In a case where Party A, a shareholder of Party A, who is a company during the grace period deemed as a small and medium enterprise pursuant to the main sentence of Article 2(3) of the former Framework Act on Small and Medium Enterprises, transferred Company A’s shares and reported and paid capital gains tax on deeming Company A as a small and medium enterprise; and the tax authority issued a correction notice of capital gains tax on the ground that Party A’s merger with Company C, a small and medium enterprise, did not constitute a small and medium enterprise from the time of merger, the case affirming the judgment below holding that the said transferred shares constituted shares of a small

In a case where Party B, a shareholder of Party B, who is an enterprise during a three-year grace period deemed to be a small and medium enterprise under the main sentence of Article 2(3) of the former Framework Act on Small and Medium Enterprises (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same) transferred Company A’s stocks and reported and paid capital gains tax from Party B as a small and medium enterprise, the tax authority imposed a correction notice of capital gains tax on the ground that Party B’s merger of Company C, which is another small and medium enterprise, does not constitute a small and medium enterprise from the time of merger, the former Framework Act on Small and Medium Enterprises provides that both of the provisions on the main sentence and proviso of Article 2(3) of the former Framework Act on Small and Medium Enterprises provides that a small and medium enterprise ceases to be a small and medium enterprise due to the expansion of its scale before the occurrence of the cause prescribed by the Presidential Decree, and thus, Article 2(1)5 of the former Enforcement Decree of the Income Tax Act provides that the aforementioned provision shall not apply to Party B’s merger with Party 10.

Article 104 (1) 4 (b) (see current Article 104 (1) 11 (b) of the former Income Tax Act (Amended by Act No. 8825, Dec. 31, 2007); Article 167-8 of the former Enforcement Decree of the Income Tax Act (Amended by Presidential Decree No. 21195, Dec. 31, 2008); Article 2 (3) of the former Framework Act on Small and Medium Enterprises (Amended by Act No. 8852, Feb. 29, 2008); Article 9 subparagraph 1 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises (Amended by Presidential Decree No. 21368, Mar. 25, 2009)

Plaintiff 1 and four others (Law Firm Seo-gu, Attorneys Lee Young-gu et al., Counsel for the plaintiff-appellant)

Head of the District Tax Office and one other

Seoul High Court Decision 2012Nu1305 decided July 11, 2012

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Article 104 (1) 4 (b) of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007; hereinafter the same) provides that the tax rate of 10/10 shall apply to the transfer income of stocks, etc. of a small or medium enterprise as prescribed by the Presidential Decree; and Article 167-8 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21195 of Dec. 31, 2008) provides that "small or medium enterprise as prescribed by the Presidential Decree" means a small or medium enterprise under Article 2 of the Framework Act on Small and Medium Enterprises as of the end of the business year immediately preceding the business year in which the date of the transfer of stocks, etc. belongs."

In addition, Article 2(3) of the former Framework Act on Small and Medium Enterprises (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same) provides that “If a small or medium enterprise ceases to be a small or medium enterprise due to its expansion, etc., for three years from the year following the year in which such cause occurs, it shall be deemed a small or medium enterprise: Provided, That this shall not apply where it is no longer a small or medium enterprise due to a merger with a company other than a small or medium enterprise or other reason prescribed by Presidential Decree.” Article 9 subparag. 1 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises (amended by Presidential Decree No. 21368, Mar. 25, 2009; hereinafter the same) provides that “any of the grounds prescribed by Presidential Decree” under the proviso to Article 2(3) of the former Framework Act on Small and Medium Enterprises

2. 원심은 채택증거에 의하여 그 판시와 같은 사실을 인정한 다음, 구 중소기업기본법 제2조 제3항 본문과 단서는 모두 중소기업이 일정한 사유로 중소기업에 해당하지 아니하게 된 경우를 정하고 있으며, 그 본문에 의한 3년의 유예기간 중에 있는 기업은 대통령령이 정하는 사유가 발생하기 전에 이미 규모의 확대 등으로 중소기업에 해당하지 아니하게 된 기업이므로 다른 중소기업을 합병하더라도 그 단서가 정하는 ‘대통령령으로 정하는 사유로 중소기업에 해당하지 아니하게 된 경우’의 요건을 충족할 수 없는 점, 위 유예기간 중의 기업이 주체가 되어 중소기업을 합병할 경우 그때부터 그 유예기간이 바로 실효된다는 취지의 규정이 없는 점 등을 이유로, 중소기업이 위 유예기간 중의 기업을 흡수합병함으로써 중소기업에 해당하지 아니하게 된 경우와 달리 위 유예기간 중의 기업이 중소기업을 흡수합병한 경우는 구 중소기업기본법 시행령 제9조 제1호 의 적용대상이 되지 않는다고 전제하고, 이 사건 양도주식의 발행법인인 주식회사 네오위즈는 위 유예기간 중의 기업으로서 중소기업인 주식회사 띵소프트를 흡수합병하였다고 하더라도 여전히 위 유예기간이 적용된다고 보아 이 사건 양도주식은 구 소득세법 제104조 제1항 제4호 (나)목 에 의한 중소기업의 주식에 해당하여 그 양도소득과세표준에 대하여는 위 규정에 의한 100분의 10의 세율이 적용되어야 한다고 판단하였다.

3. Examining the above provisions, legislative purport, and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to capital gains tax rates and the scope of small and medium enterprises as otherwise alleged in the ground of appeal

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)