Seocho 207west 1583 (Law No. 21, 2008)

In case where a corporation acquires new shares at a higher level from a related corporation, it constitutes a wrongful calculation panel.

If new stocks are substantially high-priced in consideration of the assets and earnings status of the corporation, the corporation acquired new stocks shall be included in the calculation of losses incurred from the evaluation of new stocks to reduce the tax burden on the corporation's income.

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 imposing corporate tax of KRW 55,648,634,770 for the business year 2001 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff acquired new shares issued by the unlisted company, a related party, at a total of 96,058,730,000 won per share (5,000 won per share) as follows, and accounted as investment securities. On June 30, 2001, the Plaintiff reported the tax base and tax amount of the corporate tax for the business year 2001, by accounting as investment securities.

① On August 14, 1999, KRW 70,542,00,00 for KRW 70,540,000 (hereinafter “the primary act of acquiring new shares”) ② April 25, 200 (hereinafter “the second act of acquiring new shares”).

B. The Defendant determined that the Plaintiff’s offering of the total amount of the subscription price for new shares to Nonparty Company without compensation is subject to the avoidance of unfair act and calculation. The Defendant calculated the corporate tax base and tax amount of the corporate tax for the business year 2000 and the business year 2001 on the premise that the interest paid was included in the calculation of the total amount of the subscription price for new shares, and calculated the tax base and tax amount of the corporate tax for the business year 2000 and the business year 2001 on March 29, 2006. On November 200, 2006, the Defendant corrected and notified the Plaintiff of the corporate tax of KRW 8,09,257,310 for the business year 8,09,257,310, and the corporate tax of KRW 5,648,634,70 for the business year 201.

C. Upon the plaintiff's objection and filing an appeal, on August 21, 2008, the Tax Tribunal did not regard the act of acquiring new shares as the act of paying provisional payment, but as the case 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 for the business year 2000, the tax Tribunal decided to dismiss the remaining claims.

D. Accordingly, the defendant deemed that the second and second new shares acquisition constitutes a wrongful calculation under Article 52(1) of the Corporate Tax Act and Article 88(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17826, Dec. 31, 2002; hereinafter referred to as the "former Enforcement Decree of the Corporate Tax Act"), and that the plaintiff's calculation of the total amount of the subscription price of new shares in the business year 2001 is denied and excluded from deductible expenses, and then calculated the tax base and tax amount of the corporate tax for the business year 2001 by calculating the corporate tax base and tax amount for the business year 200, Mar. 29, 2006 (including the imposition disposition of corporate tax of 6,763,58,840, Nov. 1, 2006; hereinafter the same shall apply) and maintained the disposition of imposition of corporate tax of 8,09,257,310 on Nov. 31, 2007

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, 9, and all pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Illegal application of Article 88(1)1 of the former Enforcement Decree of the Corporate Tax Act

A) The issuance of new shares by the non-party company is not only the capital transaction stipulated in the Corporate Tax Act, but also the Plaintiff did not complete any influence on the income of the non-party company even if it accepts the new shares of the non-party company, so it cannot be deemed that the share of profits was made in the non-party company. Accordingly, the act of acquiring new shares in this case does not constitute the object of being subject to

B) If the shareholder’s act of acquiring new shares is treated as a transaction of assets between the issuing company and the shareholder, only if there is a difference between the issue price of stocks and the amount of stock assessment under the tax law, it constitutes a high-value purchase of assets or a low-price transfer of assets, and thus, it would result in an unfair outcome subject to avoidance of unfair

C) Article 88(1)8 of the Enforcement Decree of the former Corporate Tax Act (amended by Presidential Decree No. 88(1)8 of the former Corporate Tax Act) should not be applied with regard to the share of profits through capital transactions more than the amount of capital transactions.

D) Meanwhile, as a result of efforts to avoid concerns over financial sanctions following the Non-Party Company’s default, the acquisition of the first and second new shares constitutes an abnormal act that lacks economic rationality, since it is the result of the Non-Party Company’s efforts to avoid the risk of financial sanctions.

2) The instant disposition is unlawful as follows in calculating the amount of the wrongful calculation based on which new shares are acquired at a high price as follows.

A. The illegality of the calculation of the market price of the stock, which is the basis for calculating the negative amount of the wrongful calculation

The market value of the shares, which is the basis for calculating the denied amount of unfair calculation due to the high-priced acquisition of new shares, shall be assessed as the value immediately before the payment of the capital increase. According to the appraisal value of the shares immediately before the payment of the capital increase by the non-party company or the appraisal value at this court, the value of the non-party company immediately after the payment of the capital increase by the non-party company for the capital increase exceeds 0 won. Thus,

B) As a result of the Plaintiff’s non-deduction of the increase in the value of the existing shares due to the payment of the purchase price of new shares based on the 1 and 2th new shares, the shares of the Nonparty Company previously held by the Plaintiff have increased its value, the increase in the value of such existing shares should be excluded from calculating the denied value.

C) Application of the largest shareholder premium rate

In order to calculate the denied amount, the premium rate for the largest shareholder prescribed in the Inheritance Tax and Gift Tax Act shall apply to the appraisal of the shares of this case.

(iii)the illegality of the imposition of an additional tax (the existence of justifiable grounds);

In light of the fact that the interpretation of the taxation method on the allotment of profits through the acquisition of new shares under the Corporate Tax Act cannot be deemed as a single interpretation, and that the defendant Cho Jae-do did not have conviction in the application of the provision on the calculation of unfair act and did not reach the exclusion period of the taxation disposition for the business year of 2001, and the disposition in this case was made on January 3, 2007 when the exclusion period of the imposition of unfair act was imminent, and that there is a need to consider the circumstances leading up to the plaintiff's occurrence of the first and second acquisition of new shares, there is a justifiable reason for the plaintiff to neglect its duty to report and pay corporate tax as to the first and second acquisition of new shares under Article 52 of the Corporate Tax Act and Article 88 (1) 1 of the Enforcement Decree of the same Act.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) Around March 1994, the non-party company established an investment inCC Heavy Industries Co., Ltd. (hereinafter referred to as "CC Heavy Industries"),CC Co., Ltd. (hereinafter referred to as "CC Fixed Co., Ltd."), and regularB, operated aviation business, space business, automobiles, mid-term transformation technology business, and helicopter operation business. From around 196 to early 198, the non-party company invested approximately KRW 270 billion in loans and issuance of corporate bonds, etc. in the process of constructing Seosan Factory. However, around the end of 1997, the interest burden on loans has increased rapidly due to the increase in interest rates due to the increase in the capital due to the IMF foreign exchange crisis, the profitability of aviation business sector, such as the manufacture and sale of aircraft dogs, which are the main products, has deteriorated rapidly, and the financial structure has been improved rapidly, but the financial structure has not been improved since April 29, 1998.

2) 그러던 중 1998. 하반기에 정부 주도로 항공산업에 대한 구조조정(소위 빅딜) 과정에서, 1999년 하반기까지 소외 회사, 삼성항공산업 주식회사, 대우중공업 주식회사 등 3사의 항공사업 부문의 자산과 일정 비율의 부채만을 분리하여 현물출자 형식으로 1개의 통합법인을 설립하기로 한다는 내용의 구조조정 방안이 확정되어 @@@@우주 산업 주식회사(이하 '@@@@우주산업'이라 한다)가 그 설립을 앞두고 있었다.

3) The non-party company transferred only the assets and certain ratio of the aviation business sector in accordance with the above restructuring plan for the aviation industry, and, if you transferred only the assets and debts of the aviation business sector, the enormous debts incurred from the aviation business sector, etc. However, the remaining business sector remains in the business sector with no profitability and its business sector can not be fully paid the interest of the loans of the financial institution. Therefore, at the time, the remaining business sector after the structural adjustment for the aviation business sector was examined as well as the reason why the remaining business sector can be liquidated.

On the other hand, the affiliate company of theCC group did not guarantee the debt of the non-party company for the non-party company, except that the non-party company was liable for the guaranteed debt of approximately KRW 3.8 billion, and even if the non-party company was defaulted, it did not have any particular effect on its existence. However, at the time, it was necessary to resolve the guaranteed debt because the non-party company's highest manager of the non-party company bears the guaranteed debt of approximately KRW 260.7 billion for the debt of the non-party company.

4) Accordingly, in preparation for the future liquidation of the non-party company, the company’s chief executive director, KimD andCC Group’s comprehensive planning room is to take measures to ensure that the non-party company can liquidate its existing assets and debts without default at the same level by paying the non-party company’s existing assets and debts with the funds created through the offering of new shares by using the company’s funds, including the Plaintiff andCCA, for which it was exercising the right of management as the highest manager.

5) Accordingly, the non-party company planned capital increase to meet the remaining assets and liabilities at the same level. On August 12, 1999, the non-party company offered capital increase to raise 400 billion won per share by issuing new shares of 80 million won per shareholder allotment method, and offered capital increase to raise 500 billion won per share of 117,570,000 won, the plaintiff (17.64%) 70,542,000,000 won, the plaintiff (17.64%) 70,542,000,000 won per share of 47,028,0000,000 won, EE Industry Development Co., Ltd (hereinafter referred to as the "EE Industry Development"), 196, 2005, 306, 3005, 406, 406, 506, 306, 405, 506, 406, 506, 2000

Of the above corporate shareholders at the time, there was no guarantee liability for the liabilities of the non-party company, and there was no investment from the non-party company. However, upon the request of the Integrated Planning Office and KimD, corporate shareholders participated in the first capital increase with the aim of sharing the losses of the non-party company, while the non-party company was holding 2.76% of the shares of the non-party company 22.76% of the non-party company *********DD because the non-party company was scheduled to retire its shares at a cost, it refused to participate in the above capital increase with the non-party company 10.62% of shares of the non-party company (hereinafter referred to as the "CC industry development") on the ground that the non-party company was actually separated from the group.

6) Since then, the non-party company repaid its debts, etc. to its financial rights with the funds raised with the first capital increase with the instant capital increase, and conducted restructuring between the aviation business sector and the remaining business sector as follows.

① 1999. 10. 1. 항공사업 부문(자산 2,593억 원, 부채 1,629억 원, 자본 964억 원)을 현물출자하여 @@@@우주산업을 설립하여 그 지분 33.33%를 보유하고 있다가, 2000. 2. 16. 이를 원고에게 처분하였다.

② On December 28, 1999, the automobile and the mid-term transformation project sector (property KRW 342.2 billion, debt KRW 291.8 billion, capital KRW 50.4 billion) were newly incorporated by physical division. On the same day, 100% of the company’s equity was transferred to the Plaintiff, etc.

③ On February 1, 2000, a space project sector was transferred toCC.

④ On April 6, 2000, a satellite business sector was transferred to e-HD.com, an affiliate toCC Group.

7) Meanwhile, on January 4, 200, JungB transferred all shares (3,141,790 shares, 4.35% shares) of the non-party company (3,141,790 shares, and 4.35% shares) to Jung-M et al., the employees of the non-party company, one won per share.

8) 그런데 이 사건 1차 유상증자 이후 소외 회사가 @@@@우주산업에 현물출자한 항공사업 부문의 자산 평가 과정 등에서 이 사건 1차 유상증자 당시 예상하지 못했던 추가 부채가 발견되었고, 소외 회사의 주요 사업 부문이 정리된 이후에 사실상 소외 회사의 청산이 현실화됨에 따라, 소외 회사는 추가 부채 등을 변제함으로써 당초 목표대로 잔존 자산과 부채를 동일한 수준으로 맞추기 위하여 다시 유상증자를 계획하고, 2000. 4. 25. 주주배정방식으로 신주 2,000만 주를 주당 5,000원(액면가)에 발행하여 1,000억 원을 조달하는 내용의 유상증자를 실시하였는데, 당시 CC중공업(지분 42.53%)이 42,527,885,000원, 원고(지분 25.52%)가 25,516,730,000원, CC정공(지분 17.01%)이 17,011,155,000원, EE산업개발(지분 6.98%)이 6,984,505,000원을 각 출자하여 위 유상증자에 참여하였고, 그 결과 합계 92,040,275,000원의 자금을 조달하였다(이하 '이 사건 2차 유상증자'라 한다).

On the other hand, theCC industry development, which held 3.61% of the shares of the non-party company at the time, did not participate in the above capital increase due to the lack of cash liquidity, and the private shareholders, such as the Jung-B, who acquired 4.35% shares from the Jung-B, did not participate in the above capital increase.

In addition, the CCC Heavy Industries and EE Industry Development transferred all of the shares of the non-party company owned on June 7, 200 to 1BM and 5 others per share.

9) The non-party company used the funds raised through the second capital increase increase with additional liabilities, etc., and continued to restructure the remaining business sector as follows.

From December 28, 200 to February 14, 2001, the Plaintiff sold to the Plaintiff more than KRW 93.6 billion in total among the remaining assets of the Plaintiff, such as air conditioning sets, library sites, painting facilities, etc.

(2) On April 1, 2001, around April 1, 2001, an amount equivalent to KRW 3.2 billion for assets and liabilities of the helicopter business sector was transferred to KoreaDTS Co., Ltd.

10) After September 28, 2001, the non-party company resolved to dissolve a temporary general meeting of shareholders on September 28, 2001, and registered the dissolution on September 29 of the same month, and thereafter, the liquidation was completed on December 28, 2001, where the remaining assets are distributed to all creditors of the company through liquidation procedures.

In the process, creditors of the company were fully repaid their claims, and shareholders including the plaintiff have treated all non-party shares of the company until then.

11) Meanwhile, the guaranteed liability against the non-party company of JungB was repaid KRW 70.1 billion in the second half of the 1999 after the first capital increase, and around September 30, 1999, the guaranteed liability of KRW 43.5 billion in total was transferred to the pertinent business sector in the restructuring of the aviation business sector and the physical division process of the changed business sector around December 29 of the same year. On 2000, the guaranteed liability of KRW 97.1 billion was transferred to the said business sector before and after the second capital increase, and was repaid before and after the second capital increase.

[Ground of recognition] Facts without dispute, Gap's entry of evidence 3 through 6, 8 through 10, 12, 13, and 17, entry of evidence 1 to 9, and the purport of the whole pleadings

D. Determination

(i)for the first note:

A) Whether Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act is applied

(1) The rejection of unfair calculation under the provisions of Article 52 of the Corporate Tax Act shall be deemed to have avoided or reduced the tax burden arising from the acquisition of new stocks by ice using the various forms of transactions listed in the subparagraphs of Article 88 (1) of the Enforcement Decree of the Corporate Tax Act without a reasonable method with a person with a special relationship. In case where it is deemed that the taxation authority denies the acquisition of new stocks and the acquisition of new stocks by deeming that there are income objectively and reasonably reasonable under the provisions of Acts and subordinate statutes, it is an institution to ensure fair taxation and to prevent tax avoidance. ② Article 52 of the Corporate Tax Act provides that if it is deemed that the tax burden on the income of the domestic corporation has been reduced unfairly due to the act of purchasing new stocks or transactions with a person with a special relationship, the amount of income of the corporation for each business year shall be calculated, regardless of the calculation of the amount of income of the corporation or the acquisition of new stocks, and Article 88 (1) 1 of the Enforcement Decree of the Corporate Tax Act provides that if the company has already purchased new stocks at a price higher than the issuing company's price.

B) Whether the first and second prior acquisition constitutes a wrongful calculation under Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act that is subject to rejection of unfair calculation

The following facts revealed: ① the non-party company, who was in the position of the plaintiff and its specially related party, was in the status of capital erosion with the continued loss at the time of the above 1 and 2 capital increase; ④ shareholders, including the plaintiff, participate in the above-mentioned capital increase although there was a possibility that the amount would not be recovered even if they participate in each capital increase; ② the plaintiff's business feasibility, future investment profits, and real value of the shares were determined to participate in the above-mentioned capital increase with the view to allocating the non-party company's liabilities. Since the non-party company's total value of the new shares acquired through the non-party 1 and 2 capital increase was used for the non-party company's repayment of its existing debt, and as a result, the non-party company's financial institution's investment risk was not affected by the non-party 1's financial institution's investment risk as a guarantor, it appears that the non-party 2 did not have any influence on the non-party 1's financial institution's investment risk.

C) Sub-determination

Thus, the plaintiff 1 and 2's act of acquiring assets from a specially related person in excess of the market price is an act that unfairly reduces tax burden and constitutes an act subject to rejection of unfair calculation under Article 88 (1) 1 of the Enforcement Decree of the Corporate Tax Act.

(ii)in the second place;

A) As to the method of calculating the market price of stocks, which serves as the basis for calculating the denied amount of wrongful calculation

(1) General theory on evaluation methods

Unlike the purchase of general assets whose value is determined at the time of acquisition, the acquisition of new stocks in itself has changed in its value when the purchaser acquires new stocks due to a change in the market value of the issuing company’s stocks. Thus, the market value of the stocks, which serves as the basis for calculating the denied amount of unfair calculation due to the acquisition of new stocks, shall also be deemed to be the value immediately after the payment of the increased capital (see, e.g., Supreme Court Decision 2002Du7005, Feb. 13, 2004). Meanwhile, in the case of unlisted stocks, the market value immediately after the payment of the increased capital is based on sound social norms and commercial practices after the payment of the increased capital and the market price determined as applicable to ordinary transactions between persons who are not specially related parties, but if it is difficult to calculate the market value, it shall be deemed that the market value is calculated in accordance with the evaluation methods under

(2) Facts of recognition

(A) According to the balance sheet of the non-party company, the non-party company suffered approximately KRW 22.3 billion in the business year 1997, approximately KRW 55.7 billion in the business year 1998, approximately KRW 225.6 billion in the business year 1999, approximately KRW 88.7 billion in the business year 2000 (the main contents of the balance sheet of the business year 1999 and 2000 are as follows).

(B) The value per stock of a company other than the smallest company based on the evaluation method under Article 54 of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 2002)

(1) A stock evaluation report of an agenda accounting corporation dated 8, 1999, which was immediately preceding the capital increase of the first time.

-basic data: related data such as the standard financial statements, etc. on December 31, 1998

- Net asset value: -144,085,234,626 won/net asset value per share -5,857 won

- The stock value per share: 0 won

② A report on the stock assessment of the accounting firm on March 24, 2000 as of March 24, 2000 immediately before the second capital increase.

- Basic data: Related data, such as financial statements of December 31, 1999

- Net asset value: -32,358,993,959 won/net asset value per share -448 won

- The stock value per share: 0 won

(3) On May 31, 200, immediately after the second capital increase with consideration;

-basic data: the data relating to the basis financial statements, etc. of December 31, 199 and the financial statements concerning the settlement of accounts of May 31, 200;

- The net asset value per share: 24 won;

- The stock value per share: 24 won;

(4) The appraised value per share as of August 12, 199 and April 25, 2000 immediately after the second capital increase as of August 12, 199 and immediately after the second capital increase as of August 12, 199, which was commissioned to give an appraisal by this court.

- As of August 12, 199, immediately after the first capital increase, the asset disposed of as investment in kind or as a material division (O. 1, 1999) within six months from the base date shall be the basis for the disposal value in the case of the asset not disposed of, and the individual land price in the case of the land, buildings, structures, and machinery and apparatus shall be the basis for the book value, which is the value appraised in the course of asset re-evaluation. If the asset is assessed as of April 25, 200, immediately after the second capital increase, the asset was assessed as of December 31, 199 on the basis of the financial statements and other related materials as of December 31, 199, and the result is as set forth below.

[Ground of recognition] Written evidence Nos. 5 to 8 and 10, and result of a request for appraisal by AA Accounting Corporation of this Court

(3) Determination

In light of the following circumstances, the non-party 1 was not able to improve the capital stock price of the non-party 2 after the 198 company's new shares issued with new shares issued with new shares issued with new shares issued with new shares issued with the non-party 2, and the non-party 1 was determined in the second half of the 198 company's restructuring plan for the new shares issued with new shares issued with new shares issued with new shares issued with the non-party 2. The non-party 2 was planned to liquidate the assets and liabilities of the non-party 1 with the same level in preparation for the remaining liquidation of shares issued with the non-party 1's order. The non-party 2's new shares issued with new shares issued with new shares issued with new shares issued with new shares issued with the non-party 1's total appraisal value of the non-party 2's new shares issued with new shares issued with new shares issued with the non-party 1's total appraisal value of the non-party 1's new shares issued with new shares sold.

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

The denied amount of wrongful calculation due to the high-priced acquisition of new shares refers to the difference between the acquisition price of new shares paid by the acquiring company to the issuing company in excess of the market price, i.e., the price of the new shares immediately after the payment of the capital increase of the issuing company, and the acquisition price of new shares is higher than the market price. If the issuing company’s capital is fully paid and part of the profits accrued from the acquisition price of new shares can again be attributed to the number of the pre-owner. However, in this case, it is merely a indirect and reflect interest due to the acquisition of new shares (in addition, in this case, since the value of the shares immediately after the payment of each new shares was zero won, there was no such indirect and reflect interest). In addition, the profits accrued from the increase in the old stock value from the difference between the value of the shares immediately after the payment of the capital increase and the acquisition price of new shares cannot be deducted.

C) Whether the largest shareholder's premium rate is applied

As seen earlier, it is determined that the value of shares per share of the non-party company immediately after the second and second capital increase is zero won, and as long as the non-party company seems to have already entered the procedure for liquidation at the time, the argument that the premium rate shall apply to the shares held by the largest shareholder, etc. under Article 63 (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002) is no longer reasonable.

D) Sub-committee

Thus, it cannot be said that the disposition of this case is erroneous in the disposal of the non-party company's stocks as zero won after the payment of the 1 and 2 capital increase for new shares was made.

3) As to the third argument

Under the Corporate Tax Act, the additional tax for underreporting and the additional tax for non-payment are a kind of administrative sanction imposed when a corporation that is a taxpayer bears the duty of faithfully declaring the tax base and paying the amount of tax in order to ensure the propriety of taxation, and neglects the performance of such duty in order to secure it. Such a sanction is not imposed where there is a justifiable reason to believe that it is not unreasonable for a taxpayer to be unaware of such duty due to a conflict of opinion due to a suspicion in tax interpretation beyond the simple scope of the land or the scope of the misunderstanding of the law, etc., and it is not unreasonable for a taxpayer to be unaware of such duty due to a conflict of opinion due to a suspicion in tax law interpretation (see Supreme Court Decision 202Du666, Aug. 23, 2002).

As seen earlier, Article 88(1)8 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15790, Dec. 31, 1998; Presidential Decree No. 15790; Presidential Decree No. 88(1)8 of the Corporate Tax Act (amended by Presidential Decree No. 15790) has been interpreted to apply Article 88(1)1 of the Enforcement Decree to the act of acquiring high-priced new shares as to the act of acquiring new shares at a higher price than the market price, even before adding the new shares to the type of wrongful calculation. Even according to the Plaintiff’s assertion itself, the Plaintiff appears to have known that the Plaintiff’s act of acquiring new shares at a higher price is likely to fall under Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act. The Plaintiff’s assertion that the Plaintiff’s act of acquiring new shares at a domestic market is likely to fall under Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act, without examining the business feasibility, future investment return, and actual value of the Plaintiff’s.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.