Review Corporation 2008-0074 (Law No. 25, 2009)

Evaluation of wrongful acts following the high-priced purchase of stocks;

Although the purchase of shares was for the purpose of helping a person with a special relationship to improve the financial structure, it is difficult to regard the purchase of shares as abnormal trading lacking economic rationality due to the conditions before and after the purchase of shares.

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

1. The defendant's refusal to rectify corporate tax for the 2005 business year against the plaintiff on September 29, 2008 shall be revoked.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. On December 30, 199, the Plaintiff purchased 76,873,745,000 won per share of 15,374,749 shares (hereinafter referred to as “instant shares”) of △△ Life Co., Ltd. (hereinafter referred to as △△△ Life Co., Ltd.), a non-listed corporation, at the time of the purchase of KRW 5,000 per share at KRW 76,873,745,00, and on December 23, 2002, the Plaintiff sold KRW 5,000,000 among them, to the social company (hereinafter referred to as △△△△△) that △△△△ Co., Ltd. (hereinafter referred to as “social held by △△△”).

(B) As a result of the tax investigation against the plaintiff, the director of ○○○ Regional Tax Office assessed the price per share of the instant shares as 0 "0" by applying the supplementary evaluation method, and assessed the price per share of the instant shares as 5,00,000 won, and notified the defendant of the pertinent taxation data on March 4, 2004, on the ground that the plaintiff purchased the instant shares at a higher price and distributed profits to ○○ Enterprise, a person with a special relationship, pursuant to Article 52 of the Corporate Tax Act. The defendant notified the plaintiff of the pertinent taxation data on January 27, 2005. The defendant included the purchase price, which exceeds the market price of the instant shares in the business year 200, the total amount of the instant shares exceeds the market price of the instant shares in the business year 200, and simultaneously included the same amount in the deductible expenses (the disposal of the shares as △△ reserve). The tax base and the amount of the corporate tax to be corrected for 203 business years (the total amount exceeding 9,965,0000,000 won).

D. On August 30, 2006, the Plaintiff filed a lawsuit against the Defendant seeking the cancellation of the above disposition of income by this court 2006Guhap31457 on August 30, 2006, and withdrawn the lawsuit on November 14, 2006 (the Plaintiff, at the time, withdrawn the lawsuit due to controversy as to whether the above disposition of income is subject to an appeal litigation).

E. Meanwhile, according to the purport of the Defendant’s disposition as seen earlier, the Plaintiff reported the tax base and tax amount of corporate tax by including the amount in gross income for the business year in which the stocks of △△ Life Insurance, including the instant stocks, were disposed of (the corporate tax for the business year 2004 was reported in gross income according to the results of the tax investigation as seen earlier). On January 10, 2008, the Plaintiff filed a claim for correction of the corporate tax for the business year 2005 business year (hereinafter referred to as “instant claim for correction”) by asserting that the transaction of the instant stocks did not fall under the requirements for calculation of unfair act and calculation in relation to KRW 30,832,409,000, which was originally reported to the Defendant for the business year 20

F. On September 29, 2008, the defendant issued a notice of rejection of the claim for correction on the ground that the original contents of the report against the plaintiff are legitimate. Thus, the defendant's rejection of the claim for correction ("the rejection disposition of this case") was not justified.

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

2. Determination on the Defendant’s defense prior to the merits

A. Defendant’s defense prior to the merits

① The Defendant’s decision of correction of corporate tax base on January 27, 2005 is a prior decision to impose corporate tax, and thus, it cannot be said that specific tax liability is imposed, or any infringement or disadvantage is suffered. As such, the Plaintiff, who has no corporate tax to be paid continuously since the business year 2004, filed a return of corporate tax base according to the above decision of correction of the tax base, but there is a way to dispute the illegality of the tax base and tax amount already reported when it is challenged. ② The Plaintiff’s decision of correction of corporate tax base on January 27, 2005 is against the principle of res judicata because it is against the principle of res judicata that the Plaintiff filed an administrative litigation while disputing the decision of correction of corporate tax base on January 27, 2005, and then intends to challenge it again.

Therefore, the instant disposition that rejected the instant claim for correction cannot be deemed a rejection disposition that is the subject of an appeal litigation. Therefore, the instant lawsuit should be dismissed.

B. Determination

According to the provisions of Article 45-2 (1) 2 and (3) of the Framework Act on National Taxes, when a taxpayer has filed a tax base return within the statutory due date of return, but the deficit amount entered in the tax base return falls short of the deficit amount to be reported under the tax-related Acts, a request for correction may be filed with the chief of the competent tax office. In this case, the chief of the tax office, upon receipt of a request for correction, shall notify the person who has filed the request that there is no reason to correct or correct the deficit amount within two months from the date of receipt of the request. Thus, if the chief of the tax office refuses all or part of the request for correction of the deficit amount to the taxpayer, the taxpayer may file an appeal seeking a revocation of the refusal disposition (see Supreme Court Decision 2007Du21297, Jul. 23, 2009). Furthermore, even if the tax amount for the pertinent business year is not affected by the rectification of deficit amount, the taxpayer's tax liability shall be determined in advance within the scope of the deficit amount that occurred in each business year.

In addition, in full view of the purport of the entire argument in Eul evidence No. 1, the plaintiff filed an administrative litigation seeking revocation of the decision of correction, etc. of the tax base of his corporate tax on January 27, 2005, but the withdrawal thereof is recognized, but it does not again lead to the occurrence and withdrawal of the above lawsuit. Thus, the defendant's above assertion is without merit.

3. Judgment on the merits

A. The parties' assertion

(i) The plaintiff's assertion

The Plaintiff’s purchase of the instant shares was made by comprehensively taking into account the restructuring efforts of △△ Group at the time of the purchase of the instant shares, the shares transaction situation under the IMF crisis, the future profit value of △△ Life Insurance, etc. However, based on the purchase price and the assessed per share by requesting it to a certified evaluation institution. In full view of the following △△ Life Insurance’s capital increase and listing process, and the current market price, it cannot be deemed that the said purchase of shares constitutes an abnormal act lacking economic rationality.

B) Defendant’s principal

At the time of the Plaintiff’s purchase of shares in △△ life insurance, △△ Life Insurance did not have any value in full capital erosion due to cumulative deficits for several years. However, △△ Group’s parent company, which had a relatively high financial standing purchase of the Plaintiff in KRW 5,00 per share with its face value. Therefore, it is inevitable to regard the Plaintiff’s funds as being mobilized for the improvement of the financial structure of △△ Group. Since the Plaintiff and △△ Group were a specially related party, it is an abnormal transaction lacking rationality.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1. Circumstances, etc. of purchase of the Plaintiff’s shares

가) ◇◇그룹의 모회사인 □□□□트는 IMF 외환위기로 인하여 자산 및 수익상태가 악화되어 부도 위기에 처하게 되자 재무구조를 개선하기 위해 1999. 12. ◇◇그룹의 계열사인 ◇◇생명보험(□□□□트의 지분 59.61%)의 주식을 매도하는 과정에서, 같은 계열사인 원고(□□□□트의 지분 88%)와 사이에 공인된 평가기관에 의뢰하여 평가한 ◇◇생명보험의 주식 1주당 적정가격에 따라 정한 1주당 가액에 따라 위 주식을 매매하기로 하여, 원고가 ☆☆회계법인에, □□□□트가 ♤♤회계법인에 위 주식의 평가를 의뢰하였다.

나) ♤♤회계법인은 1999. 12. 17. ◇◇생명보험 주식의 1999. 9. 30 당사를 기준으로 한 주식가치를 현금흐름할인방법 중 전체기업가치접근법에 따라 평가하여 5,495원으로 그 1주당 주식가치를 산정하였고, 안건회계법인도 1999. 12. 27. 같은 방법에 따라 평가하여 4,491원으로 그 1주당 주식가치를 산정하였다.

C) Accordingly, on December 30, 1999, the Plaintiff purchased the instant shares of KRW 5,000 per share from △△ Group.

2) Assets and earnings status, etc. of △△ Life Insurance before and after the purchase of the instant shares

A) On December 12, 199, ○○ Life Insurance Co., Ltd. concluded a memorandum of understanding with the Financial Supervisory Commission on March 2000 that 95 billion won will be added to the capital increase in order to strengthen the payment ability of ○○ Life Insurance, and that ○○ Life Co., Ltd. will merge with the life insurance company as part of restructuring of the life insurance business.

B) △△ Life Insurance received five times from October 5, 1999 to August 4, 2003 for the purpose of strengthening the payment capacity as above and restructuring of the life industry (specific details are as follows). In the case of capital increase in October 5, 1999, the Plaintiff acquired 8,000,000 shares (4 billion won). In the case of capital increase in Korea on April 8, 2000, the Plaintiff acquired ○○○○ (4 billion won) that is a foreign investment company that is not a specially related party.

C) Although △△ Life Insurance was in a state of complete capital erosion due to losses sustained during the business year from the business year 1992 to the business year 1999 except for the business year of 194, 27.6 billion won was generated in the business year of 2000, which was caused by the above capital increase, and its business profits have continuously increased (in July 200, 200, △△△△ Life Insurance Co., Ltd. was merged) and on October 8, 2009, it was listed on the securities market (On the other hand, as of March 23, 2009, the value of the non-party company’s stocks reaches 13,800 won per share).

[Ground of recognition] Facts without dispute, entry of Gap evidence 6 to 17, purport of the whole pleadings

D. Determination

Article 52 of the Corporate Tax Act provides that a corporation's denial of wrongful calculation under the provision of Article 52 of the Corporate Tax Act is a system that, in a case where a corporation makes a transaction with a person with a special relationship without a reasonable method and without using a normal economic person's reasonable method and at the same time evades or reduces tax burden by abusing all the forms of transactions listed in each subparagraph of Article 88 (1) of the Enforcement Decree of the Corporate Tax Act, it is deemed that the taxation authority denies it and has income which is deemed objective and reasonable by the method prescribed by the Act and subordinate statutes, and it is limited to a case where the economic rationality

In such a case, the determination of whether an economic rationality exists shall be based on whether the transaction lacks economic rationality in light of the sound social norms and commercial practices, rather than on the mere fact that the transaction is not conducted in the form of transaction with a person who is not a related party, by removing only the price relation of the transaction separately, rather than on the ground that the transaction is not conducted in the form of transaction with such person (see, e.g., Supreme Court Decisions 99Du10131, Nov. 27, 2001; 2004Du7993, May 11, 2006).

그러므로 이 사건에 관하여 보건대, 당시는 IMF 외환위기사태가 얼마 지나지 않은 시점이어서 특히 위와 같은 금융주가 낮게 평가되는 상황이었고, ☆☆회계법인과 ♤♤회계법인의 주식평가결과에 따라 이 사건 주식을 매수한 가격인 1주당 5.000원이 당시 ◇◇생명보험의 실제 주식가치를 정확하게 반영한 것인지는 의심스러운 것은 사실이 나(특히 1999. 10. 6.자 유상증자시 원고가 인수한 ◇◇생명보험의 주식 800.000주와 관련한 익금처분을 다투는 과세전적부심사청구에서 원고가 위 유상증자 전 ・ 후의 ◇◇생명보험의 주식가치가 모두 0원 이하로 평가된다고 주장한 바 있고, 2003. 11. 19 세무공무원이 조사한 바에 따르면, ◇◇생명보험의 1주당 가액이 9,435원으로 평가된 점 등에 비추어 보면 위와 같은 의심이 든다), 한편으로 앞서 본 여러 사실관계에 비추어 보면, ① ◇◇생명보험은 금융감독위원회와 사이의 양해각서에 근거하여 그 지급여력 강화 및 구조조정을 위하여 1999. 10 경부터 2003. 8.경 까지 5차례 유상증자를 설시하였고, 2000. 7.경에는 동종 생명보험회사를 합병한 바도 있는 점,② 안건회계법인과 ♤♤회계법인의 주식평가결과에 따르면, 위와 같은 유상증자 전인 1999. 9. 30.을 기준으로 하여 평가한 1주당 주식가치가 5,000원에 근접하는 것으로 나타난 점,③ 실제로 ◇◇생명 보험은 위와 같은 유상증자를 한 사업연도부터 영업수익이 발생하였고 그 후 영업수익이 계속 증가하는 등 자산 및 수익상태가 빠르게 호전되었으며, 이후에도 여러 차례 유상증자를 하는 등 재무구조개선을 위한 노력을 계속하여 2009년경에는 유가증권시장에 상장되었으며, 그 주가도 크게 오른 점,④ 이 사건 주식의 매수일로부터 불과 3개월이 지난 2000. 4. 8.자 유상증자 당시 특수관계자 아닌 외국계 투자회사가 ◇◇생명보험의 신주(235억 원 상당)를 원고가 인수한 가격과 같은 가격으로 인수한 점,⑤ 원고는 2003년 내지 2005년 사이에 이 사건 주식을 비롯하여 자신이 인수한 ◇◇생명보험의 주식 일부를 처분하였는데, 그 가격 또한 주당 5,000원 내지 9,500원에 이르는 점 등의 사정을 알 수 있는바, 위와 같이 ◇◇생명보험에 대규모 유상증자가 예정되어 있었고, 실제 그 유상증자를 거친 후 전개된 여러 사정에 비추어 보면, 앞서 본 여러 의심스러운 정황을 감안하더라도 이 사건 주식을 실제 매수할 당시의 주식가치가 그 매수가격보다 현저히 높은 것이라고 단정하기 어렵고, 또한, 원고가 위 주식을 매수한 것은 원고의 목적사업과 직접성이 관련성이 있는 ◇◇생명보험의 주식을 보유함으로써 원고의 금융업에 대한 시너지 효과를 제고하고 향후 ◇◇생명보험의 재무구조가 개선된 이후에는 매수 가격보다 높은 금액으로 양도할 수 있다는 판단에 따라 이루어진 것으로 볼 수도 있으므로, 피고가 주장하는 바와 같이 원고가 이 사건 주식을 매수한 것이 특수관계자인 □□□□트의 재무구조개선을 도와주기 위한 측면이 있었다고 하더라도, 이를 두고 건전한 사회통념이나 상관행에 비추어 경제적 합리성을 결여한 비정상적인 거래로서 경제적 합리성이 없는 것이라고 보기 어렵다고 할 것이다.

Therefore, the defendant's refusal to correct the case is only illegal.

3.In conclusion

If so, the plaintiff's claim is justified and acceptable.