Seoul High Court Decision 2014No. 335

The denial of wrongful calculation should be determined according to the economic rationality in light of sound social norms and commercial practices.

1,000 won, the transaction price of this case, is considerably higher than 9,700 won, which is recognized as general transaction price (13.4%) and it is reasonable to deem that the transaction of this case is unreasonably reduced Plaintiff’s tax because it is difficult to find any reasonable ground to be formed differently (13.4%). Thus, the transaction of this case is subject to rejection of unfair calculation as stipulated in the former Corporate Tax Act.

2014Guhap3541 Revocation of Disposition of Notice of Change in Amount of Income

UAAA(State)

00. Head of tax office

March 5, 2015

March 26, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On August 1, 2013, the Defendant’s notice of change in the income amount of KRW 39,00,000,000, which the income earner was the income earner to the Plaintiff △△△△ in 201, shall be revoked.

1. Details of the disposition;

A. On February 2, 1978, the Plaintiff was established on February 2, 1978 and operated for a profit-making corporation operating a cargo trucking transport business, and February 2, 2010

22. The note of the Dae△△△△△ (hereinafter referred to as the "Large△△△△△△"), a non-listed corporation owned by the original △△△△△.

Food 240,000 shares of 30,000 shares were purchased in 11,00 won per share (hereinafter "the stock transaction of this case").

B. The Defendant is a shareholder of the Plaintiff and the △△△△△△△, and at the time of the instant stock transaction.

The former Corporate Tax Act (Law No. 31, 2010, March 31, 2010), which is serving as a non-permanent auditor of △△△△△△.

10221호로 개정되기 전의 것, 이하 '구 법인세법'이라 한다) 제52조 및 구 법인세법 시행령(2010. 3. 9. 대통령령 제22073호로 개정되기 전의 것, 이하 '구 법인세법 시행령'이라 한다) 제87조 제1항 제7호의 특수관계자에 해당하고, 매수금액 또한 구 법인세법시행령 제89조의 시가에 해당하는 1주당 매매사례가액인 9,700원을 1,300원씩 초과하였으며, 이는 구 법인세법 시행령 제88조에서 규정하고 있는 부당행위계산 부인대상 유형에 해당한다는 이유로, 2013. 8. 1. 원고가 오△△에게 초과지급한 39,000,000원 e=30,000주 × (11,000원 - 9,700원) �을 익금산입하고 이를 오△△에 대한 소득(기타소득)으로 소득처분토록 하는 내용의 소득금액변동통지(이하 '이 사건 처분'이라 한다)를 원고에게 하였다.

C. On October 15, 2013, the Plaintiff is dissatisfied with the request for examination filed by the Board of Audit and Inspection on October 22, 2014.

was dismissed by the Board of Audit and Inspection.

Facts without any dispute, Gap's evidence 1 through 4, Eul's evidence 9 (including branch numbers, if any; hereinafter the same shall apply), and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The △△△△△△ was the de facto controlling shareholder of the △△△△△△△, a local company located in the 00 region, and the Plaintiff as well as the subsidiaries of △△△△△△△△△△, did not have any financial or business interest, nor have any relationship between the major shareholder and the relatives and relatives, but had a relationship between the shareholders and the officers (auditor) of the △△△△△△△△△△△, which is not a relationship between the former and the former and the latter. ( Furthermore, the former and the △△△△△△△ was retired from the audit of the △△△△△△△, a subsequent transaction of the instant case

2) Since the △△△△△ acquired the shares of the △△△△△△ KRW 10,00 per share seven (7) years prior to the sale of the shares at present, it claimed that at least 11,000 per share should be received if the shares are sold at present. In the meantime, considering the growth and inflation rate of the △△△△△△△△△, KRW 11,00 per share was adequately reflected in the market price, and thus, the share transaction price of the instant case is also appropriate.

Even if 11,00 won is not a reasonable market price, in similar circumstances to the instant transaction, 10,430 won of transaction examples between the Plaintiff and the new Si/Gun/Gu, which are the prices continuously traded with many and unspecified persons, shall be deemed to be a reasonable market price. The instant stock transaction price is 10,430 won at a reasonable market price, and the instant disposition is unlawful.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(c) Fact of recognition;

1) On November 1, 2009, Ma○○○○○, Inc. (hereinafter referred to as “Ma○○○○○○○”) held 30% of the shares of Ma△△△△△△△, and the Plaintiff and Ma○○, Inc. (hereinafter referred to as “Ma○○○○○”) are affiliates of Ma○○○.

2) According to Article 8(2) of the former Broadcasting Act (amended by Act No. 9786 of Jul. 31, 2009), a person with a special relationship may not own more than 30/100 of the total number of stocks or equity shares of a terrestrial broadcasting business entity and a program provider engaged in general programming or specialized programming of news reports, including the shares or equity shares owned by the former persons with a special relationship, but was amended to not hold more than 40/100 (No. 9786 of Jul. 31, 2009);

Accordingly, Do○○○ is an additional share purchase through an affiliate, etc. and is a stock trading date of the instant case.

At the time of February 22, 2010, the Do○○○, the Plaintiff, and △△△△△△△, are as follows:

37.58% of the shares increased by 37.58% (based on the total 6 million shares issued by △△△△△△△△).

3) On September 29, 200, 200, △△△△△△△△△△ was purchased at KRW 10,000 per share, and on May 16, 2006, 200, purchased KRW 60,000 per share and held KRW 240,000 per share. On February 22, 2010, 300, the Plaintiff sold KRW 90,000 per share, KRW 120,00 per share to △△△○○○, each of which was the date of the stock transaction in the instant case, at KRW 11,00 per share. Meanwhile, △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, but thereafter retired from the audit on March 18, 2018.

4) Meanwhile, the trading details of the instant shares before and after the instant shares trading date are as follows.

5) On January 29, 2010, the first purchase price offered by Do○○ and Do governor in relation to the trading of 60,000 shares between Do○ and Do governor, and the first purchase price offered by Do○○○ was KRW 9,500 per share. However, the transaction price was set at KRW 9,700 per share by Do governor in Do governor-dong and Do governor in order to KRW 10,000 per share.

In addition, on February 18, 2010 between Do○○ and Do○○○○○○ Co., Ltd., the trading value of KRW 60,00 per share, 9,700 per share, which is the trading value, shall be the amount determined by adding 10% to KRW 8,894 per share of stocks owned by a general shareholder, which is assessed by the certified public accountant in accordance with the Inheritance Tax and Gift Tax Act as of June 30, 2009 by the certified public accountant of Do-dong, Seoul Special Metropolitan City as of June 30, 209 (9,783 won)

6) On the other hand, on the same day as the instant transaction date, the Plaintiff purchased 2,000 shares from high-level Do, 3,000 shares from high-level Do, and 9,700 shares per share, respectively.

7) 신☆☆☆☆☆은 2010. 3. 31. 기준으로 상속세 및 증여세법에 따라 대△△△의 비상장주식을 평가하였는데, 1주당 평가액은 8,445원, 최대주주 소유주식의 1주당 평가액으로는 10% 할증금액이 9,289원, 15% 할증금액이 9,711원이었다.

Facts that there is no dispute, Gap's 6 through 8, and Eul's 1 through 9, each entry, pleading,

The purport of the whole

D. Determination on the first argument

1) Article 87 (1) 7 of the former Enforcement Decree of the Corporate Tax Act provides that if the relevant corporation is a corporation belonging to an enterprise group under the Monopoly Regulation and Fair Trade Act (hereinafter “Monopoly Trade Act”) as one of the "person having a special relationship as prescribed by the Presidential Decree" under Article 52 (1) of the former Corporate Tax Act, "other affiliates and the executives of such affiliates belonging to the enterprise group."

2) In full view of the following circumstances, which can be seen in addition to the purport of the entire argument in the facts acknowledged earlier, namely, ① the Plaintiff, △△△△△△△△△○○○ as the parent company, appears to be affiliated companies belonging to the same enterprise group as prescribed by the Monopoly Regulation and Fair Trade Act. ② In light of the fact that the △△△△△△△ was the auditor of the registration of the △△△△△△△△△ at the time of the instant stock transaction, it is reasonable to view that the △△△△△△△ constitutes a person with a special relationship as prescribed

Therefore, this part of the plaintiff's assertion is without merit.

E. Judgment on the second argument

1) The rejection of unfair calculation under Article 52 of the former Corporate Tax Act is a system that considers that a corporation unfairly evades or reduces tax burden by abusing all the forms of trade listed in each subparagraph of Article 88(1) of the Enforcement Decree of the same Act without reasonable means by a person with a special relationship. It applies only to a case where a person with a right to taxation deems that a person with a right to taxation denies or reduces tax burden by using the forms of trade listed in each subparagraph of Article 88(1) of the Enforcement Decree of the same Act. In light of the economic person’s viewpoint, the determination of the economic rationality is limited to a case where it is deemed that a person disregards economic rationality by using an unnatural or unreasonable calculation in the form of trade with a person with a special relationship. Determination of the economic rationality is not just a case where only the price relation of the trade was separated from the transaction with a person with a special relationship, but it should be made based on whether the trade lacks economic rationality in light of sound social norms or commercial practices (see, e.g., Supreme Court Decision 2006Du9394.

2) According to the following circumstances acknowledged based on the facts acknowledged as above and the purport of the entire pleadings, 11,000 won, the transaction price of this case, is considerably higher than 9,700 won, which is recognized as a general transaction price (13.4% excessive), and as such, it would be deemed that the Plaintiff’s tax has been unjustly reduced because it is difficult to find any reasonable grounds for such high-level transaction differently.

Since it is reasonable to do so, the transaction in this case is subject to the rejection of wrongful calculation as stipulated in the former Corporate Tax Act.

Therefore, the plaintiff's assertion on this part is without merit.

A) In applying Article 89(1) of the former Enforcement Decree of the Corporate Tax Act, Article 52(2) of the Act provides that in a situation similar to the pertinent transaction, where there is a price continuously traded with many and unspecified persons other than a person with a special relationship or a price generally traded between third parties who are not a person with a special relationship, that price shall be determined based on the price.

B) On the date close to the date of the instant stock transaction (2 cases on the date of the instant contract, 4 days prior to the date, 22 days prior to the date), the transaction with many unspecified persons was 4 cases, and 4 cases were 9,700 won per share.

C) The average acquisition value per share of △△△△△ is KRW 9,250 (=2,220,000,000/240,000 per share). On the other hand, the transaction value per share between △△△△△ and the Plaintiff differs from KRW 11,750 per share in the amount of KRW 1,750 per share. The difference between △△△△△△△△△△△△△△ KRW 2,40,000 per share in the total amount of KRW 2,40,000 sold to the Plaintiff and its affiliates is a large amount of KRW 420,000 per share (=1,750 x 240,000 per share) or larger than that of other four transaction prices.

D) The Plaintiff presented an average of KRW 9,500 to KRW 9,700 per share when purchasing the △△△△△△ shares from the △△△△○○○○○ Co., Ltd., and presented the final transaction price at the end of the negotiations, but it appears that the Plaintiff did not present the lower amount to the △△△△△△△△.

E) Although, on December 3, 2009, the transaction price of 90,000 shares and △△△△△△△△△△△△△△ shares, △△△△△△△△△△△ was determined to be KRW 10,430 per share. However, on June 25, 2009, New △△△△△△△△ was purchased from 00 on June 25, 2009 at KRW 10,00 per share, and accordingly, it appears that the transaction price per share was determined to be KRW 10,430 per share to not sell below its purchase price. Therefore, it is difficult to view it as a similar situation to the share transaction of this case.

바) 원고는, 오△△이 약 7년 전에 1주당 10,000원에 주식을 매수했으므로 지금 주식을 매도한다면 최소한 1주당 11,000원은 받아야 한다고 주장하였고, 그 당시 00방송의 성장과 물가상승률 등을 감안했을 때 1주당 11,000원은 시가를 반영한 적정한 금액이라고 판단되어 그와 같은 거래가격이 형성된 것이라고 주장하나, ① 오△△의 1주당 평균 취득가격은 앞서와 같이 9,250원인 점, ② 신☆☆☆☆☆이 평가한 2010. 3.31. 기준의 대△△△ 주식 1주당 가액은 8,445원이고, 15% 할증해서야 비로소 9,711원에 이르며, 문☆☆ 회계사가 평가한 2009. 6. 30. 기준의 대△△△ 주식 1주당 가액도 8,894원이고, 10% 할증해서야 비로소 9,783원에 이르는 점, ③ 원고는 안정적인 경영권 확보를 위해 추가로 주식 매수를 하게 되었다고 하는바, 그와 같은 사정에 비추어 보더라도 이미 30% 이상의 주식을 소유한 최대주주인 원고 및 계열사들이 손해를 감수하면서까지 오△△으로부터 다른 거래가격보다 훨씬 비싸게 매수할 이유는 없어 보이는 점 등에 비추어, 원고의 주장을 온전히 받아들이기는 어렵다.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is reasonable, and it is so decided as per Disposition.