Cho Jae-2013-west-2718 (2015.09)

The business rights appropriated as the difference between the merger price paid at the time of the merger of an unlisted corporation and the net asset fair value shall be deemed as depreciable assets and the part included in the

The business rights appropriated as the difference between the merger cost paid at the time of the merger of an unlisted corporation and the net asset fair value shall be deemed as depreciable assets and the portion included in the calculation of earnings is unlawful, and the portion denying the

Articles 44 and 45 of the Corporate Tax Act

2015Guhap62385 Revocation of Disposition of Corporate Tax Imposition

AAA, Inc.

The director of the tax office

December 20, 2016

February 2, 2017

1. The Defendant’s disposition of imposing corporate tax for the business year 2007 against the Plaintiff on March 21, 2013 exceeds KRW 536,62,064 among the disposition of imposing corporate tax for the business year 207 (including additional tax).

2. The plaintiff's remaining claims are dismissed.

3. One-seven of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s disposition of imposing corporate tax of KRW 3,654,313,180 (including additional tax for underreporting KRW 221,241,214, additional tax for unfaithful payment; KRW 1,210,731,234) against the Plaintiff on March 21, 2013 is revoked.

1. Details of the disposition;

A. On June 30, 2008, the Plaintiff was a listed corporation that is engaged in arranging domestic and foreign travel, providing international conference services, and producing drama and video content, and merged B&A travel agent (hereinafter “B&A”) with non-corporate tourers on June 30, 2008.

B. On the other hand, B&A is an unlisted corporation that runs a travel agency business, etc. on October 25, 2007, a non-listed corporation that runs a general travel business in Korea and abroad (hereinafter referred to as the “B&A”), merged the investment-based presses and completed the merger registration on the same day (hereinafter referred to as the “merger”).

C. Non-T&A determined the merger ratio by calculating the stock value per share of Non-T&A and Salves presses in accordance with the Cash Flowings Act (hereinafter “DCF Act”) to discount the cash flow expected in the future at a certain discount rate at the time of the merger of this case, and accordingly, issued 0.015465 shares per common share of Non-T&A, 4,750 shares per common share of Non-T&A as of the merger date.

D. The book value of net assets that L&A succeeded from the L/C framework through the instant merger was KRW 48 billion, the fair value was KRW 1.526 billion, and the fair value was KRW 1.5 billion, and the price of new stocks issued by L/C in return for the merger was KRW 9.5 billion, while Non-T&A succeeded to the net assets of the L/C framework as fair value, it was recorded in the following accounts by including approximately KRW 1.526 billion, the difference between the net assets of the L/C framework and KRW 9.5 billion, the issue value of new stocks, as fair value.

(unit: million won)

Changes in the motor vehicle;

Amount

Secretary

Amount

Assets:

3,636

Debt

3,609

Operating Rights

7,974

Capital

48

Deferred corporate tax assets

1,499

Issuance of Stocks in excess of

9,452

E. B&A filed a corporate tax return under the following tax adjustment by deeming that the instant goodwill does not constitute depreciable assets as stipulated in Article 24(4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22184, Jun. 8, 2010; hereinafter “former Enforcement Decree of the Corporate Tax Act”) and that the amount appropriated as goodwill is not included in the calculation of earnings and is not treated as depreciation costs as depreciation costs.

(unit: million won)

Business year

Gross income and non-deductible expenses

Inclusion and Non-Inclusion

Balance of Operating Rights in Accounting

Subjects

Amount

Disposition

Subjects

Amount

Disposition

From January 1, 2007 to December 31, 2007

Operating Rights

7,974

Other

Operating Rights

7,974

△△ Reserve

7,575

Depreciation of Business Rights

399

Reservation

From January 1, 2008 to June 30, 2008

Depreciation of Business Rights

797

Reservation

6,778

From July 1, 2008 to December 31, 2008

Operating Rights

6,778

Other

Operating Rights

6,778

△△ Reserve

5,980

Depreciation of Business Rights

797

Reservation

From January 1, 2009 to December 31, 2009

Depreciation of Business Rights

1,595

Reservation

4,385

From January 1, 2010 to December 31, 2010

Operating Rights

1,595

Other

Operating Rights

1,595

△△ Reserve

5,980

From January 1, 201 to December 31, 201

5,980

From January 1, 2012 to December 31, 2012

Depreciation of Business Rights

5,980

Reservation

0

In addition, L&A succeeded to a tax carried-over deficit from the Sthnish frame, and then deducted approximately KRW 1.314 billion when filing a corporate tax return for the business year 2007, and KRW 4.6 billion when filing a corporate tax return for the business year 2008, from each tax base.

F. The Defendant deemed that the instant operating right constitutes depreciable assets stipulated in Article 24(4) of the Corporate Tax Act as follows: (a) deemed that the instant operating right falls under depreciable assets in the business year of 2007, and included approximately KRW 7.974 million, which is the total operating right of the instant case, as deductible expenses, in the gains from merger; (b) estimated a approximately KRW 3.589 billion of the denied amount of operating right in the business year of 2007 to 2009 as deductible expenses; and (c) issued a notice of deduction of KRW 1.314 billion and KRW 4.6 million of the carried-over losses deducted for the same business year of 2007 from S&A’s 2007 to 3.581, 208 (hereinafter referred to as “the carried-over losses of this case”); and (d) revoked the deduction of corporate tax to the Plaintiff for the business year of 2007 to 3081,208 (hereinafter referred to as “the additional tax”).

(unit: million won)

Business year

Details of correction

Items of Taxation

Notice Amount

Details of correction

From January 1, 2007 to December 31, 2007

Corporate Tax

3,654

· 7,976 million Won in gross income

· Loss of operating rights 39.9 million won in deductible expenses

· 1,314 million Won for losses carried forward

From January 1, 2008 to June 30, 2008

Corporate Tax

△△98

· Loss of operating tickets 7.7 million won in deductible expenses

· 40.6 million Won for losses carried forward

From July 1, 2008 to December 31, 2008

Corporate Tax

0

· Loss of operating tickets 7.7 million won in deductible expenses

From January 1, 2009 to December 31, 2009

Corporate Tax

0

· Loss of operating rights 1,55 million won in deductible expenses

G. On May 10, 2013, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on February 9, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 3, Eul evidence 5 and 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The primary argument

The instant disposition that the Defendant included the instant goodwill as a merger evaluation marginal profit by deeming it as depreciable assets shall be revoked for the following reasons.

① Since there exists no merger marginal profit and only the merger marginal profit, there is no merger marginal profit, there is no merger marginal profit included in the calculation of earnings within the scope of the merger marginal profit.

② The instant goodwill is limited to the amount appropriated to adjust the difference in lending and borrowing arising in the course of accounting of the merger price calculated by DCF Act and the fair value of the succeeded net assets. Since L&A separately assessed and succeeded to the intangible asset of L&C press press, it cannot be deemed that the instant goodwill is an asset subject to depreciation under Article 24(4) of the former Enforcement Decree of the Corporate Tax Act.

(3) The appraisal of stocks of the investment press system using the DCF Act is not for the appraisal of the assets of the extinguished corporation, but for the determination of a fair merger ratio, and the value per share, calculated in accordance with DCF Act, shall not be objectively and fairly assessed and calculated, including business rights.

(4) From 2003 to 2007, the slots recorded a large operating loss and net operating loss of the political party, and even after the merger, it is difficult to deem that the online travel business portion has an excessive profit-making capacity recognized as a goodwill compared to the same company, such as continuous operating loss, etc.

(5) Since non-T&A succeeded to the book value of the assets included in the representative comparison table of the investment margin, which is an extinguished corporation, as they are, it may deduct the instant losses carried forward succeeded from the investment margin.

2) Preliminary assertion

Until the transfer of the instant disposition, the tax authority has interpreted that the merged corporation does not constitute depreciable assets under the Corporate Tax Act with respect to the goodwill appropriated for the adjustment of the difference in the difference in accounting loans until the date of the instant disposition. However, in March 2013, the tax authority changed its existing position and issued the instant disposition. Therefore, it was difficult to expect the Plaintiff to perform the obligation to report and pay corporate tax on the instant goodwill. Therefore, there is a justifiable reason for exemption from additional tax.

B. Relevant statutes

Attached Form 1 is as shown in attached Table 1.

(c) Fact of recognition;

1) The status of profits and losses of the investment presses prior to the instant merger is as follows.

(unit: million won)

Classification

2003

204

205

206

Business Profits; and

3,402

4,037

5,006

5,962

Business profits (loss)

(782)

(3,564)

(1,806)

(438)

Current net income (loss)

(709)

(3,411)

(1,675)

(295)

2) The capital status of the investment presses prior to the instant merger is as follows.

(unit: million won)

Classification

200

201

202

2003

204

205

206

Capital

429

562

833

1,477

1,495

1,536

1,525

Total Capital Stock)

(850)

(945)

267

5,833

2,439

793

508

3) According to the member history published by the Korea Tour Business Association, the departure presses were 15,16, respectively, in the order of the sales performance of the first half of the year 2006 and the year 2007, and the departure performance of domestic tourists was 26, 2006 and 24 first half of the year 207 (based on the number of each person).

4) After the instant merger, the current state of profits and losses in the online travel business sector of the Plaintiff (B&A up to the day before the instant merger) succeeded from the project from the project presses is as listed below.

(unit: million won)

Classification

2007

208

209

2010

2011

2012

2013

2014

Business Profits; and

5,576

4,430

3,956

4,804

4,318

3,784

1,927

1,398

Business profits (loss)

(771)

(1,298)

(515)

2

(177)

(1,274)

(1,017)

(1,283)

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5 through 8, 13, and 14 (including each number, if any) and the purport of the whole pleadings

D. Determination

1) Whether the instant goodwill constitutes merger evaluation marginal profit

A) Relevant concepts and relevant legal principles

(1) Merger marginal profit and merger marginal loss

Merger marginal profits = Net asset value of the extinguished corporation (total value of succeeded assets - total value of succeeded liabilities) - (total face value of stocks delivered to stockholders + total amount of merger grants)

According to Article 17 (1) 3 of the former Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008; hereinafter referred to as the "former Corporate Tax Act"), a merger marginal profit is subject to exclusion in the calculation of income amount for each business year of a domestic corporation. The generally extinguished corporate income is defined as the excess amount in cases where the value of assets succeeded from the extinguished corporate entity, the amount of debts succeeded from the company, the amount paid to its shareholders (the amount of subsidies for a merger), and the amount of capital increase or the amount of capital increase of the company surviving the merger exceeds the amount of the company established due to the merger, and this is understood as the profit from capital transactions, which is thus the exclusion in the calculation of income.In other words, the merger marginal profit refers to the balance that is not included in the capital stock among the net

On the other hand, it is understood that the net asset value of the merged corporation succeeded from the merged corporation to the shareholders of the merged corporation is less than the total amount of the merger subsidy paid to the shareholders of the merged corporation and the face value of the new stocks issued by the merger (i.e., the price of the merger). In other words, the formula for this is as follows.

Merger loss = Price of merger (the merger grant + the total face value of new stocks through merger) - The net asset value succeeded from the extinguished corporation.

(2) Merger loss and goodwill

The old fiscal rules (amended by Presidential Decree No. 2009, Aug. 28, 2009; hereinafter referred to as the "former fiscal rules") §9(a) provide that "the business rights exceed the share of the purchasing company in the fair value of assets and liabilities (net assets) acquired from the purchasing company as of the date of purchase" among the purchasing price of the purchasing company. The business rights under the above old fiscal rules are different in terms of the concept from the total value of new stocks for merger. In addition, there is a discussion on how to evaluate the net assets of the former fiscal rules of the merger (the former fiscal rules of the merged corporation for the purpose of accounting of the merger), and how to evaluate the acquisition of assets (the net assets of the extinguished corporation for the purpose of the merger) by succession to the merger (the net assets of the extinguished company should be succeeded as they are, from the standpoint of recognizing the net assets of the extinguished company as the combination of shares of the merged company, the right at the time of purchase should be succeeded to the market value of the extinguished company as of the date of merger (the merger).

(3) Merger evaluation marginal profit

Article 12(1) of the former Enforcement Decree of the Corporate Tax Act provides that where assets are evaluated and succeeded to from a merged corporation until the amount under Article 459(1)3 of the former Commercial Act (amended by Act No. 10600, Apr. 14, 201; hereinafter referred to as the "former Commercial Act") is reached, the amount in excess of the book value of the merged corporation shall be deemed a merger evaluation marginal profit from the value of net assets succeeded from the merged corporation. The merger marginal profit is distinguished from the merger marginal profit from the value of net assets succeeded from the merged corporation minus the capital increase.

Merger evaluation marginal profit = Evaluation value of assets succeeded - Book value of assets succeeded.

Article 17 (1) 3 of the former Corporate Tax Act does not include the merger marginal profit as profit from capital transactions, but includes the merger marginal profit in the gross income under the provisions of the proviso. This means that where the merged corporation conducts the evaluation of the assets of the merged corporation and the disposal of depreciation costs or assets after succession, the income amount decreases at the time of the merger. However, according to Article 12 (1) 1 of the former Enforcement Decree of the Corporate Tax Act, the merger marginal profit shall not exceed the merger marginal profit under Article 459 (1) 3 of the former Commercial Act, and the merger marginal profit shall not exceed the liquidation marginal profit under Article 80 (1) of the former Corporate Tax Act after the merger.

(4) Business rights:

According to the former Accounting Rules, the goodwill is recognized only for the combination of enterprises under the Purchase Act. According to §6(a) of the purchase cost (referred to the fair value of cash or cash, etc. paid to control the net assets and business activities of another company), the purchase cost exceeds the share of the purchasing company in the fair value of the net assets recognizable from the purchasing company as of the purchase date (referred to the fair value of cash or cash, etc. or other purchase cost) (Article 19(a) of the former Accounting Rules). Such goodwill shall be depreciation by the fixed period during which it is expected to be economically effective and effective in the future, and shall not exceed 20 years (Article 19(c) of the former Rules on Combined Accounting). In other words, the goodwill under the Business Rule on Combined Accounting is recognized by stipulating the difference between the issue date of merger or the market value (including the case of a merger subsidy) of the merger date and the amount of net assets deducted from the merged corporation as the price for the merger to the shareholders of the merged corporation at the time of the merger.

Business rights = The purchase cost - the share of the purchasing company in the fair value of assets and liabilities (net assets) acquired from the purchasing company as of the date of purchase.

In addition, if the shares of the purchasing company exceed the purchase cost out of the fair value of the identifiable assets and liabilities acquired from the purchasing company on the date of purchase, the excess amount shall be appropriated as the business right of the division (§ 10 of the combined accounting rules).

Meanwhile, Article 24 (1) of the former Enforcement Decree of the Corporate Tax Act provides for depreciable assets and lists business rights in subparagraph 2 (a). Article 24 (4) of the former Enforcement Decree of the Corporate Tax Act provides that "The business rights appropriated by the merged corporation in the case of a merger or division among the business rights in subparagraph 2 (a) shall be depreciable assets only if the merged corporation evaluates and succeeds to the assets of the merged corporation and pays for business value due to the trade name, transaction relations, and other trade secrets of the extinguished corporation or divided corporation, etc." and Article 12 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance of March 30, 2009; hereinafter referred to as the "former Enforcement Rule of the Corporate Tax Act") provides that "the above business rights shall include the amount acquired at a cost according to appropriate evaluation methods, such as the amount acquired in relation to the transfer and acquisition of the business separately from the transfer and acquisition of the business."

In full view of the above relevant provisions, recognition as business rights under the former Corporate Tax Act in corporate mergers is limited to the case where the merged corporation evaluates and succeeds to the assets of the merged corporation and pays for the value of its business due to the trade name, transaction relations, trade secrets, etc. of the merged corporation, and is limited to the business rights with business value. Here, in order to be evaluated as business rights having business value, there must be intangible property values that enable a certain company to increase excess profits than the ordinary profits of the other company operating the same kind of business due to its special skills and business functions or characteristics such as social credibility and transaction relations. If a company acquires more profits than the ordinary profits prior to the merger by absorbing another company and absorbing the business functions or characteristics of the other company, the intangible value of the absorption company, which may cause a higher return after the merger, shall also be deemed as business rights (see, e.g., Supreme Court Decision 85Nu592, Feb. 11, 1986).

On the other hand, the merger evaluation marginal profit resulting from the evaluation of assets and succession is included in the gross income for the business year concerned. The assets here can fall under the category of intangible assets as well as intangible assets, and in case where there is an intangible business value (over-profit) in the merged corporation, if the merged corporation evaluated and succeeded to it, the assets such as goodwill are appraised (in case of the book value of the business right of the merged corporation, 0 won) and the merger marginal profit is succeeded to the merged corporation.

B) Whether the instant goodwill constitutes a business license under tax law under Article 24(4) of the former Enforcement Decree of the Corporate Tax Act

In full view of the following circumstances, the instant goodwill appropriated by the Plaintiff in the account book during the process of the merger, which is recognized by comprehensively taking account of the aforementioned evidence and the purport of the entire pleadings, is nothing more than an operating right under the tax law assessed and succeeded to the assets. Therefore, the part of the instant disposition, which included the amount equivalent to the instant goodwill in the gross income under the tax law, as a result of the inclusion of the instant goodwill in the gross income under the premise that it is a business right under the tax law, and thus, is unlawful (the Plaintiff’s primary assertion as to the instant goodwill is justified, and thus, it is not further examined).

① As seen earlier, according to Article 24(4) of the former Enforcement Decree of the Corporate Tax Act and Article 12(1)1 of the former Enforcement Rule of the Corporate Tax Act, business rights under tax law are limited to those of the merged corporation, not all business rights (the portion exceeding the net asset value of the merged corporation out of purchase price) appropriated in accordance with the former Corporate Accounting Rules in the course of the merger, and among which, in particular, the merged corporation evaluated and succeeds to the assets of the merged corporation, and received compensation for business value due to mutual transactional relationship and other trade secrets of the extinguished corporation. On the other hand, business rights are calculated by the difference between the fair value of new stocks issued by the merged corporation and the net asset value that the merged corporation issues to the stockholders of the merged corporation (the former

In other words, if the fair value of the new stocks of merger calculated in accordance with the former fiscal rules is not consistent with the net asset value succeeded from the merged corporation, it is always generated in order to adjust the difference in the balance in the accounting loan without relation to the existence of assets, and there is a lot of difference between the business rights and the merger evaluation marginal profit under the tax laws. If the business rights are deemed to be a business rights under the tax laws, if the fair value of the new stocks of merger exceeds the net asset value succeeded from the merged corporation, it is likely that the business rights will be recognized under the tax laws only if there is business value.

Therefore, in order to include business rights generated inevitably in the process of merger as a merger evaluation marginal profit under Article 17(1)3 of the former Corporate Tax Act, it should be deemed as constituting depreciable assets under Article 24(4) of the former Corporate Tax Act and Article 12(1) of the former Enforcement Rule of the Corporate Tax Act.

② The method of assessing corporate value is not the valuation of the net asset value (total asset - debt) valuation method, the method of assessing the value of the company's present net asset value as the value of the company, the method of assessing the future profit-making ability as the value of the company, the method of evaluating the profit-making ability of the company in the future as the value of the company (the method of assessing the value of the company's current net asset) valuation method, and the method of assessing the profit-making ability of the company in the future as the value of the company (the method of assessing the market value of the company's current financial situation or future profit-making ability of the company rather than the current financial situation of the company), the value of the company formed according to the market principle, i.e., the method of assessing the market value formed by the balance between the person who intends to purchase the company's stocks and the person who intends to sell the company's stocks, and the DCF method

The merger of this case was conducted between the unlisted corporation and the unlisted corporation. In the case of the merger between listed corporations, the merged corporation and the exchange price of the merged corporation were calculated based on the exchange price of the merged corporation, and the merger ratio was enforced to determine the merger ratio. However, in the case of the merger between unlisted corporations, there is no exchange price that can be the basis for the merger ratio, but there is no exchange price that can be the basis for the merger ratio. However, there is a need to maintain the ratio of shares held by shareholders to the corporation before the merger, and in the case of the merger

However, the DCF Act is a method of calculating the value of shares of the merged company from a shareholder as of the base date of appraisal by calculating the anticipated cash flow in the future created by a company based on external market conditions, etc., at discount rates based on external risk factors, such as inflation rate and market risks. The cash flow in the above method refers to the cash flow generated from a company's business activities. Cash flow related to financing, such as interest costs and dividends payment, and interest or dividends accruing from non-business assets, such as non-business activities, are excluded when calculating the above cash flow, and the above cash flow is the concept that does not consider the value of assets. The above method can be excessively subjective, which guarantees discount rates, and thus there is room for the appraiser to intervene in the appraisal company's future. In this case, the DCF Act does not change the market price of the company in the past and future, and it does not change the market price of the company in accordance with the estimation and future data of the company's business performance. Therefore, it is not necessary to present the results of the DaF accounting corporation's evaluation report (No No. 5).

In this case, DCF law was used to calculate a fair merger ratio through a comparison of the relative stock value between B&A and B&S presses, and there was no objective asset value of the investment margin, which is an extinguished corporation, through the said method. Since the value of new stocks issued by a relative ratio of the value of stocks does not coincide as a matter of course with the inherited net asset value, if the merger ratio is calculated by evaluating the stock value in accordance with DCF law, regardless of whether the merged corporation recognized the intangible asset value of the extinguished corporation and paid the consideration for it, the fiscal business rights or division business rights are inevitably generated.

Therefore, the purchase cost is calculated by multiplying the shares of B&A (2,00,000 won per share) assessed by B&A in accordance with DCF law by the number of shares (4,750 shares) issued by B&A to DF presses, and according to § 9.A. of the former Consolidated Accounting Rules, the amount calculated by subtracting the amount equivalent to the net asset value of the P&A press presses from the purchase cost, is difficult to view the sales right as the net asset value of the P&A presses.

③ If the amount appropriated to adjust the difference in loans in the course of simply conducting the merger accounting, the Defendant asserts that the non-T&A should have recognized the operating rights of the instant financial year after the merger as total loss from damage. However, even in light of the fact that the former fiscal rules do not so, the assets of the instant financial year are recognized. However, the former fiscal rules provide that the amount of the recoverable value should be depreciated in the fixed amount method ( §9.b., the former fiscal rules) and the amount of the recoverable value should be exceptionally recognized losses from the operating rights only when special circumstances, such as the case where the amount falls short of the book value and the shortage is important ( §9.d., the former fiscal rules). Meanwhile, since the merger did not cause any special circumstances to recognize losses from the business sector of the balance frame that the non-T&A succeeded to, without recognizing losses from the operating rights already appropriated in the gross income, the Plaintiff did not recognize losses from the operating rights in the instant case, and did not recognize losses from the depreciation of the operating rights under the tax adjustment method (Article 19.4).

④ The Defendant asserts that it is reasonable to regard the amount calculated by subtracting the fair value of individual assets from the net asset value of equity capital (net asset value), which is the cost of merger, as the goodwill. However, Articles 72 and 89(2) of the former Enforcement Decree of the Corporate Tax Act, Article 64(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 59(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014) provide that the value of operating rights shall be assessed as the "value calculated by converting the net value of operating rights calculated based on the net value of operating rights for the preceding three years into the "value calculated based on the net value of operating rights" [the value of operating rights for the preceding three years or three years - (50/100/10 of the average value of operating rights after one year maturity interest rate].

⑤ The investment-based presses, a merged corporation, recorded a large amount of cumulative losses from 2003 to 2007 business year prior to the merger of this case on the grounds of poor business performance prior to the merger of this case. The investment-based presses had been placed in the situation where there was no earned surplus prior to the merger of this case and it was extremely difficult to locked the capital in every business year for almost all years. In 2006 and 2007, the investment-based presses were 15,16, respectively, in the order of sales of the first half-yearly airline tickets, and the domestic tourist transmission performance was not good enough to 26th and 24 first half-yearly in 2006. Considering these circumstances, it is difficult to deem that the investment-based presses had an excess profit capable of making a higher profit than the same company at the time of the merger of this case.

In addition, it cannot be determined that there is an intangible business value that can be recognized as an intangible business value to an extinguished corporation under the tax law just because the extinguished corporation was holding intangible assets at the time of the merger, and in order to be recognized as an goodwill under the tax law, there should be circumstances that the extinguished corporation actually realizes light profit for a long time and increases excess profit compared to the companies that carry on the same kind of business.

At the time of the merger of this case, the term "seaoman program" claimed by the Defendant as a core intangible asset of the investment-based presses was merely an intangible asset possessed by the investment-based presses, and only was the first time after the merger of this case. It was not commercialized until 2008, and there was no verification of the relationship between the sales and operating profits.

In particular, if the piracy program constitutes an intangible asset with business value that can create excess profit-making power, it should have accrued profit-making from the actual piracy program. However, as seen earlier, it is difficult to view that the business value that can create excess profit-making power is recognized in the piracy program, as well as in the online division succeeded by the non-T&A after the merger of this case.

(6) On the same day as the date of the merger of this case, the defendant asserts that the shareholder of the extinguished corporation, on the same day as the date of the merger of this case, transferred 10,000 shares of the extinguished corporation to a third party per share of 30,930 won (the purchase cost shall be 30,930 won per share if the purchase cost is divided into 307,152 shares of the total number of issued shares of the extinguished corporation) and paid 9.5 billion won per share to the extinguished corporation by assessing the share value of the investment profit frame at the time of the merger of this case. However, the above price of 30,930 won per share is equivalent to the share price between individual shareholders. Unlike the case where the merged corporation takes over the extinguished corporation and pays the price for the merger, the price of shares between individuals shall be determined by reflecting various circumstances such as market and economic situation, supply and demand of the relevant shares, and preference of the relevant shares, as argued by the defendant, in addition to the net asset value of the pertinent corporation at the time.

7. The National Tax Service, around September 2003, interpreted that the operating rights under the tax law pursuant to Article 24(4) of the former Enforcement Decree of the Corporate Tax Act constitute "merger evaluation marginal profit" under Article 12(1)1 of the Enforcement Decree of the amended Corporate Tax Act (hereinafter "the authoritative interpretation of 46012-17, Sept. 27, 2003") and confirmed that the Ministry of Strategy and Finance and the Tax Tribunal may include the operating rights as gains from merger in gross income under the tax law (the "Recorporation-111, Feb. 4, 2005; 2009Da2804, Apr. 19, 2010). Before the authoritative interpretation of Article 24(4) of the former Enforcement Decree of the Corporate Tax Act was made, the tax authority did not include the operating rights as gains from merger in gross income even in cases where the operating rights were generated, and it did not constitute depreciable assets under the former Enforcement Decree of the Corporate Tax Act.

(8) On March 2013, the National Tax Service changed the existing position as above and imposed corporate tax on the corporation by deeming it as a merger evaluation marginal profit, considering the accounting rights appropriated in the business year 2007 for which five years have not elapsed since the exclusion period of imposition, as seen in the instant disposition. Such a corporate tax assessment as seen above, the Plaintiff, like the Plaintiff, deems that the accounting rights do not constitute depreciable assets under the tax law, and does not include the relevant amount in the calculation of losses as depreciation costs, is uniformly imposed on the corporation that did not include it in the calculation of depreciation costs in the calculation of earnings, first of all, in the business year to which the registration date of merger belongs. The difference between the position of the merged company and the changed position of the tax authority seems to be possible

(ii) whether it is possible to deduct any loss carried forward;

(A) requirements for deduction of losses carried forward;

According to Article 45(1) of the former Corporate Tax Act and Article 81(2) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009) (amended by Presidential Decree No. 21302, Feb. 4, 2009), where a merged corporation succeeds to the assets of a merged corporation at the book value of a merged corporation, the merged corporation’s loss carried forward of the merged corporation as of the date of the merger registration shall be deemed the losses of the merged corporation and shall not be deemed separate accounting in cases of a merger between a small or medium enterprise or between corporations operating the same business, but in cases of the merged corporation, the amount calculated in proportion to the value of the business of the merged corporation and the merged corporation

B) Whether L&A succeeded to the assets of L&A at the book value

First, we examine whether L&A succeeds to the assets of L&A at the book value.

In the case of a merger under the Purchasing Act, the assets of the merged corporation shall be appraised at the market price and succeeded to the merged corporation at the fair price. The facts that the merger of this case had been governed by the Purchasing Act do not conflict between the parties. Thus, according to the above legal principles and the above facts of recognition, in the merger of this case under the Purchasing Act, it is judged that the B&A succeeded to the assets of the S&A at the market price not at the book value but at the fair price (In fact, there is a merger in the book value under the Act on the Integration of Equity Shares in order to avoid taxation on the liquidation income of the merged corporation and the constructive dividend of the stockholders of the merged corporation while the merger with the fair price under the Purchasing Act, but it is difficult to view that B&A succeeded to the development expenses of the S&A and the deferred corporate tax assets at the market price.)

C) Sub-determination

Therefore, the Plaintiff’s assertion on the deduction of the instant carried forward losses on the premise that L&A succeeded to the assets of L&A at the book value is without merit, without further review (or without any reason, there is no evidence to acknowledge it differently, since the evidence submitted by the Plaintiff alone lacks to specify the value of the fixed business assets of L&A at the time of the instant merger, and there is no other evidence to acknowledge it).

(iii) a reasonable tax amount;

In a litigation seeking revocation of a taxation, even where it is deemed that a taxation disposition is unlawful because it was erroneous in the process of calculating the amount of tax, when the amount of tax to be imposed lawfully is calculated based on the data submitted by the time the argument in the fact-finding trial is concluded, the court shall not revoke the entire amount of the taxation disposition as unlawful, but shall regard only the portion exceeding the reasonable amount of tax assessment as unlawful (see, e.g., Supreme Court Decision 97Nu19496, Sept.

As seen earlier, the part that deemed the instant goodwill as depreciable assets and included in the calculation of earnings is unlawful, and the part that denied the deduction of carried forward losses of this case is legitimate. As such, the legitimate tax amount is KRW 536,662,064, following the process of calculation as shown in attached Table 2.

Therefore, the portion exceeding KRW 536,662,064, which is a legitimate tax amount, among the dispositions of this case, should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.