Seoul High Court 2012Nu1312 (2012.05.30)

early 2009west0367 ( October 12, 2010)

There is no evidence to acknowledge that the value calculated at the market price is the value appraised by objective and reasonable methods.

In calculating the market price of the service cost, it cannot be deemed that the content or realized return of the service transaction provided to the Plaintiff by a person with a special relationship during the business year 2001, the period prior to the increase of service cost, is the same. The market price calculated by multiplying the market price of other company equipment by the market price rate, but such market price calculation method does not have any legal basis, and there is no evidence to acknowledge that the calculated value is the value appraised by an objective

2012Du14255 Revocation of Disposition of Corporate Tax Imposition

XX Stock Company

Head of Seocho Tax Office

Seoul High Court Decision 2012Nu1312 Decided May 30, 2012

October 25, 2012

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The rejection of unfair calculation under Article 52 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same) applies only to cases where a corporation’s wrongful calculation under Article 52 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same) is deemed to have avoided or reduced tax burden by abusing various forms of transactions listed in each subparagraph of Article 88(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19891, Feb. 28, 2007; hereinafter the same shall apply) without using a reasonable method from a person with a special relationship. The determination of whether an economic rationality exists should be made based on an abnormal determination of whether the transaction lacks economic rationality in light of sound social norms and sound practices (see, e.g., Supreme Court Decision 2005Du1485, Apr. 15, 2007).

Meanwhile, Article 88(1)7 of the former Enforcement Decree of the Corporate Tax Act provides that "a case where a corporation borrows or receives money or other assets or services at an interest rate, rate, or rent higher than the market price" as one of the grounds for denial of wrongful calculation. According to Article 89 of the former Enforcement Decree of the Corporate Tax Act, the "market price of services, which serves as the basis for whether a corporation is a case where services are provided by paying a price higher than the market price to a person with a special relationship" means the price generally transacted with many and unspecified persons other than a person with a special relationship (paragraph (1)) in similar circumstances to the pertinent transaction (see paragraph (2)), the price can be calculated on the basis of appraisal if there is no example of such transaction (see, e.g., Paragraph (2)), and if it is impossible to calculate the market price by such a method, the amount required to provide the relevant services (including direct and indirect expenses, and hereinafter referred to as "cost") and cost, which are similar to the pertinent business year, multiplied by 20. 250.1.25

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below acknowledged the facts based on the adopted evidence, and found that the service value calculated based on the unit price or its profit rate paid by the plaintiff to the previous trading business entity before the establishment of 2001 in 2004 and 2005 between the plaintiff under Article 89 (1) of the former Enforcement Decree of the Corporate Tax Act cannot be seen as "market price of service transaction in 2004 and 2005", and it is difficult to view the service value calculated based on the service profit rate prior to the increase of unit price in 2001 between the plaintiff and the XX stock company as "market price under Article 89 (4) 2 of the former Enforcement Decree of the Corporate Tax Act" and there is no other evidence to acknowledge it as otherwise.

In light of the relevant statutes and the above legal principles, we affirm the above determination by the court below, and there is no error in the misapprehension of legal principles as to market price calculation under Article 89 (1) and (4) 2 of the Enforcement Decree of the Corporate Tax Act, contrary to what is alleged in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.