Jeonju District Court 2013Guhap625 (No. 14, 2014)

Trial Decision 2012No3701 ( December 05, 2012)

No taxation carried forward under the consolidation of small and medium enterprises shall be imposed;

Since the value of stocks, etc. acquired by small and medium entrepreneurs of a place of business extinguished by consolidation is below the net asset value of the place of business extinguished by consolidation, it is not subject to taxation carried forward of capital gains tax following consolidation.

Article 31 of the Restriction of Special Taxation Act, Article 28 of its Enforcement Decree

The revocation of the disposition of revocation of imposition of capital gains tax on Gwangju High Court (Seoul High Court) 2014Nu545

김〇〇(******-*******)

〇〇세무서장

2014.05.14

2014.22

oly 2014.10

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 526,652,020 for the plaintiff on June 7, 2012.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is that the second 7th of the judgment of the court of first instance is "Malong Development", and the judgment as to the plaintiff's argument is identical to the corresponding part of the judgment of the court of first instance, except for adding the judgment as to the plaintiff's argument to the corresponding part, and therefore, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

A. Whether the land of this case was excluded from the person subject to investment in kind

At the time of the investment in kind, the Plaintiff did not conduct an appraisal of the instant 00-9 land at the time of the investment in kind, and subsequently, the Plaintiff asserted that the instant 00-9 land cannot be deemed as an investment in kind, on the ground that △△ Development was deemed to have donated the instant 00-9 land from the Plaintiff, and was fully paid corporate tax for the amount of assets equivalent to the asset income (market price of the instant land) imposed on △△ in 2008.

In light of the following circumstances, i.e., ① on November 28, 2007, the land of this case was included in the investment in kind under the investment in kind contract (Evidence No. 4) entered into between the Plaintiff and △ Development on November 28, 2007; ② on the issuance of new stocks (Evidence No. 6) submitted by the appraisal corporation which appraised the Plaintiff’s investment in kind from the court of △ Development to the court, the land of this case is included in the investment in kind property; ③ on the real estate register (Evidence No. 9) on the land of this case 00-9 on November 28, 2007, the representative director of this case can not be deemed to have transferred the land of this case to △△ Development on the ground of the investment in kind on the land of this case on the ground of the investment in kind of △ Development on the land of this case on the ground of the fact that the ownership transfer registration was completed on the land of this case on February 22, 2008.

B. Whether the judgment was omitted

The Plaintiff asserts to the effect that the judgment of the first instance court did not make any determination as to whether the secured debt amount established in the property invested in kind, which was the main issue in the process of the instant disposition and the relevant tax assessment, should be deducted from the net asset value.

On the other hand, since the subject matter of a taxation disposition lawsuit is objective existence of the tax amount determined by the tax authority, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the relevant disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it is not always possible to determine the legitimacy of the disposition by only the data at the time of the disposition or to claim only the reasons for the disposition at the time of the disposition (see, e.g., Supreme Court Decision 2001Du1994, Oct. 11, 2002);

Although the disposition of this case and its tax assessment process, the amount of the physical guarantee obligation established in the property invested in kind should not be deducted from the net asset value of the property invested in kind, the defendant added the value of the property invested in kind to the ground of the disposition of this case as to whether the value of the property invested in kind exceeds the plaintiff's new stocks acquisition value, regardless of the deduction of the amount of the property invested in kind, and the transfer income from the investment in kind is not subject to carry-over taxation. The first instance court accepted the additional disposition as above and judged the disposition of this case lawful. The judgment of the court of first instance should not be premised on the determination of whether the amount of the real guarantee obligation should be deducted from the net asset value of the property invested in kind. Thus, the first instance court's failure to make a judgment on the amount of the property invested in kind is not erroneous.

3. Conclusion

Thus, the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is without merit.

It is dismissed. It is so decided as per Disposition.