Seoul High Court Decision 2009No. 20025 (201. 07.04)

Standard for determining the arm's length price when investment in kind

It is reasonable to regard the investment approval price of the Chinese government as the arm's length price. The plaintiff shall not be deemed as a tangible asset disposal profit to be included in the calculation of earnings omitted by paying corporate tax after calculating the total amount of investment in the account book for securities available for sale, after reporting the difference between the value of investment shares and the book value as a tangible

2011Guhap1793 Revocation of Disposition of Corporate Tax Imposition

AAAA electronic precision corporation

Head of Suwon Tax Office

April 18, 2013

May 16, 2013

1. The Defendant’s disposition of imposing corporate tax of KRW 000 on the Plaintiff on March 18, 2009 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On November 29, 199, the Plaintiff, a company engaged in the business of manufacturing electronic parts, etc., established the Yongsung Electronic Limited Corporation (hereinafter referred to as the “China Subsidiaries”), a limited liability company, by investing 100% of its capital in Chinese Yongsung, and the above Chinese subsidiaries are non-permanent corporations.

B. From January 2, 2003 to December 30, 2003, the Plaintiff invested more than 120 machinery and equipment (hereinafter referred to as “the instant machinery and equipment”) in kind in China over 42 occasions from January 2, 2003 to December 30, 200, and acquired the shares of a local corporation in China (hereinafter referred to as “share in this case”). The instant machinery and equipment were owned or newly acquired by the Plaintiff, and are assessed as the remaining price of depreciation for the existing facilities, and were assessed as the purchase price for new acquisition based on the purchase price for the new facilities. Meanwhile, at the time of the above investment approval, the Plaintiff obtained an investment approval through the evaluation procedure in accordance with the relevant laws and regulations in China, and at the time of the above investment approval, the Chinese government assessed the total value of the machinery and equipment in this case as KRW 700,000 (Korean currency, and the amount calculated as the export stock price and the amount calculated as the export stock price, and then assessed the difference between the export stock price and the amount in the export stock account.

C. The defendant assessed the value of the shares in this case as the Chinese currency call (which shall be calculated by multiplying the value of shares calculated by applying 30% of the total value of shares, etc. to the largest shareholder in December 31, 2007, and hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") by Article 63 (1) 1 (c) and (3) of the former Inheritance Tax and Gift Tax Act, and by applying the supplementary evaluation method stipulated in Article 54 (1) and (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 200; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act"), and assessed the amount of shares in this case to the plaintiff as the total value of shares in this case calculated by applying 30% of the total value of shares, etc. to the largest shareholder in the above export price of 000 and the amount calculated by converting the difference between the above book value and the total value of 00000.

D. On May 28, 2009, the Plaintiff dissatisfied with the instant disposition and filed a request for review with the Board of Audit and Inspection on May 28, 2009, but was dismissed on June 30, 2011.

[Reasons for Recognition] The non-contentious facts, Gap evidence 1 through 9 (if available, referring to the number), Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The disposition of this case, based on the premise that the Plaintiff acquired shares or equity shares due to the investment in kind in this case, although there is no shares or equity shares of the Chinese local subsidiary acquired in return for the investment in kind, and China local subsidiary was established by the Plaintiff with 100% investment, and there is no change in shares after the investment in kind in this case, and the Plaintiff’s interest due to the investment in kind in this case is merely an increase in the appraised value of the Plaintiff’s shares

The local subsidiary of this case invested in kind the value of the machinery and equipment of this case in a reasonable manner and included it in the account book for sale securities. The defendant assessed the value in accordance with the complementary evaluation method stipulated in the former Inheritance Tax and Gift Tax Act and imposed corporate tax. This is illegal because it applied the supplementary evaluation method even though there is a value that can be seen as the market

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Judgment as to the Plaintiff’s assertion

In light of the fact that Articles 23 through 76 of the Companies Act of the People's Republic of China (References. 4) provide that shareholders of a limited liability company, incorporation capital, and capital increase in accordance with the ratio of investment, and in particular, voting rights (Article 43) under the ratio of investment, and transfer of stocks under certain restrictions (Article 72) are made, and the capital increase in the Chinese subsidiary has been made through the investment in kind in this case, it is reasonable to deem that the plaintiff has additionally acquired the shares of the Chinese subsidiary in accordance with the investment in kind in this case even if the plaintiff has been established with 10% of investment, and the shares with certain face value have not been issued (Article 3). On the other hand, the corporate accounting standards provide that the invested corporation's capital acquired from the investment in kind should be recorded in its own account, and as seen above, the machinery and equipment of this case has increased the capital of the Chinese subsidiary in the Chinese subsidiary, and the plaintiff's assets have increased due to the increase in the plaintiff's assets, and the above increase in the above assets of the plaintiff's capital increase in the account.

(2) Judgment on the Plaintiff’s assertion

(A) Article 3(1) and (2) of the former Enforcement Decree of the Adjustment of International Taxes Act (amended by Act No. 926, Dec. 26, 208; hereinafter referred to as the "former Adjustment of International Taxes Act") provide that the above Act takes precedence over other Acts on national taxes, and Article 52 of the former Corporate Tax Act provides that "if the transaction price is lower or higher than the arm's length price, the tax authorities may determine or rectify the resident's tax base and tax amount based on the arm's length price," and Article 4(1) of the former Enforcement Decree of the Adjustment of International Taxes Act provides that "the former Enforcement Decree of the Adjustment of International Taxes Act (amended by Act No. 926, Dec. 26, 208; hereinafter referred to as the "former Enforcement Decree of the Adjustment of International Taxes Act") shall apply Article 3(1) and (2) of the former Enforcement Decree of the Adjustment of International Taxes Act (amended by Act No. 1060, Mar. 1, 2012>

(B) In light of the above legal principles, the plaintiff's tax base was calculated based on the above facts, i.e., the plaintiff obtained investment approval for the above machinery equipment from the Chinese government before investing in kind, i.e., the remaining amount of depreciation for the machinery equipment of this case, and the value calculated based on new acquisition equipment 00 won can not be considered as unreasonable amount in light of the current tax law and practice, i.e., the difference between the value of investment shares calculated based on the current tax law and the current tax law 100 won and the current tax law 200 won if the former tax law were applied mutatis mutandis to the current tax law 30, and the current tax law 200 won if the former tax law is applied mutatis mutandis to the current tax law 5, and 300 won if the former tax law is applied mutatis mutandis to the current tax law 5, the former tax law 200 won and the former tax law 30% of the total amount of investment shares calculated based on the current tax law .

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.