Trial Decision 2012No3701 ( December 05, 2012)

No taxation carried forward under the consolidation of small and medium enterprises shall be imposed;

Since the value of stocks, etc. acquired by small and medium entrepreneurs of a place of business extinguished by consolidation is below the net asset value of the place of business extinguished by consolidation, it is not subject to taxation carried forward of capital gains tax following consolidation.

Article 31 of the Restriction of Special Taxation Act, Article 28 of its Enforcement Decree

2013Guhap625 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

April 16, 2014

May 14, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 526,652,020 on June 7, 2012 against the Plaintiff was revoked.

1. Details of the disposition;

A. The Plaintiff, on February 22, 2008, operated △△△○○○○○○○-dong 000-9 573.8 square meters, 00-13 large 1,062 square meters, 00-14 large 495.8 square meters, and 00-13 same as the same 00-14 large 495 square meters, and 2,130.5 square meters of 2,130.5 square meters of residential facilities and amusement facilities (hereinafter collectively referred to as the “real estate”). On February 22, 2008, the Plaintiff invested the instant real estate in kind in the category of ○○ ○○ ○○○○-dong ○○○○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○ ○.

B. On May 31, 2009, the Plaintiff filed a final return on capital gains tax on the instant real estate.

The appraised value of assets 3,512,758,080 won, the appraised value of liabilities 2,912,358,000 won, the net asset value of 600,400,080 won, and the acquisition value of new stocks of 651,683,675 won per share (=23,981 share x 27,175 won) by calculating the appraised value as 27,175 won per share, and the acquisition value of new stocks is 651,683,675 won or more of the net asset value of 600,400,080 won, and the latter Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010; hereinafter referred to as the "Enforcement Decree of the Restriction of Special Taxation Act") by filing an application for taxation of capital gains tax for 208 years under Article 28(1)2 of the former Enforcement Decree of the Restriction of Special Taxation Act.

C. However, the Board of Audit and Inspection conducted an inspection of the ○○ regional tax office from October 17, 201 to December 24 of the following month, and conducted an inspection of the amount of asset valuation of the instant real estate in the amount of KRW 2,912,358,00,000 (hereinafter “water guarantee obligation of this case”) to be deducted from the assessed amount of KRW 3,512,358,000 on the real property of KRW 8,00,000 on the real property of KRW 2,912,358,00,000 on the real property of the instant real estate (hereinafter “water guarantee obligation of this case”) was the obligation of the △△ stock company, which was not acquired on the real property of this case after the said investment in kind, on the ground that the Plaintiff’s acquisition value does not constitute the obligation to be deducted when calculating the net asset value of the instant real estate, and thus, it did not constitute the object of taxation carried forward (i.e., the net asset value of the instant real estate of this case).

D. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on August 14, 2012, but the Tax Tribunal dismissed the appeal on December 5, 2012.

[Ground of recognition] Unsatisfy, Gap's entries in Gap's 1, 2, 4, Eul's 1 to 11 (including all types of numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff’s establishment to be extinguished by investment in the real estate of this case from the court

Net asset value of KRW 650,000,000 (=market price of the instant real estate 3,500,000,000) - Borrowings

In light of the purport of Article 31(1) of the former Restriction of Special Taxation Act (amended by Act No. 9671 of May 21, 2009; hereinafter the same) which intends to promote the debt 2,050,000 won - In sum, when calculating the net asset value of the real estate in this case, 651,683,675 won of the share acquired by the Plaintiff from the investment in kind of the real estate in kind constitutes a case where the net asset value of the place of business extinguished by the investment in kind is 650,000,000 won or more, and thus, the disposition in this case is unlawful, since it constitutes a case where the value of share acquired by the Plaintiff is 651,683,675 won or more of the net asset value of the place of business extinguished by the investment in kind, and thus, the disposition in this case is unlawful.

Although the main part of the disposition of this case is legitimate, the defendant's relocation to the plaintiff

In light of the fact that capital gains tax carried forward was imposed and the disposition of this case was rendered late after the Board of Audit and Inspection’s request for correction, etc., it is deemed that there is a justifiable reason not to mislead the Plaintiff into neglecting the obligation to pay the principal tax of this case. Therefore, the penalty tax of this case is unlawful.

B. Summary of the defendant's assertion

In the case of the plaintiff by asserting the following, the defendant does not meet all the requirements for carryover taxation.

As such, this case’s disposition was lawful.

The plaintiff of ○○○○○○-dong 000-9 Large 573.8 square meters (hereinafter referred to as “the land of this case”) is called “the land of this case 000-9”

3,512,758,080 won is assessed except for the land invested in kind, even if the Plaintiff completed the registration of ownership transfer on the L/C terms on the ground of the investment in kind. Thus, it cannot be said that the value of the real estate acquired by the Plaintiff is higher than the net asset value of the place of business extinguished by the Plaintiff.

The debt guaranteed by the property of this case is certain to be paid at a final and conclusive expense.

It is not a kind of obligation to be deducted from the net asset value of the place of business extinguished only in the case of liability.

B. The Plaintiff: (a) ○○○○○-dong 000-13 large 1,062 square meters; (b) 000-14 large 495.8 square meters in the same manner.

As to the above 5th floor building without receiving any rent, the part necessary for the ordinary use of the above 5th floor building among each of the above 5th floor buildings cannot be seen as the rental real estate used for the lease business, but the Plaintiff invested each of the above 5th floor in kind in the land for the lease business under the terms and conditions, so this cannot be said to be the case where the business identity is maintained under Article 28(1) of the Enforcement Decree of the Restriction of Special Taxation Act.

(c) Related statutes;

Attached Form is as shown in the attached Form.

D. Determination

1) Determination as to the principal portion of the instant disposition

Generally, the tax authority bears the burden of proving the facts of taxation requirements in a revocation suit.

However, barring any special circumstance, the taxpayer shall be deemed to bear the burden of proof with respect to the fact that the requirements for carryover taxation by a small and medium enterprise consolidation under Article 31 of the Restriction of Special Taxation Act are satisfied (see, e.g., Supreme Court Decisions 2005Du8443, Dec. 23, 2005; 2010Du8423, Sept. 30, 2010).

In light of the above legal principles, the Song Forest Industry on the ground of investment in kind in the real estate of this case

Since the transfer of real estate of this case to a small or medium enterprise under Article 31 of the Restriction of Special Taxation Act satisfies the requirements of taxation carried forward as to the consolidation of small or medium enterprises under Article 31 of the Restriction of Special Taxation Act, according to the following circumstances, i.e., Article 31(1) of the Restriction of Special Taxation Act, and Article 28(1) of the Enforcement Decree of the same Act, the requirement of taxation carried forward of the transfer income tax for the consolidation of small or medium enterprises, i.e., the small or medium enterprise owner succeeds to all its main assets and maintains its identity; ii) the small or medium enterprise owner of the place of business extinguished due to consolidation is the shareholder or investor of the consolidated corporation; 3,512,758,00, 2,912,358,00, 600, 600, 600, 600, 600, 608, 607, 608, 606, 7006, 700

이에 대하여 원고는, □ □ □ □이 원고로부터 이 사건 000-9 토지를 증여받은 것으로 인정되어 2008년 분 귀속의 법인세를 모두 납부하였으므로 이는 이중과세에 해당한다는 취지로 주장하므로 살피건대, 증여세와 양도소득세는 납세의무의 성립요건과 시기 및 납세의무자를 서로 달리하는 것이어서 과세관청이 각 부과처분을 함에 있어서는 각각의 과세요건에 따라 실질에 맞추어 독립적으로 판단하여야 할 것으로, 위 규정들의 요건에 모두 해당할 경우 양자의 중복적용을 배제하는 특별한 규정이 없는 한 어느 한 쪽의 과세만 가능한 것은 아니라 할 것인바(대법원 1999. 9. 21. 선고98두11830 판결 참조), ▷▷세무서가 이 사건 000-9 토지의 양도와 관련하여 이를□ □ □ □에 대한 증여로 보아□ □ □ □에게 법인세를 부과하면서 동시에 피고가 원고에게 양도소득세를 부과하였다 하여 이를 실질과세의 원칙이나 공평과세의 원칙에 반한다고 할 수는 없으므로, 원고의 위 주장은 받아들이지 아니한다.

2) Determination as to the portion of penalty tax in the instant disposition

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, where a taxpayer violates various obligations, such as a return and tax payment, as prescribed by the law without justifiable grounds, a taxpayer’s intentional or negligent act and negligence does not constitute justifiable grounds that do not constitute a violation of the duty. Such sanctions are imposed on the taxpayer, unless there are justifiable grounds that it is unreasonable for the taxpayer to be unaware of his/her duty, or there is a circumstance that it is unreasonable for the taxpayer to be unaware of his/her duty, to expect the performance of his/her duty, etc. In addition, unless there is a justifiable reason that it is difficult for the taxpayer to be unaware of his/her duty, the tax should be imposed on the non-performance of the duty under the tax law. Therefore, insofar as it is revealed that the fact can be inferred of the tax requirement, it is reasonable to view that the taxpayer is liable to assert and prove the existence of the penalty tax (see, e.g., Supreme Court Decisions 95Nu92, Nov. 7, 195; 2012Du6261268).

In light of the above legal principles, as to the legitimacy of the penalty tax portion among the disposition of this case

As alleged by the Plaintiff, it is difficult to view that there is a justifiable reason not to charge the Plaintiff’s breach of duty solely on the ground that the Defendant received a correction order from the Board of Audit and Inspection even though the Defendant initially applied the transfer income tax carried forward to the Plaintiff, and that the instant disposition was rendered late later, and otherwise, it is difficult to accept the Plaintiff’s assertion in the instant case where there is no evidence to acknowledge that the Plaintiff was not aware of

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.