Early High Court Decision 2007Du4761 (Law No. 86, 2008)

Gross income from unfair mergers;

A disposition in which a corporation receives profits distributed through a merger with a person with a special relationship as an asset without compensation shall be deemed to be included in the calculation of earnings.

The contents of the decision shall be the same as attached.

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 929,98,442 against the Plaintiff on August 1, 2007 is revoked.

1. Details of the disposition;

A. On November 27, 2001, the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706, Feb. 19, 2005; hereinafter referred to as the “Enforcement Decree of the Corporate Tax Act regardless of the amendment; hereinafter referred to as the “Enforcement Decree of the Corporate Tax Act regardless of the amendment, regardless of the amendment, the corresponding provisions of the Enforcement Decree of the Corporate Tax Act stated in the attached Act refers to the corresponding provisions of the Corporate Tax Act. The same applies to other Acts and subordinate statutes such as the Corporate Tax Act; hereinafter the same applies) entered into a merger contract (hereinafter referred to as the “the instant merger”) with the non-listedCC Co., Ltd. (hereinafter referred to as “CC Electricity”), a related party under Article 87 of the Corporate Tax Act (hereinafter referred to as “the instant merger”). The main contents are as follows.

B. BB Telecom: (a) completed the merger registration on February 1, 2002 after undergoing a temporary general meeting of shareholders on December 27, 2001; (b) issued 364,000 new shares (=28,000x 13) shares; (c) granted 321,100 shares (=24,700x 13) and 42,900 shares (=3,300x 13) each to the KCC Co., Ltd. at the time of the instant merger. The current status of shareholders of BB Telecom andCC electricity following the merger is as follows.

C. At the time of the merger of this case, Gangnam City, as the Plaintiff’s representative director and director of the BB Telecom, held 138,26 of the total shares of Han City, which were 38,880 shares (35.57%). The Plaintiff,CC Electricity’s shareholder, Gangwon-gu, and Han Seo-gu Ltd were specially related persons pursuant to Article 87 of the Enforcement Decree of the Corporate Tax Act.

라. 한편, 피고는 이 사건 합병 등기일인 2002. 2. 1.을 평가기준일로 하여 당시 BBBB텔레콤과 CC전기의 합병 전후 순자산가액ㆍ발행주식총수ㆍ1주당 순자산가액ㆍ1주당 최근 3년간의 순손익액의 가중평균액을 아래 표㉡과 같이 산정한 후, BBBB텔레콤과 CC전기의 합병 전 주식가액 8,291,397,663원(≒ BBBB텔레콤의 1주당 가액 0원 x 560,000주 + CC전기의 1주당 가액 296,121원 x 28,000주, 계산하면 8,291,388,000원이나 단수처리상 8,291,397,663원으로 산정된 것으로 보이는바, 그 차액은 9,663원으로서 근소하므로 적정하게 계산된 것으로 본다)을 합병 후 BBBB텔레콤의 주식 924,000주(= 560,000주 + 364,000주)로 나눈 후 합병 후 BBBB텔레콤의 1주당 가액을 8,973원(= 8,291,397,663원 ÷ 924,000주)으로 각 평가하였고 그에 따라 원고가 법인세법시행령 제87조 제1항에 따른 특수관계자인 CC전기의 주주 강AA과 한서시계 주식회사로부터 이 사건 합병으로 인하에 그 보유 주식수에 해당하는 이익 2,369,736,630원(≒ 264,000주 x 1주당 8,973원, 계산하면 2,368,872,000원이나 단수처리상 2,369,736,630원으로 산정된 것으로 보이는바, 그 차액은 864,630원으로서 근소하므로 적정하게 계산된 것으로 본다)을 분여받은 것으로 보고 이를 법인세법 시행령 제11조 제9호에 따라 익금에 산입하여 2007. 8. 1. 원고에게 2002년 귀속 법인세 953,168,770원을 경정ㆍ고지하였다(이후 피고는 2007. 8. 27. 이월결손금 조정액을 반영하여 22,897,816원을 감액경정하고 2007. 10. 8. 가산세 중복반영분을 조정하여 272,512원을 감액경정하는 등, 2007. 8. 1.자 법인세 부과처분 중 이 사건 소제기 전까지 남아 있는 금액은 929,998,442원이다. 이하 위와 할이 감액되어 남은 법인세 부과처분 부분을 '이 사건 처분').

E. On October 30, 2007, the Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on October 30, 2007, but was dismissed on June 18, 2008, and filed the instant lawsuit on September 12, 2009.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 17 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The Defendant: (a) deemed that the Plaintiff received profit by distribution from a specially related person through the instant merger, and thus, took the instant disposition by including it in gross income pursuant to Article 11 subparag. 9 and Article 88(1)8(a) of the Enforcement Decree of the Corporate Tax Act; and (b) the Enforcement Decree of the Corporate Tax Act does not provide for the method of calculating this profit by distribution from a specially related person; (c) as such, the Defendant is obligated to clarify who is the specially related person and how the profit was calculated in accordance

(2) According to Articles 15(1) and 18(1) of the Corporate Tax Act, profits shall not be included in the profits from the evaluation of assets, which are the amount of profits generated from transactions which increase the net assets of the pertinent corporation, except for capital or financing and other transactions prescribed in this Act. Therefore, even if Article 11 subparag. 9 of the Enforcement Decree of the Corporate Tax Act, which is a subordinate statute, includes profits distributed by a special related person upon delegation under Article 15(1) of the Corporate Tax Act in the scope of profits, such profits shall not be included in the profits from the evaluation of assets. Ultimately, the Plaintiff is not to acquire new stocks due to the instant merger, but rather to include them in the profits from the evaluation of assets, unless the Plaintiff disposes of them.

(3) Even though it is reasonable to include profits equivalent to marginal profits from asset evaluation as profits distributed by a person with a special relationship, insofar as Article 89(6) of the Enforcement Decree of the Corporate Tax Act does not apply mutatis mutandis to the calculation method, the Defendant’s application of Article 89(6) of the Enforcement Decree of the Corporate Tax Act in calculating such profits is unlawful by analogical application of tax-related Acts and subordinate statutes. Furthermore, Article 89(6) of the Enforcement Decree of the Corporate Tax Act provides for the calculation method of the amount to be included in gross income in cases where the corporate shareholder distributes profits to another shareholder who is a person with a special relationship pursuant to Article 88(1)8 of the Enforcement Decree of the Corporate Tax Act. Accordingly, the said provision cannot be applied to the portion where the

④ ㉮ 원고가 이 사건 합병으로 인하여 분여받은 이익은 법인세법상의 대원칙인 순자산증가설에 따라야 하고 결국 원고의 합병 전 보유 주식가치와 원고의 합병 후 보유 주식가치와의 차액만큼이 익금에 산입되어야 하는바, 합병 전 BBBB텔레콤의 1주당 순자산가치를 67.747원으로 보아(피고는 이를 0으로 보았다) 합병 후 BBBB텔레콤의 1주당 순자산가치를 4,277원{≒ 합병 후 BBBB텔레콤의 순자산가액 3,952,720,050원(= 합병 전 BBBB텔레콤의 합병 전 순자산가액 64,338,677,613원 + 합병 전 CC전기의 순자산가액이 8,291,397,663원) -7 합병 후 BBBB텔레콤의 총 주식수 924,000주, 계산의 편의상 원 미만 버림}으로 계산하고, 이를 합병 후 BBBB텔레콤의 1주당 순손익액 △ 1,001원과 비교하여 큰 금액인 4,277원을 1주당 순자산가치로 평가하여 위 분여이익을 산정하면, 1,129,128,000원(1주당 순자산가치 4,277원 × 원고의 합병 후 BBBB텔레콤의 주식수 264,000주)에 불과하다.

㉯ 만약 법인세법 시행령 제89조 제6항에 따라 상속세 및 증여세법(이하 '상속세및증여세법') 시행령 제28조 제3항 내지 제7항의 규정 등을 적용한다 하더라도 상속세및증여세법 시행령 제28조 제5항에 따르면 합병 후 존속하는 법인이 비상장법인인 경우 합병당사법인의 합병 직전 주식가액의 평가기준일을 상법 제522조의2에 따른 대차대조표 공시일로 보는데, 합병당사법인인 BBBB탤레콤과 CC전기는 이 사건 합병을 위한 주주총회 회일인 2001. 12. 27.부터 2주 전인 2001. 12. 13. 위 상법 규정에 따라 대차대조표를 실제로 공시하였다. 그럼에도 불구하고 피고는 위 2001. 12. 13.이 아닌 이 사건 합병 등기일 2002. 2. 1.을 평가기준일로 하여 합병 전 BBBB텔레콤과 CC전기의 주식가액을 평가하였는바, 이는 합병 직전 주식가액의 평가기준일에 관한 상속세및증여세법 시행령을 위반하여 위법하다.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Determination as to the assertion

If the tax authority imposed and notified the total amount of corporate tax imposed by taxable period and the tax base, tax rate, deducted tax amount, etc., which is the basis of taxation, by the statutory tax payment notice, when imposing corporate tax, etc. by taxable period, it is sufficient to state the basis of calculation or the calculation of the amount of tax pursuant to Article 9(1) of the National Tax Number Act, Article 70 of the Corporate Tax Act, and Article 109(1) of the Enforcement Decree of the Corporate Tax Act, and Article 109(1) of the Enforcement Decree of the Corporate Tax Act, it is not unlawful even if the tax authority did not state the actual basis, route, circumstance, basis, etc. of calculation of the amount of tax such as gross income and deductible expenses (see Supreme Court Decision 2001Du1014, Jan. 27, 2004). Thus, the defendant is recognized to state the taxable year, tax rate, calculated tax amount, additional tax, etc. in the instant disposition. Thus, even if the defendant did not state the basis of calculation of the amount of tax, it is not unlawful.

(2) Judgment on the argument

Article 11(9) of the Enforcement Decree of the Corporate Tax Act provides that profits distributed by a person with a special relationship due to capital transactions under each item of Article 8(1)8 of the Enforcement Decree of the Corporate Tax Act shall be profits under Article 15(1) of the Corporate Tax Act pursuant to delegation of Article 16(3) of the Corporate Tax Act. In addition, Article 52(1) of the Corporate Tax Act and Article 88(1)8(a) of the Enforcement Decree of the Corporate Tax Act shall be deemed as profits under Article 15(1) of the Corporate Tax Act. In such a case, Article 11(9) of the Enforcement Decree

On the other hand, even though Article 18 subparag. 1 of the Corporate Tax Act provides that profits, which are merely an asset evaluation marginal profit, are not in principle gross income but do not recognize a voluntary evaluation marginal profit to prevent tax avoidance, etc. In accordance with unfair ratio, profits received by a person with a special relationship according to an unfair ratio can inevitably exist as the difference in the appraised value of stocks before and after the merger. If it is not included in gross income pursuant to Article 18 subparag. 1 of the Corporate Tax Act on the ground that it is merely an evaluation marginal profit, it would result in the uninfluence of Article 11 subparag. 9 and Article 88(1)8(a) of the Enforcement Decree of the Corporate Tax Act, and in such a case, it cannot be interpreted that it cannot be included in gross income pursuant to Article 18(

(3) Judgment on the assertion

(A) Article 11 subparag. 9 and Article 88(1)8(a) of the Enforcement Decree of the Corporate Tax Act purport that where a corporate shareholder distributes profits through a merger to another shareholder who is a special relationship, the corporate shareholder shall still be deemed as gross income for the corporate shareholder who received a distribution of profits corresponding thereto despite being denied as it constitutes an unfair calculation. Therefore, the profits distributed under Article 88(1)8 of the Enforcement Decree of the Corporate Tax Act and the profits received by distribution under Article 11 subparag. 9 of the Enforcement Decree of the Corporate Tax Act are identical. As such, if a method of calculating the amount to be included in gross income in calculating the amount of income for the corporate business year of the corporation that received a distribution of profits as above is prescribed by Article 89(5) and (6) of the Enforcement Decree of the Corporate Tax Act, Article 63 of the Inheritance Tax and Gift Tax Act, and Articles 28 and 56 of the Enforcement Decree of the Inheritance Tax Act and Article 28(1)8(1)8(a) of the Inheritance Tax Act provide for the

In addition, Article 11 (9) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17033, Dec. 29, 2000) provides that "for profits received by distribution from a specially related person pursuant to Article 8 (1) 8 of the former Enforcement Decree of the Corporate Tax Act", while Article 11 (9) of the amended Enforcement Decree of the Corporate Tax Act provides that "for profits received by distribution from a specially related person due to capital transaction pursuant to Article 88 (1) 8 of the former Enforcement Decree of the Corporate Tax Act", the above provision provides that only the type of capital transaction can be applied mutatis mutandis pursuant to Article 88 of the Enforcement Decree of the Corporate Tax Act, and Article 89 (6) of the Enforcement Decree of the Corporate Tax Act provides that the method of calculating profits where a corporation distributes profits by interpretation, but this provision provides that the provision is included in the calculation of profits without compensation in cases where a corporation receives profits by an unfair ratio from a person who is a specially related person as well as a corporation. Therefore, it is not reasonable for the plaintiff's assertion and its related provisions.

(4) Judgment on the argument

(A) As to the argument on the issue

Article 89(6) of the Enforcement Decree of the Corporate Tax Act provides that the relevant provisions of the Inheritance Tax and Gift Tax Act shall apply mutatis mutandis to the calculation of the amount to be included in the gross income where profits are distributed to a person with a special relationship, and Articles 54 and 56 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provide that the value of unlisted stocks shall be the larger amount between the net value of the profit and loss per share and the net asset value per share, and that the net asset value shall be zero won where the net asset value is less than zero won.

[만약 원고의 주장방식대로 이익을 계산하는 경우, 앞서 본 바와 같이 BBBB 텔레콤의 합병등기시 1주당 순자산가액은 67,747원이고 BBBB텔레콤의 합병 후 1주당 순자산가액은 4,277원{≒ 3,952,720,050원(= BBBB텔레콤의 합병등기시 순자산가액 64,338,677,613원 + CC전기의 순자산가액이 8,291,397,663원) ÷ 합병 후 BBBB텔레콤의 주식수 924,000주, 계산의 편의상 원 미만 버림}이므로 이 사건 합병으로 인하여 원고가 특수관계자로부터 분여받은 이익은 3,174,336,000원{=합병 후 원고가 보유한 주식 1주당 가액 4,277원 - (합병 전 원고가 보유한 주식 1주당 가액 67,747원) × 원고가 보유한 합병 후 BBBB텔레콤의 주식수 264,000주)}으로서 피고가 산정한 금액보다 더 크다].

(B) (4) As to the argument on the (2) argument

According to Article 28(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and Article 22 of the Enforcement Decree of the Income Tax Act, if a corporation surviving after the merger is not a stock-listed corporation or an Association-registered corporation, the standard date of appraisal of the value of immediately before the merger shall be the date of publication of the balance sheet under Article

However, Article 522-2(1) of the Commercial Act provides that the final balance sheet, profit and loss statement, etc. of the merged company shall be kept at the principal office from two weeks prior to the date of the general meeting of shareholders for the merger to six months after the date of the merger. Each statement of subparagraph 3, No. 4-1, and No. 2 is insufficient to recognize that the BB Telecom andCC Electricity actually kept the final balance sheet of each company on December 13, 2001, which is two weeks prior to the date of the general meeting of shareholders for the merger, as argued by the Plaintiff, and there is no other evidence to know the date of the actual balance sheet publication.

As can be seen, the Inheritance Tax and Gift Tax Act or the Corporate Tax Act does not stipulate any particular provision as to when the standard date of appraisal is deemed the date of the merger, but Article 522-2(1) of the Commercial Act provides that the period of publication of the balance sheet is six months after the date of the merger between two weeks before the date of the general meeting of shareholders and six months after the date of the merger. As seen earlier, BB Telecom is included in the period of publication of the balance sheet as prescribed by the Commercial Act by completing a temporary general meeting of shareholders on December 1, 2001, and only two weeks before the date of the meeting of the general meeting of shareholders is the first day of the merger, and there is no reason to regard the date of publication of the balance sheet as the standard of appraisal. In the merger of this case, the representative fixed date of publication of the balance sheet asserted by the Plaintiff as the date of the merger registration as the date of the merger registration cannot be seen as unlawful solely on the ground that it was difficult for the Defendant to know that it was unlawful on February 1, 2002.

C. Therefore, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

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