Daejeon District Court-2015-Gu Partnership-10777 ( October 26, 2016)

Whether the acquisition of new stocks at a low price by the third party allocation method constitutes gross income under the Corporate Tax Act.

(1) In order to regard a private shareholder as a share holder, it is premised on the fact that there was a benefit to be attributed to a private shareholder due to capital transaction. Thus, even if a share holder is a private shareholder of a corporation that issued stocks, it constitutes gross income under the Corporate Tax Act.

Articles 11 and 88 of the Enforcement Decree of the Corporate Tax Act

2016Nu1311 Revocation of Disposition of Imposing Corporate Tax

Aaa Co., Ltd.

Head of Public Tax Office

Daejeon District Court 2015Guhap100777 ( October 26, 2016)

March 2, 2017

June 1, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The corporate tax for the business year of 2011 that the defendant against the plaintiff on July 22, 2014.

A disposition rejecting rectification of KRW 1,673,384,6901) shall be revoked.

1. Quotation of judgment of the first instance;

The court's reasoning for this case is that 69% of the total outstanding shares was owned by 10,00 shares of 10,00 shares of 6,90 shares of 10,00 shares of 2nd 9-10 shares of the court of first instance, 3,00 shares of 3,00 shares of 3,00 shares (30%) and 3, 100 shares of 10 shares(1%). 2nd 11 shares of 3,00 shares were acquired (hereinafter "the capital transaction of this case"), 5th 8-9 shares of the court of first instance, 20 shares of the court of second 8 to 30 shares of the court of second 10 shares, 30 shares of the court of second 20 shares of the court of second 10 shares, 30 shares of the court of second 20 shares of the court of second 20 shares of the court of second 8 to 300 shares of the court of second 20 shares of the court.

Part added to the bottom of the second conduct

E. On April 27, 2017, the Defendant revised corporate tax of 350,276,060 won, among 2,023,660,750 won and 376,613,780 won (Refund1) to be refunded or corrected by the Defendant on July 22, 2014, the amount of corporate tax paid by the Plaintiff was KRW 2,023,660,750, but the Defendant adjusted the above amount to KRW 350,276,060, and refunded it to the Plaintiff on April 27, 2017, which was 350,000 after the closure of the pleadings at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the court of 360,673,690 won (=2,023,60,750,750,360,7636,767,7666).

B) Whether Article 88(1)8-2 of the former Enforcement Decree of the Corporate Tax Act is applicable

(1) Interpretation of the relevant provisions

First of all, what meaning "capital transactions" referred to in the latter part of Article 11 (9) of the former Enforcement Decree of the Corporate Tax Act refers to "capital transactions" under Article 88 (1) (8-2) of the former Enforcement Decree.

The latter part of Article 11 subparagraph 9 of the former Enforcement Decree of the Corporate Tax Act provides that "the profits received by distribution from a person with a special relationship due to capital transactions pursuant to Article 88 (1) 8-2 shall be included in the gross income (hereinafter referred to as "the provisions of this case"). The main sentence of Article 88 (1) 8-2 of the former Enforcement Decree of the Corporate Tax Act provides that "in cases other than subparagraph 8, it is recognized that the profits of the corporation have been distributed by means of transactions such as increase or decrease of capital (including merger and division), merger (including merger and division), division, and conversion, acquisition, exchange, etc. of stocks by convertible bonds, etc. pursuant to Article 40 (1) of the Inheritance Tax and Gift Tax Act

However, considering the following circumstances in light of the fact that the provision of this case does not limit the "person with special interest" as a juristic person, and it does not have any special reason to regard the case where a person with special interest is a juristic person and where a person with special interest is an individual, and that the provision of this case is "capital transactions under subparagraph 8-2" rather than "the case of subparagraph 8-2" in itself, it is reasonable to view that the "capital transactions under Article 88 (1) 8-2" citing the provision of this case refers to transactions that increase or reduce the capital of a juristic person by means of capital increase, etc. in addition to subparagraph 8 of Article 88 (1) referring to "the case of capital transactions under Article 88 (1) 8-2 referring to "the case of capital transactions" referring to "the case of a person with special interest who is a juristic person with

(A) Before January 1, 1999, the Enforcement Decree of the Corporate Tax Act, wholly amended by Presidential Decree No. 15970, Dec. 31, 1998, entered into force on January 1, 1999, where a shareholder, who is an individual, received a distribution of profits from a specially related person due to an inequal increase, etc., gift tax was levied pursuant to the statutory provision on the constructive donation of the Inheritance Tax and Gift Tax Act. On the other hand, where a corporate shareholder received a distribution of profits from a specially related person, there is no explicit provision in the Corporate Tax Act, and the tax authority imposed corporate tax in the form of stock transfer gains when the tax authority disposes of the stocks owned by the shareholder, who

(B) After that, Article 11 Subparag. 9 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619, Feb. 22, 2008) was newly established to include profits distributed by shareholders of a corporation from persons with a special relationship in the gross income for the pertinent business year (Article 11 Subparag. 9) and Article 11 Subparag. 9 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619, Feb. 22, 2008) was newly amended to ensure that the former Enforcement Decree of the Corporate Tax Act can impose corporate tax by including the economic profits from the transactions under Article 88(1)8-2 of the former Enforcement Decree in the gross income for the pertinent business year,

(C) Article 15(1) of the Corporate Tax Act provides that “The amount of profit shall be the amount of profit generated by transactions which increase the net assets of the pertinent corporation, except as otherwise provided in this Act,” thereby defining the amount of profit based on the comprehensive principle according to the net asset increase theory. According to this, the provisions on the scope of profit corresponding to the relevant corporation’s gross income under Article 11 of the former Enforcement Decree of the Corporate Tax Act are merely an exemplary provision. Therefore, if a party who received a share of profit in a capital transaction falls under a specially related person of the pertinent corporation, regardless of whether a specially related person is an individual or a corporation, deeming the profit generated by such transaction as a gross income under the Corporate Tax Act is also consistent with the purport of the Corporate Tax Act, which takes the position

(D) In cases other than subparagraph 8 of Article 88(1)8 of the former Enforcement Decree of the Corporate Tax Act, it shall be interpreted as a "profit received by distribution from a person with a special relationship" due to a transaction other than subparagraph 9 of Article 11 of the former Enforcement Decree of the Corporate Tax Act, where it is deemed that the profit of a corporation was distributed through a transaction that increases or decreases the corporation's capital through capital increase, etc. in addition to "transaction that increases or decreases the corporation's capital through capital increase." Article 11(9) of the former Enforcement Decree of the Corporate Tax Act should be interpreted as a "profit received by distribution through a transaction that increases or decreases the corporation's capital through capital increase."

(2) Whether a person who distributes profits is a private shareholder

Even if it is assumed that the provision of this case applies only to a case where the profit-sharingr is a juristic person as alleged by the plaintiff, considering the following circumstances acknowledged as above, the above facts and evidence, Gap evidence Nos. 9, 12, Eul evidence No. 4, and the purport of the argument as a whole, it is reasonable to view that the original reversion of profits arising from the capital transaction of this case is the central logistics and that such profits were distributed to the plaintiff by the central logistics. Therefore, the plaintiff's assertion that "the provision of this case does not apply to this point because the profit-sharing is distributed by the individual shareholder who is not a juristic person."

(A) In the case of a third party allotment method, rather than the method of allocating shareholders, a third party allotment method, which grants a right to subscribe to a third party, the third party’s acquisition of shares by acquiring new shares, etc., and thus, the relationship with the third party cannot be deemed the same as that of shareholders. In the case where new shares, etc. are issued to a third party at a price significantly lower than the market price, the market price shall be reflected in determining terms and conditions of issuance or

Compared to the difference, there is a result that prevents a company from increasing its assets as much as the difference. In this case, the difference between the fair issue price and the actual issue price under the Company Act shall be deemed to have suffered losses by the company as calculated by multiplying the difference by the number of issued stocks (see Supreme Court en banc Decision 2007Do4949, May 29, 2009).

Therefore, in the case where the central logistics issues new shares at a remarkably low price to a third party who is not an existing individual shareholder, the damages equivalent to the difference between the fair issue price and the actual issue price are generated in the central logistics. On the other hand, there is a market price profit arising from the acquisition of shares at a low price. This can be deemed as directly distributed the same interest to the Plaintiff from the central logistics due to the instant capital transaction.

(나) 원고가 주장하는 바와 같이 개인주주를 이익분여자로 보기 위해서는 이 사건 자본거래로 인하여 개인주주에게 귀속될 이익이 있었음을 전제로 한다. 이에 대해 원고는, 중앙물류의 개인주주가 이 사건 자본거래를 통해 저가로 이 사건 주식을 인수받을 수 있었는데 이를 포기하고 그 기회를 제3자인 원고에게 넘겨 준 것이 곧 개인주주로부터 원고에게 이익이 분여된 것임을 전제로 한다. 그러나 앞서 본 바와 같이 이 사건 자본거래는 중앙물류에서 직접 원고에게로 주식이 배정 및 인수된 것이므로, 그에 대한 이익 역시 중앙물류에서 원고에게로 직접 분여된 것으로 봄이 자연스럽고, 이를 개인주주로부터 원고에게로 이익이 분여된 것으로 보는 것은 설령 그러한 이익이 존재한다고 하더라도 이는 간접적・우회적인 경로에 따른 것으로 이 사건 자본거래의 본래의 형태와도 부합하지 않는다 �한편, 원고는 당심 변론 종결 후 '이 사건 자본거래의 이익분여자는 중앙물류의 100% 주주인 ddd이고, 그 이익을 분여받은 자 또한 원고의 100% 주주인 위 ddd이어서 ddd에게 실질적으로 어떠한 이익이나 소득이 귀속하지 않았는바, 실질과세의 원칙에 비추어 원고에게 소득을 부과대상으로 하는 법인세 역시 부과될 수 없다.'라는 취지로 주장한다. 그러나 설령 원고가 ddd의 1인회사라고 하더라도, 주식회사의 주식이 사실상 1인주주에 귀속하는 1인회사에 있어서도 회사와 주주는 분명히 별개의 인격이어서 1인회사의 재산이 곧바로 그 1인주주의 소유라고 볼 수 없으므로(대법원 1989. 5. 23. 선고 89도570 판결 등 참조), 이와 다른 전제에 선 원고의 주장은 더 나아가 살필 필요 없이 이유 없다. .

2. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is groundless.