early 2009 Before 2044 (Law No. 29, 2009)

The wrongful calculation of capital increase;

In the case of waiver of preemptive rights or acceptance of new stocks at a price higher than their market price with respect to the increase of the capital of a corporation, the relevant profit contributor shall be subject to the inclusion in the gross income regardless of whether

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of KRW 182,418,100 for the business year 2003 against the Plaintiff on December 10, 2008 shall be revoked.

1. Circumstances of dispositions;

A. The Plaintiff was a non-permanent corporation established for the purpose of the manufacture and sales business of 192 in 192, and held 44,000 shares out of 460,00 shares (96.5%) of the total number of 460,00 shares issued in △ Development as of December 31, 2002, a non-permanent corporation established for the purpose of real estate rental business in 1997 (hereinafter “△ Development”).

B. In order to acquire real estate located in △△-dong, △△△-dong, △△△△, the 700,000 shares issued per share to the Plaintiff on January 16, 200 and allocated the Plaintiff the total amount of KRW 5,00 per share. As a result, the Plaintiff owned KRW 1,144,000 out of the total number of shares issued in △△ Development (98.62%) (hereinafter “the primary capital increase”).

C. △ Development offered new shares with capital increase again on January 25, 2003. The Plaintiff renounced the subscription for new shares. The Plaintiff, including the forfeited shares, had the representative director of the Plaintiff who is each related party at KRW 10,800 per share, senior AA (92,700 shares), RedB, RedCC, and RedD (30,90 shares, respectively) (hereinafter “second capital increase with capital increase”). The 10,800 won issued at the second capital increase per share assessed by the supplementary evaluation method under the Inheritance Tax and Gift Tax Act, and the 18,284 won increase by the 30% increase by the 30% increase by the 18,800 won per share, and the 10,000 shareholders change due to the second capital increase by the 10,800 won as follows:

D. Around November 2008, the regional tax office of △△△ in Korea has conducted a survey on the share transfer of the new shares for △ Development and notified the Defendant of the calculation data on the ground that the benefit of KRW 10,80 per share after the second capital increase for new shares was distributed from 396,639,116 [10,80 won - 8,630 won] to 396,639,116 won (10,80 won - 8,630 won) to 182,843 won from 3 others in a special relationship with the Plaintiff who acquired the forfeited shares after the second capital increase for △△ Development.

E. Accordingly, according to the above taxation data on December 10, 2008, the defendant added KRW 396,639,116 to the plaintiff and notified the plaintiff of the correction of KRW 182,418.10 of the corporate tax for the business year 2003 (hereinafter the disposition in this case).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to Gap evidence 5, purport of whole pleading

2. Determination as to the legitimacy of the instant disposition

A. The plaintiff's assertion

The plaintiff argues that the disposition of this case is illegal for the following reasons.

(1) Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act, which is the Act on the ground of the denial of wrongful calculation, provides that where profits are distributed to other shareholders, etc. who are shareholders of a corporation, such as shareholders, etc., due to capital transactions, all or part of the right to receive new stocks or acquires new stocks at a price higher than the market price. As such, the entity who allocates profits to other shareholders, etc. shall be limited to corporations, such as shareholders, etc., and the entity who allocates profits to other shareholders, etc. shall be applied only when the profit of the corporation is distributed. As in the instant case, where the Plaintiff renounces new stocks and bought forfeited stocks at a high price by having the individual shareholders of the corporation acquire profits, the Defendant’s application is unlawful since it is contrary to

(2) On January 16, 200, 10,80 won per share issued at the second capital increase for the △ Development on January 16, 2003, by requesting an accounting corporation, an external specialized institution, to increase the price per share by 30% in consideration of the increase in the land price of the land owned by △ Development and the rate of increase in the number of the largest shareholder at the time of transfer of the management right, according to Article 63(3) of the Inheritance Tax and Gift Tax Act, the above price shall be increased by 8,284, and it is unlawful that the Defendant calculated the market price per share without recognizing it as legitimate, but the calculation of the market price per share by considering the price per share as 8,630 won per share and the calculation based on the wrongful calculation method

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Judgment on the first proposal

In light of the following circumstances, it is legitimate for the Defendant to make the instant disposition on the ground that the Plaintiff renounced the subscription of new shares, made related persons acquire forfeited shares at an expensive price, and received the distribution of profits from the subscription, in light of the following circumstances: (a) the details of the instant disposition as seen earlier, the relevant statutes, and the written evidence Nos. 3 through 8 (including each number); and (b) the purport of the entire pleadings, etc., the Plaintiff’s assertion on this part is without merit.

(A) Article 52 of the Corporate Tax Act and Article 11 subparag. 9 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19328, Feb. 9, 2006) provide that profits to be included in the calculation of earnings are profits received by distributions from specially related persons due to capital transactions under the provisions of each item of Article 88(1)8 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706, Feb. 19, 2005). Article 8(1)8 of the former Enforcement Decree of the Corporate Tax Act provides that where a corporation, a stockholder, etc., distributes profits to other stockholders, etc., who are specially related persons, due to the capital transactions falling under each item of the following items as a type of wrongful calculation, three types of capital transactions, which are subject to the avoidance of wrongful calculation under each item of Article 8(1)8 of the former Enforcement Decree of the Corporate Tax Act, regardless of whether the new stocks are fully or partially allocated or at a higher price than the market price of new stocks.

(B) "Calculation of wrongful acts" means the calculation of an act to reduce or exclude the burden of taxes incurred when a taxpayer takes the ordinary rational transaction form by taking the bypassing act, the multi-stage act and other abnormal transaction form without using a normal economic person's reasonable transaction form. Article 52 of the Corporate Tax Act provides that the provision on the register of wrongful acts by wrongful acts under Article 52 of the Corporate Tax Act is deemed to have neglected economic rationality by abusing all the forms of transaction under each subparagraph of Article 88 (1) of the Enforcement Decree of the Corporate Tax Act with a corporation in a special relationship with a corporation, and it is deemed unfair from a legal point of view that the taxation authority is deemed unfair from a legal point of view that there was income objectively reasonable and reasonable (see Supreme Court Decision 201Du7268, Sept. 4, 2002). In light of the purport of the system under which wrongful calculation is a wrongful act, it does not apply only to a corporate shareholder and an individual shareholder, as alleged by the Plaintiff.

(C) On January 16, 200, 190 won per share of 5,00 won per share of 5,000 won with the Plaintiff’s first subscription for new shares as of January 16, 2003, and the second subscription for new shares as of January 25, 2003, the price for the second subscription for new shares as of January 25, 2003, the 10,800 won per share exceeding 2 times the 9th day, and the 26.4% of the 1st subscription for new shares, the Plaintiff, the parent company of △ Development, as the parent company, renounced the subscription for new shares and divided the shares by four related parties. In light of the relationship with the Plaintiff, details of the issuance of new shares and processing details of the preemptive rights, economic interests of the Plaintiff following the offering for new shares, etc., it is reasonable to deem that a series of acts, such as waiver of the Plaintiff’s preemptive rights and the redemption of forfeited shares, are an implied transaction in accordance with an implied agreement.

(D) Therefore, as seen earlier in this case, it is clear that the Plaintiff, a parent company, renounced the preemptive right to new stocks of △ Development, and then acquired new stocks at a high price by an individual who is a related party, other than a corporation, to increase the value of the Plaintiff-owned stocks is the profit arising from the transaction that increases the net assets of the corporation under Article 15 of the Corporate Tax Act. Therefore, it is reasonable to view that the Plaintiff received the profit distribution from the related party under Article 11 subparag.

(2) Judgment on the second ground

(A) Article 89(6) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18174, Dec. 30, 2003) provides that where profits are distributed to specially related persons pursuant to Article 88(1)8 of the Enforcement Decree of the same Act, the market price of stocks shall be calculated by applying mutatis mutandis the provisions of the Inheritance Tax and Gift Tax Act to the amount to be included in gross income. Article 89(5) of the former Enforcement Decree of the Corporate Tax Act provides that the difference between the market price calculated and the amount calculated for unfair act shall be included in gross income and the amount of income of the pertinent corporation shall be calculated for the pertinent business year. If it is necessary to clarify the meaning of the calculation method through the aforementioned wrongful act system, the purpose of the calculation method system, whether the distributed profits are distributed, and mutual interpretation between laws and regulations, it is inevitable to interpret the objective interpretation to the extent that it does not undermine legal stability and predictability oriented without the principle of no taxation without the law (see Supreme Court Decision 2007Du11139, Jan. 17, 2008).

Therefore, according to Article 89(6) of the former Enforcement Decree of the Corporate Tax Act, Article 39(1)2 (a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003) and Article 29(3)3 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 18108, Sep. 29, 2003), the value per share at the time of secondary capital increase shall be calculated 8,630 won [8,630 won [the appraised value per share before capital increase ¡À160,00 won per share ± (10,80 won per share ± 185,40 won per capital increase ± 160,00 won per share)] ± (the number of new shares issued before capital increase + 160,000 won per share + the number of forfeited shares increased by the Plaintiff’s 160,008 won per share] ± (360860,8605 shares per share per share];

(B) The Plaintiff asserts that the market price of new shares at the time of the second offering of new shares shall be 10,800 won per share under Article 89(2)2 of the Enforcement Decree of the Corporate Tax Act, and Article 63(1) and (3) of the Inheritance Tax and Gift Tax Act shall be increased by 30% per share after the first offering of new shares, and that it is legitimate. However, under Article 52(4) of the Corporate Tax Act and Article 89(6) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18174 of Dec. 30, 203), where Article 8(1)8 of the former Enforcement Decree of the Corporate Tax Act is applied mutatis mutandis to the calculation of the market price at the time of wrongful calculation, Article 39, 39-2 of the Inheritance Tax and Gift Tax Act, Article 28(3) through (6), and Article 29(3) of the former Enforcement Decree of the Corporate Tax Act shall not apply mutatis mutandis to the Plaintiff’s offering of new shares.

(3) Sub-decisions

Therefore, the Defendant issued 10,800 won per new shares issued at the time of the second capital increase with the new shares issued at △ Development in excess of 8,630 won per market price. The Plaintiff renounced the above new shares and let a related party accept them, thereby receiving a distribution of KRW 396,586,467 equivalent to the difference between the value of forfeited shares and the market price, and thus, the instant disposition based on the calculation of unlawful act and calculation of the above amount is lawful.

3.In conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.