出資轉換으로 취득한 株式의 시가 이하계상을 이유로 한 法人稅 賦課處分관련 判決의 不當性- 對象判決: 서울행정법원, 2011.12.16 선고, 2011구합11785 판결 및 서울고등법원, 2012.06.13 선고, 2012누463 판결 -

NH Bank recently acquired the stocks of LG Card through debt-for-equity swap, appraising the acquisition cost not based on the closing price of the stock exchange but on Korea Asset Pricing’s estimation on non-marketable equity securities. In regard to this, stating that the bank undervalued the stock acquisition price, the taxing authorities ordered that NH Bank pay additional tax default, along with the corporate tax imposed with the cost differential between the two stock prices included in its gross income. However, there are no law clauses in Corporate Tax Act or its Enforcement Decree to support the decision to make the bank’s undervaluation to become a reason to put the differential in NH Bank’s gross income and make the bank pay more. Therefore, the taxing office’s ruling in this case was illegal, not having enough legitimacy in its nature while lacking accordance with the necessary procedures. The judgments, first by Seoul Administrative Court and then by the Seoul High Court, seem to have been rendered while the courts were not fully aware of the crucial points in the case. The more important issue in the disposition is not the ‘undervaluation of NH Bank’s stock acquisition’ itself but ‘whether to include the uncollectable accounts occurred at the debt-for-equity exchange in deductible expenses.’ Nevertheless, the courts regarded the former matter as the only point of interest and left the latter completely untouched. It was also a mistake that the courts presupposed the stock acquisition price should have been based on the market value according to Item 4 of Para. 1 of Art. 72 of the Enforcement Decree although the debt-for equity exchange in this case was actually NH Bank’s participation in LG Card’s capital increase, carried out in the form of payment of stocks. Furthermore, the second debt-for-equity swap of NH Bank was merely an acquisition of the new stocks through debt-for-equity exchanging at the stocks’ face amount, but the court saw it that LG Card gave NH Bank 550 won per share—when simply put, the courts thought the bank gained 550 won per share by its participation in capital increase—and ordered a taxation disposition, a verdict that cannot be accepted nor be explained by any means. The real point at issue in the case is ‘whether NH Bank’s evaluation and declaration of the stock acquisition price should be subject to the imposition of corporate tax, since the amount was not based on the closing price of the stock market.’ Considering it was never dealt with during the trials, the verdict might as well be reversed and quashed.