Scope of goodwill under tax laws recognized as merger;

In order to include merger evaluation marginal profit in the calculation of profit by considering the business rights generated at the time of merger as business rights under tax law, the value of the business rights of the corporation should be separately assessed, and it can be recognized only where the business rights are excessive.

Article 15 of the Corporate Tax Act and Articles 12 and 24 of the Enforcement Decree of the same Act

2015Guhap69522 Revocation of Disposition of Corporate Tax Imposition

○○ Co., Ltd.

○ Head of tax office

December 20, 2016

on October 02, 2017

1. The Defendant’s disposition of imposition of KRW 0,00,000,000 for the business year 200,000 against the Plaintiff on October 0, 201, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff's business objective is the KOSDAQ Prize established on October 0, 1990 with the music record management business as its business objective.

A corporate head, BB, CCC Co., Ltd., and DDD Co., Ltd., a non-listed corporation on October 0, 2000 (hereinafter each BB, CCC, DD, collectively referred to as "merged corporation"), and completed the merger registration on October 0, 2000 (hereinafter referred to as "the merger of this case"). At the time of the merger of this case, the Plaintiff’s trade name was the ZZ, but it was changed to the current trade name on October 0, 201).

B. At the time of the merger in this case, the Plaintiff’s merger value was assessed as the reference price, and the merged value of the merged corporation was assessed as the value of this quality. Accordingly, the merger ratio between the Plaintiff and the extinguished corporation was determined as BB, CCC, and DD order 1:4.0, 1:2.0, and 1:19.0.

C. The Plaintiff issued and delivered 00,000 shares of new shares following the merger (amounting to 500 won) to the shareholders of the merged corporation according to the above merger ratio.

D. On July 18, 2000, the merger date of 34,325,000,000 won in total for the issuance price of new stocks through merger as of July 18, 200;

High, the total face value is KRW 0,000,000 (=number of shares issued 00,000,000 x face value of KRW 500).

E. The fair value of net assets that the plaintiff succeeded from the merged of this case

0,00,000,000 won and the difference between the issue value of new shares after a merger and the net asset value of the merged corporation succeeded from the merged corporation (=0,000,000,000 -0,000,000,000 won) were included in the business rights (hereinafter “instant business rights”) in the accounting book.

F. After the merger of this case, the Plaintiff’s account book is as listed below, and the Plaintiff’s business right of this case does not constitute a depreciable asset, as stipulated in Article 24(4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22184, Jun. 8, 2010; hereinafter “former Enforcement Decree of the Corporate Tax Act”), and the value of the instant business right is not included in the gross income, and it is depreciation cost.

It was not treated as deductible expenses.

G. Article 24(4) of the former Enforcement Decree of the Corporate Tax Act provides that the director of the Seoul Regional Tax Office shall exercise the pertinent goodwill

The former Corporate Tax Act (Act No. 9267 of Dec. 26, 2008) deeming that it constitutes a business license which is a depreciable asset.

Article 17 (1) 3 of the former Corporate Tax Act and Article 12 (1) 1 of the former Enforcement Decree of the Corporate Tax Act shall be included in the calculation of earnings within the scope of expenses for depreciation of business rights each year, and thereafter, the Defendant notified the Defendant of the taxation data to the effect that the value of the instant goodwill should be included in the tax base of corporate tax for the business year 200 billion. Accordingly, on March 18, 2013, the Defendant corrected and notified the Plaintiff of KRW 0,000,000 for corporate tax for the business year 200 (hereinafter “instant disposition”).

H. The Plaintiff is dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on October 0, 2010.

However, the Tax Tribunal dismissed the above appeal on October 0, 201.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, 2, Eul evidence 4-1 to 3-3

Each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case where the defendant included the value of the business right of this case as a merger evaluation marginal profit

Sector shall be revoked on the following grounds.

1) The instant goodwill is the cost of merger and the fair value of net assets succeeded from the merged corporation.

Business rights, which are counted in order to handle the difference in the accounts, and assets of business value are assets.

D. It cannot be viewed that there is no difference between the Plaintiff and the Plaintiff’s separate evaluation of the instant goodwill.

Not only falls under the goodwill, which is a depreciable asset under Article 24 (4) of the Enforcement Decree of the Tax Act, but also the former law.

Merger evaluation marginal profit under Article 17 (1) 3 of the Inheritance Tax Act, Article 12 (1) 1 of the former Enforcement Decree of the Corporate Tax Act

Since it cannot be seen as a type of income, it shall not be included in the gross income as a subject of taxation.

2) Even if the value of the instant goodwill is deemed a merger evaluation marginal profit, according to Article 17(1)3 of the former Corporate Tax Act and Article 12(1) of the former Enforcement Decree of the Corporate Tax Act, the merger marginal profit can be included in the gross income within the scope of the merger marginal profit. In the instant merger merger, there is only a loss arising from the merger marginal profit, and there is no

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The value and combination of net assets that the plaintiff succeeded from the merged of this case from the merged corporation

Sick consideration shall be as follows:

2) The status of profits and losses of the Plaintiff and the merged corporation before and after the instant merger is as follows.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4-1 through 3, Eul evidence Nos. 5 and 6, the purport of the whole pleadings

D. Determination

Merger marginal profits = Net asset value (total amount of succeeded assets - Total amount of succeeded liabilities) succeeded from the extinguished corporation - (total face value of new stocks through merger + total amount of merger grants)

Merger loss = Price of merger (total face value of new stocks through merger + total amount of merger subsidies) - Net asset value succeeded from the extinguished corporation.

1) Whether the instant goodwill constitutes merger evaluation marginal profit

A) Relevant concepts and relevant legal principles

(1) Merger marginal profit and merger marginal loss

According to Article 17 (1) 3 of the former Corporate Tax Act, a merger marginal profit shall be a domestic corporation's business year.

The merger gains are generally extinguished when calculating the income amount.

any value of the property succeeded from the company and succeeded by such company to the amount of debt from such

Amount paid (the amount of merger subsidy) and the increase or decrease in the amount of capital or merger of the surviving company;

such excess amount as if the corporation exceeds its capital stock, which is defined as such;

It is understood that the merger marginal profit is a profit from this transaction and it is understood that it is excluded from the taxable income. In other words, the merger marginal profit refers to the balance that is not transferred to the capital of the net asset value of the extinguished corporation, and the formula

On the other hand, the merger losses are generally opposed to the merger marginal profits and the merged corporation.

the net asset value succeeded from the merged corporation to the shareholders of the extinguished corporation shall be such as a merger subsidy and

If it is less than the aggregate (i.e., the price of merger) of the face value of the new shares C, it means the difference.

In other words, the following formula is understood:

(2) Merger loss and goodwill

The old fiscal rules (amended by Presidential Decree No. 2009, Aug. 28, 2009; hereinafter referred to as the "former fiscal rules") §9(a) provide that "the business rights exceed the share of the purchasing company in the fair value of assets and liabilities (net assets) acquired from the purchasing company as of the date of purchase" among the purchasing price of the purchasing company. The business rights under the above old fiscal rules are different in terms of the concept from the total value of new stocks for merger. In addition, there is a discussion on how to evaluate the net assets of the former fiscal rules of the merger (the former fiscal rules of the merged corporation for the purpose of accounting of the merger), and how to evaluate the acquisition of assets (the net assets of the extinguished corporation for the purpose of the merger) by succession to the merger (the net assets of the extinguished company should be succeeded as they are, from the standpoint of recognizing the net assets of the extinguished company as the combination of shares of the merged company, the right at the time of purchase should be succeeded to the market value of the extinguished company as of the date of merger (the merger).

(3) Merger evaluation marginal profit

Article 12(1) of the former Enforcement Decree of the Corporate Tax Act provides that where assets are evaluated and succeeded to from a merged corporation until the amount under Article 459(1)3 of the former Commercial Act (amended by Act No. 10600, Apr. 14, 201; hereinafter referred to as the "former Commercial Act") is reached, the amount in excess of the book value of the merged corporation shall be deemed a merger evaluation marginal profit from the value of net assets succeeded from the merged corporation. The merger marginal profit is distinguished from the merger marginal profit from the value of net assets succeeded from the merged corporation minus the capital increase.

Merger evaluation marginal profit = Evaluation value of assets succeeded - Book value of assets succeeded.

Article 17 (1) 3 of the former Corporate Tax Act shall be deemed as profits from capital transactions, and shall be deemed as profits from such merger gains.

It does not include the merger evaluation marginal profit in the calculation of earnings under the proviso, and this is that when the merged corporation evaluates the assets of the merged corporation and disposes of the depreciation costs or the asset disposal loss after the succession, the income amount decreases at the time of the merger. However, according to Article 12 (1) 1 of the former Enforcement Decree of the Corporate Tax Act, the merger marginal profit cannot exceed the merger marginal profit under Article 459 (1) 3 of the former Enforcement Decree of the Corporate Tax Act, and the liquidation income under Article 80 (1) of the former Corporate Tax Act should be deducted if there is a taxation of the liquidation income due to the merger.

(4) Business rights:

According to the former Accounting Rules, the goodwill is recognized only for the combination of enterprises under the purchase law. According to §6(a) of the purchase price (referred to the fair value of cash or cash, etc. paid to control the net assets and business activities of another company), the purchase price exceeds the share of the purchasing company in the fair value of the net assets recognizable from the purchasing company as of the purchase date (referred to the fair value of cash or cash, etc. or other purchase price) (Article 9(a) of the former Accounting Rules). Such business rights shall be depreciated by setting the useful life during the period expected to bring economic benefits in the future, and shall not exceed 20 years (Article 19(c) of the former Accounting Rules). In other words, the business rights under the combined Accounting Rules are recognized by stipulating the difference between the date of issuance of the merger or the date of merger (including the case of a merger subsidy) as the price for the merger that the merged corporation pays to the shareholders of the merged corporation at the time of the merger and the amount of net assets deducted from the merged corporation.

Business rights = The purchase cost - the share of the purchasing company in the fair value of assets and liabilities (net assets) acquired from the purchasing company as of the date of purchase.

In addition, if the shares of the purchasing company exceed the purchase cost out of the fair value of the identifiable assets and liabilities acquired from the purchasing company on the date of purchase, the excess amount shall be appropriated as the business right of the division (§ 10 of the combined accounting rules).

On the other hand, Article 24(1) of the former Enforcement Decree of the Corporate Tax Act provides for depreciable assets.

Article 12 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 66 of March 30, 2009; hereinafter referred to as the "former Enforcement Rule of the Corporate Tax Act") lists business rights, and Article 12 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance of March 30, 2009; hereinafter referred to as the "former Enforcement Rule of the Corporate Tax Act") stipulates that the business rights appropriated by the merged corporation in the case of a merger or division among the business rights under paragraph (1) 2 (a) include the amount acquired according to the appropriate evaluation methods, such as the amount of money acquired in accordance with the appropriate evaluation methods, (2) authorization for establishment, license for a specific business, and other business secrets, etc., such as funds and premiums borne in connection with the commencement of the business.

In full view of the above relevant provisions, recognition as business rights under the former Corporate Tax Act in corporate mergers is limited to the case where the merged corporation evaluates and succeeds to the assets of the merged corporation and pays for the business value due to the trade name, transaction relations, and other trade secrets of the merged corporation, etc., and it is deemed as depreciable assets only for such asset-value business rights. In this context, in order to be evaluated as business rights having business value, any company must have intangible property value that can make it possible to raise more profits than the ordinary profits of the other company operating the same kind of business due to its special skills, social credit and transactional relations, etc., and in case where one company acquires more profits than the ordinary profits before the merger by absorbing the business functions or characteristics of the other company by absorbing the other company, the intangible value of the absorption company, which may cause higher profits after the merger, shall also be deemed as business rights (see, e.g., Supreme Court Decisions 85Nu592, Feb. 11, 1986; 95Nu1867, May 28, 1997).

On the other hand, merger evaluation marginal profit arising from the evaluation of assets and succession shall be the business year concerned.

Do Income is included in the gross income, and the assets here may fall under not only tangible assets but also intangible assets.

If there is an intangible business value (over-profit) in an extinguished corporation, the merger law.

If a person has evaluated and succeeded to it, the assets called goodwill shall be evaluated and evaluated (the Decree of the merged corporation).

Since the book value of business rights is zero won and thus succeeded to the merged corporation, the goodwill is simultaneously held.

ad hoc evaluation marginal profit.

B) The instant goodwill under tax law under Article 24(4) of the former Enforcement Decree of the Corporate Tax Act

Whether it constitutes a case

The following facts are recognized by comprehensively taking account of each evidence and the purport of the entire argument as mentioned above:

In full view of the above circumstances, the Plaintiff’s inclusion in the account book during the merger process of this case

This case's goodwill is merely an accounting goodwill, and is deemed an operating right under tax law succeeded to the evaluation of assets.

It is difficult to see it.

Therefore, under the premise that the instant goodwill is an operating right under tax law, the value of the instant goodwill is merged.

The instant disposition included in gross income as evaluation marginal profit is unlawful.

① As seen earlier, pursuant to Article 24(4) of the former Enforcement Decree of the Corporate Tax Act and Article 12(1)1 of the former Enforcement Rule of the Corporate Tax Act, a corporation, etc. shall have a combined account in the process of merger.

all the goodwills appropriated in accordance with the rules (the cost of purchase exceeds the net asset value of the extinguished corporation);

In addition, the merged corporation also succeeds to the evaluation of the assets of the merged corporation, in particular,

Where the rights are evaluated and succeeded to by evaluating the value of the rights itself, the trade name, transaction relationship and other business of the extinguished corporation

It is limited to the payment for business value due to confidential information, etc. on the other hand, on the account of accounting;

The fair value of new stocks issued by the merged corporation to the stockholders of the merged corporation and the net asset value

§ 9A.)The difference in the amount is calculated as the difference (or old Consolidated Accounting Rules §9A.).

In other words, the fair value of the new shares of merger calculated in accordance with the old combined accounting rules is merged.

If the net asset value of a corporation does not coincide with the net asset value of the corporation, the accounts shall not be related to

It is always generated to adjust the difference in the commercial loans, and the goodwill and the merger evaluation difference under tax laws.

There are many differences in the concept and nature of the accounting business. If the accounting business rights are not subject to tax laws, they shall be subject to tax laws.

If the right of business is considered, the fair value of the merger shares is more than the value of net assets succeeded from the merged corporation.

The former Act to recognize a business license only when there is a business value.

The purpose of Article 24(4) of the Inheritance Tax Act, Article 12(1) of the Enforcement Rule of the former Corporate Tax Act is likely to be eliminated.

(c)

Therefore, Article 17 of the former Corporate Tax Act provides that a business right which inevitably occurs in the process of merger.

Article 24 of the former Corporate Tax Act in order to include it as a merger evaluation marginal profit under subparagraph 3 of paragraph (1).

paragraph (4) of this Article, Article 12 (1) of the former Enforcement Rule of the Corporate Tax Act, constitutes a corporation’s goodwill under tax law.

of this section.

(2) Where a KOSDAQ-listed corporation merges with a corporation which is not a stock-listed corporation or KOSDAQ-listed corporation (hereinafter referred to as a "unlisted corporation"), the merger value shall not be determined at will by the parties concerned, and the merger value shall be determined on the basis of the transaction value at the KOSDAQ market of the KOSDAQ-listed corporation and the price obtained by the arithmetic average of the relative value of the asset value and earnings value (in case it is impossible to compute the commercial value, the price obtained by weighted average of the asset value and earnings value) and the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947 of July 29, 2008; hereinafter referred to as the "former Enforcement Decree of the Securities and Exchange Act") and the Korea Securities and Futures Exchange shall report the merger-related matters to the Financial Supervisory Commission and the Korea Securities and Futures Exchange in accordance with the merger criteria prescribed in Article 190-2 (1) of the former Securities and Exchange Act, Article 84-7 (1) of the former Enforcement Decree of the Securities and Exchange Act, and Article 36-18 of the former Enforcement Rule of the Securities and Exchange Act (amended).

As such, mergers between KOSDAQ-listed corporations and unlisted corporations under the relevant laws such as the former Securities and Exchange Act

In the case of the merger value, the purport that the merger ratio is prescribed is each company to merge.

shareholders of the corporation prior to the merger shall be entitled to any

A portion of the shares can not be maintained after the merger.

Inasmuch as there is an improper result, the exchange’s price and the value of assets that reflect the market value;

the merger rate shall be calculated on the basis of the following value, the relative value, and the essential value that is properly reflected;

As a result, the merger ratio is to ensure the objectivity and appropriateness of merger ratio and prevent unfair merger, so it is difficult to view that the merger corporation has business rights and evaluation thereof has been made only on the basis that there is evaluation of revenue value, etc. in calculating the merger value.

③ In the merger of this case, a direct separate assessment of goodwill is not conducted.

In light of the purpose of the defendant's assertion, "a person who succeeds to the evaluation of assets from the merged corporation" refers to a merger under the purchase law, so if it is not necessary to separately evaluate business rights, it shall be taxed at all times if the price assessed in accordance with the related Acts and subordinate statutes, such as the former Securities and Exchange Act is higher than the net asset value of the merged corporation, and this is against the purpose of the provision of the concept of business rights restricted by the former Enforcement Decree of the Corporate Tax Act.

(4) In addition, in order to be recognized as an operating right under tax law, the corporation is actually a long-term competition.

such as realizing profits and raising excess profits compared to those of the enterprises operating the same kind of business;

It should be recognized that the merged corporation has excessive profit-making capacity.

The evidence submitted by the defendant alone is insufficient to recognize that the defendant has excess profit-making capacity in the merged corporation.

of this case, there is no other evidence to acknowledge it.

Rather, BB of a merged corporation is due to poor business performance before the merger of this case

From 200 to the business year of 2000 where the merger of this case was conducted, the applicant shall continue to engage in

Cumulative losses, such as recording, were recorded, and CCC also from 200 200

The cumulative loss of a large scale, such as recording the enemy continuously until the business year 2000

DD also was recorded from 2000 to 20000, while DD also was recorded in black.

(2) The cumulative loss of a large scale at the time of the merger due to a large size of the enemy recorded in the 2000 business year;

In the case of the merger of this case, the merged corporation entered the room and entered the room in the capital erosion condition, and at the time of the merger

was in possession of the excess profit capable of enjoying the higher profit than the end of the business.

It is difficult to see it.

In addition, after the merger of this case, the plaintiff's related business for the business year 2000 and the business year 2000

The department has suffered losses and the department has discontinued the relevant business department in the 2000s business year.

(5) The National Tax Service shall, pursuant to Article 24 (4) of the Enforcement Decree of the former Corporate Tax Act, for the first time on September 2003.

세법상 영업권은 개정 법인세법 시행령 제12조 제1항 제1호에서 규정하는 '합병평가차익'에 해당하여 익금에 산입된다는 유권해석을 하였고(2003. 9. 27. 서이 46012-XXXXX, 이하 '2003년 유권해석'이라 한다), 기획재정부 및 조세심판원에서도 세법상 영업권을 합병평가차익으로 익금에 산입할 수 있다는 점을 확인하였다(2005. 2. 4. 재법인-111, 조세심판원 2010. 4. 19.자 2009부2804 결정). 이와 같은 2003년 유권해석이 있기 전에는, 과세관청에서는 영업권이 발생한 경우에도 합병평가차익으로 익금에 산입하지 아니하였고, 2003년 유권해석 이후에도 구 기업결합준칙에 따라 계상된 회계상 영업권에 관하여는 법인세법 시행령 소정의 감가상각자산에 해당하지 아니하는 것으로 해석하여 왔으며(2009. 3. 12. 법인세과-1020, 2008. 12. 16. 법인세과-4006 등), 최근까지도 국세청은 '합병 당시 합병법인이 피합병법인의 자산을 평가하여 승계하면서 승계자산 이외에 당해 피합병법인의 사업상 초과수익을 창출할 수 있는 가치를 별도로 평가하여 대가를 지급한 경우에 한하여 세법상 영업권으로 보는 것'이라는 취지로 유권해석을 한 바 있다(2010. 4. 21. 법인세과-397).

(6) In addition, the National Tax Service changed the existing position above in March 2013, and imposed corporate tax on the corporation by deeming the business rights, which have been appropriated in the 2000 business year in which five years have not elapsed since the exclusion period of imposition, as seen in the instant disposition, as a lump sum, as seen in the instant disposition. Such a corporate tax assessment is nothing more than the collection of additional tax in the end, for corporations that do not include the relevant amount in the calculation of depreciation costs in the calculation of depreciation costs, considering that the business rights do not fall under the business rights under the tax law, which is depreciable assets, in trust of the tax authority’s consistent authoritative interpretation, and do not include the relevant amount in the calculation of depreciation costs in the calculation of earnings.

2) Sub-committee

Therefore, the disposition of this case should be revoked illegally, and as to the remaining argument of the plaintiff

no further examination is conducted.

3. Conclusion

Then, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

partnership.