early 209 middle 2303 ( November 30, 2010)

The value of the stocks acquired by investing machinery in kind in a Chinese subsidiary shall not be calculated at the book value, and the time of acquisition shall be when it is stated in the book.

Although the acquisition price of stocks acquired by a domestic corporation through investment in kind shall be the market price at the time of the acquisition, it is impossible to calculate the arm's length price calculation method under the Adjustment of International Taxes Act because the stocks issued at the time of the acquisition are unlisted corporations and there are no cases of issuing stocks transacted, and it is impossible to calculate the value of machinery and equipment by the arm's length price calculation method

2011Guhap1406 Revocation of Disposition of Corporate Tax Imposition

XX Stock Company

port of origin

March 22, 2012

May 10, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing corporate tax of KRW 000 for the business year of 2003 against the Plaintiff on March 23, 2009 shall be revoked.

1. Basic facts

A. The plaintiff is a company that manufactures and sells stuffs, etc., and sells them to the Chinese domestic market

제품을 생산할 목적으로 2003. 1. 24. □■■■ QQQ 유한공사를 중국에 설립하였는

F. (hereinafter referred to as the "China subsidiaries"), which is an unlisted corporation, the plaintiff holds 100% of the shares of the non-listed corporation.

나. 원고는 중국 현지법인의 운영에 필요한 ○♣기계설비를 현물출자하기로 하고, 2003. 5.경 일본의 ♣■■■주식회사(이하 '▷♤♤♤♤'라 한다)로부터 ○♣기계설비를 구입하는 계약을 체결한 다음, 2003. 7.경 그 중 일부인 4세트의 ○♣기계설비(이하 '이 사건 기계설비'라 한다)를 4차례에 걸쳐 ▷♤♤♤♤로부터 직접 중국 현지법인에게 운 송되도록 하고, 이 사건 기계설비의 대금인 일본 엔화 합계 000엔을 2003.

8. 5.까지 ▷♤♤♤♤에게 모두 지급하였는데, 위 각 운송 당시 ▷♤♤♤♤는 원고의

Upon request, the price of the machinery of this case differs from the actual purchase price of the machinery of this case.

The invoice of this case (hereinafter referred to as "the invoice of this case") written in the sum of 000 United Nations in Japan was sent together.

The instant machinery and equipment transported as above cleared a Chinese customs four times from July 11, 2003 to August 13, 2003, and the import declaration was made at the price stated in the instant invoice.

C. Next, on August 22, 2003, China's local subsidiary is the articles of incorporation of China's local subsidiary.

Based on relevant regulations, the value of the instant machinery and equipment invested in kind in a Chinese subsidiary is equivalent to its value.

Plaintiff at the same time preparing and receiving a written investment report with the content of "The United Nations of Japan 000"

The certificate of physical inspection of the machinery and equipment of this case was issued to the Corporation.

D. In addition, on October 28, 2003, China's local subsidiary is invested in kind by the plaintiff in its books.

After recording the capital of the machinery and equipment of this case into 000, which is the conversion price of 000 United Nations's Madernization of China. In order to register the machinery and equipment of this case as capital, an inspection was requested to the Chinese accounting office on the value of the machinery and equipment of this case. The accounting office also recognized the value of the machinery and equipment of this case as equivalent to the above 00N, and completed the capital registration of the machinery and equipment of this case as the above recognized value on June 2004.

마. 한편 원고는 위와 같은 이 사건 기계설비의 구입・취득과 현물출자에 대한 회계 처리에 있어 그 구입대금인 위 000엔의 원화 환산가액과 그 구입에 소요된 부대비용을 합한 000원을 2003 사업연도(2003. 1. 1.〜2003. 12. 31.) 결산보고서의 '기타투자자산' 계정에 기장하였고, 중국 현지법인이 위와 같이 이 사건 기계설비에 대한 자본등록을 마치자 2004. 6. 30. 위 '기타투자자산' 계정의 기장 가액을 '지분 법적용투자주식' 계정으로 대체하여 기장하는 회계처리를 하였다.

F. With respect to the Plaintiff’s report and payment of corporate tax for the business year of 2003, the Defendant did not include the Plaintiff’s profits from disposal of tangible assets in the reported income even though the Plaintiff obtained 000 won of tangible assets as the Plaintiff invested the instant machinery and equipment in kind in the Chinese subsidiary and acquired the stocks of the Chinese subsidiary in return for the said investment, and on March 23, 2009, included the above tangible assets disposal profits in the gross income.

In other words, the corporate tax (including penalty tax) calculated by deducting the existing tax amount, etc. from the corporate tax (including the amount of penalty tax) imposed 000 won on the Plaintiff as corporate tax for the business year 2003 (hereinafter referred to as the "disposition in this case"), and the reasons that the Defendant suffered the same amount from the

① Since the Plaintiff’s local subsidiary was a corporation established on January 24, 2003 by investing 100% in the Plaintiff’s company and established on January 24, 2003, the value of the Plaintiff’s stocks (hereinafter “the instant stocks”) granted due to the investment in kind in the instant machinery and equipment cannot be assessed as the net asset value per capital for the instant machinery and equipment of the Chinese subsidiary. At the time, since the liabilities of the Chinese subsidiary are zero won, it is the same as the capital and net asset value. Therefore, the stock value of the instant stocks is assessed as the same as the 000 bill appropriated as the capital for the instant machinery and equipment in the account book of the local corporation of the Chinese branch, and is 00 won when converted into Korean currency.

② However, the Plaintiff evaluated the value of the instant shares granted by the said investment in kind as KRW 000 on the account of “investment shares subject to the applicable equity law” in its account.

(See Evidence No. 11). The defendant's statement of investment in kind prepared by a Chinese subsidiary (see Evidence No. 13-12, e.g., evidence No. 13)

Based on the investment in kind of the machinery and equipment of this case entered in US US US US dollars, the value of the book was specified as 000 books by converting it again into Chinese colonialization. The plaintiff does not have any particular problem.

③ Ultimately, the Plaintiff, even though having been granted the instant shares in return for the investment in kind with the instant machinery and equipment, did not reach KRW 000,000. Therefore, the Plaintiff obtained the benefit from disposing of tangible assets of KRW 000, which is the difference.

G. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal on May 21, 2009, but the claim was dismissed on November 30, 2010.

[Ground of Recognition] A without dispute, Gap evidence 1 to 5, Gap evidence 6-1 to 6, Gap evidence 7 through 7

13 Evidence Nos. 13, 1, 2, and 3, each fact inquiry result of this court against XX stock companies and OO accounting corporations, the purport of the whole arguments, and the purport of the whole arguments.

2. The assertion and judgment

A. The plaintiff's assertion

1) As to the appraisal of the value of the instant shares

The value of the instant shares shall be appraised as the value of the instant machinery and equipment corresponding to the net asset value. In such cases, the value of the instant machinery and equipment shall be appraised by applying the book value in the order of application, if the market value is preferentially and the market value is unclear pursuant to the provisions of related Acts and subordinate statutes, such as Corporate Tax Act and Inheritance Tax and Gift Tax Act.

그런데 앞서 본 바와 같이 원고는 000원 상당액을 들여 ▷♤♤♤♤로부 터 이 사건 기계설비를 구입・z취득한 다음 이를 중국 현지법인에 현물출자하는 과정에서, ▷♤♤♤♤에 의뢰하여 이 사건 기계설비의 구입가액을 사실과 다르게 원화 이를 중국 현지법인에 현물출자하였던 점을 알 수 있고, 여기에 앞서 본 바와 같이 원고의 2003 사업 연도 장부상 이 사건 기계설비의 취득가액은 000원으로 계상되었던 점을 더해보면, 피고가 이 사건 주식의 장부상 가액을 위와 같이 000원으로 파악한 것이 타당한지는 의문이다.

As a result, the invoice of this case, which was entered in 00 won as an amount equivalent to 00 won, was prepared and sent. As a result, the value of the machinery of this case was overestimated compared to the actual value of the machinery of this case in the Chinese local corporation's books.

따라서 위와 같은 장부상 가액을 이 사건 기계설비의 가치로 평가할 수는 없고, 원고가 ▷♤♤♤♤로부터 이 사건 기계설비를 구입하여 취득하는 데 소요된 비용 상당액인 000원을 그 시가로 보아야 한다. 그런데도 피고는 위와 같은 시가의 존재를 간과하고 곧바로 중국 현지법인의 장부상 가액에 해당하는 000원을 이 사건 기계설비의 가치, 즉 이 사건 주식의 가액으로 보아 이 사건 처분에 이른 것이므로, 이 사건 처분은 위법하다.

2) As to the business year to which earnings from investment in kind accrue

Since the registration of capital of the Chinese subsidiary following investment in kind in the machinery and equipment of this case was made around June 2004, it is reasonable to view that the time when the plaintiff acquired the stocks of this case in return for the said investment in kind by the plaintiff around June 2004. Therefore, the business year in which the profit from the disposal of tangible assets under the above investment in kind belongs to the plaintiff's gross income should be the business year of 2004. However, the defendant made the disposition of this case on the premise that the above profits from the disposal of tangible assets should be appropriated in the business year of 2003, on the ground that the machinery and equipment of this case was appropriated in the business year of 2003

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) As to the appraisal of the value of the instant shares

A) The former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same)

Article 41(1)3 of the former Enforcement Decree of the Corporate Tax Act and Article 72(1)4 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19328, Feb. 9, 2006; hereinafter the same) provide that the acquisition value of the stocks acquired by a domestic corporation through investment in kind shall be the market price at the time of its acquisition. Thus, the value of the stocks of this case acquired by the plaintiff in exchange for the investment in kind of the machinery and equipment of this case shall be calculated at the time of the first response. However, since the Chinese subsidiary at the time of its acquisition is an unlisted corporation and owned by the plaintiff 10% of the stocks, it is impossible to confirm theO at the time of the stocks of this case, and if it is impossible to confirm theO, the value of the stocks of this case would be inevitably recognized by the evaluation, and there is no separate provision on the criteria or method for such evaluation in the former Corporate Tax Act and its Enforcement Decree.

Meanwhile, according to Article 4(1) of the former Adjustment of International Taxes Act and Article 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18628, Dec. 31, 2004) (amended by Presidential Decree No. 18628, Dec. 31, 2004), if the transaction price of the instant machinery and equipment is less than or exceeds that of a foreign related party, the taxation adjustment of a domestic corporation may be conducted on the basis of the arm's length price if the transaction price of the said machinery and equipment to a Chinese local subsidiary, in which the Plaintiff, a domestic corporation, is holding 100% of the said shares, and one of the parties to the instant transaction, is a foreign related party. In this case, the arm's length price shall be the price calculated by the most reasonable method among comparable third party price method, resale price method or cost plus method, and if it is impossible to calculate the arm's length price by the said three methods, it shall be determined by the method deemed reasonable in light of the substance and practice of profit division method

Therefore, it is necessary to first calculate the arm's length price of the instant shares acquired by the Plaintiff in the said transaction in order to determine whether it is possible to adjust taxation under the above provision with respect to the said international trade between the Plaintiff and the Chinese subsidiary. Around that time, there is no case where the issuance shares of the Chinese subsidiary are traded differently. In light of the above, the comparable third party price method, resale price method, cost plus method, profit split method, net trade profit ratio method as stipulated in the above provision.

In light of the fact that Article 89(2) of the former Enforcement Decree of the Corporate Tax Act provides that the supplementary evaluation method stipulated in the Inheritance Tax and Gift Tax Act shall be applied in cases where the market price is unclear in the calculation of the income amount resulting from the denial of wrongful calculation, the supplementary evaluation method under Article 63(1)1(c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “former Inheritance Tax and Gift Tax Act”) may be recognized as one way in which the value of the stocks of this case can be reasonably calculated.

B) Therefore, the value of the instant shares acquired by the Plaintiff is calculated according to the supplementary assessment method of the unlisted shares as above and as follows.

According to Article 63(1)1(c) of the former Inheritance Tax and Gift Tax Act and Article 54(4)2 and (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18989, Aug. 5, 2005; hereinafter the same), stocks of an unlisted corporation prior to, or less than three years after, the commencement of the business are assessed as net asset value of the corresponding corporation. Thus, stocks of a Chinese subsidiary corresponding to the non-listed corporation at the time of the investment in kind of the machinery and equipment of this case should be assessed as net asset value of the corresponding corporation. Since there is no dispute between the parties who did not have the debt of the Chinese subsidiary at the time of the investment in kind, the stock value of this case should be assessed as the value of the instant machinery and equipment, which is the net asset value of the corresponding Chinese subsidiary.

In addition, according to Articles 60 and 62 of the former Inheritance Tax and Gift Tax Act and Article 52 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the value of the machinery and equipment of this case shall be calculated on the basis of the market price, which is the value that is the value that is considered to be normal if a transaction takes place freely between many and specified persons. If it is difficult to calculate theO, "the expected value that can be acquired again if it is disposed of, and if the value is not verified, the book value shall

C) Accordingly, first of all, whether China's subsidiaries can calculate the OO of the instant machinery and equipment invested in kind by the Plaintiff, as to whether the Plaintiff could bring about the health care room and the costs equivalent to KRW 000.

이 사건 기계설비를 ▷♤♤♤♤로부터 구입・z취득하면서 이를 바로 중국 현지법인에 현물출자하였음은 앞서 본 바와 같으나, 한편 이 사건 기계설비는 ○♣공장의 생산설비로서 그 특성・규모 등에 비추어 일반적으로 불특정 다수인 사이에서 자유로이 거래가 이루어지는 기계설비라고는 보기 어려운 점, 원고가 이 사건 기계설비를 구입할 당시 OOOOO가 원고의 의뢰에 따라 업무협력 차원에서 중국 현지법인으로 보내는 이 사건 송장에 그 가격을 실제 구입가격보다 부풀려 기재한 데서 보듯이 원고와 ▷♤♤♤♤ 사이에는 이미 신뢰에 기반한 거래관계가 형성된 상태였다고 볼 여지가 있는 점, 따라서 당시 원고와 특수관계에 있는 중국 현지법인이 아닌 여타의 중국 ○♣회사가

이 사건 기계설비를 원고가 구입한 가격과 같은 정도의 가격에 ▷♤♤♤♤로부터 구입할 수 있었다고 쉽게 단정하기는 어렵고, ▷♤♤♤♤의 입장에서도 이 사건 기계설비와 같은 기계설비를 제작・z수출함에 있어 수입국의 ○♣산업 현황, 당해 수입거래처와 의 관계, 경쟁 수출회사의 유무 및 그에 따른 수입대체의 가능성 등 여러 사정을 고려하여 그 수출가격을 개개의 거래마다 달리 책정할 가능성이 충분히 있는 점 등을 고려하면, 원고의 위 취득가액을 이 사건 기계설비의 시가, 즉 불특정 다수인 사이에 자유로이 거래가 이루어지는 경우에 통상 성립된다고 인정되는 가액이라고 보기는 어렵다.

Furthermore, in evaluating the value of the machinery and equipment of this case, it is reasonable to apply "the expected value to be acquired again when a Chinese subsidiary disposes of the machinery and equipment of this case" to the value of the machinery and equipment of this case. As seen above, the machinery and equipment of this case is an asset invested in kind by the plaintiff. The price of the machinery and equipment of this case is 00 won in the invoice of this case prepared by OOOO as well as in the invoice of this case sent to the Chinese subsidiary. In addition, the local corporation of China also included the above value of the machinery and equipment of this case in its books, based on the results of the actual inspection of the Chinese local accounting office. Accordingly, if a Chinese subsidiary disposes of the machinery of this case in China, the disposal price of the machinery and equipment of this case can be determined based on the above disposal documents, books, and the price of the machinery and equipment of this case, which are expected to be acquired from the plaintiff's actual assets of this case, the acquisition price of the plaintiff's O or the plaintiff's actual assets of this case could not be acquired from the plaintiff's actual assets.

If the value of the machinery and equipment of this case cannot be confirmed as expected to be obtained in the event of the disposal of the machinery and equipment of this case, the value of the machinery and equipment of this case can be evaluated as equivalent to KRW 000,000, which is the value of the book value of the Chinese subsidiary according to the order of application of the evaluation method under Article 52(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. This is, along with the various circumstances mentioned above, in the case of the assets acquired through investment in kind under Article 72(1)3 of the former Enforcement Decree of the Corporate Tax Act, the acquisition value of the machinery and equipment of this case

D) Therefore, it is legitimate for the Defendant to regard the value of the instant machinery and equipment, such as the value of the instant shares, as equivalent to KRW 000,000, which is the book value of a Chinese subsidiary, and calculate the Plaintiff’s earnings accrued for the business year of 2003 on the premise of the value of the instant shares. Accordingly, the Plaintiff’s assertion that the value of the instant machinery and equipment

2) As to the business year to which earnings from investment in kind accrue

According to Article 40 of the former Corporate Tax Act and Article 68 (1) 3 of the former Enforcement Decree of the Corporate Tax Act, the business year to which the date of the settlement of the price belongs as a matter of principle, shall be the business year to which the date of the settlement of the price belongs: Provided, That where the transfer registration of ownership, etc., the transfer registration of ownership, etc., the transfer of the relevant assets, or the transfer thereof or the use thereof and profit-making thereof are made by the other party before the settlement of the price, the business year to which the earlier date between the date

According to the facts acknowledged above, the date when the plaintiff transferred the machinery of this case, which is its assets, to a Chinese local corporation by investment in kind, and received the stocks of this case in consideration of the payment date, i.e., the date of liquidation of the payment date of the transfer price, can be seen as June 30, 2004 on which the plaintiff entered the stock of this case on the account of the completion of the capital registration of the machinery of this case on the "shared Investment Shares Act" on June 30, 2004, but the date when the machinery of this case was delivered to a Chinese local corporation by the investment in kind on August 22, 2003 or at the latest, the date when the actual inspection certificate of the local corporation of this case was prepared on August 22, 2003, or on October 28, 2003, the date when the machinery of this case was transferred to a Chinese local corporation shall be deemed as the business year to which the profit of this case belongs due to the investment in kind of the machinery of

Therefore, the plaintiff's assertion on this is without merit.

3. Conclusion

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