려는 경우 상법 규정에 의하여 위 법원의 결정을 따를 수밖에 없었다.

(3) Where a corporation is established by investing all assets and liabilities in kind in a place of business, the terms "investment in kind" and "net asset value" prescribed by the Enforcement Decree of the Restriction of Special Taxation Act shall be the same as the existing place of business in terms of concept

④ In assessing the instant place of business subject to investment in kind, the court of the examination on investment in kind can be deemed to have assessed the debt by deeming that there is a high possibility of leakage of resources, and on such premise, the amount of the capital of the newly established corporation was determined. Therefore, it is reasonable to view that the assessment of the value of the existing place of business in relation to the carried-over taxation may be assessed as the debt equivalent to the net asset value of the newly established corporation in order to compare it with the capital of the newly established corporation.

⑤ The Accounting Account does not recognize the amount equivalent to the maximum debt amount of this case as a contingent liability, and thus, it seems difficult for the Plaintiff to expect that the court would deduct the amount of the investment in kind from the amount of the investment in kind, in making an investment in kind for the conversion of the workplace of this case. If the amount of the investment in kind is not deducted from the amount of the maximum debt amount of this case in calculating the net asset value even after setting the amount of the investment in kind according to the court’s decision, the amount of the investment in kind is unreasonable because the Plaintiff’s expectation that the carrying-over taxation would be possible is difficult to assume the Plaintiff’s responsibility (if the instant mortgage is not a real guarantee but the Plaintiff bears the secured debt, the amount of the secured debt would be deducted from the amount of the debt in calculating the net asset value, and there is no problem that the carried-over taxation would be applied. However, as in the instant case, there is no special reason not to apply the carried-over taxation only when it provides a real guarantee, and it seems that the Restriction

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

Relevant statutes

▣ 조세특례제한법(2011. 12. 31. 법률 제11133호로 개정되기 전의 것)

Article 2 (Definitions)

(1) The terms used in this Act shall be defined as follows:

6. 이월과세(����課��) 란 개인이 해당 사업에 사용되는 사업용고정자산 등(이하 이 호에서 종전사업용고정자산등 이라 한다)을 현물출자(��������) 등을 통하여 법인에 양도하는 경우 이를 양도하는 개인에 대해서는 「소득세법」 제94조에 따른 양도소득에 대한 소득세(이하 양도소득세 라 한다)를 과세하지 아니하고, 그 대신 이를 양수한 법인이 그 사업용고정자산 등을 양도하는 경우 개인이 종전사업용고정자산등을 그 법인에 양도한 날이 속하는 과세기간에 다른 양도자산이 없다고 보아 계산한 같은 법 제104조에 따른 양도소득 산출세액 상당액을 법인세로 납부하는 것을 말한다.

Article 32 (Carryover Taxation of Transfer Income Tax for Conversion into Corporation)

(1) Where a resident adds fixed assets for business to a corporation (excluding a corporation operating consumptive service business prescribed by Presidential Decree) no later than December 31, 2012 by means of investment in kind or transfer or takeover of business prescribed by Presidential Decree, he/she may be subject to carryover taxation on such fixed assets for business.

(2) Paragraph (1) shall apply only where the capital of a newly incorporated corporation is at least the amount prescribed by Presidential Decree.

(3) Any resident who intends to be governed by paragraph (1) shall apply for the carryover taxation, as prescribed by Presidential Decree.

(4) Article 31 (4) through (6) shall apply mutatis mutandis to a corporation to be established pursuant to paragraph (1).

▣ 조세특례제한법 시행령

Article 28 (Carryover Taxation, etc. of Capital Gains Tax on Consolidation between Small and Medium Enterprises)

(1) The “integrated between small and medium enterprises operating the types of business prescribed by the Presidential Decree” in Article 31 (1) of the Act means the consolidation that satisfies the requirements falling under any of the following subparagraphs, by a small and medium enterprise owner (referring to a small and medium enterprise owner under the Framework Act on Small and Medium Enterprises; hereafter the same shall apply in this Article) who runs a business except the consumptive service business (limited to the case where the amount of revenue by project of consumptive service business in the business year immediately preceding the business year in which the date of real estate transfer falls, in case where concurrently runs other business than the consumptive service business) under Article 29 (3) of the Act, succeeds to all the principal assets concerning the business at each business place of the relevant enterprise and maintains its identity. In this case, a

2. The value of the stocks or shares acquired by the small and medium enterprise owner of the place of business to be extinguished due to the consolidation shall not be less than the net asset value of the place of business to be extinguished due to the consolidation (referring to the total amount of assets appraised as the market value of the consolidation date less the total amount of liabilities including the allowances;

Article 29 (Carryover Taxation of Transfer Income Tax for Conversion into Corporation)

(2) "Method of transfer or acquisition of business prescribed by Presidential Decree" in Article 32 (1) of the Act means that a person who has engaged in the relevant business becomes an incorporator and establishes a corporation by investing more than the amount under paragraph (5) and comprehensively transferring all rights and obligations concerning the relevant corporation within three months from the date of incorporation.

(4) Any person who intends to be subjected to the carryover taxation of transfer income tax pursuant to Article 32 (1) of the Act shall submit an application for carryover taxation to the head of the tax office having jurisdiction over the place of tax payment along with a corporation newly established at the time of tax base return (including preliminary return) for the taxable year to which

(5) "Amount prescribed by Presidential Decree" in Article 32 (2) of the Act means the amount calculated by applying mutatis mutandis Article 28 (1) 2 to the net assets value of a place of business converted into a corporation by investing in kind or transferring business.

▣ 상법

§ 290. Matters concerning Irregular incorporation

The following shall take effect upon entry in the articles of incorporation:

1. Any special benefits to be received by promoters and names of such promoters;

2. Name of the persons who are to make a contribution in kind and the kind, quantity and price of property subject to such contribution and the class and number of shares to be given therefor;

3. The class, number and value of the property agreed to be transferred to the company after its incorporation and the name of the transferor;

4. Expenses to be borne by the company and remuneration to be received by promoters;

Article 295 (Payment of Subscription Price and Performance of Contribution in Kind in Promotion of Incorporation)

(1) Where the promoters subscribe to all the shares issued at the time of incorporation, they shall without delay pay the total amount of the subscription price for each share. In this case, the promoters shall designate banks and other financial institutions to be responsible for payment and places for payment.

(2) The promoters who make an investment in kind shall deliver the property subject to the investment without delay on the date of payment, and shall, in case where a registration, a registration or an establishment or a transfer of other rights is required,

§ 298. Investigation and reporting by directors and auditors, and requests for appointment of inspectors

(4) In cases where the articles of incorporation provide for any matter set forth in Article 290, the directors shall request a court to appoint an inspector for the purpose of conducting the investigation on such matter: Provided, That this shall not apply to cases falling under Article 29-2.

Article 299 (Investigation and Reporting by Inspector)

(1) An inspector shall investigate the matters of each subparagraph of Article 290 and the performance of the contribution in kind under Article 295, and report it to the court.

Article 299-2 (Proof of Contribution in Kind)

Matters referred to in subparagraphs 1 and 4 of Article 290 shall be investigated and reported by a notary public with respect to the matters referred to in subparagraphs 2 and 3 of Article 290, and with respect to the matters referred to in subparagraphs 2 and 3 of Article 290 and the implementation of investment in kind pursuant to Article 295, an appraisal by a certified appraiser may substitute for the investigation by an inspector pursuant to Article 299 (1). In this case, the notary public

Article 300 (Disposition of Alteration by Court)

(1) If a court finds the matters pursuant to the provisions of Article 290 inappropriate after examining an investigation report by an inspector or notary public or the results of appraisal by an appraiser and an explanatory note by the promoters, it may alter them and notify each promoter thereof.

(2) A promoter who objects to an alteration under paragraph (1) may revoke the subscription of his/her shares. In such cases, the procedures for the incorporation may be continued by amending the articles of incorporation.

(3) Where no promoters cancel the subscription of shares exist within two weeks after a court's notice, the articles of incorporation shall be deemed to have been changed in accordance with the notice.