Early High Court Decision 2013J 0788 ( October 25, 2013)

A disposition that considers the acquisition price of the issue treasury stocks as a provisional payment not related to the business and imposes tax on the interest recognized as such;

It is difficult to see that the claimant corporation acquired its own stocks for the purpose of retirement because it did not retire the issue until the date of hearing, and it is difficult to recognize the individual family members of shareholders as exceptional cases where the company can acquire its own stocks.

Article 52 of the Corporate Tax Act

2013Guhap16307 Revocation of Disposition of Corporate Tax Imposition

AAA Corporation

Head of the High Tax Office

May 20, 2014

June 3, 2014

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

A. The plaintiff was established as *** on Apr. 15, 1957 and engaged in the taxi transportation business, etc. in the Seoul area because it was the representative of the plaintiff *** on Aug. 16, 2009 after the plaintiff died on Jan. 16, 2009 ** on the site of private house in Seoul, Nowon-gu ** on Sept. 2009, while changing its trade name as of Sep. 2009, the head office was transferred to Goyang-si, Seoyang-gu, and the purpose of business was changed to domestic and overseas real estate leasing business.

B. As of January 1, 2010, 5,00 shares issued by the Plaintiff (1.5 billion won capital) were held *****,***. The Plaintiff held a temporary shareholders’ meeting on January 14, 200 and *** 5,00 shares issued by the Plaintiff (hereinafter “instant shares”) as of January 18, 201, decided to purchase 1,827,935,00 won (365,587 won per share) as of January 18, 201, * 200 shares acquired the instant shares by paying the above price to 3.0 billion won (1.6 billion won per share). However, the Defendant, as the shareholder of the Plaintiff did not own shares belong to 3.1 billion won under the former Commercial Act (amended by Act No. 1060, Apr. 14, 201; * 16.3 billion shares as the shareholder of the Intellectual Property Tribunal (hereinafter “instant shares”).

[Ground for Recognition: Facts without dispute, Gap's 1, 3, 4, 5 evidence, Eul's 1 to 4, the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff was the former representative and the actual one shareholder, ** as his heir, AB, and C died, distributed the same shares as his heir, and it was difficult for his family to sell the shares to a third party with a non-listed corporation consisting of a shareholder, and neglected the stable management of the company.

(n)*** on the basis of consultation of the accountant with respect to which the shares have been in need of reorganization.

The Plaintiff’s acquisition of the instant shares constitutes an exception to the prohibition of acquiring treasury shares as stipulated in Article 341 subparag. 1 of the former Commercial Act, and is thus valid, and does not constitute a wrongful calculation under Article 52(1) of the former Corporate Tax Act (amended by Act No. 11128, Dec. 31, 201; hereinafter “former Corporate Tax Act”). 2) Even if the Plaintiff’s acquisition of the instant shares is deemed null and void, it is merely a judicial validity, and should be imposed based on the substance of the instant transaction as long as the Plaintiff actually transferred the right to control funds and shares according to the instant share transaction to the Plaintiff. Thus, the instant disposition is unlawful against the substance of the transaction.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether it constitutes the acquisition of treasury stocks for the retirement of stocks

A) The acquisition of shares by a stock company on its own account is likely to undermine the interests of the company and its shareholders and creditors, undermine the principle of equality, and cause various harms to its representative director, etc. In principle, the Commercial Act uniformly prohibits the acquisition of shares for general preventive purposes. As such, it is clearly stated that the acquisition of shares is exceptionally permissible in accordance with Article 341, Article 341-2, Article 342-2 of the former Commercial Act, or the Securities and Exchange Act, and it cannot be deemed that the acquisition of shares without consideration or harm to the interests of the company* [1] if it appears that the acquisition of shares by the company * [1] is not allowed for the acquisition of shares for the above 0th anniversary of the initial acquisition of shares by the company * [2]'s acquisition of shares for the above 10th anniversary of the acquisition of shares for the reasons that it would not be allowed for the above 10th anniversary of the initial acquisition of shares **

Since both the company and shareholders are in a family relationship, the Plaintiff’s acquisition of 5,00 shares equivalent to 33.3% of the total issued shares in the name of the Plaintiff is likely to harm the interests of the company and creditors, undermine the principle of shareholder equality, and cause unfair corporate control by the representative director, etc., based on the facts acknowledged earlier, it is difficult to view the Plaintiff’s acquisition of shares in the instant case as an acquisition for the purpose of stock retirement under Article 341 subparag. 1 of the former Commercial Act, and there is no other evidence to acknowledge it otherwise.

Therefore, the Plaintiff’s acquisition of shares in this case is null and void in violation of Article 341 of the Commercial Act, and in this case, the amount paid by the Plaintiff as a price for acquiring shares to a person with a special relationship**** without any legal ground. Therefore, this part of the Plaintiff’s assertion is

2) Whether the act constitutes wrongful calculation

Article 52(1) of the former Corporate Tax Act and Article 88(1)6 of the Enforcement Decree of the same Act (amended by Act No. 23589, Feb. 2, 2012; hereinafter referred to as the "former Enforcement Decree of Corporate Tax Act") provide that where a corporation is deemed to have unjustly reduced tax burden on the corporation's income by lending or providing money to a specially related person without compensation, the tax authority shall regard it as a wrongful calculation and include the amount of interest recognized interest rate thereof in its gross income. Here, the wrongful calculation in this context refers to the act of a taxpayer to reduce or exclude the tax burden incurred when it takes place without reasonable transaction form, such as round-up, multi-stage and other abnormal transaction form, and the determination of whether such economic rationality exists shall be made on the basis of whether the transaction is unreasonable or unreasonable in light of sound social norms or commercial practice (see, e.g., Supreme Court Decision 2004Du179, Feb. 13, 2004).

3) Whether the substance over form principle is violated

The principle of substantial taxation is a practical principle for realizing the principle of equality, which is the basic ideology under the Constitution, and its main purpose is to regulate unfair acts of tax evasion and to realize tax justice by enhancing equity in taxation (see Supreme Court Decision 2008Du8499, Jan. 19, 2012) by imposing tax at a place with a tax-bearing force, regardless of the form or appearance, in cases where a person with the authority to impose tax is deemed to have avoided or reduced tax burden without reasonable means in transactions with a specially related person, such as lending money free of charge or at a low interest, and without reasonable method, and thus, in cases where it is deemed that the pertinent corporation unjustly avoided or reduced tax burden without reasonable means, and thus, it should be deemed that there exists objective and reasonable income from the pertinent corporation, and thereby calculating the income accrued to the pertinent corporation and adding tax burden to the income of the pertinent corporation for each business year, and thus, the Defendant’s disposal of the amount paid to the relevant specially related person without statutory grounds in this case’s calculation of the amount of tax burden.

3. Conclusion

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