early trial 2013west2893 (Law No. 16, 2013)

It recognizes the transaction example prior to the transfer of shares at the market price and denies the calculation of unfair practices.

It is recognized that the transaction example prior to the transfer of shares is a general and ordinary transaction between non-related parties, and the market price is recognized as the market price, and the provision that is the calculation book of unfair act

Article 52: Scope of Market Price under Article 89 of the Enforcement Decree of the Corporate Tax Act denied by Wrongful Calculation

2013Guhap63940 Revocation of Disposition of Imposing corporate tax

OOO

O Head of tax office

2014.08.22

2014.09.30

1. The plaintiff's claim is dismissed.

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

The defendant on May 8, 2013: OO,OO, andO0 won (additional tax) as corporate tax for the business year 2010 for the plaintiff

O0,000,000 won shall be revoked.

1. Details of the disposition;

가. 원고(상호가 '주식회사 □□□□□□□'에서 2011. 1. 1. '주식회사 △△△△△△'으로, 2011. 1. 17. '주식회사 OOOO'로 변경되었다)는 2010. 12. 30. 특수관계에 있는 주식회사 ◎◎◎◎◎(이후 '주식회사 ☆☆☆☆☆☆'로 상호가 변경되었다, 이하 상호 변경 전후를 통틀어 '☆☆☆☆☆☆'라 한다)에게, ◇◇◇◇농업회사법인 주식회사(이하'◇◇◇◇'라 한다)의 발행주식 610,000주(이하 '이 사건 주식'이라 한다)를 1주당 2,172원에 양도하였다.

B. On May 15, 2009, before the said transfer, between the AAAA and BB farming association on May 15, 2009, the shares of the △△△△△ was sold and purchased at KRW 5,853 per share among the CC corporation and DD farming association corporation, and between BB farming association and DD farming association corporation on May 19, 2010.

C. From November 29, 2012 to February 5, 2013, the director of the Seoul Regional Tax Office conducted an investigation of stock fluctuation with the Plaintiff and notified the Plaintiff of the taxation data that KRW 5,853 per share, which is the value in the above trading cases, constituted the market price of the instant shares, and that the Plaintiff transferred the instant shares to Do governor, who is a person with a special relationship, at a price lower than the market price of the instant shares, the Plaintiff was deemed to have transferred the instant shares to Do governor, Do governor, which is the disposition authority, pursuant to Article 52 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same shall apply), Article 88(1)3 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 225777, Dec. 30, 201; hereinafter the same). The Defendant issued the notice of the taxation data that the corporate tax should be corrected after wrongful calculation (hereinafter referred to below).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on June 3, 2013.

However, on September 16, 2013, the above claim was dismissed.

Facts that there is no dispute over recognition, Gap evidence 1 through 3, Eul evidence 1 (a vis-a-vis)

Each entry and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

around November 2010, the foot-and-mouth disease occurred at OO was spread throughout the country from April 201 to buried and disposed of 3,320,000 pigs, and a large number of farmers were subject to bankruptcy. The issuing corporation of the instant shares also was a company that mainly engages in both money and was taking measures for restricting the movement of livestock on December 28, 201, and was slaughtered on January 21, 201. The purchase cost of pigs to be purchased again even after receiving compensation for the market price for the slaughtered pigs by the government, and for about two years, sales have not occurred since the payment of the purchase cost of pigs to be purchased again was made during the period of two years.

The situation was faced.

However, since the sales cases, which are the premise of the instant transaction example, were conducted at the time when the remedy is not at all at issue, the said value cannot be deemed as the price formed in a situation similar to the relevant transaction under Article 89(1) of the former Enforcement Decree of the Corporate Tax Act.

Furthermore, when examining the sales cases as of May 19, 2010, DDR owned 25% of the shares issued by BB farming association as of May 19, 2010, which is the date of the transfer of shares issued by △△△△△△, and DDR and BB farming association have a special relationship under Article 87 (1) 2 of the former Enforcement Decree of the Corporate Tax Act. Therefore, DDR and B farming association are not in a third party, not in a special relationship, and thus, it cannot be viewed as the market price of the shares of this case.

On the other hand, △△△△ is a company established by the EEE system in the form of a joint venture between the specially related parties of an affiliated company and the companies outside the enterprise group. The trading cases of May 15, 2009 are not between the companies with a special relationship. However, the first investors of △△△△ was a transaction of disposing of stocks to DD associations, etc., an EEE affiliated company, for the purpose of resolving the existing joint venture relationship or changing their shares ratio, and the price calculated by calculating the interest on the funds with which the investment was provided. Thus, this cannot be viewed as a general and ordinary transaction.

Ultimately, since the transaction example of this case cannot be deemed as the market price of the stocks of this case, it constitutes a case where the market price of the stocks of this case is unclear. Therefore, even though the Plaintiff’s transaction by evaluating the value of the stocks of this case according to the supplementary assessment method cannot be deemed as the object of wrongful calculation, the disposition of this case based on

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be recognized as either a dispute between the parties or in consideration of the overall purport of the pleadings in the entries in the evidence Nos. 2 and 3.

(1) The financial status before and after the instant shares trading by ○○○○○ is indicated in the following table.

(unit: Won, note)

Business year

208

209

September 30, 2010

(A) Settlement of accounts

2010

2011

Value of assets;

0,000,000,000

00,000,000,000

00,000,000,000

00,000,000,000

00,000,000,000

Amount of liability

0,000,000,000

0,000,000,000

0,000,000,000

0,000,000,000

0,000,000,000

Net Asset Value

0,000,000,000

0,000,000,000

0,000,000,000

0,000,000,000

0,000,000,000

Number of issued shares

00,000

00,000

00,000

00,000

00,000

Net asset value per share

0,000

0,000

0,000

0,000

0,000

(2) The annual main contents of the income statement of △△△△△ are as follows.

(unit: Won, note)

Business year

208

209

September 30, 2010

(A) Settlement of accounts

2010

2011

Revenue amount

0,000,000,000

00,000,000,000

00,000,000,000

00,000,000,000

0,000,000,000

Cost of sale

0,000,000,000

00,000,000,000

00,000,000,000

00,000,000,000

0,000,000,000

Sales and management expenses

00,000,000

0,000,000,000

0,000,000,000

0,000,000,000

0,000,000,000

Business Profit and Loss

△△00,000

△△00,000,000

00,000,000

00,000,000

0,000,000,000

Operating profit and loss

00,000

00,000,000

△△00,000,000

△△00,000,000

△△,000,000

Profit and loss before corporate tax reduction; and

00,000

△△00,000,000

△△00,000,000

△△00,000,000

0,000,000,000

net income

00,000

△△00,000,000

△△00,000,000

00,000,000

0,000,000,000

Net profit per share

00

△△00

△△00

00

0,000

D. Determination

Article 52 (2) of the former Corporate Tax Act provides that "in applying the provisions on the denial of wrongful calculation, the prices applied or deemed applicable to sound social norms and commercial practices and normal transactions between persons without a special relationship" (rates, interest rates, rents, exchange rates and other similar rates).

Article 89 (1) of the former Enforcement Decree of the Corporate Tax Act provides that "The market price of the stocks shall be determined by the Korea Exchange (the market price of the stocks issued by a stock-listed corporation shall be determined by the Korea Exchange on the trading date if the stocks issued by the stock-listed corporation are traded at the Korea Exchange)" and Article 89 (2) of the former Enforcement Decree of the Corporate Tax Act provides that "in applying Article 52 (2) of the Act, the price of the stocks continuously traded with many and unspecified persons, other than the specially related persons,

First, in full view of the overall purport of the pleadings in each of the facts stated in Article 89(1) of the former Enforcement Decree of the Corporate Tax Act from the 'the situation similar to the relevant transaction' at the time of each of the instant sales cases and the written statements in Article 89(1) of the former Enforcement Decree of the Corporate Tax Act, as alleged by the Plaintiff, △△△△△ was established on November 201, 201 and there was death of pigs.

However, according to the facts acknowledged above, since 2009, the asset value and net profit value of △△△△ was gradually increased by the business year 201, in which the Plaintiff claims that the management status has deteriorated, such as the decrease in sales from the instant stock transaction and the relief station operation period. In light of this, although there was a relief station, it is difficult to view that the transaction of the shares issued by △△△△△ was affected by this, and it is difficult to view that the transaction of the shares issued by △△△△△ was significantly changed before and after it. Accordingly, the Plaintiff’s assertion against this issue

On the other hand, comprehensively taking account of the purport of the entire argument in Gap evidence No. 4, since as of May 19, 2010, DDR as of May 19, 2010 is recognized as having a special relation as a shareholder who owns 25% of the shares issued by BB farming association, the above transaction itself does not constitute a transaction that can be recognized as a market price as stipulated in Article 89 (1) of the Enforcement Decree

However, the facts that each transaction on May 15, 2009, which is another transaction example, was not a transaction between related parties, are not a dispute between the parties. Furthermore, even if the interest was calculated and reflected in determining the value of the shares in each transaction above, the parties to the transaction at least would have agreed to sell the shares in question from an economic perspective. As such, it is reasonable to view the above transaction case as a general and normal transaction that properly reflects the exchange value of the shares at the time. Furthermore, since the time of the above transaction case, since the time of the above transaction, the financial status and the business performance of △△△△△ was occupied from the time of the transaction in this case, it is determined that the value of the shares in this case at least did not fall below the above transaction example.

In light of the above circumstances, KRW 5,853, May 15, 2009, which is a general and normal transaction value reflecting the exchange value of the stocks of △△△△△△, is a price based on the ordinary and normal transaction, and can be recognized as the market price of the stocks of this case pursuant to Article 52(2) of the former Corporate Tax Act and Article 89(1) of the former Enforcement Decree of the Corporate Tax Act. Thus, there is no illegality in the disposition of

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.