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(영문) 특수관계법인으로부터 비상장주식을 저가로 취득한 것에 대하여 매매가액과 시가와의 차액을 익금불산입함과 동시에 동액을 손금불산입하는 취지의 세무조정을 기재하여 세무조사 결과통지한 것이 불복청구대상에 해당하는 것인지 여부
조세심판원 조세심판 | 2013-11-08 | 조심2013서1673 | 법인
【Request Number】

[Request Number] Trial Decision 2013west 1673 ( November 8, 2013)

[Items]

[C] a corporation [Type of Decision] Rejection

[Summary of Decision]

[Determination] The difference between the acquisition value of the stock at issue and the market value is applied to the calculation of earnings and the disposal of the stock through other outflow does not cause any tax liability, and the subsequent disposition related thereto may be disputed together at the time of subsequent imposition. Therefore, it is difficult to deem that the disposal of the stock at issue is subject to appeal.

[Related Acts]

[Related Acts] Article 68 of the Framework Act on National Taxes

【Reference Decision】

[Reference Decision] Trial Decision 2012west 1840

【Determination following Decision】

[Determination following Decision] Trial Decision 2012west 3258 / Trial Decision 2014 Jeon 3159/ Trial Decision 2017 Swiss3248

【Reasoning】

1. Summary of disposition;

A. On December 21, 2006, the applicant corporation established an OOOO (hereinafter “OOO parking lot”) which is a corporation established on January 24, 1969 with the main business of general public construction, and established an OOOO (hereinafter “OOO parking lot”) which is a company specializing in securitization in order to liquidate the right to use the OOO parking lot, which is an asset held by the said corporation, and acquired 189,40 shares (hereinafter “OOO's free of charge”) held by the OOO parking lot on December 28, 2006 in order to liquidate the non-listed shares 213,144 shares of the KOOO trading company.

B. The director of the regional tax office deems that the applicant corporation constitutes a specially related person who is deemed to exercise de facto influence over the management of the relevant corporation, such as exercising the right to appoint and dismiss executives of the relevant corporation under Article 87(1)1 of the Enforcement Decree of the Corporate Tax Act and determining business policies, etc. As such, the director of the regional tax office deemed that the transaction of stocks in question is subject to rejection of unfair calculation by means of high-priced purchase between the specially related parties, and disposes of the outstanding stocks (OOO won per share) through supplementary assessment methods under the Inheritance Tax and Gift Tax Act, and disposes of the difference as the gross income or outflow of the OO (OO) through the inclusion in deductible expenses, and notified the result of the tax investigation that the amount was reserved in the calculation of deductible expenses, while revising the tax base for the business year 2009.

C. The applicant filed an appeal on March 6, 2013.

2. Prior to this hearing, the appeal shall be deemed to be a legitimate appellant.

A. According to the notice of the result of tax investigation conducted by the disposition agency to the requesting corporation and the resolution of the correction of the tax base for the business year 2009, the disposition of the purchase amount of the stock at issue and the disposal agency was made through the reservation of the difference between the market price and OOO in deductible expenses, inclusion in gross income, and other outflow. It appears that there is no change in the income amount, tax base, calculated tax amount, determined tax

B. Article 55 of the Framework Act on National Taxes provides that a person whose rights or interests have been infringed upon by being subject to an illegal or unreasonable disposition or by failing to receive a necessary disposition under this Act or other tax-related Acts may file a request for the cancellation or modification of the disposition, or for the necessary disposition. Article 67 of the Corporate Tax Act provides that when filing a report on the corporate tax base on the income for each business year pursuant to Article 60 or determining or revising the corporate tax base pursuant to Article 66 or 69, the amount included in gross income shall be disposed of as prescribed by Presidential Decree, such as bonus, dividend, other outflow of income, internal reserve, etc., to the person to whom such disposition belongs. As such, calculating the amount of gross income and deductible expenses of the requesting corporation for each business year, and determining the tax base or calculating the amount of income as a result of such calculation in gross income or non-deductible expenses, it does not directly take effect as a prior decision on the corporate tax assessment, and it does not constitute a disposition to immediately appeal the taxation authority's above decision (Article 67 of the same Act).

3. Conclusion

This case is an illegal claim for which no appeal is to be filed, so it shall be determined as ordered in accordance with Articles 81 and 65 (1) 1 of the Framework Act on National Taxes.

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