Busan District Court-2014-Gu Partnership-2282

disposition that is imposed on a corporation by deeming that it has transferred at a low price the vessel at issue to a person with a special relationship

In full view of the fact that the sale and purchase of the vessel at issue between the Plaintiff and its related parties does not appear in the process of autopsy and takeover and it is difficult to view the vessel as a normal transaction, the disposition imposing corporate tax on the Plaintiff deeming that the vessel at issue was at a low price transferred

Article 52 of the Corporate Tax Act

2015Nu20831 Revocation of Disposition of Imposing Corporate Tax, etc.

AA

○ Head of tax office

Busan District Court Decision 2014Guhap22282 Decided February 12, 2015

May 22, 2015

June 19, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke all the imposition of KRW 0,000,000 (including additional tax of KRW 000,000,000) of the corporate tax for the business year 2009 on December 2, 2013 and the imposition of KRW 00,000,000 (including additional tax of KRW 00,000,000) of the value-added tax for the second period of December 3, 2013 on December 3, 2013.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is that the reasoning for this case is stated in the part of the judgment of the first instance except for adding the following judgments as to the Plaintiff’s stressed or newly claimed matters at the trial. Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Matters to be judged additionally;

A. The plaintiff's assertion

(1) BB conducted resale at the request of the CCC to purchase the instant vessel at a price lower than its market price while it purchased the instant vessel for the actual purpose of use in the △ Shipping owned by it. Since the Plaintiff did not sell the instant vessel to BB with the intent of unfairly reducing its taxes, it is unreasonable to regard the instant first sale as the object of the avoidance of wrongful calculation.

(2) Even if the market price of the instant vessel cannot be considered as KRW 1.5 billion, according to the appraisal and assessment that CC received from △△ Appraisal Board to obtain the instant vessel’s loan, the appraisal value of the instant vessel is merely KRW 3,530,337,00, and thus, the market price of the instant vessel does not exceed KRW 3,530,337,000, at any level.

B. Determination

(1) As to the first argument

Wrongful calculation means the calculation of a taxpayer’s act of reducing or excluding the tax burden incurred when a taxpayer takes the ordinary rational transaction form without using the normal economic business form, the multi-stage act and other abnormal transaction form. Article 52 of the former Corporate Tax Act provides for the denial of wrongful calculation under Article 88(1) of the Enforcement Decree of the Corporate Tax Act, as it is recognized that a transaction with a juristic person and a related party has neglected economic rationality by abusing the various forms of transaction as stipulated in each subparagraph of Article 88(1) of the Enforcement Decree of the Act, and thus, in terms of tax law, it is deemed unfair from a legal point of view that the taxation authority imposed income objectively deemed reasonable and reasonable, thereby ensuring fairness in taxation and preventing tax evasion. The economic rationality should be objectively determined based on whether the transaction lacks economic rationality in light of sound social norms and commercial practices, and it does not necessarily constitute a wrongful calculation (see, e.g., Supreme Court Decisions 200Nu165160, Jul. 26, 1996; 200Du16166705, Jul. 26, 20197001.

In the instant case, the Plaintiff’s transfer of the instant vessel to BB, a person with a special relationship at a price significantly lower than the market price, constitutes an abnormal transaction with substantial economic rationality, and this constitutes “where assets are transferred to a person with a special relationship at a price lower than the market price” under Article 88(1)3 of the former Enforcement Decree of the Corporate Tax Act. Thus, the Plaintiff’s assertion on this part is without merit, regardless of whether there was an intent to unfairly reduce the tax of the Plaintiff.

(2) As to the second argument

Article 89 (2) of the Enforcement Decree of the Corporate Tax Act provides that the appraised value by the appraisal corporation shall be deemed the market price in cases where the market price is unclear, so if the market price can be known, the appraised value shall not be deemed the market price.

However, as seen earlier, the fact that the sales price of the instant case can be seen as the market price under Article 89(1) of the Enforcement Decree of the Corporate Tax Act is the same as that of the instant case. Therefore, the Plaintiff’s assertion that the Korea Appraisal Board ought to be deemed as a legitimate market price is also without merit, on the premise that the market price of the instant

3. Conclusion

Therefore, the judgment of the first instance court is just, and the plaintiff's appeal is dismissed as it is without merit.