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(영문) 물적분할로 인한 자산양도차익상당액의 손금산입 적용여부
조세심판원 질의회신 | 2009-08-31 | 법인세과-964 | 법인
Document Number

Corporate Tax and -964 ( August 31, 2009)

Items of Taxation

A corporation

Journal

Provisions for the inclusion of the gains from transfer of assets due to physical division under Article 47 of the Corporate Tax Act in deductible expenses shall apply where a divided corporation acquires the stocks of a corporation established by division.

Congress RESALS

The provisions of inclusion of the amount equivalent to the gains from transfer of assets due to physical division under Article 47 of the Corporate Tax Act in deductible expenses apply to cases where a divided corporation acquires the stocks of a corporation established by division due to physical division, so it is not applicable to cases where a divided corporation divides its business division

Related statutes

Article 47 of the Corporate Tax Act 【Inclusion of Amount from transfer of assets due to physical division in deductible expenses】

Main text

1. A summary of the contents of inquiry;

○ Facts

○ Previous (Before December 31, 205) acquired the stocks of a corporation newly established by division (or a counterpart corporation to a division and merger) due to a physical division meeting certain requirements by a divided corporation.

-The amount equivalent to the asset transfer marginal profit accruing from a physical division out of the value of the stocks concerned may have been included in deductible expenses by appropriating the advanced depreciation reserve fund.

Pursuant to the amendment of tax law on December 31, 2005, the special taxation on gains from transfer of physical division is recognized only when the stocks of a corporation established through division are acquired.

-Article 47 of the Corporate Tax Act is interpreted not to apply to a physical merger under the premise that a merger by split-merger which is not established by a new corporation under the relevant established rules (in writing 2 teams-1761, September 12, 06) does not occur under the Commercial Act.

Pursuant to the registration precedent of the Supreme Court (2003.10-15), since it is possible to divide and merge with an existing corporation rather than a new corporation, it shall be interpreted that the physical absorption of shares of the counterpart corporation to a division and merger is possible.

Terms and Conditions Questiones

- Article 47 of the Corporate Tax Act shall also apply to physical absorption and merger in the course of physical division from the beginning business year after January 1, 2006

[Related Acts and subordinate statutes]

Article 47 of the Corporate Tax Act 【Inclusion of the amount equivalent to the gains from transfer of assets due to physical division in deductible expenses (amended on December 31, 2005).

(1) Where a divided corporation acquires the stocks of a corporation newly established by division through a physical division and the requirements under each subparagraph of Article 46 (1) are met (in the case of subparagraph 2 of the same paragraph, the total amount shall be the stocks), an appropriate amount for marginal profits from the transfer of assets generated by a physical division from the value of the relevant stocks may be included in deductible expenses in the calculation of income for the business year which includes the registration

Article 47 of the Corporate Tax Act: Inclusion of the amount equivalent to the gains from transfer of assets due to the physical division in deductible expenses (amended on December 31, 2001)

(1) Where a divided corporation acquires stocks of a corporation newly established by division or a counterpart corporation to a division and merger through a physical division, and the requirements under each subparagraph of Article 46 (1) are met (in the case of subparagraph 2 of the same paragraph, the total amount shall be stocks), an appropriate amount for marginal profits from the transfer of assets generated by a physical division from the value of the relevant stocks may be included in deductible expenses in the calculation of income for the business

Article 47 of the Periodical Corporate Tax Act: Inclusion of the amount equivalent to the gains from transfer of assets due to the physical division in deductible expenses.

(1) Where a divided corporation acquires the stocks of a corporation newly established by division through a physical division and meets the requirements under each subparagraph of Article 46 (1) (in the case of subparagraph 2 of the same paragraph, the total amount shall be the stocks), an appropriate amount for transfer marginal profits of assets generated by a physical division from the value of the relevant stocks may be included in deductible expenses in the calculation of income for the business year which

Article 530-2 of the Commercial Act 【Division or Division and Merger of Company】

(1) A company may be divided to form one or several new companies. (See December 28, 1998)

(2) A company may be divided to merge with one or more existing companies (hereinafter referred to as "merger after division").

(3) A company may be divided to form one or more new companies, which, in succession, may merge with other existing companies. (Newly Inserted by Act No. 5591, Dec. 28, 1998>

(4) A company after dissolution may be divided or merged after division only when an existing company becomes the surviving company or a new company is to be incorporated by such division or merger after division (Newly Inserted by Act No. 551, Dec. 28, 1998>

【Real Division】

The provisions of this Section shall apply mutatis mutandis to the case where a company to be divided acquires the total number of stocks of a company to be incorporated due to a division or a merger through division (the new date of December 28, 198).

○ Document 2 Team-1761 (No. 2006.12)

【Reasoning】

1. Summary;

The question is about the amendment of Article 47 of the Corporate Tax Act among the Act No. 7838, Jan. 1, 2006, which was decided on Sep. 20, 2005 as the Government's final decision and decided through the National Assembly on Dec. 31, 2005.

2. Article 47 of the Corporate Tax Act;

(1) Before amendment

Article 47 (Inclusion of Amount equivalent to Gains on Transfer of Assets due to Physical Division in Calculation of Losses)

(1) The stocks of a divided corporation established by division or counterpart corporation to a division and merger due to a spin-off (hereinafter referred to as "off)

(2) After amendment

Article 47 (Inclusion of Amount equivalent to Gains on Transfer of Assets due to Physical Division in Calculation of Losses)

(1) The stocks of a corporation newly established by division due to a spin-off of a divided corporation shall be from (hereinafter omitted).

(3) Contents of amendment

The cases of counterpart corporation to a division and merger are excluded.

3. Matters to be asked;

In the previous case where a divided corporation acquires the stocks of a corporation newly established by division or a counterpart corporation to a division and merger due to a physical division meeting certain requirements, the amount equivalent to the transfer marginal profits accruing from the physical division from the value of the relevant stocks may be appropriated as the advanced depreciation reserve fund for the relevant stocks and included in the calculation of losses. However, from the beginning of the business year after January 1, 2006, the question is as to whether it is possible to include the advanced depreciation reserve

【Correspondence】

E In the case of E-Question, the physical division under the provisions of Article 530-12 of the Commercial Act provides that the acquisition of the total number of shares of a company to be incorporated due to a division or a merger by split shall be effected, and there is no occurrence of a merger by split or a merger by split in which a new corporation is not

A divided corporation is unable to acquire the stocks of a counterpart corporation to a division and merger, and thus the provisions of Article 47 of the Corporate Tax Act (Law No. 7838, Dec. 31, 2005) shall not apply.

○ Supreme Court Decision 200310-15

In the case of the so-called physical absorption and merger, which allocates and delivers the shares of the divided Gap company with respect to the equity shares corresponding to the part of the divided Gap company, the registration of change due to the division and merger will be possible (the deposit corporation 3402-239, Oct. 8, 2003).

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