National High Court Decision 2007Du0071 (Law No. 14, 2008)

Evaluation of unfair calculation of financial support following low-price subscription, and the standard for market price assessment of stocks at the time of acquisition;

The low price of new stocks issued by a specially related corporation is the object of an unfair act due to financial assistance, and the market price of the stocks is the value of the stocks immediately after the payment of capital increase.

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 corporate tax of KRW 4,808,089,010 against the Plaintiff on September 29, 2006 exceeds KRW 53,630,690,000, shall be revoked.

1. Details of the disposition;

(a) The Plaintiff’s acquisition of new shares;

1) The plaintiff has owned shares of 98.87% (total 1,582,00 shares) and provided for in the Corporate Tax Act.

HHHHH Co., Ltd. (the "PPPPP Co., Ltd. prior to the change," hereinafter referred to as "non-party 1 company"), which is in the position of a person with a special relationship, has invested 28 billion won in total by acquiring 5,60 billion won per share value on October 8, 2001 by acquiring 5,00 billion won per share value, and investing 2.8 billion won in total. In the case of tax adjustment, the non-party 1 company held at the time of settlement of accounts for the business year in 2001, accounts for the total amount of 28 billion won as investment loss, and was excluded from deductible expenses at the

2) In addition, the Plaintiff shall hold shares of 100% (total906,000 shares) of 100 shares of the Company (total906,00 shares) to the Corporate Tax Act.

한특수관계자의지위에있는주식회사▢▢정보통신(이하 '소외2회사'라한다)이신주발행을함에있어,2001. 6. 21. 1주당액면가5,000원에190만주를인수하여합계95억원을출자한후,2001년사업연도의결산시보유하고있던소외2회사의발행주식액면가95억원전액을투자주식감액손실로회계처리하고,세무조정시에손금불산입하였다.

3) The Plaintiff reported the corporate tax base and tax amount by adding the total amount of the investment stock reduction loss to deductible expenses in the settlement of accounts in the business year 2002 and the tax adjustment accordingly.

b)the Defendant’s taxation disposition;

The defendant is a fact that the value of the shares issued by the company 1 and 2 was a de facto0 won.

The acquisition of new shares of Nonparty 1 and 2 by participating in the capital increase shall be deemed as a wrongful calculation under Article 88(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17457, Dec. 31, 2001; hereinafter the same shall apply) in cases where the tax burden has been unjustly reduced by purchasing assets from a specially related person in excess of the market price of the assets, and thus, the plaintiff's calculation of losses incurred by the above investment stocks shall be denied, and the profit ratio of the non-party 1 to the non-party 80,000 won [3,182 won per share after the payment of the acquisition price of KRW 5,00-16 million)]. The imposition of additional tax shall be imposed on the non-party 2: 6,750,830 million won [including the profit ratio of the non-party 2 to the non-party 2's acquisition price of KRW 5,00,0000 per share].

(c)the procedure of the preceding trial and the disposition of the case;

1) On December 21, 2006, the Plaintiff filed an appeal with the Tax Tribunal. On May 14, 2008, the Tax Tribunal decided to rectify the tax base and tax amount against the Defendant by citing a part of the Plaintiff’s assertion on the appraised value of the assets, which served as the basis for calculating the amount of profit sharing among the Plaintiff’s assertion.

2) Accordingly, according to the decision of the above Tax Tribunal, the defendant evaluated the portion of profit to non-party 1 as 7.71 billion won [the acquisition price = (the acquisition price of KRW 5,000- KRW 3,623 won per share) X5.6 million], and the part of profit to non-party 2 as 3.41 billion [the acquisition price of KRW 5,000- KRW 5,000 per share) X1.9 million [the acquisition price of KRW 3,205 won per share immediately after payment of the increase price], each of which was non-party 1's corporate tax (including additional tax) for the business year 2002, and reduced or exempted the amount of profit to non-party 2 as 3.4.6888,688,040 won per share from the disposition of imposition of corporate tax for 4,808,09,010 won [the part of the disposition of imposition of additional tax for the business year 2009.29.2]

[Based on recognition] Gap evidence 1, 2, 11, Eul evidence 1, 2, 6, 7 (including above numbers), the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Whether the calculation of wrongful acts is applied or not

The Plaintiff’s acquisition of new shares does not constitute a wrongful calculation under Article 88(1)1 and 9 of the former Enforcement Decree of the Corporate Tax Act for the following reasons.

A) The calculation of wrongful acts under the former Enforcement Decree of the Corporate Tax Act is limited to profit-making transactions on the basis of a corporation’s apportionment. The Plaintiff’s act of acquiring new shares is not considered as a commercial act for consideration. Even if it is considered a commercial act for consideration, if all existing shareholders participate in the acquisition of new shares, the value of the existing shareholders’ shares increases as the amount of capital increase for consideration. Even if the Plaintiff acquired new shares, it refers to the increase in the amount of securities (investment assets) equivalent to the amount of capital increase, so it is not included in deductible expenses. Although Nonparty 1 and 2 received the capital increase from the Plaintiff, it does not affect the corporation’s profit and loss because it does not constitute taxable income as capital or financing.

B) According to the new establishment of Article 88(1)8 of the former Enforcement Decree of the Corporate Tax Act, capital transactions such as the acquisition of new shares constitute a wrongful calculation only in cases where profits are distributed among shareholders, but it does not constitute a wrongful calculation in cases where there is no profit sharing among shareholders as in the instant case.

C) Although the Plaintiff’s act of acquiring new shares has the same economic effect according to the adjustment of the number of issued shares and the value, it would be contrary to the substance over form principle to determine whether it is a high-priced purchase based on the

D) In the reality that the issue of new shares under the Commercial Act is strictly limited to the issue of the new shares, and it is inevitable to accept the new shares according to their face value, shareholders who are specially related parties should always acquire the shares according to their market value as at the time of the issuance of the shares. In this case, if the market value is lower than face value, the purchaser of the new shares is a high-value purchase, and if the market value is higher than face value, there is an unreasonable result that the company issuing the new shares is subject to the application of the unfair calculation and calculation denial

(ii) whether economic feasibility exists;

The Plaintiff’s acquisition of the new shares of the Company 1 and 2 by means of an ex post facto business outlook for the Company 1 and 2

As a result, the Plaintiff’s acquisition of new shares pursuant to the business judgment cannot be deemed to constitute an abnormal act that lacks economic rationality.

3) Method of calculating the amount of profit sharing.

The disposition of this case shall be calculated by calculating the profit-sharing amount (the acquisition value and the difference between the par value per share after new stocks are accepted).

The following are illegal:

A) Whether to deduct the Plaintiff’s increase in the value of old shares

Since the value of old shares (the 1,582,00 shares, non-party 2, 906,00 shares) previously owned by the Plaintiff due to the payment of new shares, such increase shall be excluded from calculating the amount of profit.

B) The net asset value assessment of the non-party company

(1) In calculating the value per share after the acquisition of the new shares of Nonparty 1, the appraisal value of the land and buildings must be KRW 2,695,50,000 (land) and KRW 7,814,808,00 (building) at the appraisal value of August 5, 1998.

(2) For inventory assets and other tangible assets, re-acquisition value should be calculated. As stated in the balance sheet as of December 31, 200, the raw materials should be assessed as KRW 1,129,517,401, assistive materials should be assessed as KRW 68,930,731, and for other tangible assets, KRW 676,967,764.

C) The net asset value assessment of Nonparty 2

(1) In the case of investment securities, the value per share after the acquisition of the new shares by the non-party 2

Pursuant to Article 54 (3) of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17459, Dec. 31, 2001), acquisition value, and tax-related book value (the balance sheet stated in corporate accounting standards + the amount of securities reduced loss) shall be assessed as KRW 812,805,000.

(2) In the case of inventory assets, it should be assessed as KRW 2,435,784,950, which is the sum of KRW 19,813,268 (in the case of goods, KRW 13,22,718, and KRW 6,590,550) that is the book value under the tax law, as the inventory asset valuation loss item.

(b)a recognition;

1) Circumstances for accepting the new shares of Nonparty 1

A) On July 19, 196, the Plaintiff made a joint investment with the PPPP test director (hereinafter referred to as the “PPPPPPP director”), a Netherlands corporation, and established a non-party 1 company, which receives technology to be transferred from the PPPP company, and conducts the manufacture and sales of the distribution of the distribution base (small secondary batteries) using the LV (1). The non-party 1 company increased its capital in KRW 8 billion on July 8, 1997, while the Plaintiff guaranteed payment to the financial institution in borrowing the funds from the financial institution.

B) When Nonparty 1 failed to commercialize the distribution of the distribution market (small secondary batteries) that was attempted from September 2000 and neglected the ability to repay the existing loan to financial institutions, the Plaintiff continued to obtain license and support on June 22, 2001, but terminated the joint investment contract with the PPPPP company on June 27, 2001, and acquired KRW 203,000 shares of Nonparty 1 Company as one won on June 1, 200, and owned KRW 406,000.

C) On July 12, 2001, the Plaintiff decided to sell Nonparty 1’s shares to a third party. However, on September 14, 2001, the Plaintiff set out a plan to deal with the Plaintiff’s obligations to guarantee payment by acquiring all other shareholders’ shares and offering new shares, and by resolving the Plaintiff’s obligations to guarantee payment. On September 14, 2001, the Plaintiff purchased KRW 1,176,000 shares per share and KRW 1,176,000 shares per share, except for KRW 18,00 shares owned by an individual shareholder (0.25%) and held KRW 1,60,000 shares of Nonparty 1’s shares, 1.67% per share.

D) On October 8, 2001, the Plaintiff, upon which Nonparty 1’s long-term loan repayment of KRW 18.4 billion, high interest rate short-term loan repayment of KRW 8.5 billion, interest paid, personal funds for the early repayment of long-term loan of KRW 900 million, other KRW 200 million, had Nonparty 1 issue new shares by designating the amount of KRW 28 billion, and had Nonparty 1 issue new shares. The Plaintiff independently participated in the capital increase and acquired KRW 5.6 billion (5,000 per share) with KRW 28 billion (5,000 per share).

E) Around October 2001, Nonparty 1 sold all assets including Nonparty 1’s land, building, etc. by December 30, 2002, including the retirement of 30 employees, excluding 4 employees, among 34 employees. On December 26, 2001, it sold all of the assets, such as the transfer of genetic and intangible assets related to the industrial infrastructure technology development project task, to the SSteves Co., Ltd. by December 26, 2001. The dissolution on September 9, 2002 and the liquidation was completed on December 11, 2002.

F) Nonparty 1 repaid the Plaintiff’s debt amounting to KRW 4047 billion to the financial institution with the acquisition fund of new shares paid by the Plaintiff and the holding fund, and on December 10, 2002, the Plaintiff paid the Plaintiff the debt amounting to KRW 507 billion by subrogation on December 10, 2002.

2) Circumstances for accepting the new shares of Nonparty 2

A) On February 1, 1993, the Plaintiff: (a) established a non-party 2 company on February 1, 1993, and had the non-party 2 conduct the business of establishing an integrated information unit and network; (b) developing the package of business; and (c) managing and maintaining the information system; and (d) the Plaintiff guaranteed payment to the financial institution when the non-party 2 borrowed money from the financial institution

B) After that, when the Plaintiff was unable to repay the loan because Nonparty 2’s loan interest and high wages, etc. were accumulated and the profitability is difficult to secure, the Plaintiff consulted with the account corporation on March 2001, on the following: (a) the Plaintiff was unable to recover the portion of loss incurred by the king even if the Plaintiff continued to operate the business, and (b) it is inevitable to liquidate if the Plaintiff is expected to continue to do so; (c) but (d) it is desirable to liquidate the loan after subsidizing the insufficient funds by issuing new stocks for the purpose of arranging the debt, etc.

C) On May 4, 2001, the Plaintiff accepted 175,000 shares of Non-Party 2’s shares. On June 20, 2001, the Plaintiff secured 906,000 shares, which are 100% of the total shares of Non-Party 2’s company, after capital reduction of 194,00 shares of Non-Party 2’s shares at a cost of KRW 7,500 per share. On June 20, 2001, the Plaintiff acquired 1.95 billion shares (5,000 won per share) by allowing Non-Party 2 to issue new shares.

D) On June 22, 2001, Nonparty 2 repaid the financial institution’s debt amounting to KRW 9.5 billion in total and KRW 10 billion with Nonparty 2’s funds.

E) On June 29, 2002, the Plaintiff transferred 2,806,00 shares (i.e., 906,000 shares + 19 million shares) to the YYYY (i.e., 64 won per share) with the entire shares of 2,806,00 shares (i.e., 906,000 shares).

[Reasons for Recognition] Facts without dispute, Gap 3 to 11 evidence, Eul 6 and 7 evidence, the purport of the whole pleadings.

C. Determination

1) Whether Article 88(1)1 and 9 of the former Enforcement Decree of the Corporate Tax Act applies to the Plaintiff’s act of acquiring new stocks

The following aggregate points are that the Plaintiff’s act of acquiring new shares in the case of the Plaintiff is an act of acquiring new shares in the old Corporate Tax Act

Since the act of wrongful calculation under Article 1 (1) 1 and 9 shall be deemed to constitute a wrongful calculation, the above provision shall be applied.

A) In a case where a corporation’s transaction with a specially related person is deemed to have avoided or reduced the tax burden incurred when it takes the forms of trade listed in each subparagraph of Article 88(1) of the former Enforcement Decree of the Corporate Tax Act by using the forms of trade, by abusing or bypassing, multi-stage actions, and other abnormal transaction processes, it shall be deemed to have avoided or reduced the tax burden arising when it takes a usual rational transaction form, thereby ensuring fairness in taxation and preventing tax avoidance by denying it by the taxation authority and by deeming it as having the income objectively and reasonably reasonable in the manner prescribed by the laws and regulations. Thus, it shall also include non-ordinary profit and loss transactions that are not included in the calculation of capital or profit and loss that affect the corporation’s income. Accordingly, in a case where it is recognized that the corporate calculation of the corporation concerned unjustly avoided or reduced the tax burden by abusing the forms of trade under the above Enforcement Decree regardless of whether the profits distributed to the other party as a result of corporate capital transactions constitute taxable income, it shall be subject to the avoidance of tax law as a wrongful calculation.

B) Even at the time when the previous corporate tax law was in force, where capital transactions between a stockholder and a company issuing new stocks, which are not capital transactions between a stockholder who is not a person with a special relationship, fall under the category of transaction prescribed by the Enforcement Decree of the same Act, or where it is deemed that tax burden has been reduced unreasonably by allocating corporate profits as an act or calculation corresponding thereto, it shall be interpreted that it is harmful to the object of denial as a wrongful calculation. Thus, the case where a corporation, such as a stockholder, distributes profits to another stockholder who is a person with a special relationship due to capital transactions under Article 88(1)8 (b) of the Enforcement Decree of the Corporate Tax Act amended by Presidential Decree No. 15790, Dec. 28, 1998

C) Even if the same economic effect exists with respect to a company that issued new shares in accordance with the adjustment of the number of issued shares and the value thereof, if a corporation, which conducted a wrongful calculation, took over new shares at a price higher than the reasonable appraised value by comparing the difference between the due valuation value of the company’s assets at the time of issuance of the new shares with that of the issuing company at the time of

D) Although the legal nature of the acquisition of new shares is acknowledged as a membership agreement aimed at the occurrence of membership relationship under the Commercial Act, and even if the acquisition of new shares is inevitable at its par value when the acquisition of new shares is intended due to the strict restriction on the issuance of new shares below par value under the Commercial Act, the acquisition of new shares issued by another corporation for tax accounting purposes constitutes the purchase of investment assets (see, e.g., Supreme Court Decision 2002Du7005, Feb. 13, 2004).

2) Whether the Plaintiff’s act of acquiring new shares is economicly rational

Comprehensively taking account of the following circumstances revealed in the above facts, the Plaintiff’s acquisition of new shares issued by Nonparty 1 and 2 at par value is nothing more than the grant of funds to persons with a special relationship for the purpose of capital increase, and is deemed an abnormal transaction that disregards economic rationality in light of sound social norms and common practices.

A) Even if Nonparty 1 and 2, who was in the position of the Plaintiff and specially related parties, were established and were in the state of capital erosion due to losses sustained until the issuance of the new shares in this case, as well as sales and market share arising from business operations are low, and thus, they cannot be deemed as promising business prospects. Thus, other investors, other than the Plaintiff, did not intend to participate in the above capital increase with capital increase.

B) The Plaintiff already assessed the value of Nonparty 1 and 2’s shares as zero won in the pertinent business year where the Plaintiff acquired new shares of Nonparty 1 and 2 due to capital increase, and accounted for the total amount of the acquisition value of the new shares as a loss for the reduction of investment shares, but immediately liquidates or transfers them to another company, thereby including all the above amount of the reduction loss of investment shares.

C) The Plaintiff will have the payment guarantee obligation related to the company 1,2 in lieu of the financial institution.

In danger, it is desirable to increase the amount of corporate tax to be reduced due to the failure to include the amount of subrogation for the financial institution in the loss, so it would be desirable to use the capital increase with consideration. In advance, upon the advice of the accounting firm that the amount of the capital increase to be promoted by Nonparty 1 and 2, the Plaintiff voluntarily determined the amount of the capital increase to be promoted by Nonparty 1 and 2, and planned and promoted the issuance of new stocks by giving instructions to Nonparty 1 and 2. Ultimately, the capital increase to be paid by the Plaintiff to Nonparty 1 and 2 was used to exempt the Plaintiff from the payment guarantee obligation owed

3) Whether the Demonstration Act on the Calculation of Amount of Profit

A) Whether to deduct the Plaintiff’s increase in the value of old shares

In full view of the following circumstances, the Plaintiff is in determining the amount of profit portion, which is the act of acquiring new shares,

It is not necessary to exclude the increase in the value of old stocks.

(1) As seen earlier, the acquisition of new shares issued by another corporation in tax accounting constitutes the purchase of investment assets. As such, it shall be deemed that the difference between the reasonable evaluation value of new shares issued by the appraisal of the financial status of the issuing company at the time of issuance of new shares and the acquisition value of new shares should be determined by comparing the difference between the fair evaluation value

(2) Purchase and delivery of general assets whose value is determined at the time of acquisition at the time of acquisition; and

In light of the fact that the purchaser has already changed the value of new shares when acquiring new shares due to a change in the value of the shares of the issuing company in itself, the market value of the shares, which is the basis for calculating the denied amount of unfair calculation due to the acquisition of new shares, shall also be deemed to be the value of shares immediately after the payment of the capital increase (see, e.g., Supreme Court Decision 2002Du7005, Feb. 13, 2004).

(3) As above, the share of profits from the rejection of unfair act by new shares acquisition is the share of the acquisition price of new shares that the acquiring company paid to the issuing company in excess of the market price in the acquisition of new shares. Thus, as long as the Plaintiff distributed profits corresponding to the above difference to Nonparty 1 and 2, the issuing company, as long as the Plaintiff distributed profits corresponding to the above difference to Nonparty 1 and 2, the issuing company, the company for new shares issuance, it shall not be considered the share of profits that the Plaintiff owned, even if the Plaintiff increased the value of the old shares due to the Plaintiff’s new shares acquisition.

B) Related to calculating the amount of profit-sharing of the non-party 1 company

(1) Appraisal of land and buildings

In the case of land due to the lack of reasonable market price or appraisal price for the land and buildings of Nonparty 1, the fact that the Defendant assessed the amount of KRW 2,323,686,440, the officially assessed individual land price, and the amount of KRW 3,332,196,640, which is the value calculated and publicly announced by the Commissioner of the National Tax Service for the

Article 52 (2) of the Corporate Tax Act; Article 88 (1) 1 of the former Enforcement Decree of the Corporate Tax Act; Article 89 (1) and (2)

According to Paragraph (1) 1 and 2 of Article 61 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002, hereinafter the "former Inheritance Tax and Gift Tax Act"), where the market price is unclear, the "market price, which is the criteria for determining high-priced purchase subject to the avoidance of wrongful calculation under the Corporate Tax Act, shall be determined by the "Act on the Public Announcement of Values and Appraisal of Real Estate" (wholly amended by Act No. 7335 of Jan. 14, 2005, hereinafter "the "Act on the Public Announcement of Values and Appraisal of Real Estate"). In the event that there is "the appraised value of an appraisal corporation under the "Act on the Evaluation of Land Prices, etc.", in the case of land without such price, it shall be determined that the officially assessed land price under the "Act on the Evaluation of Land Prices, etc.", and in the case of a building, it shall be determined that the appraised value has been appraised and announced by the Commissioner of the National Tax Service at least once per year.

With respect to this case, land and building of Non-Party 1 at the time of issuance of new shares by Non-Party 1

The reasonable market price of the above land and building cannot be determined. Next, the appraisal by the Dong state appraisal corporation of the above land and building claimed by the Plaintiff (A evidence No. 14-1 through 4) is to be determined based on the officially announced price of comparative standard land. The appraisal by the Dong state appraisal corporation of the above land and building (A evidence No. 14-1 to 4) is to be determined at the rate of land price up to the pricing point, and only the purport of determining the above land price by taking into account all the factors such as location, surrounding area conditions, road conditions, traffic conditions, specific use area, general demand and usefulness, and neighboring land price level, etc. It is to be stated that the appraisal price of the above land and building was determined at the price of the above land and building by taking into account the structure, height, construction level and management condition, and it is to be stated that the appraisal price of the above land and building was determined at the price of the above land and the appraisal price of the above land and the appraisal price of the above land is not objectively and reasonably determined by the law.

(2) Valuation of inventory assets;

The non-party 1 company shall prepare a balance sheet on December 31, 2000 and audit the accounts from the accounting firm.

In addition, the inventory assets are assessed at KRW 1,129,517,401 as raw materials and assistive materials at KRW 68,930,731. The non-party 1 company was established with the aim of producing high-performance re-defluence by using Razates which have been transferred from the PPPP company with the technology to be transferred to the PPP company. The non-party 1 company was established with the aim of producing high-performance re-defluence vesium by using Razines. due to the development of luzine spolycers soundness and quality, it was behind the price competitiveness and quality due to the above development and production of 1,129,517,401, and it was de facto cancelled the joint investment agreement with the PPPP company as of June 22, 2001, and it was found that the non-party 1 company transferred its inventory assets to the non-party 200,500,50000 shares and 1.

According to Article 52(2) of the Corporate Tax Act, Article 89(1) and (2)2 of the former Enforcement Decree of the Corporate Tax Act, Article 62(2) of the former Inheritance Tax and Gift Tax Act, and Article 52(2)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, where the market price of goods, products, and other tangible assets is unclear, the value anticipated to be acquired at the time of disposal, considering the type, scale, transaction situation, etc. of the relevant property, shall be assessed as the again acquisition value. In this context, the "acquisition value" is not separately prescribed by the relevant Acts and subordinate statutes, and the above value is a supplementary method to calculate the "market price of the relevant property". Considering that there is no other objective material, unless there is any other objective material, the market price should be calculated by reflecting the type, scale, transaction situation, etc. of the relevant property at the time of evaluation by considering all the objective evidence, such as book value, etc., and it cannot be assessed as the previous purchase price or resale value.

앞서 인정한 사실에, 이를 통하여 알 수 있는 아래와 같은 사정, 즉 원고 스스로 2000. 12. 31. 재고자산의 가액을 합계 1,198,448,132원으로 평가하였다가 2001. 12. 31.까지 이 를 모두 처분하였다고 하면서, 2000. 12. 31. 위 재고자산에 대한 유보금액이 없었음에도 그 처분손실을 그 당시 평가가액보다 3배 이상 많은 4,285,748,579원으로 계상하고 있어 위 재고자산은 소외 1회사가 사업을 중단한 때부터 이미 그 가치를 모두 상실한 것으로 보이는 점, 특히 소외 1회사의 재고자산은 그 내역이 상용화되지 않은 배터리의 원재료 와 그 보조재료로서, 소외 1회사 스스로 2001. 6. 22.경 영업을 중단한 이상 이러한 원재료와 그 보조재료가 다른 전지 제품의 원재료나 보조재료로 사용되어 그 가치를 실현하기 어려울 것으로 보이는 점, 소외 1회사가 신주발행 이후인 2001. 12. 26. SS테크와 사이에, 산업기반기술개발사업에 관련된 유ㆍ무형자산을 모두 양도하면서, 보유하고 있던 코발트 라미네이트 및 전해질 재고 일체를 ▢경테크에 대하여 양도하는 계약을 체결하였으나, 위 양도계약서에는 다른 설비 등과 달리 라미네이터 등 재고의 내역과 가액에 관하여는 아무런 기재가 없고, 특히 위 양도계약의 내용은 소외 1회사가 SS테크에 대하여 산업기반기술개발사업을 일체 양도하는 계약이라 할 것인데, 그 양도계약서에는 소외 1 회사가 SS테크로부터 받는 대가에 관하여 아무런 기재가 없는 등 위와 같은 양도계약, 특히 재고에 관한 계약이 실제로 체결되었는지, 위 재고가 실제로 양도된 것인지 의심스러운 점 등을 종합하면, 소외 1회사의 2001. 10. 8. 재고자산의 가액은 실제로 그 실현가능성이 없어 0원으로 평가된다고 할 것이고, 2000. 12. 31.에 작성된 장부가액을 기준으로 평가할 수는 없다. 따라서 이 부분에 관한 원고의 주장은 이유 없다.

(iii)assessment of other tangible assets;

On December 31, 200, Nonparty 1 assessed other tangible assets as KRW 676,967,764 on the balance sheet and other tangible assets. On December 31, 2001, the Defendant assessed the value of other tangible assets on the balance sheet and other tangible assets (289,132,045 won) on December 31, 2001 until December 31, 2001, as depreciation (18,208,365 won) from January 1, 2001 to December 31, 201, the value of other tangible assets on the balance sheet as of December 31, 201 is 10,923,682 won, and the Defendant did not dispute over the value of other tangible assets on the balance sheet as of December 31, 201, or including the other tangible assets on December 1, 2001 between the parties concerned, or included the overall number of evidence No. 13650, Oct. 6, 2001.

With respect to tangible assets subject to depreciation, depreciation is to be most appropriate, based on book value 1. If the market price is unknown, it shall be deemed that the depreciation is to be conducted by the time of appraisal 2.1. Thus, in this case, it is not clear that the records and quantity of other tangible assets remaining as of October 8, 2001 of the non-party 1 were not available. Thus, it is difficult to view that the non-party 1 purchased other types of assets at the value of 676,967,764 won which were held by the non-party 1 on December 31, 200 as 289,132,45 won until December 31, 201. The non-party 1 purchased other types of assets from January 1, 201 to December 31, 2001, it is difficult to view that the non-party 2 purchased other types of assets at the value of 0.6 billion won on the balance sheet 1.6 billion won on other 1.6.

C) Related to calculating the amount of profit-sharing of the non-party 2 company

(1) Evaluation of investment securities

소외 2회사는 미국 비상장법인인 XXXX 텔레커뮤니케이션(XXXX Telecommunication, Inc., 이하 XXXX 라 한다)가 발행한 총주식수의 6.93%를 812,805,000원에 취득하여 이를 보유하고 있었는데, 소외 2회사는 1997. 12. 31.부터 2000. 12. 31.까지 대차대조표를 작성함에 있어 위 주식발행법인인 XXXX의 순자산가액이 하락하여 회복할 가능성이 없는 투자유가증권으로 보아 그 장부가액을 0원으로, 투자유가증권 감액손실로 812,805,000원을 각 계상한 사실, 피고는 소외 2회사의 2001. 6. 21. 투자유가증권의 가치를 평가함에 있어 그 시가를 알 수 없자, 소외 2회사가 1997. 12. 31.부터 위 투자유가증권의 시가를 0원으로 평가하여 온 점 등을 고려하여 이를 0원으로 평가한 사실은 당사자 사이에 다툼이 없거나, 갑 13호증, 을 7호증(가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하면 이를 인정할수 있다.

The market price at the unlisted stocks is undislisted and the supplementary evaluation is made in accordance with the former Inheritance Tax and Gift Tax Act.

상장주식을 평가하는 경우 그 산정요소의 하나인 당해 법인의 순자산가액에는 평가 당시 회수불능인 채권은 포함될 수 없는 점(대법원 2007. 8. 23. 선고 2005두5574 판결 취지 참조), 소외 2회사도 1997. 12. 31.부터 XXXX의 투자유가증권을 XXXX의 순자산가액이 하락 하여 회복할 가능성이 없는 것으로 보고 그 취득가액 전액을 감액하여 평가하여 온 점 등의 사정을 종합하면, 피고가 XXXX의 2001. 6. 21. 주당 가치를 0원으로 평가한 것은 적법하다(구 상속세및증여세법 시행령 제54조 제3항에 의하면, 비상장주식의 발행법인이 다른 비상장 주식을 발행한 법인의 발행주식 총수 등의 10% 이하의 주식을 소유하고 있는 경우에 그 비상장주식의 평가는 법인세법 시행령 제74조 제1항 제1호 마목의 규정에 의한 취득가액에 의할 수 있도록 규정하고 있으나, 이러한 규정은 재량규정으로서 취득가액에 의할 수 있다»라고 규정하고 있고, 원고가 위 XXXX의 주식을 계속적으로 수회에 걸쳐 취득한 것이 아니라 1회 취득한 것에 불과하여 법인세법 시행령 제74조 제1항 제1호 마목의 규정에 의한 이동평균법에 의하여 평가하는 것을 척정한 가액의 평가라고 하기 어려운 점 등에 비추어 보면, 피고가 위 규정을 소외 2회사의 비상장주식의 평가를 함에 있어 적용 하지 않았다고 하여 위법하다고 할 수 없다). 따라서 이 부분에 관한 원고의 주장은 이유 없다.

(2) Evaluation of inventory assets

In the case of inventory assets, the non-party 2 was identified by the Continuous Records Act and has been adjusted by the actual inventory inspection at the end of each period. In preparing the balance sheet on December 31, 200, the contents of inventory assets were stated as 13,22,718 won in the goods and 6,590,550 won in the information goods and 2,435,784,950 won in the information goods as inventory assets and calculated as reserved amount in the case of inventory assets. The defendant could not calculate the market price of inventory assets at the time of issuance of new stocks on June 21, 200, 19,813,268 won in the aggregate of inventory assets on the balance sheet as of December 31, 200, or as of December 31, 200, comprehensively taking account of the purport of each of the evidence No. 13, No. 435,784,950 won in the information goods and the purport of all pleadings can be acknowledged.

As seen earlier, in case where the market price is unclear in the evaluation of the value of inventory assets, unless there are other objective data, it shall be calculated by the method of appropriately reflecting the market price at the time of the evaluation of the relevant assets by taking into account all the types, scale, transaction conditions, etc. of the relevant assets based on objective evidence, such as the book value, as long as there is no other objective data, and it shall not be evaluated as the

In this case, the defendant could not know the market price of the inventory assets at the time of June 21, 2001, and the 19,813,268 won, the value of the inventory assets on the balance sheet as of December 31, 2000 of the non-party 2 company, which was the value of the inventory assets on June 21, 2001. The purpose of assessing the net asset value in order to calculate the market price, which is the basis for avoidance of wrongful act and calculation, is to calculate the "market price applied or deemed to be applied to the sound social norms and commercial practice, and the normal transaction between unrelated parties" in principle. In light of the fact that the company's own evaluation of the asset value should be respected by the evaluation loss or profit of the asset, it cannot be deemed unlawful since the defendant's evaluation of the market price of the above inventory assets should not be included in the amount of inventory assets, which is the reservation under the Corporate Tax Act. Therefore, it is legitimate that the defendant assessed the inventory assets as the 19,2813,68 won.

3. Conclusion

If so, the plaintiff's claim is dismissed, and it is judged the same as the order.