In the over-the-counter trading of listed stocks, what is the market value in the application of the wrongful calculation schedule under the Corporate Tax Act.

In applying the wrongful calculation of the over-the-counter trading of listed stocks among the corporations having special relation, the market price shall be the supplementary evaluation method under the Inheritance Tax and Gift Tax Act.

Article 52 (Dispudiation of Wrongful Calculation)

Seoul Administrative Court-2017-Gu Partnership-82253

upon entering into a transfer contract, this stock is subject to over-the-counter trading.

The transaction value of the instant case as set forth in the MOW was transferred in all to the SSW, and the result was as follows.

SSSWOW shall be the largest shareholder of ABC in addition to the ABC equity (14.2%) already held.

Note (40.9% of equity) has become a share.

D. The director of the Seoul Regional Tax Office may conduct a tax investigation on the Plaintiff from February 23, 2015 to April 15, 2015.

As a result, it is unique that the market price of the instant stock transaction between the Plaintiff and SSSW is unclear.

The date of the transfer contract of this case, which is the date of the transfer contract of this case, shall be deemed as a transaction with stock accompanied by management rights.

11. 22. The amendment to the Enforcement Decree of the Corporate Tax Act (Presidential Decree No. 22577, Dec. 30, 2010) on the basis of the evaluation base date;

Inheritance Tax and Gift Tax Act (Law No. 112, Dec. 12, 2011) pursuant to Article 89(2)2 of the Act

31. Article 63(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 11130; hereinafter referred to as the “Inheritance Tax and Gift Tax Act”)

Pursuant to paragraph (3), the shares held by the largest shareholder, etc. on the average amount of the last value for two months before the evaluation base date;

57,064 per share (total amount of KRW 85,596,00,00), added to an increase in the amount of 30% per share (30%)

after evaluating the market price of the shares, the shares of this case are traded at a lower price than the market price.

(1) The appraisal value of the shares of this case shall be deemed to have reduced unreasonably by the plaintiff's income;

(85,596,00,000) Difference between the transaction value (50,296,50,000) and the transaction value (50,296,500,000) shall be gross income: 35,299,500,000 won

After inclusion, the revised corporate tax base was notified to the defendant.

E. Accordingly, the Defendant on February 11, 2016: (a) corporate tax for the business year 2010 to the Plaintiff on February 11, 2016; (b)

The original disposition (including additional tax) was imposed (hereinafter referred to as "the previous disposition of this case").

F. The Plaintiff is dissatisfied with the previous disposition of the instant case and filed an appeal with the Tax Tribunal on April 6, 2016.

The Tax Tribunal, on July 26, 2017, established a major transaction terms on the appraisal base date of the shares of this case.

The conclusion of the MOU in this case appears to have been duly agreed upon and binding between the parties to the transaction.

On October 26, 2010, the market price of the relevant shares is determined by re-determination of the market price, and the tax base and tax amount are corrected accordingly.

D. The defendant decided that D. The previous disposition of this case against the plaintiff in accordance with the above decision.

2,019,679,430 won (including additional tax) was corrected by reduction (hereinafter referred to as the “instant revision”).

The previous disposition is referred to as the "disposition of this case".

[Ground for Recognition] Unsatisfy, Gap evidence 1 to 5 (which has a serial number) shall include each number;

Each entry and the purport of the whole pleadings; hereinafter the same shall apply)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In trading the shares of this case, the Plaintiff and SSSW are the Financial Investment Services and Capital Markets Act.

(15%) The price calculated by applying the applicable law to the Act shall be calculated by adding management premium (15%) to the

In calculating the transaction price of this case, the above transaction price is the objective exchange value of the shares of this case.

applicable to the market price in a reasonable manner.

Nevertheless, the defendant's supplementary assessment methods under the Inheritance Tax and Gift Tax Act are unclear since the market price of the shares in this case

under the premise that the market price of the above shares should be calculated, an objection against the Plaintiff’s SWOW

In the Corporate Tax Act, whether the transfer of shares is lower than the market price of the assets subject to wrongful calculation under the Corporate Tax Act

The disposition of this case was taken in view of the case of "transfer".

even if the Plaintiff transferred the shares of this case at a price below the market price

Even if the shares of this case are sold, the plaintiff's managerial purpose, the plaintiff's SSW

In consideration of the method, circumstances, etc. of calculating the transaction price of the instant shares, the transaction of the instant shares shall be subject to economy

It is recognized that it is reasonable and does not fall under the object of wrongful calculation under the Corporate Tax Act.

Therefore, the defendant's disposition of this case should be revoked because it is illegal.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) ABC is divided at the SS Human Resources Development Institute responsible for the education of officers and employees of the SS Group.

corporation established on May 4, 200 and listed on the KOSDAQ market on November 16, 2006, and

e-learning services necessary to improve job ability, such as finance, foreign language, IT, etc., including affiliates to the SS Group.

provide services to one domestic company.

2) The status of shares held by ABC as of June 30, 2010, before the instant MOU was concluded.

as listed in the following table:

3) The Financial Investment Services and Capital Markets Act as of October 22, 2010 at the time of reference by the Plaintiff.

Article 165 of the Capital Markets Act (amended by Act No. 11845 of May 28, 2013; hereinafter “Capital Markets Act”) (hereinafter “Capital Markets Act”).

Article 4-4 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act (Presidential Decree No. 23924, Jun. 29, 2012)

The merger value under Article 176-5 (1) of the Enforcement Decree of the Capital Markets Act (hereinafter referred to as the "Enforcement Decree of the Capital Markets Act").

Considering the method of decision, the final market price on the latest date ( October 22, 2010), as described below, shall be the most recent one.

The weighted average market price and the weighted average market price in the last one month (1)

The method that reflects 15% of the management premium in 29,157 per share (hereinafter referred to as "the transaction price of this case") shall be calculated.

The transaction price of this case shall be 3,531 won per share of the shares of this case calculated by

The term "the Corporation" was set as follows.

- In the application of DCFethod method used as a principal method of assessment, the results of ABC’s stock value (as of June 30, 2010), as follows:

- The ABC’s 100% stock value was calculated from KRW 170.9 billion to KRW 187.2 billion, and the discount rate was calculated at KRW 12.48% and KRW 178.5 billion if it was assumed that the rate was 2.5%.

- The shares value per share of ABC was assessed at KRW 30,368 to KRW 33,266, and the discount rate was calculated at KRW 12.48% and at KRW 31,708 if the rate is assumed at KRW 2.5%.

4) On October 14, 2010, the Plaintiff and SOCW in charge of the instant stock transaction.

e-mail, etc. to discuss for determining the transaction price of the shares, including the management premium;

As of October 22, 2010, the transaction price of this case from the e-mail dated October 18, 2010 to the end price.

The method of calculating the transaction price of the instant shares was discussed through a calculation method.

5) Meanwhile, the Plaintiff: (a) requested a third-party accounting corporation to assess ABC’s stock value; and (b) on October 2010.

19. A review report (hereinafter referred to as the "assessment report of this case") was received from the Tangible Accounting Corporation:

The main contents of the above evaluation report are as follows:

6) The Plaintiff’s board of directors held on October 26, 2010 held on October 26, 2010 held the instant shares in the SWOW

The agenda to be disposed of in the transaction price has been approved, and the plaintiff and SSSW shall be the same.

On the day, the letter of understanding of this case was concluded and announced to the electronic disclosure system to the Financial Supervisory Service.

7) Bulls formed at the Korea Exchange at the main point from June 30, 2010 to December 30, 2010)

The price per share of a producer shall be as follows:

8) On April 20, 2015, the Defendant assessed the market price with respect to the instant stock transaction within the Ministry of Strategy and Finance.

Questions on the law and the evaluation base date, and the Minister of Strategy and Finance on November 18, 2016 as follows:

This reply was sent.

9) The defendant's objection to the disposition of this case under the supplementary evaluation method under Article 63 of the Inheritance Tax and Gift Tax Act

In calculating the market price of shares, the date of conclusion of the MOU of this case upon the decision of the Tax Tribunal.

In October 26, 2010, the base point of time shall be October 26, 201, and the average of the closing for each two months before and after that point shall be 49,540 won.

that is calculated by the Minister of Strategy and Finance, but the time when the instant understanding contract is concluded in accordance with the reply of the said Minister.

for the preceding two months, the average of the closing 28,681, c, e.g., the affiliate of the SS Group including the Plaintiff;

(60.5%) holding shares (60.5%) in excess of 50/100 of the total number of outstanding shares

37,285 won (=28,681 won x 130%) in addition to 30/100 pursuant to Article 63(3) of the Tax-Related Act

The value per share of the stock was determined.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 4, 5, 8, 10, 11, and Eul evidence No. 1 to 3;

The purport of all pleadings

D. Determination

1) Relevant statutes, etc.

A) Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same)

Article 52(1) of the Act on Income of a corporation through a transaction with a person in a special relationship.

If it is deemed that the burden has been unjustly reduced, the act or the calculation of the income amount of the corporation

the corporation's income for each business year without relation to the corporation;

In applying the provisions of paragraph 1, paragraph 2 shall be deemed to be sound social norms, commercial practices and special

The price applicable or deemed applicable to a normal transaction between persons other than the persons concerned;

(Market Price) provides that "on the basis of market price)" and Article 88 (1) 3 of the Enforcement Decree of the Corporate Tax Act

any tax burden under Article 52(1) of the Corporate Tax Act may be reduced unreasonably.

B. The case of transferring assets without compensation or at a price below the market price is cited in paragraph (2).

subsection (1) shall apply to a transaction between the corporation and a person with a special relationship as of the time of such action.

The application of this Act is stipulated as ‘the application'.

In addition, Article 89 (1) of the Enforcement Decree of the Corporate Tax Act applies Article 52 (2) of the Act.

under similar circumstances with which the relevant corporation continues to conduct transactions with many unspecified persons other than persons with a special relationship

price generally traded with a third party who is not a person with a special interest;

the price of the shares issued by the stock-listed corporation (if shares issued by the stock-listed corporation are traded on the Korea Exchange

the date of such transaction shall be the closing price at the Korea Exchange, and the enforcement of the Corporate Tax Act.

In applying Article 89(2) of the Decree, where the market price is unclear in applying Article 52(2) of the Act, the following:

by applying subparagraph 2, "the amount shall be calculated by applying subparagraph 2," and subparagraph 2 shall be the inheritance tax and other

The provisions of Articles 38 through 39-2, and 61 through 64 of the Gift Tax Act shall apply mutatis mutandis.

On the other hand, Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act provides that "the Financial Investment Services and Capital Markets Act" refers to "the value

Stock certificates traded on the securities market under Article 9 (13) 1 of the Financial Investment Services and Capital Markets Act;

Stocks and equity shares of a listed corporation shall be published every two months before and after the evaluation base date;

rule that "the average value of the final market price (not based on whether there has been a transaction performance) of the Korea Exchange shall be the same."

Article 9 (13) 2 of the Financial Investment Services and Capital Markets Act is set forth in item (b).

Stocks and investment shares prescribed by Presidential Decree among the stocks and investment shares of a corporation listed on the KOSDAQ market;

The Act provides that item (a) shall apply mutatis mutandis to shares.

Furthermore, Article 63(3) of the Inheritance Tax and Gift Tax Act provides that Article 63(1)1 and (2) and Article 60(2) of the Inheritance Tax and Gift Tax Act shall apply

the largest shareholder or largest investor and any State specially related to such shareholder, as prescribed by Presidential Decree, when making use;

Paragraph (1) 1 and 1 shall apply to the shares, etc. of the owner or investor (hereinafter referred to as the "large shareholder, etc.").

The value assessed pursuant to paragraph (2) or the value recognized pursuant to Article 60 (2) shall be 100 of the value.

20 percent shall be added, but 50 percent of the total number of outstanding stocks, etc. of the relevant corporation shall be added by the largest shareholder, etc.

In the case of holding excess, 30/100 shall be added.

B) Meanwhile, Article 88(1)3 of the Enforcement Decree of the Corporate Tax Act provides for Article 52 of the Corporate Tax Act.

one of the investors subject to the denial of wrongful calculation, the market price of assets;

Article 89(1) of the Enforcement Decree of the Corporate Tax Act stipulates that the transfer price is lower than the lower price.

respect the scope of the transaction, in a situation similar to the transaction, the corporation is not a person with a special relationship.

Generally traded at prices of continuous transactions with many persons or between third parties who are not persons with a special relationship;

If there is a price, the price shall be determined by the calculation.

The term "market price set as the basis for a low-price transfer" refers to an objective exchange value formed by a general and normal transaction (Supreme Court Decision 97 November 14, 1997).

Pursuant to Article 52 of the Corporate Tax Act, a corporation’s wrongful calculation under Article 52 of the Corporate Tax Act is a special relationship.

transaction with a person in the jurisdiction of such person without reasonable means of

The form of transaction listed in each subparagraph of Article 88(1) of the Enforcement Decree of the Tax Act is abused by iceing.

In the case of unfairly avoiding or reducing the tax burden, the taxation authority denies it and Acts and subordinate statutes.

institution shall be deemed to have income which is objective and reasonable by the method of

Do, from the viewpoint of the economic person, economic unity by calculating natural or unreasonable acts.

It shall apply only to cases where it is deemed that the person has neglected the reason, and whether economic rationality exists.

Determination as to whether the transaction is a case where the transaction is made, taking into account the various circumstances of the transaction.

(b) whether there is an abnormal lack of economic rationality in the light of the common sense of society or commercial practice;

Determination by the Ministry of Justice should be made (see, e.g., Supreme Court Decision 2017Du63887, Mar. 15, 2018).

2) Judgment on the Plaintiff’s assertion

A) First, in relation to the market price of the instant shares, the health account, the facts of recognition, and the entire pleadings are taken.

Comprehensively taking into account the following circumstances recognized by the land, the Plaintiff and the Defendant’s SSWOW

shares under the supplementary assessment method under the Inheritance Tax and Gift Tax Act with respect to the instant shares transaction

under the premise that the market price should be assessed, 37,285 won per share of the shares of this case.

Calculation is lawful.

① The trading of the instant shares is limited to the SS Group under the Monopoly Regulation and Fair Trade Act.

ABC Issuance, which was owned by the Plaintiff, is a SS Group with the same 1.5 million shares of this case.

SSWOW as an affiliate under the Corporate Tax Act and not via the Korea Exchange;

J. It is transferred through over-the-counter trading, and due to the transaction of the stock in this case, SSSW

ABC's largest shareholder (or 40.9 per cent of the equity ratio) in addition to the shares already held (14.2%)

Therefore, the above stock transaction is a transaction accompanied by management rights premium.

(2) The market price under Article 89 of the Enforcement Decree of the Corporate Tax Act is similar to the relevant transaction.

If there is a price generally traded between third parties who are not persons with a special relationship, the price shall be the higher, and

Where stocks issued by an authorized listed corporation are traded with the Korea Exchange, the market price of the relevant stocks shall be the transaction.

U.S.C. (U.S.) provides that the market price is outside the territory other than the Korea Exchange

(2) If the shares of this case are similar to the shares of this case

Korea does not have a generally traded price in third party who is not a party to the transaction, and there is no transaction in Korea.

The right of management is also the price formed through the above exchange transaction among minority shareholders.

It is merely a price that does not include premium but is merely a price in the transaction of the instant shares.

No market price shall be deemed the market price.

③ The Plaintiff reflects the objective exchange value of the instant shares.

Article 176 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act, which is applied by the Plaintiff to the Commission

5 The provisions of this Article shall apply where a stock-listed corporation merges with another corporation, calculating the merged value.

in the transaction of the stock in this case, if the market price is unclear, the value of the stock.

The plaintiff is not for evaluation of this case, and the plaintiff of this case received from Samsung Accounting Corporation.

In light of the stock value in the report, 15% of the right of management is claimed to have been determined, but the report has not been able to do so;

The above evaluation report has a substantial difference between the evaluation base date and the stock transaction date of this case.

In addition to June 30, 2010, the evaluation report mentioned above for the evaluation of stock value.

The cash flow discount law (DCFethod) also does not appear to be an appropriate method for calculating the market price of the shares of this case, including the management premium, based on the valuation method estimatings the capital value at the present time by applying discount rate to the company’s future cash flow. The stock price immediately after the transaction of the shares between the Plaintiff and the SSWWOW, is considerably increased compared to the market price of this case (3,450 won on the following day of the conclusion of the instant memorandum of understanding, and the closing price is 74,00 won on the date of concluding the transfer contract of this case, and the closing price is 74,000 won on November 24, 2010, which is 96,000 won on the date of concluding the transfer contract of this case). As examined below, the appraisal price calculated by applying supplementary valuation method under the Inheritance Tax and Gift Tax Act is 64,402 won per share, which reflects the objective market price of the Plaintiff’s shares as above in relation to the transaction of this case.

④ Ultimately, since the shares of this case are shares whose market price is unclear, the Corporate Tax Act enters into force.

The value assessed by applying mutatis mutandis Article 63 (1) of the Inheritance Tax and Gift Tax Act pursuant to Article 89 (2) 2 of the Decree;

The shares of the listed corporation shall be assessed under Article 63 (1) 1 of the Inheritance Tax and Gift Tax Act.

the average daily market price at the Korea Exchange published for two months before and after the base date;

for the purpose of Article 63(3) of the Inheritance Tax and Gift Tax Act, and Article 63(1)1 of the Inheritance Tax and Gift Tax Act shall apply.

For shares of the largest shareholder, etc., 100 percent of the value assessed in accordance with paragraph (1) 1;

20 shall be added, and the largest shareholder, etc. shall exceed 50/100 of the total number of outstanding stocks, etc. of the relevant corporation;

30/100 should be added to the transaction in this case, and in so doing, the transaction in this case shall be

the market price of the shares in this case shall be two months before and after the date of conclusion of the MOU of this case.

The average of 49,540 won plus 30/1001) 64,402 won, and the Defendant’s order for the instant disposition

The price of the stock of this case calculated is within the scope of the price.

B) Ultimately, the Plaintiff’s price at lower than the market price of the instant shares is a related party.

Transfer to DS, and managerial title related to the sale of the shares claimed by the Plaintiff.

It is difficult to view the foregoing low-price of shares solely with the enemy, as economic rationality in the transfer of such shares;

Article 52 of the Corporate Tax Act, Article 52 of the Corporate Tax Act, and the Enforcement of the Corporate Tax Act.

Decree No. 88(1)3 of the Decree is lower than the market price or free of charge to a person in a special relationship.

the corporation's income has been transferred at a price and the corporation's income has unjustly reduced the tax burden.

Therefore, the defendant's disposition of this case is legitimate, and the plaintiff's above assertion is based on the different premise.

shall not be justified.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

(c)

A Corporation

AA Head of the Tax Office

July 12, 2018

August 30, 2018

1. The plaintiff's claim is dismissed.

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

The imposition of corporate tax of KRW 2,019,679,430 (including additional tax) made against the plaintiff on February 11, 2016 by the defendant of the Gu office on February 11, 2016 is revoked.

1. Details of the disposition;

가. 원고는 광고대행업 등을 목적으로 하는 상장법인으로 독점규제 및 공정거래에 관한 법률상 SS그룹 계열사이다. 원고는 주식회사 ABC(2016. 3. 11. 주식회사 XXXXX로 상호가 변경되었다. 이하 'ABC'라 한다) 발행 주식 150만주(지분율 26.7%, 이하 '이 사건 주식'이라 한다)를 보유한 최대주주였다.

B. On October 26, 2010, the Plaintiff concluded a MOW Co., Ltd. (hereinafter referred to as “SSW”) with a related party under the Corporate Tax Act, a 33,531 won per share (hereinafter referred to as “the transaction price of this case”), which is the price mutually agreed upon as of October 22, 2010, to sell 50,296,50,000 won per share (hereinafter referred to as “instant MOW”).

C. On November 22, 2010, the Plaintiff entered into a transfer agreement with the SSW on the instant shares (hereinafter “instant shares”).