(a) Criteria for determining whether liquidation income of an extinguished corporation is deemed to be unfairly reduced due to the acquisition of combined stocks under Article 117-2 of the Enforcement Decree of the Corporate Tax Act; and

B. The case holding that the acquisition of combined shares by the plaintiff company, a merged corporation, constitutes the above "A" in light of the process of acquisition or merger and the period from the acquisition of combined shares to the merger

A. In the event that a merged corporation, as provided in Article 117-2 of the Enforcement Decree of the Corporate Tax Act, has acquired shares before the merger, and the liquidation income of the merged corporation is deemed to have been unjustly reduced due to such acquisition, the purpose or intent to reduce the liquidation income as a subjective element does not necessarily have to be acknowledged, and the acquisition of shares of the merged corporation must be determined by comprehensively considering a series of transactions and processes from the acquisition of the shares of the merged corporation to

B. The case holding that the liquidation income of the non-party company constitutes a case where the non-party company, the merged corporation, acquired the stocks of the non-party company, the merged corporation, before the merger, and paid the price for the merger without taking a method of merger after the acquisition of the stocks of the non-party company, which is the merged corporation, constitutes a case where the liquidation income of the non-party company was unfairly reduced due to the acquisition of the stocks of the non-party company, the merged corporation, in light of the circumstances and process of the acquisition of the non-party company's stocks or the period from the transfer price of the stocks

Article 43(3) of the Corporate Tax Act, Article 117-2 of the Enforcement Decree of the same Act

Supreme Court Decision 87Nu55 Decided July 25, 1989 (Gong1989, 1299) 89Nu6150 Decided July 24, 1990 (Gong1990, 1812)

Attorney Lee Jae-ho et al., Counsel for the defendant

Head of Central Tax Office

Seoul High Court Decision 90Gu18373 delivered on July 5, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

With respect to the first, second, and third points

1. In case where a merged corporation, as provided in Article 117-2 of the Enforcement Decree of the Corporate Tax Act, has acquired shares before the merger, and the liquidation income of the merged corporation is deemed to have been unjustly reduced due to such acquisition, the acquisition does not necessarily have to have the objective or intent to unfairly reduce the liquidation income as a subjective element, and it is in the nature of being judged by comprehensively taking account of a series of transactions and processes from the acquisition of shares by the merged corporation to the merger (see, e.g., Supreme Court Decision 87Nu55, Jul. 25, 1989; 89Nu6150, Jul. 24, 190).

2. According to the facts established by the court below, if Dong Automobile Co., Ltd. (hereinafter "Plaintiff Co., Ltd.") purchased 3,884,00,000 shares of the above company from Non-Party Co., Ltd. (hereinafter "non-party Co., Ltd.") on Aug. 24, 1985, the non-party Co., Ltd. (hereinafter "non-party Co., Ltd.") for the total amount of 1,892,200 shares of the above company from Non-party Co., Ltd. (the shareholder of Slish Co., Ltd.) to the non-party Co., Ltd. (the non-party Co., Ltd.), Slish Development Co., Ltd., and Slish Co., Ltd. (the shareholder of Slish Co., Ltd.) for the above company's total amount of 3,892,200,000 shares of the above company (the non-party Co., Ltd.) for the merger of 30, 1986.

3. In light of the records, we cannot accept the argument of the theory of lawsuit that the plaintiff company's acquisition of the above three companies' shares and merger of the non-party company with the non-party company did not unreasonably reduce the liquidation income of the non-party company because of unavoidable and inevitable circumstances like the theory of lawsuit.

Therefore, the court below did not err in the misapprehension of the legal principles as to the basis of taxation or taxation requirements for liquidation income in the event that there are two or more shares, or in the misapprehension of the legal principles as to the burden of proof or the degree of proof, or in the misapprehension of the legal principles as to the degree of reasoning or incomplete reasoning, and there is no reason to

On the fourth ground

1. Article 46 (1) of the Regulation of Tax Reduction and Exemption Act provides that the registration tax and acquisition tax shall be exempted in the case of a merger by an industry or enterprise designated for industrial rationalization in conformity with the standards for rationalization, and the provision of paragraph (2) of this Article provides that the corporate tax, special surtax and transfer income tax on the transfer margin shall be exempted in the case where the designated industry or enterprise transfers the assets in the methods prescribed in subparagraphs 1 through 4

On the other hand, Article 48(2) of the same Act provides that a corporation which ceases to exist due to a merger as prescribed by the Presidential Decree shall not be subject to corporate tax on liquidation income under Article 42 of the Corporate Tax Act. Article 41 of the Enforcement Decree of the same Act provides that a merger between enterprises falling under Article 48(1)1 through 5 of the same Act refers to a merger recognized by mutual consent with the Minister of Finance and Economy by the competent Minister, and Articles 46 and 48 of the Regulation of Tax Reduction and Exemption Act differ from the requirements for tax reduction and exemption or tax exemption.

2. However, according to the records, in this case, it cannot be recognized that the requirements of Article 48 of the same Act are satisfied.

The issue is on the premise that the government, in the event that the plaintiff company acquires the non-party company, etc., was designated as the industry for rationalization under Article 46 of the same Act and made a reduction or exemption of the taxes due to the transfer of the company. This purport is to apply in addition to Article 46 of the same Act and Articles 47 and 48 related thereto, as a matter of course. The plaintiff company trusted this three company's shares, and argued that it was merged with the non-party company due to the inevitable and inevitable circumstances that occurred after the acquisition of the above three company shares, and in this case, the liquidation income of the merged corporation cannot be deemed to be an unfair reduction. However, in light of the above provisions under the Regulation of Tax Reduction and Exemption Act, such argument cannot be accepted, and the plaintiff did not assert that the taxation disposition in this case is against the Regulation of Tax Reduction and Exemption Act, and it cannot be said that it was unlawful because the court below did not examine this point. Therefore, the argument is

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

Justices Kim Jong-soo (Presiding Justice)