Seoul Administrative Court-2016-Gu Partnership-7608 ( June 15, 2017)

Revocation of Disposition Imposing Corporate Tax

Determination of discount rate exceeding 10% at the time of allocating the forfeited stocks to a third party is subject to inclusion in the gross income pursuant to Article 11 subparagraph 9 of the former Enforcement Decree of the Corporate Tax Act and Article 88 (1) subparagraph 8 (b) of the same Act

Article 52 of the Corporate Tax Act; Article 88 of the Enforcement Decree of the Corporate Tax Act

2017Nu58962 Revocation of Disposition of Corporate Tax Imposition

Itast Co., Ltd.

○ Head of tax office

October 19, 2017

November 16, 2017

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

the Gu Office's place of service and place of service

The judgment of the first instance shall be revoked. The imposition of corporate tax of KRW 000 (including additional tax of KRW 000) against the Plaintiff on January 4, 2016 by the Defendant shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, and the judgment of the court of first instance is the same as the judgment of the court of first instance except for the addition of the judgment of the plaintiff's appellate court under Paragraph 2 below. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the

Parts used for cutting.

○ The fourth decision of the first instance court in the fourth decision in the 13th trial "incompetence" is regarded as "incompetence".

○ The second sentence of the judgment of the first instance court, which is the second sentence of the former Corporate Tax Act, is the "Enforcement Decree of the former Corporate Tax Act".

2. Judgment on the Plaintiff’s additional argument

A. The plaintiff's assertion

1) ☆☆☆의 주주인 ★☆★가 개인 명의로는 추가 자금 조달이 어려워지자 기존주주로서 ☆☆☆의 신주를 취득하는 대신, ★☆★가 100% 출자한 SPC인 원고를 통하여 이 사건 실권주를 인수하게 되었던 점, 원고가 이 사건 실권주를 인수하면서 지급한 자금은 원고를 설립할 당시 ★☆★가 납입한 자금이거나 ★☆★가 보유한 ☆☆☆ 주식을 담보로 조달한 자금이었던 점 등을 고려하면, 원고가 이 사건 실권주를 인수한 것은 그 실질에 있어 ☆☆☆의 주주인 ★☆★가 주주배정을 받은 것과 동일하다. 따라서 이를 일반적인 실권주 제3자 배정과 동일하게 보는 것은 실질과세원칙에 반한다(이하 '첫 번째주장'이라 한다).

2) Corporate tax is imposed on the premise that the pertinent corporation has income as taxable object. However, as the △△△ stock share price continued to decline after capital increase with consideration of the instant case, the Plaintiff suffered a big loss by accepting forfeited stocks of the instant case, and thus, it cannot be imposed corporate tax on the Plaintiff (hereinafter “the second assertion”).

3) The issue terms of new shares that are issued on a single opportunity should be identical. As such, so long as △△△△△ applies the discount rate of 20% from the initial allotment of shareholders, the same discount rate for forfeited shares shall apply to forfeited shares, and 10% discount rate for forfeited shares shall not apply only to forfeited shares. Nevertheless, on the ground that the instant offering of new shares violates Article 5-18, etc. of the Securities Issuance Regulations that limit the discount rate of 10% to 10%, deeming that the instant offering of new shares does not constitute the acquisition of forfeited shares by the offering of forfeited shares pursuant to the capital market laws and regulations is impossible, and thus, it is unreasonable against the principle of self-responsibility

4) In cases where forfeited stocks are allocated at a price lower than their market price, the provision that exceptions are excluded from those subject to taxation under the Financial Investment Services and Capital Markets Act is not only the Corporate Tax Act, but also Article 39(1)1(a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter “former Inheritance Tax and Gift Tax Act”). Unlike the Corporate Tax Act, in the former Inheritance Tax and Gift Tax Act, there is no need to have a special relationship between the shareholder who renounced the subscription of new stocks and the third party who acquired the forfeited stocks. Therefore, if the Plaintiff was subject to the corporate tax regarding the acquisition of forfeited stocks, the Plaintiff, other than the Plaintiff, should have imposed the gift tax under Article 39(1)1(a) of the former Inheritance Tax and Gift Tax Act on 156 persons who renounced the forfeited stocks, but the disposition taken only with the Plaintiff, without any reasonable criteria, is contrary to the principle of tax equity, and thus, constitutes an abuse of the right to taxation (hereinafter referred to “the fourth”).

B. Determination

1) Determination on the first argument

If a party to a transaction forms a legal relationship by selecting one of the various ways that can achieve the purpose of a transaction, the content or scope of taxes arising therefrom shall be determined individually in accordance with the legal relationship. Notwithstanding the difference in the legal form, the ultimate objective of a transaction is the same, and thus, it cannot be deemed that the substance is the same, or that the transaction is treated the same as the tax law (see Supreme Court Decision 97Nu1723, May 26, 1998).

원고와 ☆☆☆의 대주주인 ★☆★가 그 개인 명의로는 추가 자금 조달이 어려워 이 사건 유상증자에서 주주배정에 따라 신주를 인수할 수 있는 권리를 포기하고, 자신이 100% 출자한 법인인 원고를 통하여 이 사건 실권주를 인수하였다고 하더라도, 원고와 ★☆★는 이 사건 유상증자에 관하여 실권주를 제3자인 원고에게 배정하는 방식이유리한 것으로 판단하여 이러한 거래형식을 취한 것이고, 이러한 경우에는 그 거래의 법적 형식은 물론 그 실질 또한 실권주 제3자 배정이라 할 것이므로, 이 사건 처분이 실질과세의 원칙에 위배된다고 볼 수는 없다.

2) Determination on the second argument

Articles 11 subparag. 9 and 88(1)8(b) of the former Enforcement Decree of the Corporate Tax Act provide that where a corporation issues new stocks at a price lower than the market price, where a shareholder gives up his/her right to receive new stocks and receives profits by other shareholders, etc. who are related parties to whom forfeited stocks are allocated, such distributed profits shall be deemed as taxable income subject to corporate tax, and Article 88(2) of the former Enforcement Decree provides that Article 88(1) shall apply to transactions between the corporation and its related parties at the time of such act

In a case where new shares are issued at a price lower than the market price, the existing shareholders renounced economic benefits as much as the discounted value by giving up their participation in the new shares offering. As such, the new shares purchaser is considered to have economic benefits. As such, the Plaintiff already acquired the shares at a price lower than the market price through the new shares offering. Even if the Plaintiff acquired the shares at a price lower than the market price after the acquisition of the shares at issue price, or there was a circumstance that the price lower than the market price was lower than the market price, the Plaintiff cannot be deemed to have no economic benefits. Accordingly, the Plaintiff’s assertion that the instant disposition was unlawful due to the Plaintiff’s lack of economic benefits is without merit.

3) Judgment on the third argument

In light of the general rule of this case, excluding the case where the waived new stocks are allocated by the public offering method under Article 9(7) of the Capital Markets Act, the scope of the allocation is to be excluded from the case where the new stocks are issued by the public offering method in accordance with the method of securities offering, in principle, the issue price should be determined at a close price to the price formed in the securities market, etc., and the fact that △△△△ was selected by the shareholders allocation method, the public offering method, and the third party allocation method that does not subject to the regulation of discount rate among the third party allocation method, the forfeited stocks were generated from the subscription method that is conducted by the shareholders allocation method, and where profits equivalent to the difference between the market price and the issue price are gratuitously transferred by allocating it to the third party, such interpretation does not violate the principle of self-responsibility. Accordingly, the plaintiff's assertion on this part is without merit.

4) Judgment on the fourth argument

The principle of equality under Article 11(1) of the Constitution is the principle of tax equality to be realized in the field of tax law. This principle is the principle that the imposition and collection of taxes must be fairly and equally commensurate with the taxpayer's ability to pay taxes, and it is not allowed to discriminate or treat unfavorably against a specific taxpayer without reasonable grounds (referring to the Constitutional Court Order 98Hun-Ma55 delivered on November 25, 199, etc.).

On the other hand, the plaintiff's assertion that the disposition of this case violates the principle of equality in taxation because the defendant did not impose tax on the person who received forfeited stocks as well as the plaintiff, is not acceptable, and there is no special circumstance to deem that the plaintiffs were discriminated against without reasonable grounds due to the disposition of this case. The plaintiff's assertion in this part is without merit.

3. Conclusion

The judgment of the court of first instance is justifiable, and the plaintiff's appeal against it is dismissed as it is without merit.