Early High Court Decision 2016Du1544 (Law No. 28, 2016)

Transfer

Dismissal

As seen in this case, it is difficult to view that only the type of operating a business is changed in the case where a reduced net asset value is converted into a corporation by generating a large amount of debt for the purpose of repaying the real guarantee debt, etc. established on the key real estate without direct connection with the business place immediately preceding the business of investment in kind for corporate conversion. In light of the fact that it is difficult to deem that the disposition agency denied the application of carried-over taxation of transfer income tax on the key real estate by denying the application of carried-over taxation of transfer income tax on the transfer income tax on the key real estate because the claimant obtained an investment in kind from the court as the net asset value

Article 32 of the Restriction of Special Taxation Act / Article 28 of the Restriction of Special Taxation Act / Article 29 of the Restriction of Special Taxation Act / Article 47-5 of the Framework Act on National Taxes

National High Court Decision 2004west 1637

The early 2015 middle 2375

The appeal is dismissed.

1. Summary of disposition;

A. The claimant is subject to the application of the taxation carried forward of the transfer income tax on the conversion into a corporation pursuant to Article 32 of the Restriction of Special Taxation Act (hereinafter “Special Taxation Act”) on the investment in kind of the key real estate by investing the business in kind in an OO corporation established on April 23, 2010 for conversion into a corporation while operating a golf practice range with the trade name of OO in a place of business located outside the Seoul Special Metropolitan City OOO and eight lots of land [3,592 square meters, buildings (the five stories above the ground, 1 story), 3,840 square meters above the ground).

B. The director of the regional tax office conducted an audit on the disposition of the carried-over taxation of capital gains tax against the claimant, and ordered the agency to conduct a reinvestigation on the application of the carried-over taxation of capital gains tax against the claimant for the period from August 24, 2015 to September 15, 2015. As a result, the agency conducted a tax investigation on whether the filing of the carried-over taxation of capital gains tax on the conversion of the corporation is appropriate, among the liability OO members deducted by the claimant for the calculation of net asset value, since it is not directly related to the business, it does not meet the requirements for carried-over taxation of capital gains tax that should be above the net asset value of the place of business extinguished by the conversion of the corporation's capital stock if excluded. Thus, on March 4, 2016, the pertinent real estate investment in kind did not constitute the subject of carried-over taxation of capital gains tax, and thus, the agency corrected and notified the OOO members of capital gains tax

C. The claimant appealed and filed an appeal on April 11, 2016.

2. Opinions of the requester and disposition agency;

A. Appellant's assertion

(1) The net asset value refers to the amount calculated by deducting the total amount of liabilities including allowances from assets, and there is no other restriction. Thus, there is no legal basis to deny the key liabilities established as the liability of the pertinent workplace with the inspector’s appraisal and the approval of the court under the Commercial Act due to the establishment of variable under the law, and the previous laws and regulations prohibit the financing of the liability of the immediately preceding workplace of investment in kind by stipulating that the corporate capital is above the “one-year average net asset value” of the place of business converted into the corporate capital (see Supreme Court Decision 93Nu20160), but it is recognized as an unnecessary regulation for the conversion of the corporate entity under the method of investment in kind, which goes through the court approval procedure at the end of 197, so the amendment was made to the “net asset value as of the date of investment in kind

In addition, the secured liabilities of the key real estate are generated in the course of the claimant's business or the sale of the key real estate, and the withdrawal of the reserved amount in the key business place as if the payment of dividends from the corporation is part of normal business activities is legitimate in business, and the redemption of contingent liabilities secured by the key real estate after the redemption of the secured contingent liabilities is in accord with the intent of the special taxation for conversion into the corporation as it is helpful for the conversion corporation's capital telephone, and thus it is also in accord with the purpose of the special taxation for conversion into the corporation. Therefore, it

In addition, the disposition agency claims that the company should have appropriated the assets corresponding to the debt if it intends to not deduct the key debt from non-deduction, but the claimant should not appropriate the cash raised from the key debt as an investment and recover it from the assets.

Therefore, it is improper to consider that the issue debt is not directly related to the business and that the claimant's investment in real estate is not subject to taxation carried forward of transfer income tax.

(2) The case holding that although the claimant applied for the deferment of taxation of capital gains tax on investment in kind with all the materials including the materials reported to the court, the disposition agency reviewed on August 30, 2010 and decided that the contents of the application were justifiable, and the submission of the above application was made with strict review requirements for carry-over taxation ( majority of 2010Guhap16272, etc.) and the disposition agency decided on August 30, 2010, it is not possible in light of the empirical rule to expect non-professional claimant to report and pay capital gains tax by the end of May 201, and it is unfair to impose additional tax even if the claimant has a legitimate reason to trust the decision of the disposition agency, and it should be protected by the good faith principle (the first instance court 2004Do1637, Nov. 3, 2004; the majority is the same). In particular, it is unreasonable to interpret that the disposition of additional tax is not imposed by the disposition agency after the internal audit of the Director of the Regional Tax Office.

(b)Opinion of the Administration;

(1) In applying Article 32 of the Special Provision Act and Article 29 of the Enforcement Decree of the same Act, the net asset value of a business operator converted into a corporation shall be calculated by deducting the total amount of debts from the total amount of assets appraised as of the date of investment in kind as of the date of the date of investment in kind, including reserves. In this case, liabilities subject to deduction refer to liabilities arising in relation to the pertinent business, and the liabilities subject to deduction shall not constitute liabilities subject to deduction as liabilities unrelated to the pertinent business, which

In addition, to terminate the right to collateral security established on the key real estate on December 28, 2009, prior to the conversion of the corporation, the borrowing of OO members from OOO to repay all the loans of the debtor (main OO, etc.) and then registering the total amount of the loans as the debt of OOO is to be appropriated as the debt of the key place of business by executing the loan under the applicant's name in order to cancel the right to collateral security established on the key real estate in favor of the debtor's application for carry-over taxation.

Therefore, the issue of real estate includes the amount of liabilities, which is not directly related to the business, as a result of the verification of the OO Won, which is deducted at the time of the application for carried forward, and even if the issue debt is a business related to the business, if the loan is included in the value of the asset, the net asset value is not changed, and it does not meet the requirements for carrying forward transfer income tax, and thus the first disposition of denying carried forward taxation is justifiable

(2) As asserted by the claimant, if the disposition of this case is not subject to an additional payment for unfaithful payment, it is required to submit an application stating the reasons why the pertinent obligation could not be performed under Article 48(1) of the Framework Act on National Taxes and Article 28 of the Enforcement Decree of the same Act, but it is not possible to confirm the specific reasons why the pertinent obligation could not be performed,

3. Hearing and determination

A. Key issue

(1) Appropriateness of any disposition denying the application of carried-over taxation of capital gains tax on corporate conversion.

(2) Appropriateness of disposition for additional tax payment

(b)the relevant legislation;

(1) Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201)

Article 32. (Carryover Taxation of Transfer Income Tax for Conversion into Specialized Infrastructure Corporation) (1) Where a resident is converted into a corporation (excluding a corporation operating consumptive service business prescribed by Presidential Decree) by means of investment in kind or by means of business transfer or acquisition prescribed by Presidential Decree on or before December 31, 2012, the said fixed assets for business may be subject to carryover taxation.

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

(3) Any resident who intends to have paragraph (1) applied shall file an application for taxation carried forward, as prescribed by Presidential Decree.

(2) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22583, Dec. 30, 2010)

(1) For the purpose of Article 28 (1) of the Act, the term "integrated between small and medium enterprises that operate the type of business prescribed by Presidential Decree" means a small and medium enterprise that runs the business except the consumptive service business under Article 29 (3) (limited to the case where the revenue amount by project of the consumptive service business is the largest, in cases where the consumptive service business concurrently runs other business) is maintained by a small and medium enterprise operator who runs the business, by succession of all the principal assets concerning the business at the place of business of the relevant enterprise and satisfies the requirements in the following subparagraphs. In this case, the succession of the business of an individual (limited to oligopolistic stockholders under Article 39 (2) of the Framework Act on National Taxes) by a corporation for which one year has not passed since its establishment shall not be

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 value of net assets of the place of business to be extinguished due to the consolidation (referring to the amount obtained by deducting the total amount of liabilities including the allowances from the total amount of assets appraised as of the

The term "amount prescribed by Presidential Decree" in Article 29 (2) of the Act means the amount calculated by applying the provisions of Article 28 (1) 2 mutatis mutandis, which is the net asset value of a place of business converted into a corporation by investing in kind or transferring its fixed assets in kind.

(3) Framework Act on National Taxes

Article 47-5 (Additional Tax for Insincere Payment and Refund) (1) If a taxpayer fails to pay a national tax by the due date prescribed by tax-related Acts or the paid tax amount falls short of the payable tax amount, the amount calculated by applying the following formula shall be added to the payable tax amount

Amount of unpaid or insufficient tax 】 Period from the day following the due date to the date of voluntary payment or the date of payment notice 】 Interest rate prescribed by Presidential Decree in consideration of the interest rate applied by financial companies,

Article 48 (Reduction and Exemption, etc. of Additional Taxes) (1) Where an additional tax is to be imposed under this Act or any other tax-related Act, if the ground for such imposition corresponds to that for extending the due date under Article 6 (1) or the taxpayer has any justifiable ground for non-performance of his/her obligation, the Government shall

(c)fact-finding relations and judgments;

(1) Examining the psychological data submitted by the disposition agency, the claimant comprehensively invested in kind the business including the key real estate in order to convert the OO golf club into a corporation, and applied for a carryover taxation on the transfer income tax for the conversion of the real estate into the corporation. However, the disposition agency excluded the key debt from the total amount of the liabilities deducted in calculating the net asset value of the place of business extinguished by the claimant, since it is not directly related to the business, it does not meet the requirements for carryover taxation of the transfer income tax to be above the net asset value of the place of business extinguished by the conversion into the corporation. Thus, the investment in kind of real estate in question does not meet the requirements for carryover taxation of transfer income

(2) The following facts are revealed according to the review materials, etc. submitted by the agency and the claimant.

(A) According to the “Evaluation Report on Contribution in Kind” submitted by the claimant to the Seoul Western District Court (Seoul Western District Court March 2010), the value of the pertinent real estate was appraised as an OOOwon (Land OOOwon and Building OOOwon) and the amount of contribution in kind was assessed as an OO won after subtracting the total debt from the total amount of OOO Won and the shares to be granted by the claimant are the registered general shares of 792,134 shares (one share) and the shares to be granted by the claimant were the causes of OOO.

Details of appraisal of OO assets and liabilities.

(unit: Won)

(B) On May 31, 2010, the claimant filed an application for the application of carryover taxation of capital gains tax computed by making the transfer date as March 3, 2010, the transfer value as an OO member, and the acquisition value as an OO member, with the acquisition value as an OO member. This is shown in the application for carryover taxation application.

(C) According to the report of the disposition agency's investigation of capital gains tax, in order to terminate the establishment of the right to collateral security, such as the amount of water-backed guarantee obligation established on the disputed real estate, the loans used to repay debts unrelated to the business other than the new construction cost of OOO out of the amount appropriated as the debt (short-term loan) on the balance sheet of 2009 after obtaining a loan from OOOOO on the security of the key real estate on December 28, 2009 and repaid the amount of water-backed guarantee obligation by OOOO out of the amount appropriated as a debt (short-term loan) on the security of the key real estate, are not included in the total amount of liabilities deducted from the total amount of assets. Thus, since the capital (OO) of the converted company falls short of the net asset value

(D) According to a written statement (2016. Mar. 30, 2016. 20, GangwonO and the manager of a converted corporation) submitted by the claimant, the following: (a) on May 31, 2010 on behalf of the claimant, the applicant filed an application for carried-over taxation of capital gains tax following the conversion into a corporation by visiting the disposition agency on behalf of the claimant, attaching all documents related to the investment in kind pursuant to Article 32 of the Special Provision Act; (b) the liabilities incurred by the transfer of the real estate are included in the liabilities invested in kind to the disposition agency (name omitted); and (c) the fact that the applicant has been utilized as funds for the various businesses of the claimant; and (d) on August 30, 2010, the receipt of the document of “decision on the reduction of tax base of capital gains tax and

(3) In full view of the above facts and relevant laws and regulations, the claimant asserts that an investment in kind in the key real estate did not meet the requirements for carried-over taxation of capital gains tax. However, if a resident is converted into a corporation by investing in kind the fixed assets for business in kind, the transfer income tax shall be imposed on the fixed assets for business in excess of the net asset value of the place of business converting the company's capital into a corporation by investing in kind the fixed assets for business in kind. If the purpose of legislation that requires an investment in kind is converted into a corporation through an investment in kind, it shall be deemed that the company has invested above the net asset value of the place of business extinguished in order to maintain the identity of the business if it is converted into a corporation through an investment in kind. Thus, the claimant's disposal of the fixed assets for the purpose of repaying the asset guarantee liabilities established in the key real estate without direct relations with the place of business extinguished immediately before the conversion into the corporation. In light of the fact that it is difficult for the claimant to recognize that the transfer income tax was applied to the corporation's net asset value converted to the company without any illegality.

(4) Next, upon examining the issues B, the reason why the claimant collected capital gains tax for the reason that the disposition agency failed to meet the carryover taxation requirements after receiving an application for carried forward taxation of capital gains tax on the investment in kind of the real estate in question from the corporation and after a considerable period of time has elapsed is difficult to view that the imposition of additional tax is exempted as justifiable grounds. In addition to the purpose of securing the performance of the obligation to pay taxes in order to facilitate the realization of the taxation claim, additional tax is deemed to have received financial benefits equivalent to the interest amount for the amount not paid by the deadline for filing a tax return under the tax law, and is also included in the purpose of recovering and preserving it.

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1)2 of the Framework Act on National Taxes because the petition for the trial results is groundless.