(a) Whether a contributor of the Incorporated Foundation is an investor who is a specially related person;

B. In a case where the appraisal price has been deferred until the closing of the fact-finding hearing, the determination of the market price is based on the criteria for determining whether the unfair transaction is unfair.

A. An investor shall be interpreted to refer to a person who maintains a legal relationship between a juristic person, such as a shareholder or an employee, who has contributed to the juristic person at the time of transaction with the juristic person. However, the contributor of the foundation is merely attributed to the foundation by means of contribution, and it does not necessarily lead to the status of maintaining a son relationship with the juristic person. Thus, it cannot be viewed as an investor who is a specially related person under Article 46 (1) of the Enforcement Decree of the Corporate Tax Act.

B. If the appraisal price of the Korea Appraisal Board at the market price at the time of the exchange with respect to the real estate exchanged and traded until the closing of argument at the fact-finding court, it is clear that the exchange transaction does not have an appraised value, and that the market price is not unclear, barring any special circumstance where the appraisal price cannot be employed. Thus, the price based on other appraisal methods than the appraisal price cannot be considered as the market price or the base price.

(a)Article 20(a) of the Corporate Tax Act; Article 46(1)(b) of the Enforcement Decree of the Corporate Tax Act;

B. Supreme Court Decision 90Nu4761 delivered on September 28, 1990 (Gong1990, 2214), 91Nu6856 delivered on November 24, 1992 (Gong193Sang, 288), 92Nu913 delivered on February 12, 1993 (Gong193Sang, 1022)

Attorney Jeon Jong-chul et al., Counsel for the defendant-appellant

The director of Busan District Office

Busan High Court Decision 91Gu3697 delivered on July 21, 1993

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

A. In order to be subject to the rejection of unfair act and calculation under Article 20 of the Corporate Tax Act, the transaction must be between the corporation and the specially related person. Article 46 (1) of the Enforcement Decree of the same Act concerning the scope of specially related person provides that an investor and his relative under subparagraph 1 (amended by December 31, 1993) shall be an employee of a corporation or investor (in case of a profit-making corporation, limited to an officer, and in case of a non-profit corporation, limited to a director and founder) under subparagraph 7 shall be limited to an employee of a corporation or an investor under subparagraph 2 (amended by December 31, 1993), and subparagraph 1 and 2 shall contribute more than 50 percent of the contributions (limited to contributions for its establishment) to a non-profit corporation in which one of them is its founder. Thus, in light of the text and purport of the above relevant provision, it shall not be interpreted that the relationship between the corporation and its specially related person, such as a shareholder or partner, at the time of transaction with the corporation, shall not be interpreted.

The court below's dissenting opinion is erroneous in holding that the non-party, who is the chief director of the plaintiff foundation or the principal of the school operated by the plaintiff foundation, is a relative of the plaintiff foundation" under Article 46 (1) 1 of the Enforcement Decree of the above Act, since the non-party, who is the principal director of the plaintiff foundation or the principal of the school operated by the plaintiff foundation at the time of the transaction, constitutes a "relative of

B. However, the court below is justified in holding that the non-party constitutes "employee of a corporation" under subparagraph 2 of the same Article, and that the chief director of a school foundation or the principal of its affiliated school constitutes an employee of a corporation under tax law. Thus, the court below's conclusion that the non-party is ultimately a person with a special relationship is justified and it does not affect the conclusion of the judgment of the court below. The argument is without merit.

Concerning the second and third points

A. Article 20 of the Corporate Tax Act and Article 46 (2) of the Enforcement Decree of the same Act, "market price", which is the standard for determining whether a transaction constitutes an unfair transaction, refer to an exchange price formed through a normal transaction as a matter of principle, but the appraisal price of a reliable appraisal institution, which includes an appraised price in an objective and reasonable manner, can also be deemed as the market price stipulated in the above provision. Therefore, if there is such appraisal price, the appraisal price shall be deemed as the market price prior to the other appraisal method. Thus, as stated by the court below, if the appraisal price of the real estate owned by the non-party, as well as the real estate in this case, is fully set at the market price at the time of the exchange of the real estate, it is clear that the appraisal price is not the case where there is no appraisal price, and it is clear that the market price cannot be considered as the market price or base price, unless there is any special reason not to employ the appraisal price.

Nevertheless, the court below's rejection of the plaintiff's assertion that the appraisal price should be the market price, while "if the market price is unclear" and "no appraised price exists" should be the market price. Therefore, there is a ground for objection to this point.

B. In addition, in the event that the appraisal price of the Korea Appraisal Board is deemed the market price, the Plaintiff did not receive the price equivalent to KRW 598,371,010 for the pertinent business year due to the exchange transaction with the Nonparty, and the report did not receive the price equivalent to the difference, thereby resulting in the reduction of the equivalent income amount. The Nonparty would have distributed the equivalent profit to the Nonparty. However, according to the standard price at the real estate price based on the real estate price, the Defendant's calculation of the reduced income amount and the profit amount was excessive compared to that at the market price, and the size of the reduced or exempted tax amount out of the special surtax was less calculated.

C. However, according to the circumstances and records at the time of the original judgment, if the appraisal price of the said Korea Appraisal Board is deemed to be the market price, the amount of the tax on the profit from the disposal of assets, the amount of the tax to be paid at source, and the increased amount of the reduced or exempted amount of the special surtax would not exceed the total increased amount of the special surtax. Thus, the Defendant’s taxation disposition ultimately constitutes a case where there is no tax amount to be revoked, and thus, the lower court’s disposition maintaining the validity of the instant taxation in the same purport is justifiable and not a

The issue eventually goes back to the absence of reason.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)