In order to constitute an exceptional reason, there is a lack of fact that the assessed value by the supplementary method of assessment is less than the book value.

In order to constitute an exceptional justifiable cause in the appraisal of stocks in an emergency, the fact that the appraised value by the supplementary assessment method is less than the book value is insufficient, and the burden of proof for such a cause is the taxpayer.

Article 60 of the Inheritance Tax and Gift Tax Act

2013Guhap4300 Revocation of Disposition of Imposing corporate tax

Bankruptcy Trustee of AA, a bankrupt corporation, 000

000 director of the tax office

on October 08, 2015

on January 29, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 000 of the corporate tax for the business year 2009 against AA on December 10, 2012 is revoked.

1. Details of the disposition;

A. AA (hereinafter referred to as “A”) is a company that has been engaged in various clothes manufacturing and sales business, and the Plaintiff is a person who was appointed as a trustee in bankruptcy by the Busan District Court on February 19, 2013 due to financial deterioration of the Plaintiff.

B. On July 8, 2009, AA, the representative director of AA, KimB, transferred KRW 1,807, total amount of KRW 361,40,00,000 per share of the stocks of DDD (hereinafter “DD”) owned by the unlisted company, a non-listed company, a non-listed company (hereinafter “DD”) under the former Inheritance Tax and Gift Tax Act (amended by Act No. 9924, Jan. 1, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”).

C. In transferring the instant stocks to KimCC in KRW 361,40,00, AA assessed the assessed value per share of DD as KRW 0 on the ground that DD’s financial status as of the evaluation base date ( June 30, 2009) is in fact capital erosion [i.e., the net asset value per share and the net profit and loss per share value per share] against the total amount of KRW 52,009 shares of DD (hereinafter “DD”) owned by DD. Meanwhile, the book value on the above DD shares was KRW 1,30,000.

D. As a result of a tax investigation conducted by AA on the transfer of the instant shares at a low price to GCC, the Defendant confirmed that the appraised value of DD’s net asset value (1.3 billion won) was less than the book value (1.3 billion won), and then assessed the market value of the instant shares as KRW 1,011,40,000 (5,057 won per one week) according to the supplementary assessment method under the former Inheritance Tax and Gift Tax Act, with respect to AA on December 10, 2012, with respect to the value of DD’s stocks as the book value as KRW 1.3 billion pursuant to Article 55(1) of the former Inheritance Tax and Gift Tax Act, based on the provision on the denial of wrongful calculation under the Corporate Tax Act, the Defendant applied the provision on the rejection of unfair calculation to the said market value and the actual transfer value (i.e., 650,000,000 won - 361,400,000 won).

E. Since then, the Plaintiff appointed as a trustee in bankruptcy is dissatisfied with the instant disposition, and tax on April 17, 2013.

The Tribunal has made a decision to dismiss the plaintiff's request, but the Tribunal has made a decision to dismiss the plaintiff's request.

had been.

Facts without any dispute over recognition, Gap evidence 2, Gap evidence 3, Gap evidence 4, Gap evidence 11, Eul evidence 1, Eul evidence 2, Eul evidence 3, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

DD shares of DD holding were indicated as KRW 1.3 billion above the book value because they did not account for the reduced amount of investment securities. At the point of time on June 30, 2009, DD was in a state of capital erosion, and DD was assessed as a supplementary assessment method under Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and there was no substantial value as KRW 0.0 billion.

Therefore, since AA's calculation of the market price of DD stocks is 'justifiable cause', not 'the market price of DD stocks' but 'the value of DD stocks', it is reasonable to evaluate DD stocks as 0 won, the disposition of this case, which is assessed as 1.3 billion won, is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On April 14, 2008, AA, DD, KimB, etc. acquired a total of 120,020 shares of DD from the E, the largest person with no special relationship, in KRW 24,995 per share. DD acquired 52,09 shares of KRW 1,299,964,955 (=24,995 won x 52,09 shares) among them.

2) If A, etc. calculates the net asset value per share of DD at the time of acquisition of DD stocks as above, the net asset value of DD was KRW 1,030,968,888 (based on the end of 2007) (=1,030,968,888) ± 120,020).

3) DDR is a company specializing in marriage information established on May 9, 2001, and the current status of net income based on the financial statements between 2006 and 2011 are as listed below, and DDR’s net asset value on June 30, 2009 (base date of appraisal) is indicated as KRW 101,00,000,000.

Facts that there is no dispute over recognition, Eul evidence 4, Eul evidence 5, Eul evidence 7, Eul evidence 8-1, Eul

Each entry of No. 8-2, the purport of the whole pleadings

D. Determination

1) Article 52(1) of the Corporate Tax Act provides that where a domestic corporation’s act or calculation of its income amount is deemed to have unjustly reduced the tax burden on the corporation’s income due to transactions with a person with a special relationship, the head of the competent district tax office, etc. may calculate the income amount for each business year of the corporation regardless of the corporation’s act or calculation of its income amount (hereinafter “unlawful calculation”). Article 88(1)3 of the Enforcement Decree of the Corporate Tax Act provides that “where assets are transferred or invested in kind with no compensation or at a price lower than the market price” as one of the specific types

Meanwhile, Article 60(1) of the former Inheritance Tax and Gift Tax Act provides that the value of the property on which the gift tax is levied shall be the same as the market value as of the date of donation, i.e., the one at which transactions are made freely between many and unspecified persons, and Article 60(3) of the same Act provides that where it is difficult to calculate the market value, the market value shall be calculated by the value assessed by the method under Articles 61 through 65 of the former Inheritance Tax and Gift Tax Act, and Article 63(1)1(c) of the former Inheritance Tax and Gift Tax Act provides that "in the case of non-listed stocks, the valuation of non-listed stocks shall be made by the method prescribed by the Presidential Decree in consideration of the corporation's assets and profits, etc." Accordingly, Article 54 of the former Enforcement Decree of the same Act provides that the net asset value per share shall be calculated by dividing the net asset value of the corporation by the total number of issued stocks.

As above, with regard to the calculation method of "net asset value", Article 55 (1) of the former Inheritance Tax and Gift Tax Act provides that "net asset value shall be the value obtained by subtracting liabilities from the value appraised under Articles 60 through 66 of the same Act as of the base date of appraisal (if the net asset value is not more than zero won, it shall be zero won) of the assets of the relevant corporation as of the base date of appraisal, and in this case, if the value appraised under Articles 60 (3) and 66 of the Act of the relevant corporation's assets is less than the book value (referring to the value obtained by subtracting the depreciation costs from the acquisition value), it shall be the book value." However, the same shall not apply to cases where "justifiable cause" exists.

In other words, the valuation of the value of the unlisted stocks shall be based on the valuation of the market price, but if the market price is unclear, it shall be based on the supplementary valuation method, and if the value of the unlisted stocks is less than the book value, it shall be based on the book value. In order to prevent the supplementary valuation value compared with the acquisition value from being rapidly lower than the book value, this is intended to realize the substantial taxation by assessing the value of the unlisted stocks in comparison with the book value and the supplementary valuation value. Therefore, in order to constitute an exceptional reason, the fact that the appraised value by the supplementary valuation method is less than the book value is insufficient. Therefore, the degree of difference between the acquisition value of the unlisted stocks and the value calculated by the supplementary valuation method at the time of the transfer, the time and time of the valuation according to the supplementary valuation method at the time of the transfer, whether there is any special reason to reduce the value of the unlisted stocks rapidly, whether the company continues to conduct the business in the future, whether the donor is in the process of business suspension, discontinuance, or liquidation, whether the donor bears the burden of proving the actual value of the unlisted stocks at the time of the transfer.

2) In light of the above legal principles, it is examined whether AA’s “justifiable cause” exists in calculating the value of DDR stocks held by AD as 0 won (net asset value 0 won) calculated by supplementary evaluation methods as at the time of the evaluation base date less than 1.3 billion won, not the book value.

앞서 든 각 증거 및 앞서 본 인정사실에다가 변론 전체의 취지를 종합하여 인정 할 수 있는 다음과 같은 사정들 즉, ① AA은 이 사건 주식을 특수관계자인 검00에게 양도하기 1년 전에 DDD의 주식을 1주당 24,995원에 매수하였는데, 그 매수 시점으로부터 불과 1년이 지난 시점인 양도 무렵에 일시적인 자본잠식이 발생하였다는사정만으로 장기간 건전한 재무구조 및 상당한 영업이익을 창출해 ž遊�DDD 주식의 가치를 0원으로 평가하여 특수관계자에게 양도하는 것은 투자유가증권의 가치를 왜곡하는 것으로 보일뿐만 아니라, 저가양도를 통한 조세회피의 의도가 있었던 것이 아닌가하는 의심이 드는 점, ② 특히 평가기준일인 2009. 6. 30. 가결산 시점에 DDD이 자본잠식 상태에 있었다고 하더라도 이는 일시적인 것에 불과하고, 2009년 이후DDD의 당기순이익이 점차 개선되어 2013 사업연도에는 435,000,000원의 당기순이익을 나타내고 있으며, 순자산가액 역시 일시적 부(-)의 상태에서 벗어나 2009년20,000,000원, 2010년 58,000,000원으로 회복된 점, ③ 또한 평가기준일 당시 DDD은 휴업이나 폐업상태도 아닌 사업을 계속하던 법인으로서, 2001년에 설립되어 상당기간 동안 재혼전문 결혼정보회사로 국내 시장점유율 1위를 유지하고 있는 등 브랜드 가치도 상당하였을 것으로 보이고, 이에 AA 등이 DDD 주식을 매수함에 있어 그와 같은 매출액 및 미래의 수입가치 등을 충분히 고려하였던 것으로 보이는 점, ④ 실제로 AA 등이 2008. 4. 14. DDD 주식을 취득함에 있어 보충적 평가방법에 따른 DDD 주식의 가액이 1주당 8,589원 정도였음에도 미래의 수입가치 등을 고려하여 그 보다 훨씬 높은 24,995원에 취득한 점, ⑤ 사실상 위와 같은 보충적 평가액은 비상장주식의 실질 가치를 제대로 반영하지 못하고 있는 사정 등에 비추어 AA이 이 사건

In light of the purport of Article 60 of the former Inheritance Tax and Gift Tax Act and the principle of substantial taxation, etc., it is difficult to see that the supplementary appraised value derived from the supplementary appraised value of the DD stocks at the time of transferring the stocks to a specially related person is more than the book value, and rather, considering the future business value, etc. of DD, the book value appears to have been close to the actual market price (the calculation of the value adjacent to the market price as above is consistent with the purpose of Article 60

A’s evidence Nos. 5-1 through 3, Eul’s evidence Nos. 6-1 through 5, Eul’s evidence Nos. 7-1 through 5, each statement of Gap’s evidence Nos. 8, and testimony of a witness transfer cannot be deemed to have a “justifiable cause” for the application of a supplementary appraised value, other than the book value, to the DNA stocks owned by DD, and there is no other evidence to acknowledge it.

3) Therefore, the Plaintiff’s assertion is without merit.

E. Sub-committee

Therefore, in assessing the value of the instant stocks, the book value of the DD stocks of DD (1.3 billion won) is higher than that of DD stocks at the time of the appraisal base date, so the disposition of this case that AA corrected and notified AA of KRW 220,926,780 as corporate tax for the business year 2009 by applying the provision on the rejection of wrongful calculation under the Corporate Tax Act by deeming that A had transferred the instant stocks at a low price to a specially related person, by calculating the above book value as the final evaluation amount and evaluating AA’s market value as KRW 1,01,40,000 (5,057 won per share).

3. Conclusion

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