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(영문) 최대주주의 상장주식 지주회사 현물출자시 할증평가 여부
조세심판원 질의회신 | 2007-11-15 | 서면인터넷방문상담2팀-2081 | 법인
Document Number

Document Internet Visit Counseling Team 2-2081 ( November 15, 2007)

Items of Taxation

A corporation

Journal

The addition rate of "the largest shareholder, etc." under Article 63 (3) of the Inheritance Tax and Gift Tax Act shall apply to the stocks invested in kind when the largest shareholder, etc. makes an investment in kind in a holding company.

Congress RESALS

1) In the case of an inquiry, in the case of an investment in kind of shares of an affiliated company owned by the largest shareholder, etc., the additional rate of "large shareholder, etc." under Article 63 (3) of the Inheritance Tax and Gift Tax Act shall apply to the shares invested in kind when the largest shareholder, etc. makes an investment in kind to the holding company, and in the case of an investment in kind by means of tender offer of shares from many unspecified persons under Article 21 of the Securities and Exchange Act in order to establish the holding company, it is desirable to refer to existing interpretation cases - 489 ( August 26, 2004), 2-714 ( April 24, 2007) as to whether the difference between the value of the investment in kind and the market value

Related statutes

Article 52 of the Corporate Tax Act 【Rejection of Wrongful Calculation】

Main text

1. A summary of the contents of inquiry;

Terms and Conditions Questiones

1. Whether the value calculated by adding the additional rate of “large shareholder, etc.” as stipulated in Article 63(3) of the Inheritance Tax and Gift Tax Act to the final market price of an affiliate stock (BB stocks)’s stocks when investing in kind in A company (holding company);

2. Whether Article 15(2)1 of the Corporate Tax Act applies to the difference between the market price and the investment in kind of B stocks by deeming that B stocks were purchased at a low price from an individual with a special relationship if the market price under Article 89 of the Enforcement Decree of the B stocks owned by the largest shareholder, etc. reaches the investment in kind of B stocks from the individual with a special relationship;

3. Whether Article 52 of the Corporate Tax Act applies to the difference between the market price of B-stock and the investment in kind by deeming that B-stock was purchased at a higher price from an individual with a special relationship when the market price under Article 89 of the Enforcement Decree of the B-stock owned by the largest shareholder, etc. is lower than the market price of B-stock from the individual with a special relationship;

B/L Factual relations

- In order to convert A into a holding company under the Monopoly Regulation and Fair Trade Act, A will divide the business division of A(the listed corporation, the divided holding company) into a human division method pursuant to Articles 520-2 through 530-11 of the Commercial Act and establish B(the listed company and the company).

- A shall offer capital increase with the method of tender offer under Article 21(3) of the Securities and Exchange Act and the method of public offering under Article 2(3) of the Securities and Exchange Act in order to secure the stable management

- A shall be invested in kind by shareholders of B, who have complied with the tender offer, and in return for the issuance/distribution of A, of the new shares of B, and shall be authorized by the court under Article 289 of the Commercial Code (as stated in the court approval of

- The investor in kind (the shareholder of the B corporation) and the Company A shall be specially related to Article 87, Paragraph 1, of the Enforcement Decree.

2. Materials on the contents of questioning;

(a) Related tax statutes (the Act, the Enforcement Decree, and the Enforcement Rule);

【Scope of Gross Income】

(1) The gross income shall be the amount of earnings generated by transactions which increase the net assets of the concerned corporation, except for capital input or financing and other transactions as provided in this Act (amended on December 28, 1998).

(2) The following amounts shall be regarded as earnings:

1. Where securities are purchased from an individual who is a person with a special relationship as referred to in paragraph (1) of Article 52 at a price below the market price as referred to in paragraph (2) of the same Article, the amount equivalent to the difference between the market price and the concerned purchase price (amended on December 28, 199

Article 52 of the Corporate Tax Act 【Rejection of Wrongful Calculation】

(1) Where the head of the district tax office having jurisdiction over the place of tax payment or the Commissioner of the competent Regional Tax Office deems that the tax burden on the income of a domestic corporation has been unjustly reduced through transactions with persons with a special relationship as prescribed by the Presidential Decree (hereinafter referred to as "specially related persons"), he may calculate the income amount for each business year of the relevant corporation regardless of the activities or calculation of the income amount of the relevant corporation (hereinafter referred to as "Calculation by wrongful calculation").

[Scope of Market Price, etc.]

(1) In the application of the provisions of Article 52 (2) of the Act, where there is a price generally traded between many and unspecified persons other than specially related persons or third parties who are not specially related persons in a similar situation with respect to the relevant transaction, the price (in cases where stocks issued by a stock-listed corporation or KOSDAQ-listed corporation are traded on the Korea Securities and Futures Exchange under the Korea Securities and Futures Exchange Act, the market price of the relevant stocks shall be the final price on the date of such transaction).

(2) In the application of the provisions of Article 52 (2) of the Act, in case where the market price is unclear, the amount calculated by applying in sequence the provisions falling under each of the following subparagraphs:

1. Where there is a value appraised by the appraisal evaluation corporation under the Public Notice of Values and Appraisal of Real Estate Act, the value thereof (in case there are not less than 2 appraised values, the average amount of the appraised values): Provided, That stocks, etc. shall be excluded; and

2. The amount appraised by the mutatis mutandis application of the provisions of Articles 38 through 39-2, and 61 through 64 of the Inheritance Tax and Gift Tax Act. In applying mutatis mutandis the provisions of Article 63 (2) 1 of the Inheritance Tax and Gift Tax Act and Article 57 (1) and (2) of the Enforcement Decree of the same Act, "immediately six months (three months in case of stocks, etc. upon which gift tax is levied)" shall be deemed to be "immediately six months" respectively.

(3) In cases of lending or borrowing of money under Article 88 (1) 6 and 7, notwithstanding paragraphs (1) and (2), the weighted average loan interest rate (hereinafter referred to as "provisional average loan interest rate") calculated as prescribed by Ordinance of the Ministry of Finance and Economy shall be the market price: Provided, That in cases prescribed by Ordinance of the Ministry of Finance and Economy in which it is impossible to apply the weighted average loan interest rate, the overdraft loan interest rate prescribed by Ordinance of the Ministry of Finance and Economy shall be the market price.

(4) In the provision of assets (not including money) or services under the provisions of Article 88 (1) 6 and 7, where the provisions of paragraphs (1) and (2) cannot be applied, the amount calculated pursuant to the provisions of each of the following subparagraphs shall be the market price:

1. Where tangible or intangible assets are provided or received, the amounts calculated by multiplying the fixed deposit interest rate by the amount of 50/100 of the market value of the relevant assets less the amount of rental key money or deposits received in connection with such assets (not later than December 29, 2000); and

2. Where construction or other services are provided or received, the sum of the amount required to provide the relevant services (including direct and indirect expenses; hereafter referred to as "cost" in this subparagraph) and cost multiplied by the rate of profit during the relevant business year from transactions providing similar services to persons other than persons with a special relationship (referring to the rate divided by the sales amount calculated according to corporate accounting standards and the cost, divided by the cost).

(5) In cases falling under wrongful calculation under the provisions of Article 88, the market price and the margin under the provisions of paragraphs (1) through (4) shall be included in the calculation of earnings pursuant to the provisions of Article 52 (1) of the Act, and the income amount of the concerned corporation for each fiscal year shall be calculated: Provided, That this shall not apply to loans of money as prescribed by the Ordinance of the Ministry of Finance and Economy.

(6) Where profits are distributed to a person with a special relationship pursuant to the provisions of Article 88 (1) 8 and 8-2, the provisions of Articles 38, 39, 39-2, 39-3 and 40 of the Inheritance Tax and Gift Tax Act, and Articles 28 (3) through (6), 29 (3), 29-3 (2), 30 (4) and 31-9 (2) 4 and 5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act shall apply mutatis mutandis to the calculation of the amount to be included in gross income pursuant to the provisions of paragraph (5). In this case, "large stockholder" and "person with a special relationship" shall be deemed "person with a special relationship" under this Decree, "profit" and "profit prescribed by Presidential Decree" shall be deemed "profit distributed to a person with a special relationship" (amended by February 28, 207).

(b) Relevant established rules (judicial precedents, review and adjudication, and established rules);

Written 2 Team-1864, Nov. 21, 2005

【Name】

When a corporation invests its affiliate stocks in kind in a holding company, it is required to apply the additional rate of "large shareholder, etc." to the stocks owned by a corporation with a special relationship.

【Reasoning】

Whether the additional rate of "large shareholder, etc." under Article 63 (3) of the Inheritance Tax and Gift Tax Act should be applied to the stocks owned by a corporation having a special relationship with the largest shareholder when investing in kind its stocks in the holding company.

【Correspondence】

The term “major shareholder or largest investor as prescribed by the Presidential Decree” in Article 53 (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act means the person having a relationship falling under any of subparagraphs of Article 19 (2) of the Enforcement Decree of the same Act with one shareholder.

When a corporation invests its affiliate stocks in kind in a holding company, it is required to add the additional rate of "large shareholder, etc." under Article 63 (3) of the Inheritance Tax and Gift Tax Act to the stocks owned by a corporation having a special relationship with the

Written 4 Team-180, 204.7.27

Where shares held by the largest shareholder, etc. are invested in kind in another unlisted corporation, the shares invested in kind shall be appraised by the increase.

【Reasoning】

Corporate shareholders Gap and individual shareholders Eul, who are shareholders of an unlisted corporation (A) are specially related persons, in which the total equity ratio exceeds 50 percent. Gap and Eul decided to make investments in kind in other unlisted corporation B. In this case, whether to increase the value of shares of a A corporation invested in kind in accordance with the investment in kind.

【Correspondence】

If shares held by the largest shareholder are invested in kind in another unlisted corporation, it is reasonable to increase and assess the amount of shares invested in kind under Article 63 (3) of the Inheritance Tax and Gift Tax Act.

Written 2 Team-714, 207.4.24

【Name】

Where an investment in kind is made in order to establish a holding company by means of stock offer method under the Securities and Exchange Act, if it is not deemed that the tax burden has been unjustly reduced, the unfair act shall not apply

【Reasoning】

(De Facto Relations)

- In order to establish a holding company, A company (a listed company, division, etc.) is divided by human division and newly incorporated B (listed company, business company) in a way of human division, and A shall secure a share of not less than 30 percent in accordance with Article 8bis, Section 2, 2, 2, of the Monopoly Regulation and Fair Trade Act.

Accordingly, A shall receive B-S shares issued by shareholders of B-S in the form of public offering through tender offer, and in return, issue A-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

(Summary of Pledge)

In the event that the investment price in kind differs from the market price under Article 89 of the Enforcement Decree of the Corporate Tax Act according to the public tender offer method under Article 21 (3) of the Securities and Exchange Act with the value appraised by the court inspector, whether the unfair act denying provision applies to the case where the investment in kind is seen as

【Correspondence】

In the case of the inquiry of you, the provisions on the denial of wrongful calculation under Article 52 of the Corporate Tax Act shall not apply to the cases of receiving an investment in kind in order to establish a holding company by offering stocks from many and unspecified persons outside the securities market under Article 21 of the Securities and Exchange Act, and where it is not recognized that the tax

Re-corporation -489, 204.8.26

Where a corporation receives stocks of another corporation from an individual who is a related party at a low price, the difference between the market price and the investment in kind shall not be included in the calculation of earnings.

【Reasoning】

o “갑”법인이 특수관계자인 개인 “을”로부터 “병”법인의 주식을 시가(1억원)에 미달하는 가격(7천만원)으로 현물출자받은 경우 시가와 현물출자가액과의 차액 3천만원의 익금산입 여부

- Market price of stocks invested in kind: 100 million won ( appraised value under the Inheritance and Gift Tax Act).

Amount of investment in kind: 70 million won (amount appraised by an inspector).

·Difference between market price and market price: 30 million won

【Correspondence】

Where a corporation receives stocks of another corporation from an individual with a special relationship at a price lower than the market price under Article 89 of the Enforcement Decree of the Corporate Tax Act, the amount equivalent to the difference between market price and investment price of the relevant stocks shall not be the gross income under Article 15 (2) 1 of the Corporate Tax

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