추정이익에 의한 비상장주식 평가의 몇 가지 문제점과 해결 방안

There have been disputes between taxpayers and the National Tax Service (“NTS”) over several tax issues surrounding the predicted future earnings method (the “PFE method”), which is one of the supplemental valuation methods under the Inheritance Tax and Gift Tax Act (the “ITGTA”). Such disputes have led to a series of Supreme Court decisions. The purpose of this article is to review these tax issues and present interpretative and legislative solutions. The key contents of this article are summarized below. First, by far, the NTS has applied the PFE method only where both the reasons and requirements for applying predicted future earnings are satisfied. If the requirements for applying predicted future earnings are not satisfied, the NTS applies not the PFE method but the weighted average of past earnings method (the “WAPE” method), even if the reasons for applying predicted future earnings are satisfied. The above position of the NTS contradicts not only the legislative purport of the PFE method but also the language of the relevant provisions under the ITGTA. Accordingly, as long as the reasons for applying predicted future earnings are satisfied, the WAPE method cannot be directly applied. The Supreme Court decision 2010Du26988 dated April 26, 2012 also takes the same position. Second, the “reporting within the reporting period” requirement, among the requirements for applying predicted future earnings, is just a cooperative obligation and merely requires submission of reference materials for tax assessment purposes. Therefore, the PFE method is applicable even if the “reporting within the reporting period” requirement is not met. Third, the Supreme Court decision 2010Du26988 dated April 26, 2012 has determined that as long as the reasons for applying predicted future earnings are recognized, an “objective and reasonable method” should be applied instead of the WAPE method. Thereafter, subsequent Supreme Court decisions have presented objective and reasonable methods to be applied with respect to temporary and contingent gains and losses. However, there is no clear precedent as to mergers, spin-offs, changes of the main business, etc. among the reasons for applying predicted future earnings, and it is not easy to find out an objective and reasonable method for such cases under the current supplemental valuation methods. Fourth, where the reasons for applying predicted future earnings are recognized, it is appropriate to appraise unlisted stocks based on predicted future earnings. For this reason, it is necessary to amend the ITGTA in a way that the appraised value of unlisted stocks is recognized as the market price of the stocks and at the same time the requirements for applying predicted future earnings are removed. In addition, the reasons for applying predicted future earnings should be expanded so that the PFE method can be applied in case the taxpayer has proved that it is unreasonable to apply the WAPE method.