Plaintiff Co., Ltd. (Law Firm Kim & Lee, Attorneys Kim Yong-soo et al.)

Head of Pyeongtaek Tax Office

December 11, 2002

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's disposition of imposing corporate tax of KRW 516,723,040 against the plaintiff on September 1, 2001 shall be revoked.

1. Details of the instant disposition

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleading in the descriptions of Gap evidence 1, Gap evidence 3-1 to 6, and Gap evidence 5-1 to 3.

(1) On July 13, 1999, the Plaintiff Company transferred 360,000 shares of Non-Party 1 Company (hereinafter “Non-Party 1 Company”) to Non-Party 2, a major shareholder of the Plaintiff Company (hereinafter “Non-Party 1 Company”) at KRW 100,000,000 per share (hereinafter “the shares”).

B. On September 20, 199, the non-party company received 5,127 shares of Samsung Life Co., Ltd. (hereinafter referred to as “Trisung”) in the form of donation from the Samsung Life Co., Ltd. (hereinafter referred to as “Trisung”) which is the chairperson of the Samsung Group (hereinafter referred to as “Trisung”) and sold 700,000 won per share to the Samsung Heavy Chemical Co., Ltd. (hereinafter referred to as “Trisung”) which is an affiliate of the Samsung Group, as a total of KRW 3,58,90,000 (hereinafter referred to as “Trisung Stock Purchase Price”).

(1) On September 1, 2001, the Defendant denied the calculation of unlawful calculation of the amount of KRW 1,268,360,00 on the ground that the Defendant transferred the instant shares to Nonparty 2, a person with a special relationship, at a remarkably lower price than the value of KRW 1,368,360,00 (the value of KRW 3,801 per share) on the basis of the value of the instant shares assessed in addition to the net asset value of the non-party company, and issued the instant disposition to impose and notify the Plaintiff Company of KRW 516,723,040 on September 1, 2001, when it was included in the gross income in the year of 1999.

Article 89(2)2 of the Enforcement Decree of the Corporate Tax Act and Article 54(1) of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1660 of Dec. 31, 199; hereinafter the same shall apply) on the stock of this case, which is the non-listed stock, because there is no example of ordinary transactions that adequately reflects the objective value of the stock, and thus, the value of the stock of this case cannot be calculated according to the supplementary assessment method (2th sharing after summing up the net asset value at the net asset value). In assessing the stock of this case pursuant to the above provision, if the purchase price of the stock of this case is included in the net asset value of the non-party company, the value of the stock of this case shall be 3,801 won per share, and if it is assessed except for this,

2. Whether the instant disposition is lawful

A. The plaintiff company's assertion

(1) The Plaintiff Company’s transfer of the instant shares to Nonparty 2 is bound to transfer the instant shares to Nonparty 2, and the demand for joint and several surety of Nonparty Company, the supplier due to the default of Samsung Motor Vehicle, and the Plaintiff Company, its major shareholder, and the secondary taxpayer of Nonparty Company, with the possibility of being liable to pay taxes, and the fact that it was impossible to color the third party to accept the shares of Nonparty Company, although the Plaintiff Company intended to sell the shares of Nonparty Company as the secondary taxpayer of Nonparty Company, with the possibility of being liable to pay taxes. In light of the overall circumstances at the time of transferring the instant shares and sales circumstances at the time of transferring the shares, the sale of the instant shares to Nonparty 2, the

In evaluating the shares of this case in the complementary method, even though it could not be evaluated as the assets of the non-party company that was merely a simple expected profit at the time of the transfer of the shares, it was unlawful to make the disposition of this case that was made by the non-party company’s wrongful calculation based on the calculation of the value at the time of the transfer of the shares by adding the purchase price of the Samsung stocks donated by the Samsung Chairman to the net asset value of the non-party company after about two months from

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

In full view of the evidence Nos. 3-1 through 6, evidence Nos. 4-1 and 4-2, evidence Nos. 5-1 through 3, evidence Nos. 1-1 through 6, Eul evidence Nos. 1-2-1 through 6, Eul evidence Nos. 2-1 through 2-3, Eul evidence Nos. 3-1 and 3-2, part of the number of witnesses, and the whole purport of the pleadings as a result of the inquiry into an agenda accounting corporation of this court, the following facts may be acknowledged, and some testimonys of the number of witnesses way against this is not believed.

(1) On December 1998, the non-party company organized an emergency response committee (hereinafter “non-Subrogation”) as a subcontractor that supplies the automobile parts to Samsung Motor. The non-party company was at the risk of being withdrawn from the automobile business due to the default of Samsung Motor Vehicle, Bigal wave, etc. (hereinafter “T&C”).

B. On February 13, 1999, the non-party company claimed KRW 4,207,00,000 to Samsung Motor on the damages caused by excessive investment and business losses, and claimed KRW 6,511,00,000 on February 25, 199 to increase the operating losses caused by the discontinuance of operation in the future. On February 26, 1999, the non-party company claimed KRW 7,107,00,000 on the ground that the damages for raw materials in the atmosphere of import were omitted from the inventory assets, and then the non-party company delegated all the negotiating rights on the compensation for losses caused by Samsung Motor on April 16, 199 to the non-party company, and the non-party company was engaged in its activities as a campaign team at non-Subrogation.

On July 1, 199, the 12th day before the transfer of the instant shares, Samsung C&C, in the sense that 4 million shares of Samsung Bio-resources (the amount equivalent to KRW 2.8 billion assessed as KRW 700,000 per share) owned, was contributed to and entrusted to Korea Light Bank, the principal creditor bank, and among them, announced that Samsung T&C will preferentially pay 600,000 won to compensate for the losses incurred by the subcontractor, and support Samsung T&C to purchase the Samsung shares.

And accordingly, on September 20, 199, the non-party company entered into a gift contract under which the 5,127 shares of Samsung Bio-resources were donated by the Chairman of Samsung on September 20, 199, and then set the above Samsung shares as KRW 700,000 per share to the Samsung Close, an affiliate of Samsung Group, and sold them to KRW 3,58,90,000 per share.

(v) After the transfer of the instant shares, the Plaintiff Company assessed the value of the instant shares to the agenda accounting firm as of June 30, 1999, and the agenda accounting firm assessed the value per share of the instant shares on July 28, 1999 and sent the result thereof to the Plaintiff Company. The compensation for losses to be received from Samsung Motor was not included in the net asset value of the Nonparty Company. Meanwhile, the Plaintiff Company or Nonparty 2, after the transfer of the instant shares, did not bear the responsibility for joint and several liability for the Plaintiff Company or Nonparty 2 as the secondary taxpayer.

D. Determination

(1) Whether the transfer of shares of this case reduces tax burden unreasonably or unreasonably

㈎ 부당행위계산부인이라 함은 납세자가 정상적인 경제인의 합리적 거래형식에 의하지 아니하고 우회행위, 다단계행위 그 밖의 이상한 거래형식을 취함으로써 통상의 합리적인 거래형식을 취할 때 생기는 조세의 부담을 경감 내지 배제시키는 행위계산을 말하고, 법인세법 제52조 에서 부당행위계산부인 규정을 둔 취지는 법인과 특수관계 있는 자와의 거래가 법인세법시행령 제88조 제1항 각 호 에 열거된 제반 거래형태를 빙자하여 남용함으로써 경제적 합리성을 무시하였다고 인정되어 조세법적인 측면에서 부당한 것이라고 보일 때 과세권자가 객관적으로 타당하다고 인정되는 소득이 있었던 것으로 의제하여 과세함으로써 과세의 공평을 기하고 조세회피행위를 방지하고자 하는 것인바, 경제적 합리성의 유무에 대한 판단은 제반 사정을 구체적으로 고려하여 그 거래행위가 건전한 사회통념이나 상관행에 비추어 경제적 합리성을 결한 비정상적인 것인지의 여부에 따라 판단하여야 한다( 대법원 2002. 9. 4. 선고 2001두7268 판결 ).

㈏ 앞서 본 인정사실에 의하면, 원고 회사가 이 사건 주식을 양도하기 12일 이전에 이미 삼성 회장이 삼성생명 주식 400만 주를 주채권은행에 맡기면서 삼성자동차 협력업체에 우선적으로 영업손실에 대한 보상금을 지급하기로 발표하였고, 원고 회사는 소외 회사의 대주주로서 소외 회사가 비대위에 참가하여 이미 손해배상금(또는 손실보상금)으로 7,107,000,000원을 청구해 놓은 사실을 알고 있었으므로, 원고 회사는 소외 회사가 삼성 회장으로부터 어떤 형태로든 조만간 삼성생명 주식을 받을 것을 예상하거나 예상할 수 있었음에도 대주주인 소외 2에게 조만간 확정될 손실보상금 등을 전혀 참작하지 않은 가격(1주당 278원)으로 이 사건 주식을 매도한 것은, 비록 소외 회사로부터 추가 연대보증의 요청이 있었고, 소외 회사로 인해 원고 회사의 경영악화로 이어질 가능성을 사전에 차단할 목적이 있었다고 하더라도, 경제적 합리성을 무시한 부자연스럽고 불합리한 행위로서 그로 인하여 원고 회사의 조세 부담을 부당하게 회피 내지 경감시키는 거래행위라 하지 않을 수 없다.

d. As to the value per share of the instant shares

In addition, in light of the aforementioned facts, even if the non-party company did not set the specific amount of compensation for the losses to be paid by the Samsung Chairperson at the time of the transfer of the instant shares, it is reasonable to view that the net asset value of the non-party company at the time of the transfer, which serves as the basis for assessing the instant shares in a complementary manner under Article 89(2)2 of the Enforcement Decree of the Corporate Tax Act and Article 54(1) of the Inheritance Tax and Gift Tax Act, includes the compensation for losses to be transferred to the Samsung shares. Since the purchase price of the Samsung shares received by the non-party company after 2 months from the date of the transfer of the instant shares can be deemed as the compensation amount for the non-party company’s Samsung shares, which was appropriately assessed based on the current status as at the time of the transfer of the instant shares, it is legitimate to include the purchase price of the Samsung shares in the net asset value of the non-party company, and to evaluate the instant shares (3,081 won per share) and assess the shortage amount

Secondly, the Plaintiff Company’s act of selling the instant shares in total of KRW 100 million per share to Nonparty 2, a major shareholder, is deemed as a wrongful calculation, and the instant disposition of calculating the amount of income based on the appraised value of the instant shares calculated based on the net asset value of the Nonparty Company, and imposing corporate tax on the Plaintiff Company is lawful, and the Plaintiff Company’s claim seeking cancellation of the instant disposition on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff company's claim is dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff company and it is so decided as per Disposition.

Judges Cho Jae-hae (Presiding Judge)