The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

1. Article 67 of the former Corporate Tax Act (amended by Act No. 8831, Dec. 31, 2007; hereinafter the same) provides that when filing a report on the corporate tax base, or determining or revising the corporate tax base, the amount included in the calculation of earnings shall be disposed of as bonus, dividends, and other outflow from the company according to the person to whom it belongs as prescribed by the Presidential Decree, and the main sentence of Article 106(1)1 of the former Enforcement Decree of Corporate Tax Act (amended by Presidential Decree No. 19891, Feb. 28, 2007; hereinafter the same) provides that "where it is obvious that the amount included in the calculation of earnings under Article 67 of the Act has leaked out of the company, it shall be disposed of as dividends, bonuses, other income, and other outflow from the company according

However, Article 106 (1) 3 (i) of the former Enforcement Decree of the Corporate Tax Act provides that "the amount included in gross income under Article 88 (1) 8, which is subject to gift tax under the Inheritance Tax and Gift Tax Act, shall be deemed to be "other outflow from the company", notwithstanding Article 106 (1) 1 of the same Enforcement Decree.

In addition, Article 88 (1) of the former Enforcement Decree of the Corporate Tax Act provides that "where assets are purchased or received as investments in kind at a price higher than the market price or such assets are excessively depreciated," subparagraph 8 provides that "where a corporation, such as a stockholder, etc., distributes profits to other stockholders, etc., which is a related party, due to capital transactions falling under any of the following items," and subparagraph (a) provides that "where stocks, etc. are evaluated higher or lower than the market price and a merger is made at an unfair rate" and subparagraph (b) provides that "where a corporation, which is a related party, has renounced all or part of the right to receive new stocks in a transaction that increases the corporation's capital, or acquires new stocks at a price higher than the market price."