Whether Article 5 (6) 1 of the former Enforcement Decree of the Inheritance Tax Act shall apply mutatis mutandis to the meaning and method of "normal value" under Article 28 of the former Enforcement Decree of the Corporate Tax Act, and whether Article 5 (6) 1 of the same

Article 28 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994) provides that "the value of assets that a corporation received without compensation shall be determined at the normal price when it purchases such assets from others on the date on which it receives such assets." Here, "the normal price" refers to the market price which is the exchange value, which is in principle an objective exchange price formed through ordinary transactions, but if there is no exchange price through transactions, the appraisal value of reliable appraisal institutions may be deemed the market price. If it is difficult to calculate the market price, then the appraisal value shall be determined at the market price by selecting an objective and reasonable method in lieu of the market price. In this case, by analogy of Article 16-2 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 622 of Mar. 29, 197), the provision of Article 16-2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 1469 of Dec. 31, 1969) provides that the above appraisal method shall not apply mutatis mutandis.

Article 9(2) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) (see current Article 15(1)), Article 28 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994), Article 16-2 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 622 of Mar. 29, 197), Article 5(6)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1469 of Dec. 31, 1994) (see current Article 63(1)1 of the former Enforcement Decree of the Corporate Tax Act)

Supreme Court Decision 93Nu22333 delivered on December 22, 1994 (Gong1995Sang, 710) Supreme Court Decision 98Du1369 delivered on December 10, 199 (Gong200Sang, 230)

Ilsung Development Co., Ltd. (Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

The director of Gwangju Tax Office

Gwangju High Court Decision 96Gu2988 delivered on July 24, 1998

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

The grounds of final appeal (the grounds of final appeal submitted after expiration of the period are to the extent of supplement) are examined.

1. Regarding ground of appeal No. 1

In light of the records, it is reasonable that the court below, based on the evidence as stated in its reasoning, that the Plaintiff was allocated new shares in excess of the original number of new shares to the non-party corporation in the capital increase of the non-party corporation (hereinafter referred to as "non-party corporation") on January 13, 1994, was actually transferred without compensation from the non-party company shareholders, etc. who are shareholders of the non-party company, and there is no violation of law against the rules of evidence or against the rules of evidence. Accordingly, the court below cannot accept the issue merely because it criticizes the preparation of evidence and the recognition of facts belonging to the exclusive authority.

2. Regarding ground of appeal No. 2

Article 28 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994) provides that "the value of assets that a corporation received without compensation shall be determined at the normal price when it purchases such assets from others on the date on which it receives such assets." Here, "the normal price" refers to the market price which is the exchange value, which is in principle an objective exchange price formed through ordinary transactions, but if there is no exchange price through transactions, the appraisal value of reliable appraisal institutions may be deemed the market price. If it is difficult to calculate the market price, the appraisal value of the trusted appraisal institutions shall be determined at an objective and reasonable method in lieu of the market price. However, in this case, it shall be determined by analogy of Article 16-2 of the former Enforcement Rule of the Corporate Tax Act (amended by Presidential Decree No. 622 of Mar. 29, 199; Presidential Decree No. 1469 of Dec. 31, 199).

As to the preemptive right of this case, there is no objective exchange price formed through normal transactions or the appraisal price assessed by a reliable appraisal institution in an objective and reasonable manner, the court below judged that it is objective and reasonable to evaluate the preemptive right of this case by deducting the amount paid (10,000 won) from the appraisal price per share (243,706 won) after the issuance of the non-party company's new stocks calculated according to the appraisal method of non-listed stocks as provided by Article 5 (6) 1 (b) (2) of the former Enforcement Decree of the Inheritance Tax Act. In light of the records and the legal principles as seen earlier, the above determination by the court below is just, and the above determination by the court below is not necessarily based on the appraisal price assessed by a reliable appraisal institution due to the value of the preemptive right, as alleged in the arguments. Thus, there is no error of law by misapprehending the legal principles as to

In addition, other arguments are reasonable to evaluate the shares of the non-party company as the evaluation method under Article 5 (6) 1 (b) (2) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993). In other words, it is reasonable to evaluate the shares of the non-party company as 32,400 won as the average amount of shares of the non-party company Daegu department store, which is the listed company of the same business type. The assessed price by the court below is not reasonable in light of the above average amount or 24,000 won as the highest successful bid price at the time of the public tender for the non-party company's acquisition of shares on December 12, 1996. However, the above provision of the former Inheritance Tax Act does not apply mutatis mutandis to the evaluation of the shares of the non-party company, and under the above provision, the non-party company should be a listed company identical or similar to the corporation in question. Thus, it cannot be evaluated that the shares of the non-party company are identical or new shares.

3. 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 Yoon Jae-sik (Presiding Justice)