early 201luminous2003 ( November 10, 201)

It is legitimate to assess shares without reflecting it in the absence of any evidence to prove that there was a foreign debt.

In calculating the net asset value of unlisted stocks in order to assess the net asset value, it is not sufficient to recognize that the relevant company had liabilities claimed by means of the evidence alone, which means the liabilities that the relevant company would have to perform with a ultimate burden at the time of the calculation. Therefore, it is legitimate to evaluate stocks without reflecting such evidence.

Article 101 of the Income Tax Act

2012Guhap584 Revocation of Disposition of Imposing capital gains tax

KimA

Head of the tax office

July 26, 2012

September 6, 2012

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 capital gains tax of KRW 000 for the year 2006 against the Plaintiff on February 9, 201 shall be revoked.

1. Details of the disposition;

A. On December 5, 2006, the Plaintiff transferred 21,125 shares (hereinafter “instant shares”) of BB Industry Development Co., Ltd. (hereinafter “BB Industry Development”) to 000 won (the Plaintiff, a representative director of BB development, acquired the instant shares from the Plaintiff by stealing the Plaintiff’s name of YD, an employee, without permission, in fact).

B. After that, on May 31, 2007, the Plaintiff reported to the Defendant on May 31, 2007 the transfer value and acquisition value of the instant shares as KRW 000, respectively, that there was no capital gains tax for the year 2006.

C. From September 27, 2010 to October 22, 2010, the Director of the Gwangju Regional Tax Office conducted a state change investigation on BB industry development, and conducted an examination on the actual transferee of the instant shares to the Defendant, and conducted an examination on the amount of the instant shares at a par value lower than the market price, and did not recognize it as an unfair act pursuant to Article 101 of the Income Tax Act, and did not recognize it as an inheritance tax and gift tax (amended by Act No. 8139 of Dec. 30, 2006, and hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") Article 63 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1989 of Feb. 28, 2007, hereinafter the same shall apply) Articles 54 and 556 of the Enforcement Decree of the same Act as the market price of the instant shares at a price of 00 won per share.

D. Accordingly, on February 9, 2011, the Defendant issued a correction and notification of KRW 000 (including additional tax of KRW 000) as the transfer income tax belonging to the year 2006 (hereinafter “instant disposition”).

E. On May 30, 201, the Plaintiff dissatisfied with the instant disposition and filed a request for a trial with the Tax Tribunal on May 30, 201, but the Tax Tribunal dismissed the Plaintiff’s request on November 10, 201.

[Ground of Recognition] The facts without dispute, Gap evidence 1, 4 through 8, and Eul evidence 1 through 6 (including each number), and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

BB Industrial Development had a total of 00 billion won not included in the balance sheet in the business year 2005, and the Defendant recognized the market value of the instant stocks and assessed the net asset value per share in accordance with the supplementary assessment methods. However, the Defendant calculated the net profit and loss value per share of the instant stocks by weighted average of 000 won according to the income amount stated in the balance sheet, etc. submitted at the time of filing a corporate tax return from 2003 to 2005, and the above net profit and loss value was assessed as 00 won without reflecting the above additional debt value. The above additional debt value includes the unpaid bill (00 won) omitted from the construction cost. However, the actual income amount for each business year is much reduced more than the book value, and the market value of the instant stocks is calculated according to the supplementary assessment methods, and thus, the disposition in this case is unlawful since it is based on the excess market value of the instant stocks because it does not reflect the additional debt properly.

(b) Related statutes;

Attached Form 1 shall be as listed in attached Table 1.

(c) Fact of recognition;

1) BB industry development reported corporate tax from 2003 to 2005, and reported each business year, net income, assets, and liabilities as follows:

2) On September 27, 2010 through October 22, 2010, the Gwangju Regional Tax Office conducted a survey on stock change in BB industry development, and denied its calculation as an unfair act by deeming the transfer of the instant shares as a low-price transfer between related parties, and accordingly, BB industry development submitted a bill of exchange status table (A evidence No. 9-1 and 2) as evidence of the fact that the total sum of the total sum of the total sum of the total sum of the total sum of the total sum of the total sum of 160 bills of exchange and 15 bills of exchange and 2005, which were not recorded in the account book, was 00 won in the EE industry and 160, which were not recorded in the account book.

3) Accordingly, the Gwangju Regional Tax Office, based on the supplementary assessment method of securities under Article 63 subparagraph 1 (c) of the former Inheritance Tax and Gift Tax Act, applied Article 54 (2) of the Enforcement Decree of the same Act by Article 54 (2) of the same Act to substitute 000 won for purchase liabilities (paid bills) on the balance sheet of 2005 business year in lieu of purchase liabilities (paid bills) (i.e., purchase liabilities - purchase liabilities - purchase liabilities 000 won + 000 won in the balance sheet of this case) and calculated the net asset value per share of this case by adding corporate tax, etc. to the estimate of the total amount of corporate tax, retirement allowances, etc. and deducting the total amount of liabilities by deducting the total amount of liabilities from the amount of 00 won calculated by subtracting the above total amount of liabilities from the amount of 00 won calculated by dividing the net asset value of business licenses of this case by the total number of issued stocks (specific description is as stated in attached Form 2).

4) In addition, the Gwangju Regional Tax Office calculated the net profit and loss amount by deducting the corporate tax, entertainment expenses, etc. from each business income as at the time of filing a corporate tax return for the business year 2005 from 2003 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, by dividing the net profit and loss amount by the total number of stocks as at the end of each business year following the calculation of the net profit and loss amount, and assessed the net profit and loss value per share of the instant stocks as 00 won

5) Accordingly, the Director of Gwangju Regional Tax Office assessed the price per share of the instant shares as KRW 000 (i.e., net profit value of KRW 000 x3/5 + net asset value of KRW 000 x2/5, and less than KRW 100) and calculated the transfer value of the instant shares as KRW 000 (i.e., KRW 21,125 x00, and less than KRW 125 x00), and notified the Defendant to impose transfer income tax on KRW 000 with the acquisition value of KRW 00.

[Reasons for Recognition] The facts without dispute, the evidence before, the evidence of Gap evidence 9, and the whole purport of the pleading

D. Determination

1) The tax authorities have the burden of proving the legality of disposition and the existence of the taxation requirement fact in a lawsuit seeking revocation on the grounds of illegality of taxation, and in evaluating the value of stocks at the time of the transfer of unlisted stocks, the burden of proving the amount of net assets, which are the tax base of capital gains tax, are, in principle, the tax authorities. However, in calculating the net asset value of the relevant corporation as of the date of transfer, the fact that there are liabilities not included in the balance sheet of the relevant corporation is an exceptional reason in determining the amount of capital gains tax, and thus, the burden of proving such special reason is the taxpayer

In order to assess the value of non-listed stocks and to calculate the net asset value of the non-listed stocks, the liabilities that the company in question should pay with the ultimate burden at the time of the calculation (see, e.g., Supreme Court Decision 2002Du12458, May 13, 2003). According to these legal principles, it is insufficient to recognize that the company had the secondary liabilities at the time of the calculation, solely on the basis of the statement in Evidence B, No. 9 (BB industry development from September 8, 2005 to December 31, 2005, the current bill of exchange issued from December 2005), and there is no evidence that it is difficult to present the net assets at the time of the appraisal and development of the company in question, and there is no evidence that it is difficult to present the net assets at the time of the evaluation and development of the company in question (see, e.g., Supreme Court Decision 2002Du12458, May 13, 2003).

2) Even if domestic liabilities are recognized, it is difficult to conclude that the sum of the unpaid bills obligations out of the instant surcharges was omitted from the construction cost, in light of the following reasons, even though each of the above evidence, Gap evidence Nos. 9, Eul evidence No. 6, and evidence No. 97, and the purport of the entire pleadings can be seen.

① From September 8, 2005 to December 29, 2005, the total amount of unpaid bills out of the foreign debt of this case was 000 won excluding value-added tax among the FF and 15 bills debt obligations from September 8, 2005 to December 29, 2005, and it is difficult to view that the FF and 15 bills debt of this case were omitted from the construction cost in the process of accounting for the BB industry development, and that the above bills, issue date, payment date, and payment bank were included in the construction cost for the same other bills.

② The total amount of purchase tax invoices submitted when the BB industry development reported the value-added tax for the 2005 business year is KRW 000, which includes 12 of the total amount of 16 bills that BB industry development omitted from the construction cost, and it is difficult to understand that BB industry development reported the value-added tax as above but did not reflect it in the construction cost. According to the construction cost statement (No. 6-5) submitted at the time of filing a corporate tax return for the 2005 business year, the total amount of the construction cost excluding the construction cost excluding the construction cost excluding the construction cost 00 won + the cost 000 won + the cost 000 won) which is included in the value-added tax.

③ As long as the portion of the portion of the instant case is recognized, the Plaintiff asserts that, as long as it is most of the amount of the bill debt issued in connection with the construction project, the cost of the other party account is omitted, i.e., the amount of the construction cost, and the amount of the business income of the development of the BB would only be reduced if it is reflected in the construction cost. However, even if the amount of the portion of the instant portion is recognized, if the amount of the portion of the instant portion of the assets (in the balance sheet in the business year 2005) or the amount of the cash (in the balance sheet in the business year 2005) is divided accounts by offsetting it, there is a possibility that the portion of the portion of the instant case is likely to exist if most of the amount of the portion of the corporation is already reflected in the cost of the corporation, and in the case of the construction company, the ratio of debt (i.e., the amount of liabilities/capital decrease) would be more favorable to the owner of the construction project.

3) Therefore, as seen earlier, the Defendant’s assessment of the net value of the instant shares and net asset value, cannot be deemed to be erroneous in calculating the price per share of KRW 000,00, and the instant disposition is lawful.

3. Conclusion

Then, the plaintiff's claim is dismissed, and it is so decided as per Disposition.