Cho High Court Decision 201Da3739 ( December 08, 2011)

The calculation of the net asset value based on the balance sheet at the end of the immediately preceding business year cannot be deemed unlawful when a unlisted stock is assessed

In the case of a trade, the evaluation base date of which does not coincide with the end of the business year, the net asset value may be calculated based on the balance sheet as of the evaluation base date, but it is not necessarily necessary to comply with such determination, and it cannot be deemed unlawful to calculate the net asset value by reflecting the increase or decrease in the evaluation base date and the appraisal difference

2012Guhap1182 Revocation of Disposition of Corporate Tax Imposition

AAAma, Inc.

Head of Central Tax Office

December 21, 2012

February 8, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 000 (including additional tax) of corporate tax for the business year 2008 against the Plaintiff on March 8, 2011 is revoked (=00 won of the final tax amount - KRW 000 of the tax amount for which the Plaintiff seeks revocation).

1. Details of the disposition;

A. Status of the plaintiff, etc.

The plaintiff is a non-listed corporation established around July 1987 for the purpose of wholesale business, and the representative EE of the plaintiff and her husband fFF as a joint representative director, a corporation AAAAAA's assistance ship (hereinafter referred to as "AAA' assistance ship") is a non-listed corporation established around August 1995 for the purpose of shipbuilding, vessel repair business, etc.

(b) Participation in capital increase;

"The plaintiff received 00 won (i.e., 540,500 shares) for 100 common shares (i.e., 540,500 shares) whose par value is 000,000 AA's shares (hereinafter referred to as "the shares of this case")."

1) Around April 6, 2010, Busan regional tax office investigation and tax officials conducted a tax investigation such as the fund raising for AAAAA’s capital increase with capital increase, and on the basis of the balance sheet of December 31, 2007, on June 27, 2008, assessed as KRW 000 according to the supplementary assessment method stipulated in the Inheritance Tax and Gift Tax Act (= KRW 000 won x 540,500 per share price) based on the market price of the instant shares as of June 27, 2008, and notified the Defendant of taxation data that the Plaintiff received 00 won (=00 won - acquisition price of KRW 000) through the participation in the above capital increase with capital increase, and that the Plaintiff would have made a profit industry.

2) In accordance with Article 39(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), the Defendant issued a notice on March 8, 201 to the Plaintiff of increased or decreased corporate tax of 000 won in the business year 2008 (=determined tax amount of 000 won - already paid tax amount of 000 won, and additional tax amount of hereinafter the same shall apply).

(d) Objections;

On June 3, 2011, the Plaintiff filed an objection with the director of the Busan Regional Tax Office along with the balance sheet of AAAAC on June 30, 2008, and the director of the Busan Regional Tax Office partially made a decision of acceptance on the following: (a) the director of the Busan Regional Tax Office shall deduct the corporate tax of KRW 00,00, and KRW 00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

(e) reduction, revision and notification on August 201;

According to the result of the objection, the Defendant evaluated the market price of the instant shares as KRW 000 (=00 won x 540,500 per share market price) again, and evaluated the profits donated to the Plaintiff as KRW 000 (=00 won at the market price - acquisition price of KRW 000). The Defendant added the profits to the calculation of the profits and notified the Plaintiff of the reduction, correction, and notification of the amount of corporate tax for the business year 2008 (=00 won at the initial tax amount - 000 won) to the Plaintiff around August 2011.

(f) A tax appeal;

The Plaintiff dissatisfied with this, “AAA’s corporate tax of 000 won paid on February 28, 2007 by the AAAA’s 2004 business year is not reserved in the Company. Therefore, the Plaintiff’s net value per share after deducting the amount of income from the business year 2007 business year. In calculating the net asset value per share of AAAA’s 1, the Defendant filed a request for a judgment with the Tax Tribunal on September 30, 201 for the same reason.

(Omission of Details of Request for Trial)

G. As of September 25, 2012, correction of reduction and notification;

On September 25, 2012, the Defendant, ex officio, adjusted the weighted average net profit and loss per share for three years prior to the evaluation base date of AAAA conciliation to KRW 000,000, and then corrected, corrected, and notified the Plaintiff on September 25, 2012, by deeming the profits received by the Plaintiff as KRW 00 (=00 won for previous recognition - KRW 000 for gross income non-industry 000) according to the method of calculating profits following the increase in capital under Article 29(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

(h) the correction of reduction on November 26, 2012;

On November 26, 2012, the Defendant: (a) ex officio reduced the additional tax on KRW 000 on the Plaintiff’s already paid tax amount of KRW 000 (=the initial tax amount of KRW 000 - the deducted tax amount of KRW 000); and (b) determined the additional tax as a total of KRW 000 (=the additional tax on under-reported return + the additional tax of KRW 0000 + the additional tax for unfaithful paid additional tax); and (c) adjusted the reduction of corporate tax for the business year 2008 (=the initial tax amount of KRW 000 - the initial tax amount of KRW 00) to the Plaintiff; and (d) adjusted the reduction of the additional tax amount of KRW 00 on March 8, 2011, which remains after the final revision (hereinafter “instant disposition”).

[Based on Recognition] The whole purport of the arguments and arguments in the non-contentious facts, Gap evidence 1, evidence 1, evidence 2, evidence 3, evidence 2, evidence 3, evidence 29, evidence 61, evidence 30, evidence 1, 2, evidence 1, 3, 3, 4, 7, 21, and 22

2. Whether the disposition is legitimate

1) The plaintiff's assertion

The Defendant calculated the net asset value by reflecting the amount to be added to and excluded from its assets and liabilities on the basis of the balance sheet as of December 31, 2007, which is the end of the base date of appraisal, as it is unlawful, and the net asset value per share of the instant shares shall be calculated based on the comparison table for settlement of accounts on June 27, 2008, which is the base date of appraisal, on the basis of the net asset value of the instant shares, 00 won as of the base date of appraisal (=00 won + payment fee of 000 won + the amount of 00 won + the amount of 00 won calculated on September 21, 2007, the amount of 00 won calculated on the basis of the net asset value of 000 won per share, and the amount of 000 won calculated on the basis of the former net asset value of 000 won before and after the settlement of accounts on March 28, 2008, including the amount of 00 won calculated on the basis of the net asset value of 0.

2) The defendant's assertion

The balance sheet of June 30, 2008, which was submitted by the Plaintiff at the time of filing an objection, is merely a voluntary financial statement that does not properly reflect the market price, such as the balance sheet and transaction details of the account, the completeness and existence of the claim and the obligation, and the error in the prepaid expense and the attempted profit account, and the transaction value is 000 won, and it cannot be deemed that the appropriate financial statement is merely a voluntary financial statement that does not properly reflect the market price. In addition, the prepaid expense of the Plaintiff’s assertion can not be additionally included in the assets because it is unclear whether the prepaid expense is not the prepaid expense because it is not inconsistent with the account cost and the tax invoice, and the service progress rate by ship is not objectively confirmed. Therefore, since the net asset value per share before the capital increase is calculated based on the balance sheet of the account on December 31, 2007, the net asset value of the Defendant’s net asset value under the Inheritance Tax and Gift Tax Act - 000 won each share, and the net asset value per share - 00000 billion won each share.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Issues of the instant case

According to Article 60(1) and (3), Article 63(1)1 (c), and Article 54(1) and (2) of the former Inheritance Tax and Gift Tax Act, when it is difficult to calculate the market price as of the date of donation, and when it is difficult to calculate the value of the donated property, the value of the donated property shall be calculated according to the supplementary assessment methods provided for in Articles 61 through 65 of the former Inheritance Tax and Gift Tax Act, and when it is calculated based on the supplementary assessment methods, the value of the unlisted stock shall be calculated by the weighted average value of the net asset value per share and the net asset value per share (the value of the corporation concerned ± total net asset value of the corporation concerned ± total number of issued stocks) at the rate of 3 to 2. In addition, if the assessment base date of unlisted stocks does not coincide with the end of the business year, the net asset value per share may be calculated by increasing or decreasing the net asset value per share based on the balance sheet as of the base date of appraisal, but the net asset value per share shall not be calculated by 0.

2) Determination

A) The Plaintiff’s assertion to the effect that, in light of the following circumstances, the balance sheet for the settlement of accounts dated June 30, 2008 cannot be trusted, and otherwise, there is no evidence to prove the credibility of the balance sheet, and that the value of net assets should be calculated based on the above balance sheet, is without merit.

(1) On June 30, 2008, the balance sheet of the family settlement of June 30, 2008 is highly probable.

Despite a tax investigation conducted on or around April 2010, the Plaintiff did not submit accounting documents necessary for the provisional settlement even during the pre-announcement period of taxation, and the Plaintiff’s first submission of the balance sheet as of June 30, 2008, and on December 31, 2007, as of December 30, 2007, the above balance sheet is highly probable in light of the following: (a) the pre-paid cost and KRW 00 and KRW 00 of the attempted income on the balance sheet as of June 30, 2008, are written in the balance sheet.

(2) On June 30, 2008, the value of the structure reflected in the assets on the balance sheet of the family on June 30, 2008 was also difficult to trust because it did not properly reflect the market price.

(A) The case holding that Article 55 (1) (main sentence) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the net asset value under Article 54 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be the value calculated by deducting the assets of the relevant corporation from the value appraised under Articles 60 through 66 of the Act as of the base date of appraisal," and Article 60 (1) (main sentence) of the former Inheritance Tax and Gift Tax Act provides that "the value of an asset on which inheritance tax or gift tax is levied under this Act shall be the market value as of the commencement date of inheritance or donation gram (hereinafter "base date of appraisal"), and Article 55 (2) provides that "the market value under the provisions of paragraph (1) shall be the value which is generally deemed to be established where a transaction is made freely between many and unspecified persons, and Article 49 (1) (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "if a transaction has been made within three months before or after the base date of appraisal, it shall be the market value of the transaction value."

(나) 이 사건으로 돌아와 살피건대， 원고는 AAAA조선이 2008. 8. 22. II철강 에 000 원에 매도한 구축물의 장부가액인 000원을 자산으로 평가하였는바， 앞서 든 증거들과 갑 제52호증， 을 제13 내지 19호증의 각 기재에 변론 전체의 취지를 더해 보면，① AAAA조선은 평가기준일로부터 3개월 내인 2008. 8. 22. 구축물인 플로팅 독(Floating Dock)을 II철강 주식회사(이하 'II철강'이라 한다)에 대금 000 원에 매도하기로 하면서 계약금 000 원은 2008. 8. 30.， 중도금 000 원은 2008. 9. 30.， 잔금 000 원은 2008. 10. 31.에 각 지급받기로 약정하고 계약 당일 위 잔금에 대한 담보로 거진해상개발 주식회사 발행의 액면금 000 원 상당의 약속어음 1장을 교부 받은 사실，② AAAA조선은 위 계약에 따라 합계 000 원(= 계약금 000 원 + 중도금 일부 000 원)을 수령하였으나， II철강이 잔금 지급을 지체하자 II철강으로부 터 "잔금 지급이 2009. 1. 15.까지 이행되지 못하여 부득이 위 독을 타에 매도할 경우 이에 동의하고， 그 매매대금이 000 원을 상회하거나 부족할 시는 지급한 000 원 중 에서 가감하여 반환하여도 이의가 없음을 각서한다"는 취지의 2008. 12. 31.자 각서를 교부받고， 위 잔금 지급에 관하여 연대보증인 업보하에 채무변제계약공정증서도 2회에 걸쳐 교부받은 사실，③ AAAA조선은 2009. 7. 13. 위 구축물을 외국회사에 미화 00달러(한화 약 000 원)에 매도한 후 위 각서에 따라 II철강에 매매대금 000 원을 반환하지 않은 사실이 인정되고， 여기에다가 앞서 든 증거들과 변론 전체의 취지를 더하여 인정되는 다음과 같은 사정， 즉 ㉮ AAAA조선의 주식 1주당 가액을 보충적 평가방법에 의하여 평가하면서 그 기초가 되는 위 회사의 순자산가액 산정을 위하여 자산에 반영할 구축물 가액을 평가함에 있어서도 평가기준일 현재의 시가로 이 를 반영함이 원칙인 점，㉯ 2008. 8. 22.자 구축물 매매계약은 특별한 관계가 없는 자 들 사이의 정상적인 거래에 의하여 이루어진 것으로 보이는 점，㉰ 2009. 7. 13.자 재 매각은 최초 계약시로부터 약 1년 뒤에 체결된 데다가 그 당시 AAAA조선은 자금사 정 악화로 회생절차신청을 앞두고 있었던 점을 보태어 보면， 설령 2008. 8. 22.자 구축물 매매계약이 원고의 주장대로 해제되었다고 하더라도 그 매매대금 000 원은 당시의 객관적 교환가치를 적절하게 반영한 것으로서 평가기준일 현재의 시가로 볼 수 있다고 할 것이므로(대법원 2010. 7. 12. 선고 2010두27936 판결 참조)， 구축물의 시가가 아년 장부가액을 자산에 반영한 2008. 6. 30.자 가결산 대차대조표는 신뢰하기 힘들다.

(3) No advance payment asserted by the Plaintiff may be recognized.

The plaintiff, at the end of 008.6.30, and at the end of 207.1, 00, 00, 00, 00, 20, 30,000, 20,000, 30,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,000,00,000,00,000,00,00,00,00,00.

B) As seen earlier, it is difficult to believe the balance sheet of June 30, 2008. If the net asset value of June 30, 2008 is calculated by adding the Plaintiff’s advance payment cost to the assets and liabilities on the balance sheet of June 30, 2008, as the Plaintiff’s assertion, the net asset value of the structure for which AAA’s advance payment cost was entered into with the II Steel should be calculated as KRW 00,00, which is the transaction value. Thus, the net asset value of the Plaintiff’s assertion (i.e., the total asset value of KRW 00,000 - the total debt amount of KRW 00,000,000 - the book value of KRW 0,000,000 per share, and the net asset value of KRW 0,000,000 per share before the increase in the net asset value of KRW 60,000,000,000 per share under the premise that the net asset value of this case would be calculated.

3. Conclusion

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