Cho Jae-2013- Daejeon-2613 ( October 18, 2013)

Whether it is subject to duplicate investigation and increase evaluation;

Since the survey subject matter is substantially different, it cannot be deemed to be in violation of the principle of prohibition of duplicate investigation, but the increase or decrease of corporate tax by evaluating the market price of the shares in this case is illegal.

Article 63 (3) of the Inheritance Tax and Gift Tax Act

2014Guhap30 Revocation of Disposition of Imposing corporate tax

】 】

○ Head of tax office

November 5, 2014

December 17, 2014

1. On October 2, 2012, the Defendant’s disposition of imposing corporate tax of 2010 on the Plaintiff 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) Particulars of acquisition of stocks and details of report and payment of corporate tax;

1) The Plaintiff is an unlisted small and medium-sized enterprise for the purpose of manufacturing the hot heating clinic. From five retired officers, the Plaintiff acquired shares of the Plaintiff Company 57,948 (hereinafter “instant shares”) from the date of transfer to 209 to 2010 to 460,000 won (as the transferor, KRW 287,621 to 460,195 per share) of unlisted shares of the Plaintiff Company five times in the year of 209 to 2010.

2) According to the supplementary method of assessment stipulated in Article 63(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter “Inheritance Tax and Gift Tax Act”) at the time, the Plaintiff assessed the market price of the instant shares as KRW 662,958 per share (7,00 for purchase in 2010), and then reported and paid corporate tax for each business year by including the difference between the market price of the instant shares and the purchase price thereof, in gross income pursuant to Article 15(2)1 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter “Corporate Tax Act”).

(b) the first tax investigation (hereinafter referred to as "the first tax investigation")

1) On February 25, 2010, the Director of the Daejeon Regional Tax Office rendered a disposition of tax investigation decision as follows to the Plaintiff.

2) On April 15, 2010, the Director of the Daejeon Regional Tax Office notified the Plaintiff of the following “the scope of investigation and type conversion”.

3) A tax investigation is conducted with respect to the second investigation member of the Director of the Daejeon Regional Tax Office, and the following detailed corporate tax items were recovered. At the time, the value-added tax portion was not found as a result of the investigation, and there was no recovery item.

(c) the second tax investigation (hereinafter referred to as "second tax investigation")

1) On July 6, 201, the director of a regional tax office rendered a disposition of tax investigation decision as follows to the Plaintiff.

2)The second investigating member belonging to the director of a regional tax office shall conduct a tax investigation and recover the following detailed corporate tax items:

D. Decision on the tax investigation of this case and disposition to correct corporate tax

(1) On March 21, 2012, the director of a regional tax office rendered the following dispositions to the Plaintiff on the tax investigation decision (hereinafter “instant tax investigation decision”). On May 4, 2012, the Plaintiff filed a request for a trial on the tax investigation but received a decision of rejection from the Tax Tribunal on November 28, 2012.”

3) According to the result of the above tax investigation, the director of a regional tax office: (a) additionally added the assessed amount of KRW 5,795,271,671 to the Defendant, who is the disposition agency, on the ground that the Plaintiff did not apply the increased amount of 15% of the largest shareholder under Article 63(3) of the Inheritance Tax and Gift Tax Act while evaluating the market price of the instant shares; and (b) on October 2, 2012, the Defendant notified the Plaintiff of the revised disposition of KRW 00 of the corporate tax in 209 and KRW 00 of the corporate tax in 2010 (hereinafter referred to as “the disposition of imposition of KRW 00 of the corporate tax in 2010”).

E. Progress of the relevant case

1) In the lawsuit claiming revocation of the decision on tax investigation of this case filed by the Plaintiff against the director of a regional tax office, the decision on corporate tax investigation of this case was revoked on the ground that it was unlawful duplicate investigation conducted after the second tax investigation and the decision was dismissed (Seoul Administrative Court 2012-Gu Joint ○○○○○○○○). In this regard, the appellate court revoked the part against the Plaintiff regarding the first and second value-added tax of 2009 out of the disposition on tax investigation of this case, and rendered a decision to dismiss the Plaintiff’s claim corresponding to the said part on the ground that the portion of corporate tax of 2010 was not duplicate investigation (Seoul High Court 2013Nu○○○○○○○○). As of now, the Plaintiff filed a final appeal against the said judgment, and the final appeal is continuing (Supreme Court 2014Du2014

2) After September 19, 2014, the Plaintiff received a refund from the Defendant for the corporate tax and the amount equivalent to the interest accrued in 2009.

F. On April 25, 2013, the Plaintiff was dissatisfied with the instant disposition of rectification of corporate tax, and the Plaintiff filed an appeal with the Tax Tribunal on April 25, 2013, but was dismissed on October 18, 2013.

Facts that there is no dispute over recognition, Gap's 1 through 7, 10, Eul's 1 through 4 (including each number), the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(i) corresponding to a double tax investigation;

This case's tax investigation decision constitutes a duplicate tax investigation, and thus, the correction disposition of corporate tax based on illegally collected taxation data is also unlawful.

2) Illegal appraisal of stock value

The Plaintiff, a transferee, does not fall under “the largest shareholder, etc.” but does not have management rights, and if the evaluation of the premium is applied, there is a problem that the market price is inconsistent between the parties to the transaction. Thus, the Plaintiff’s acquisition of the instant shares constitutes an exception under Article 53(5)6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and thus, should be excluded from the evaluation of the premium under Article 63(3) of the Inheritance Tax and Gift Tax Act, and thus, the rectification

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) As to the assertion on double tax investigation

In addition to the above-mentioned facts, it is recognized that ① the first tax investigation does not include the portion reverted to 2010, ② the second tax investigation was conducted upon the request of the Board of Audit and Inspection for the disposition of the specific items related to corporate tax, ③ there is no evidence to deem that there was an investigation on the portion other than the above specific items at the time of the second tax investigation by the director of a regional tax office, ④ the director of a regional tax office excluded the portion which was the object of the second tax investigation from the investigation of the instant tax investigation decision pursuant to Article 12(3) of the Regulations on the Management of Investigation Affairs, ④ the fact that the director of a regional tax office excluded the portion which was the object of the second tax investigation from the investigation of the instant tax investigation decision disposition, ⑤ for the same reason,

Comprehensively taking account of these circumstances, corporate tax in 2010 among the dispositions of this case on the tax investigation determination cannot be deemed to overlap with the first tax investigation period. The second tax investigation can be deemed to have been limited to the above specific items, and even if it falls under the same item or taxable period, the investigation is substantially different, and thus, it cannot be deemed to have violated the principle of prohibition of duplicate investigation (see, e.g., Supreme Court Decisions 2004Du10470, Jan. 14, 2005; 2009Du9536, Sept. 24, 2009).

Therefore, the corrective disposition of the corporate tax of this case cannot be deemed to be a disposition that was issued based on the duplicate investigation, and the plaintiff's assertion is without merit.

2) As to the allegation of illegality in appraisal of stock value

Article 15 (2) 1 of the Corporate Tax Act provides that "where securities are purchased from an individual who is a person with a special relationship under Article 52 (1) of the Corporate Tax Act at a price below the market price under Article 52 (2) of the same Act, the difference between the market price and the purchase price shall be deemed as the gross income." Article 87 (1) 3 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010; hereinafter "Enforcement Decree of the Corporate Tax Act") provides that "any officer or employee of a corporation shall be deemed as one of the persons with a special relationship under Article 52 (1) of the Corporate Tax Act", and Article 89 (2) 2 of the Enforcement Decree of the Corporate Tax Act provides that "where the market price is unclear in applying Article 52 (2) of the Corporate Tax Act, the amount calculated by applying mutatis mutandis the provisions of Articles 61 through

Meanwhile, Article 63 (3) of the Inheritance Tax and Gift Tax Act provides that "the largest shareholder, etc. (excluding stocks prescribed by Presidential Decree, such as stocks of a corporation which has losses under Article 14 (2) of the Corporate Tax Act continuously from the business year immediately preceding the business year in which the evaluation base date falls) shall be added to the value assessed under paragraphs (1) 1 and (2) or the value recognized under Article 60 (2) shall be 20/100 (10/100 in cases of small and medium enterprises prescribed by Presidential Decree) of the value; where the largest shareholder, etc. holds more than 50/100 of the total number of outstanding stocks, etc. of the relevant corporation, 30/100 (15/100 in cases of small and medium enterprises prescribed by Presidential Decree) shall be added to the largest shareholder, etc., who is excluded from the evaluation of the above certificate, and Article 63 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23040 on July 25, 201, 201, hereinafter referred to "the largest shareholder")."

On the other hand, the Commercial Act strictly limits the acquisition of treasury stocks by taking into account the problems that result in the reduction of the company's assets if the company acquires treasury stocks with compensation and the refund of investment to a specific shareholder (Article 341, Article 341-2, etc. of the Commercial Act), and the acquired treasury stocks do not have voting rights (Article 369 (2) of the Commercial Act).

Article 63 (3) of the Inheritance Tax and Gift Tax Act provides that "the shares, etc. held by the largest shareholder shall be deemed to fall under "where the shares, etc. are purchased by a person other than the largest shareholder, etc., and the shares, etc. are not the largest shareholder, etc. due to the purchase or sale of shares, etc. by a person other than the largest shareholder, etc., and the so-called "the so-called "the so-called management rights" shall be held, and the control rights of the company shall be prevented from being transferred without legitimate taxation and fair assessment methods for appropriate taxation (see Constitutional Court Order 2002Hun-Ba65, Jan. 30, 2003). The corporate tax is the corporate tax on the income of the corporation (see Article 2 (5) 6 of the Corporate Tax Act). In light of the above, it is reasonable to view that the shares, etc. acquired by the company by purchase of shares, etc. of the largest shareholder, etc. shall be excluded from the evaluation of shares, etc. under Article 53 (5) 3 of the Enforcement Decree of the Inheritance Tax Act.

Therefore, it is unlawful to revise the corporate tax of this case, which increased or corrected corporate tax by evaluating the market price of the stock of this case.

The defendant asserts that Article 53 (5) 6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act applies only to "the case of inheritance or donation". However, even if the main sentence of Article 63 (3) of the Inheritance Tax and Gift Tax Act that applies mutatis mutandis under Article 89 (2) 2 of the Enforcement Decree of the Corporate Tax Act falls under the shares of the largest shareholder, etc., the defendant's assertion is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.