외국 비상장주식의 역외 현물출자와 세법상 평가 - 481 - ❙Abstract❙ How to Evaluate Foreign Unlisted Stocks for Tax Purposes in Case of Overseas In-kind Contributions? - Several Implications of Supreme Court Ruling 2024Du56436 (February 20, 2025) - 82) BeomJune KIM* The objective of this paper is to examine the Supreme Court of Korea (“SCK”)’s decision 2024Du56436 (February 20, 2025, “Decision”) and to analyze interpretive and legislative implications. In the Decision, Company A (a Korean corporation) contributed shares of Swiss Company C to Swiss Company B and received shares of Company B in return. The National Tax Service (“NTS”) calculated the capital gain on the in-kind contribution based on the book value as well as the transfer price of Company C’s shares and subsequently issued a corporate income tax assessment against Company A. The SCK cancelled the assessment for the following reasons. First, the book value of Company C’s shares is not the arm’s-length price under Article 8 of the Act on International Tax Adjustment (“AITA”). Second, the capital gain on the in-kind contribution should be calculated based on the fair market value of Company B’s shares. In light of related laws and precedents, the Decision is appropriate. The Decision is an important precedent regarding offshore in-kind contributions of foreign unlisted shares. The Busan High Court’s Decision (Ulsan)2023Nu10811 (August 29, 2024) held that the supplementary valuation method might be regarded as a legitimate valuation tool for foreign unlisted stocks. According to such position, the supplementary valuation amount of foreign unlisted stocks may constitute the arm’s length price under the AITA or the fair market value under the Corporate Income Tax Act (“CITA”). However, applying the supplementary valuation method to foreign unlisted shares is inconsistent with Article 58-3 of the Enforcement Decree of the Inheritance and Gift Tax Act (“IGTA”) and the SCK’s former * Assistant Professor, School of Law, Seoul National University, Attorney at Law, Ph.D.
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