Busan District Court 201Guhap717 (2012.02.10)

Cho High Court Decision 2009Da2107 ( November 08, 2010)

The calculation of wrongful calculation is illegal in deeming that stocks were received from a person with a special relationship as high-value.

Since it is insufficient to recognize that the plaintiff actually acquired shares from a person with a special relationship, it is denied that it constitutes a wrongful calculation as a high-priced acquisition, and the imposition of a non-deductible tax for excess of the market price calculated based on the face value is unlawful.

2012Nu1099. Revocation of disposition of imposition, including corporate tax

XX Co., Ltd

Head of Eastern Tax Office

Busan District Court Decision 201Guhap717 Decided February 10, 2012

August 22, 2012

September 19, 2012

1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s disposition of imposing corporate tax of KRW 000 for the year 2005 against the Plaintiff on January 5, 2009, exceeding KRW 000,000, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. 9/10 of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The Defendant’s imposition disposition of KRW 00 in excess of KRW 00 in the imposition disposition of KRW 000 in the second half-year value-added tax in 2006 against the Plaintiff on January 5, 2009, exceeding KRW 000 in the imposition disposition of KRW 000 in the corporate tax for 2005, and KRW 000 in the corporate tax for 206 shall be revoked.

2. Purport of appeal

A. The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's imposition of value-added tax for the second period of January 5, 2009 exceeds KRW 000 among the imposition of value-added tax for the second period of January 5, 2006 against the plaintiff and the imposition of KRW 000 of corporate tax for the year of 2006 shall be revoked.

B. Defendant: The part against the Defendant in the judgment of the first instance shall be revoked. The Plaintiff’s claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows, and this Court’s reasoning is the same as that for the first instance judgment, except for the following additional or written reasons. Thus, this Court’s reasoning is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. A portion used for adding or cutting;

(a) Additional part of the judgment of the court of first instance (with respect to the calculation of unlawful act and calculation of the part of the O stocks of the court of first instance 2.c. (1) and 22.13)

In addition, the defendant asserts that the plaintiff can recognize the fact that the plaintiff acquired OO shares from this Act in 2003, when considering the "audit report on the plaintiff's financial statements" from 2003 business year to 2005 business year from 2003 to 2005 from the data of the Financial Supervisory Service (Electronic Publication System) that the plaintiff remitted 00 won to the bank account in the name of this AA (xxP hospital) on December 29, 2003 (Evidence No. 27) (Evidence No. 28-1 to 3).

However, each statement of No. 28-1 through No. 3 of the evidence No. 28 is only prepared in accordance with the plaintiff's accounting records, and it is insufficient to recognize that the plaintiff actually acquired OO shares from thisA even if considering the fact that the plaintiff remitted 00 won to thisA.

(b) Parts of the combined construction (the grounds of the judgment of the court of first instance 2. D.)

Since the part of the Plaintiff’s claim is well-grounded, the corresponding part of the disposition imposing corporate tax for the year 2005, which was imposed in relation to the order of disposal of deficit, etc., is unlawful, and the remaining part of the disposition imposing corporate tax for the year 2005 and the remaining part of the disposition imposing corporate tax for the year 2006 and the second half-year value-added tax for the year 2006 are legitimate.

The amount denied by the Defendant as a wrongful calculation on the O-stocks transaction (=00 won - face value calculation market value of 000 won). The above amount is 000 won corporate tax for the year of 2005 business, which was increased by including the above amount in the calculation of earnings in the year of 2005 for the O-stocks transaction (No. 26-2).

Therefore, the part of the disposition imposing corporate tax of KRW 000 for the year 2005 against the Plaintiff on January 5, 2009 (=00 won - 000 won) is revoked, and the remainder of the Plaintiff’s claim is dismissed as it is without merit.”

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is without merit, and the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above. It is so decided as per Disposition.