National High Court Decision 1995Da1466, Dec. 29, 1995

A corporation

Dismissal

At the time of disbursement of the amount of money previously disposed of as a substitute for shares of another corporation out of the pre-paid money paid for acquiring the management right of another corporation, the deduction of capital increase shall be excluded.

I dismiss the appeal.

1. Summary of the original disposition;

The applicant corporation has increased capital of 87.12.31 billion won, 8.15 billion won, 8.157 billion won, and 89.5.6 1.20 million won, and 377,000,000 won, and 214,00,000 won in the business year of 90.1 through 90.31 December 31, 90.

After the change of the name of the applicant corporation in 90.3.14 through 90.12.31, the agency made a payment of KRW 118,00,00 for the acquisition of stocks of the OOOO corporation (hereinafter “the applicant corporation”) and notified the applicant corporation of KRW 190,129,030 for the above business year's capital increase and the total amount paid for the acquisition of stocks of the other corporation exceeds 10/100 of the increased capital, the agency made a decision on KRW 1,118,00,000 for the above business year's capital increase and notified the applicant corporation of KRW 90,129,030 for the above business year's capital increase and KRW 105,689,280 for the business year's corporate tax for 91,92 business year's corporate tax for the business year.

The claimant corporation, which is dissatisfied with it, filed a request for a review on March 2, 95.6.3

2. Opinions of the applicant and the Commissioner of the National Tax Service;

In light of the contents of the agreement agreed between the representative director and the representative director of the applicant corporation at the time of change of the OOOO OOE corporation, the contract amount to be paid by the applicant corporation is the amount which is not directly related to the acquisition of shares and the purpose of securing the factory site of the applicant corporation, and the contract amount to be paid by the applicant corporation is the amount which deducts the amount of collateral security on the basis of the voluntary appraised value of real estate owned by the OOOOOOO, and is the amount which is not directly related to the acquisition of shares, and is for securing the factory site of the applicant corporation

The claimant corporation, at the time of the OOOOO, accepted the shares of another person, such as OOOO, and recovered the amount of the pre-paid fund at the time of transfer to the claimant corporation. Although the amount was paid after March 90, the expenditure of the amount was only made in the form of funds in the lump sum fund for the purchase of the factory site, it cannot be considered as the acquisition fund of shares. The claimant corporation acquired shares on April 20, 92 because it was inevitable because it did not purchase only the pre-paid factory site when the pre-paid amount was settled in order to acquire the factory site, even though the claim corporation acquired shares on April 20, 92 because it was considered that the amount of expenditure was disbursed for the acquisition of the factory site from 90 years to exclude the deduction for the increase of income that was already deducted by the claimant corporation.

(b) Opinions of the Commissioner of the National Tax Service;

It is confirmed by a copy of the contract that the applicant corporation entered into an agreement to transfer the shares owned by the applicantO when concluding a contract to acquire the management rights of the claim corporation with the OOO as a shareholder of the claimO corporation. 90.3.14.

In addition, the claim corporation is confirmed by decision-related documents that the accounting amount of KRW 1,118,00,000 paid to the OO as the price for the acquisition of the shares of the claim corporation in accordance with the above contract.

Based on the above facts, the fact that the requesting corporation acquired the shares of the requesting corporation in KRW 1,18,00,000 and accounted for the shares of the requesting corporation in November 26, 90 is found to fall under the case where the increased capital of the requesting corporation in order to acquire the shares of the other requesting corporation is disbursed in excess of 10/100 of the increased capital of the requesting corporation in excess of 10/100 for the acquisition of the shares of the other requesting corporation. However, since the requesting corporation cannot be deemed a corporation subject to income deduction from the business year of 90, it is judged that the disposition authority did not err in the disposition of imposing corporate tax such as exhibition by excluding

3. Hearing and determination

A. This dispute is to determine the propriety of the disposition imposing corporate tax by excluding the income deduction for capital increase, by deeming that the acquisition amount of stocks of another corporation exceeds 10/100 of the increased capital after capital increase is increased.

(b) Related statutes;

1) According to Article 10-3(1) of the former Corporate Tax Act, Article 55(1) of the former Tax Reduction and Exemption Regulation Act, and Article 13 and Article 21 of the Addenda of the same Act, where a domestic corporation increases its capital through monetary investment, it shall provide that a certain rate of increase in its capital shall be deducted from the date on which the registration for change in its capital is made.

2) According to Article 45(2)2 of the above Regulation of Tax Reduction and Exemption Act and Article 45(5) of the same Enforcement Decree, the above provision provides that capital increase deduction shall apply only when the balance as of the end of each month as of the end of each month of the total amount disbursed to acquire stocks of another corporation after the increase of capital does not exceed 10/100 of the increased capital.

C. Facts and determination

1) At the time of 90.3.14, the summary of the management right (transfer) agreement entered into between OOO and OOO of the representative director of the requesting corporation (hereinafter “A”) is as follows.

【Medical Records】

(1) 28,00 shares equivalent to 60% of the total shares of 70% (36,000 shares) that are to be held by OO shall be transferred, and the representative director shall be appointed in good office.

(2) Shares 10% (4,800 shares) and shares 30% (14,400 shares) of OOOO shall be equal to the value of 130,000 won and shall be transferred when A wishes, and shall be succeeded to as executive directors.

(3) Ongoing factory sites shall be assessed with the value of 630,000,000 won, and the unpaid amount of 51,800,000 won and the value of 130,000,000 won and 448,200,000 won shall be paid by the OO.

(4) The value of the O-dong factory site and building on racing shall be 635,000,000 won, and O-bank obligations shall be succeeded to 300,000 won, and it shall be paid by A to O-O for the balance of 65,000,000 won by succession to the O-listed collateral security obligations.

5.3.17 No obligations of OO as of the 90.3.17 Date shall be attributable to A, and the accounting books and the inventory shall be transferred.

(6) The method of payment shall be entrusted to an OO attorney-at-law (Ojoint law office).

2) Examining the process of replacing the advance payment with stocks after paying the advance payment in relation to the above agreement, the advance payment of KRW 1,137,36,130 during the period of 90.3.12.31 after the conclusion of the management right transfer (transfer) contract, but the advance payment of KRW 1,137,36,130 was made from the advance payment account to 92.4.30 through a variety of alternative accounting processes, the amount of KRW 1,118,00,000 was replaced with the amount of KRW 182,00,000 with the amount of money for new stocks acquired by the applicant corporation (in addition, KRW 36,40,000 with the amount of KRW 182,00,000 with the amount of money for 182,00,000 from the advance payment account of April 30, 92.

3) According to the registry of the requesting OO corporation, the representative director of the requesting OO was appointed as the representative director of the requesting O corporation, and the representative director of the requesting O corporation was temporarily dismissed on January 12, 91, but he was appointed as the representative director again on March 30, 91 and was registered as the representative director until now.

4) When comprehensively assessing the above facts and relevant Acts and subordinate statutes, it is reasonable to view that the applicant corporation has paid the fund under the pretext of advance payment, etc. when acquiring the management right of the applicant corporation, in order to acquire stocks in that it can only be achieved through the acquisition of stocks exceeding a certain percentage of shares issued by the corporation. Thus, there is no dispute over the fact that advance payment has been made, and thus, it is judged that there is no error in the disposition of exhibition corporate tax on the grounds that advance payment was made in the amount of KRW 1,118,00,000, which is replaced with the total amount of 92.30 (stocks) paid in April 30 (stocks) and the period when the fund was paid for the acquisition of the stocks of another corporation is included in the amount disbursed for the acquisition of the stocks of the other corporation. Thus, it is judged that there is no error in the taxation of exhibition corporate tax.

Therefore, this case's petition is without merit, so it is decided in accordance with the provision of Article 81 and Article 65 (1) 2 of the Framework Act on National Taxes.