Early High Court Decision 2014J 3362 (O6, 2015)

Methods of evaluating listed stocks owned by an unlisted corporation in trading unlisted stocks;

For listed stocks owned by an unlisted corporation, the value of such assets shall be assessed in accordance with the Inheritance Tax and Gift Tax Act.

Article 52 of the Corporate Tax Act

Suwon District Court 2015Guhap62058 ( October 07, 2015)

Columno**** Company

00. Head of tax office

August 12, 2015

oly 7, 2015

1. The defendant against the plaintiff:

(a) each disposition imposing corporate tax of 1,009, 932,420 and 150,797,460 won for the business year 2008, and special rural development tax of 150,797,460;

B. Each disposition of imposition of KRW 323,260,060 of corporate tax for the business year 2009 and special rural development tax for the business year 13,835,960 and 421,440,750 of corporate tax for the business year 2011 shall be revoked in entirety.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. On December 31, 2009, the Plaintiff merged a company established by human division from a stock company 000 (hereinafter referred to as "00") with a company on May 1, 201, and a stock company 000 (hereinafter referred to as "0000 copis") on May 1, 201. The 000 copis owned 49% shares of Copis Copis as of April 1, 2008 (hereinafter referred to as "00") as of April 1, 2008. The Plaintiff became the largest shareholder due to the above merger.

B. On August 3, 2008, KFM merged with 000, which is a subsidiary of 100% CFM, and on August 3, 2008, it assessed KFM and 000 shares as 6,533 and 4,570 shares on May 31, 2008, respectively, and calculated a merger rate at 1:0.695255. Meanwhile, 000 was an affiliated company and stock-listed corporation, and the 00 CFM owned the common shares and 80,000,000 shares issued by the KFM and 00,000 shares issued by the KFM to the Defendant as 00,000,000 shares issued by the KFM as 0,000 shares and 00,000 shares issued by the 30,000,000 shares issued by the former Director of the Korea Exchange as 29,269,296, respectively.

E. Accordingly, the Defendant imposed the Plaintiff, a shareholder of 000, KRW 1,009, KRW 932,420 of the corporate tax for the business year 2008, KRW 150,797, and KRW 460 of the Special Rural Development Tax Act for the business year 2009, KRW 323,260,060 of the corporate tax for the business year 2009, KRW 13,835,960 of the special rural development tax, and KRW 421,440,750 of the corporate tax for the business year 2011 (hereinafter “instant disposition”). (f) The Plaintiff dissatisfied with the instant disposition, the Tax Tribunal filed a request for a trial on June 20, 2014 with the Tax Tribunal for the decision of dismissal from the Tax Tribunal on February 6, 2015, including evidence Nos. 1 or 6, and evidence Nos. 1 or 2 (including evidence Nos. 1 or 6) of the pleading.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In order to assess the market price of the stocks as an unlisted corporation under the Corporate Tax Act, 000, which is an unlisted corporation, should be assessed in accordance with Article 89(2) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21025, Sep. 22, 2008; hereinafter the same). This is no different even if the instant stocks held by 000 are listed on the Korea Exchange, the instant disposition was rendered by deeming that the instant stocks should be assessed as the closing price at the Korea Exchange on the appraisal base date on the ground that they are listed on the Korea Exchange.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) In applying Article 52(2) of the former Corporate Tax Act (amended by Act No. 9267, Dec. 26, 2008; hereinafter the same) to the provision on the denial of wrongful calculation, the provision on the denial of wrongful calculation shall be based on “the sound common sense and commercial practice, and the prices applied or deemed applicable to normal transactions between persons not specially related,” and Article 52(4) shall be prescribed by the Presidential Decree as necessary for the type of wrongful calculation and the assessment of market price.

Accordingly, Article 88 (1) 8 (a) of the former Enforcement Decree of the Corporate Tax Act provides that when a corporation which is a person with a special relationship evaluates stocks, etc. at a higher or lower market price in a merger between corporations with a special relationship and distributes profits to other shareholders, etc. who are the person with a special relationship, due to merger at an unfair ratio. In applying Article 89 (2) of the former Enforcement Decree of the Corporate Tax Act to the same situation similar to the transaction in question, where there is a price generally traded between many and unspecified persons other than a person with a special relationship or between a third party who is not a person with a special relationship, the relevant corporation shall report such price to the market price (paragraph (1)), and where there is a price appraised by an appraisal corporation under the Public Notice of Values and Appraisal of Real Estate Act if the market price is unclear, the value appraised by the appraisal corporation under the Public Notice of Values and Appraisal of Real Estate Act shall be deemed to be the market price (paragraph (2)).

Meanwhile, Article 63(1)1 (a) of the former Inheritance Tax and Gift Tax Act provides that the stocks of a stock-listed corporation traded at the Korea Exchange shall be assessed on the basis of the average daily market value of the stock-listed corporation during two months before and after the base date of appraisal. In sum, Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act and Articles 54(2) and (4) and 55(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 21214, Dec. 31, 2008; hereinafter the same shall apply), the value of stocks of a non-listed corporation less than three years after the commencement of the business shall be the value calculated by dividing the total number of stocks issued by the relevant corporation as net assets, and the net asset value of the relevant corporation shall be the value calculated by subtracting liabilities from the market value of the Plaintiff-listed corporation, which is an unfair calculation method of 00% by evaluating the value of stocks of the relevant corporation as of the base date of appraisal.

Therefore, in this case, the issue is whether the 000 shares were assessed higher than the market price with the merger of 000 shares higher than the market price, and since the 000 shares, an unlisted corporation, constitute a case where the market price is unclear, it constitutes a case where the 000 shares, which is the unlisted corporation, are in accordance with Article 89(2) of

According to Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act, and Articles 54(2) and (4), and 55(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the value per share of an unlisted corporation, which is less than three years after the commencement of the business, shall be calculated by subtracting liabilities from the value assessed pursuant to the provisions of Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the base date of appraisal, and it shall be assessed by dividing them by the total number of outstanding stocks. Accordingly, among the assets owned by 000, the market value of the stock in this case shall also be evaluated as the "average value of the daily closing price of the Korea Exchange published on two months before and after the base date of appraisal" under Article 63(1)1 (a) of the former Enforcement Decree of the Corporate Tax Act. For the reason that the stock in this case is listed stocks, it cannot be evaluated as the "average market value of the Korea Exchange under Article 89(1) of the former Enforcement Decree of the Corporate Tax Act."

Meanwhile, in the Enforcement Decree of the Corporate Tax Act amended by Presidential Decree No. 24357, Feb. 15, 2013, Article 89(2)2, the part of the latter part of Article 63(1)1 (c) of the Inheritance Tax and Gift Tax Act and Article 54 of the Enforcement Decree of the same Act that “the appraised value of stocks (limited to stocks issued by a stock-listed corporation) owned by a corporation that issued the relevant unlisted stocks shall be the closing price at the Korea Exchange as of the base date for appraisal,” and Article 10 of the Addenda of the Corporate Tax Act provides that “the above revised provisions shall apply to stocks transacted after the enforcement date of the Enforcement Decree,” and that “the above revised provisions shall apply to 000 and 000 of stocks traded before February 15, 2013, the above revised provisions are not applicable to the evaluation of the stocks of this case. Before the amendment of the Enforcement Decree of the Corporate Tax Act explicitly stipulate the method of calculating the market value of stocks owned by a stock-listed corporation, as in the case of listed stocks.

Therefore, the defendant's disposition of this case based on the premise that the market price of the stocks of this case should be evaluated as the "Korea Exchange on the appraisal base date" is unlawful.

3. Conclusion

Therefore, since the plaintiff's claim is reasonable, all of them shall be accepted, and it is so decided as per Disposition.