Main Issues
The case holding that where a merged corporation which is a stock company after a merger comprehensively succeeds to the rights and obligations of a extinguished corporation which is a limited partnership company, it cannot be deemed to have commenced the business of the extinguished company in assessing the value of the remaining company after a merger pursuant to Article 54 (2) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act;
Summary of Judgment
The case holding that since Article 54 (2) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971 of Dec. 31, 198) provides that the assessment of non-listed stocks such as "a corporation less than three years after the commencement of business" shall be based on the net asset value, where a surviving corporation (a surviving corporation), which is a limited partnership company, comprehensively succeeds to the rights and obligations of an extinguished corporation (a extinguished corporation), the merger, even though the continuation of business is recognized on the grounds that the purpose of the extinguished company and the corporation, the composition and name of the head office, the personnel organization and name of the employees are almost the same as that of the extinguished company, the extinguished company and the physical company after the merger, shall not be deemed to be the commencement of business of the extinguished company, in assessing the value of the stock of the company after the merger, since it is an independent corporation entirely different
[Reference Provisions]
Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998); Article 54(2)1 (see current Article 54(4)2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971 of Dec. 31, 1998)
Plaintiff-Appellee
Plaintiff
Defendant-Appellant
head of Dongjak-gu Tax Office
Judgment of the lower court
Seoul High Court Decision 2003Nu22249 delivered on November 10, 2004
Text
The appeal is dismissed. The costs of appeal are assessed against the defendant.
Reasons
We examine the grounds of appeal.
Article 54(2)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971 of Dec. 31, 198) provides that the assessment of non-listed stocks such as “a corporation less than three years after the commencement of business” shall be based on the net asset value appraised. In a case where the merged corporation (a surviving company) which is a limited partnership company of this case comprehensively succeeds to the rights and obligations of the extinguished corporation (a extinguished company) of this case, where the surviving company after the merger of this case is a limited partnership company, the continuation of business of this case is recognized because the purpose of the extinguished company and the corporation, the head office of the corporation, the personal organization of employees and the name of employees are almost the same, even though the surviving company after the merger of this case is a human company and the surviving company after the merger of this case are different from all the composition of the extinguished company of this case and the liabilities of employees
In the same purport, the court below is just in holding that the disposition of this case, which was conducted on the premise that the remaining company of this case was "a corporation which has been more than three years after the commencement of the business" since the commencement of the business of the extinguished company of this case was considered as the commencement of the business of the surviving company of this case, was unlawful, and there is no
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Young-ran (Presiding Justice)