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(영문) 대전고등법원 2015. 1. 29. 선고 2014누10668 판결

[경정청구거부처분취소][미간행]

Plaintiff, Appellant

Boan Highway Co., Ltd. (Attorneys Lee Woo-soo et al., Counsel for the defendant-appellant)

Defendant, appellant and appellant

Gongju Tax Office (Law Firm LLC, Attorneys Kang Hun-gu, Counsel for defendant-appellant)

Conclusion of Pleadings

December 11, 2014

The first instance judgment

Daejeon District Court Decision 2013Guhap100339 Decided May 21, 2014

Text

1. Revocation of a judgment of the first instance;

2. All of the plaintiff's claims are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The defendant's claim for correction against the plaintiff on January 25, 2013: (1) the remaining 2004 business year increases the undeductible balance from 8,560,244,347 won to 9,103,239,018 won; (2) the claim for correction to increase the deficits that occurred in the business year 2009 from 0 won to 7,324,130,329 won; and (3) the claim for correction to increase the undeductible balance in the business year 2005 to 3,621,939,907 won in the business year 2005 to 11,489,064,907 won; and (3) the claim for correction to increase the tax base to 29,368,173,169 won in the business year 201 to 6,436,97,498 won in the business year 309,4197;

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The plaintiff's status

On July 22, 1997, the Plaintiff is a company established for the purpose of construction and operation pursuant to the former Promotion of Private Capital into Social Overhead Capital (amended by Act No. 4773 of Aug. 3, 1994, hereinafter “Private Investment Act”).

B. Plaintiff’s subordinated debt burden

At the time of May 20, 2005, the Plaintiff reduced the capital of KRW 3,037.50 billion, among the capital of KRW 450 billion, and 1,822.50 million from the Korea Infrastructure Infrastructure Fund (hereinafter referred to as the “Slori”) which was a shareholder on the same day, borrowed KRW 47,081,250,000 from the same private school staff pension management corporation, and borrowed KRW 45,562,50,000 from the same national bank to the same national bank, respectively. On September 20, 2005, the Plaintiff borrowed KRW 28,856,250,000 from the date of the annual conversion to the subordinated loan, to the end of 200,000 per annum from the following day to the end of 20,000 to the end of 3,037.5 billion per annum. The Plaintiff made an agreement to repay interest on the subordinated loan of this case to the end of 2008 years.

C. Imposition, etc. of corporate tax for the business year 2009, 2010 and revocation thereof by the defendant

1) On September 2010, the Board of Audit and Inspection demanded the National Tax Service to monitor the actual status of ex post facto management of private investment projects in the way of guaranteeing minimum import (hereinafter “MRG”) from around November 201 to monitor the appropriateness of the interest rate on subordinated loans by private investment investors.

2) Around July 201, the Defendant investigated the Plaintiff’s interest rate on subordinated loans in the business year of 2009 and 2010, and determined that the Plaintiff borrowed the subordinated loans in this case from the shareholders to the interest rate of 16% (referring to the interest rate from 2009 to 2012) constitutes wrongful calculation as a transaction between related parties lacking economic rationality, and subsequently, on September 15, 201, based on Article 52 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 201; hereinafter “Corporate Tax Act”) on September 15, 201, based on Article 52 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter “Corporate Tax Act”), among interest expenses on subordinated loans in the business year of 2009, 222,781,250,000 won, which was more than 8.5,5,5463636.

3) On September 19, 201, the Plaintiff filed a tax appeal against it. On August 16, 2012, the Tax Tribunal dismissed the Plaintiff’s claim that “The Defendant imposed corporate tax of KRW 1,366,203,760 on the Plaintiff on September 15, 2011, and the non-deductible expenses of KRW 22,781,250,000 on the Plaintiff on September 15, 201, based on the re-investigation of the 2010 business year 22,781,250,000, the non-deductible expenses of KRW 8.62% of the interest rate of the Plaintiff’s claim [1.53% of the total interest rate, junior risk premium of KRW 1.62%, decrease in minimum revenue guarantee premium of KRW 2.59% of the early termination of the MRG, 200, and 1.64% of the remainder of the correction claim.”

4) On November 5, 2012, the Defendant, after re-audit, determined that the market value of the instant subordinated loan was 1.53% at the maturity rate of 8.62% of the interest rate added to the interest rate of the Plaintiff’s claim, 1.62% at the subordinated risk premium, and 13.41% of the interest rate added to 1.64% of the interest rate added to 8.62% of the interest rate of the instant subordinated loan, and on this basis, notified the tax base and estimated tax amount for the business year 2009 as KRW 782,743,392, 00, KRW 782,743,392, and KRW 2010, KRW 00, KRW 1,366,203,765, respectively, and notified the result of the tax investigation

2. The amount of loss brought forward according to the re-audit decision: The amount of loss brought forward pursuant to the re-audit decision of KRW 9,103,239,018, the balance of KRW 9,103,239,239,018; 2. The amount of loss brought forward pursuant to the re-audit decision of KRW 2005: 25,308,945,879: the amount of loss brought forward (in the case of 2010), the amount of loss brought forward: KRW 22,386,95,672, the balance of KRW 2,921,95,921,950,227, the amount of loss brought forward.

D. The Plaintiff’s filing of corporate tax for the business year 2011

The Defendant determined that the market price of the instant subordinated loan was 8.5% as stated in the foregoing C-2, and the Plaintiff returned corporate tax for the business year 201, March 31, 2012, and subsequently declared the tax base and corporate tax as KRW 55,757,109,397 and KRW 12,242,564,067, respectively.

E. Plaintiff’s request for correction and Defendant’s disposition of this case

1) The Defendant determined the market price of the subordinated loan of this case as 13.41% as stated in the above C-4, and notified the results of the tax investigation. The Plaintiff asserted that, on November 29, 2012, the market price of the subordinated loan of this case is not 13.41% but 16%, which is the initial agreed interest rate. ① With respect to the corporate tax of 2009, the amount of corporate tax was revised as KRW 15,457,119,671 as of March 31, 201 (the amount of losses was revised as of March 31, 201; ② the amount of tax was revised as KRW 6,134,58,318, calculated as 1,522,369,430 as of March 31, 201; ② the amount of tax was revised as KRW 15,470,361,3615,294,305,297.

2) On January 24, 2013, the Defendant corrected the tax base, etc. for the business year 2009, 2010 as follows.

1. Table 1. 209. A. Tax base in the main sentence: zero won in the business year of 2009: - Details of the increase or decrease of loss carried forward - Amount of KRW 9,103,239,018 in the business year of 2004: Amount of loss brought forward: KRW 542,94,671 in the amount of loss brought forward, KRW 8,560,244,347 in the amount of loss brought forward in the business year of 2010 - details of the increase or decrease of loss brought forward in the business year of 2005 - Amount of loss brought forward in the business year of 25,308,945,879 in the amount of loss brought forward: KRW 21,687,05,972 in the amount

3) Furthermore, on January 25, 2013, the Defendant dismissed the claim related to corporate tax for the business year 2009 and 2010 from among the instant claim for correction on January 25, 2013, and the Defendant issued a disposition of partly citing the corporate tax by reducing KRW 14,914,125,00 to KRW 5,805,565,970 (hereinafter “instant disposition”). As to the claim for correction relating to corporate tax for the business year 2011, the Defendant calculated the interest rate of subordinated loans to KRW 13.41% (hereinafter “instant disposition”).

F. The plaintiff's objection to the disposition of this case

On February 15, 2013, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on February 15, 2013, but dismissed the portion of corporate tax for the business year of November 22, 2013, and received a decision to dismiss the portion of the business year of 2011.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 16 through 21, Eul evidence 6 through 9 (including additional numbers), the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. Summary of the defendant's assertion

Of the instant lawsuits, the part concerning the business year 2009 and 2010 is unlawful for the following reasons.

1) The period for filing a lawsuit according to the re-audit decision is calculated from the date of receipt of the notification of the subsequent disposition. According to the re-audit decision by the Tax Tribunal, the Defendant deemed the adequate interest rate for the subordinated loan in this case as 13.41% and corrected each tax base for the business year 2009, 2010, and issued a subsequent disposition to cancel the imposition of corporate tax for the business year 2010. As such, the Plaintiff filed a petition for a trial or administrative litigation within 90 days from November 5, 2012. However, the Plaintiff filed a petition for a tax trial on February 15, 2013 after the lapse of 102 days from November 5, 2012, and filed the instant lawsuit on April 8, 2013, since the period for filing a lawsuit in this case was substantially past the period for filing a lawsuit in this case’s lawsuit, it is unlawful since the Plaintiff’s lawsuit in this case’s lawsuit is in dispute over the disposition.

2) On September 15, 201, the Defendant rendered a disposition to increase the tax base and tax amount for the pertinent business year 2009 and 2010 by non-Inclusion of an amount exceeding 8.5%, which is the interest rate for the instant subordinated loans in the business year of 2010. Under the proviso to Article 45-2 (1) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter “Framework Act”), the Plaintiff filed a request for correction within 90 days (limited to three years after the date of receipt of the notice of disposition), since the Plaintiff filed a request for correction within 90 days (limited to the period within three years after the statutory due date of return expires) from the date on which he/she became aware of the relevant disposition, and the Plaintiff filed a request for correction within 90 days from September 15, 2011. However, the Plaintiff filed a request for correction within 90 days from September 21, 20199.

3) The instant request for correction is subject to a resolution of correction of the tax base and amount of corporate tax for the business year 2009, which the Defendant notified to the Plaintiff on November 20, 2012, and a resolution of correction of the corporate tax base and amount of tax for the business year 2010, which was notified to the Plaintiff on November 26, 2012. This is the reduction of corporate tax base and the amount of tax for each business year 2009, and the reduction of the amount of tax for each business year 2010. As such, the instant request for correction for the business year 209, 2010 is not permissible against Article 45-2(1) of the Framework Act on National Taxes that only

4) The Plaintiff, who was dissatisfied with the Defendant’s taxation disposition on September 15, 201, filed an appeal with the Tax Tribunal. The Defendant determined the market price of the interest rate on the instant subordinated loan as 13.41% on November 5, 2012 in accordance with the review decision by the Tax Tribunal, and notified the Plaintiff thereof, and the Plaintiff did not file an administrative lawsuit thereafter. Accordingly, the re-audit decision by the Tax Tribunal on August 16, 2012 became final and conclusive, and the Plaintiff would be bound by the re-audit decision on August 16, 2012 on the fact that the market price of the instant subordinated loan was 13.41% on the basis of the binding force of the administrative appeal. However, the instant claim for correction was based on the premise that the market price of the interest rate on the instant subordinated loan is 13.41%, not 13.41%, and thus, is unlawful in violation of Article 51 of the Administrative Appeals Act that prohibits the request for administrative appeal.

B. Determination

1) Determination on the first argument

In a case where a tax official calculates the amount of income for each business year of a corporation and calculates the amount of income for each business year, and accordingly determination of the tax base is not an administrative disposition that is subject to an appeal litigation. Thus, in a case where there was an error in the determination, it may be asserted in the procedure that contests the validity of the taxation disposition accordingly (see Supreme Court Decision 2008Du1795, Jan. 28,

Article 45-2 (1) of the Framework Act on National Taxes may, in any of the following cases, request the head of the competent tax office to determine or correct the tax base and amount of the national tax for which the initial return or revised return was filed within three years after the statutory due date of return expires: Provided, That with respect to the increased tax base and amount of tax due to the determination or revision, a request for correction may be made within 90 days (limited to within three years after the statutory due date of return expires) from the date on which the relevant disposition is known (where a notice of disposition is received, the date on which the notice of disposition is received)" in subparagraph 2, and Article 45-2 (3) of the same Act provides that "Where the amount of the deficit or refundable tax recorded in the tax base return (where a determination or correction is made under each tax-related Act, referring to the deficit or refundable amount after the relevant determination or correction is made) falls short of the deficit or refundable amount to be declared under the tax-related Acts, the head of the competent tax office shall determine or rectify the tax base and amount within two months after such request is made."

On November 5, 2012, the defendant calculated the market price of the subordinated loan in this case as 13.41%, and notified the plaintiff by making a decision of correction of tax base, such as an increase or decrease in losses carried forward in the business year 2009 and 2010. Accordingly, on November 29, 2012, the plaintiff asserted that the market price of the subordinated loan in this case was 16%, and filed a request for correction of this case to reduce the corporate tax base for the business year 2009, 2010 (the balance of losses carried forward together), but the defendant dismissed this request on January 25, 2013. The facts that the lawsuit in this case was brought on April 8, 2013 are apparent in the record.

Examining the above facts in light of the legal principles as seen earlier, on the premise that the market price of the interest rate of the subordinated loan in this case is 13.41%, the Defendant’s increase or decrease in losses carried forward for the business year 2009 and 2010, etc., which is subject to appeal litigation, is not subject to disposition to correct the tax base, and thus, the Plaintiff may dispute a mistake in correction in other proceedings. The Plaintiff’s correction of the tax base in the business year 2009 and 2010 upon the application for correction of this case, and the Defendant refused correction of the tax base by the instant disposition, and the Plaintiff may file an appeal seeking revocation of the instant disposition. The instant lawsuit was filed within 90 days from the date on which the instant disposition was issued, and thus is lawful. Accordingly, the Defendant’s allegation in this part is without merit.

2) Judgment on the second argument

Article 45-2(1) of the former Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 2010) provides that the period for filing a request for correction shall be within three years after the statutory deadline for filing a request (referring to the period for filing a request for objection, request for review, or request for adjudgment where a determination or correction is made under each tax-related Act). Accordingly, even if the period for filing a request for a request for a trial arises after the lapse of the period for filing a request for a request for a trial, there was unclear whether it is possible to file a request for correction. Accordingly, Article 45-2(1) of the Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 2010) provides that “The period for filing a request for correction shall be within 90 days after the date on which the relevant disposition becomes known (where a notice of disposition is received, within three years after the statutory deadline for filing a request for a request for correction).” Furthermore, the purport of Article 45-2(1) of the Plaintiff’s request for a request for correction is deemed to be permitted.

3) Judgment on the third argument

According to the evidence Nos. 8-1 and 2-2 of the evidence Nos. 8-2, the defendant may recognize the fact that the defendant notified the plaintiff of each of the resolution of correction of the corporate tax base and tax amount for the business year 2009 and the corporate tax base and tax amount for the business year 2010 on November 26, 2012. The plaintiff filed an application for correction on March 31, 2010 (the business year 2009) and March 31, 201 (the business year 2010 portion) with respect to each of the first reported tax base on March 29, 2011 (the business year 2010 portion) as stated in paragraph (1) of the same Article. However, the defendant asserted that the application for correction of this case is not allowed against Article 45-2 (1) of the Framework Act on National Taxes, on the premise that the application for correction of this case is subject to each of the above resolutions. However, the defendant's allegation on the first reported tax base and tax amount is without merit.

4) Judgment on the fourth argument

Article 51 of the Administrative Appeals Act provides that “Any ruling on a request for adjudgment shall not be filed again against the ruling and the same disposition or omission.” Although the issues of other dispositions than the same disposition are the same, in principle, an administrative appeal may be filed again. The Plaintiff filed a tax appeal on September 15, 201 and issued a reinvestigation ruling on August 16, 2012. Accordingly, the Defendant notified the Plaintiff of the determination of tax base based on the premise that the interest rate on subordinated loans in the instant case was 13.41%, and the Plaintiff’s request for correction was rejected on November 29, 2012, based on the reasoning that the instant request for correction was rejected on January 15, 2013, the Defendant’s request for correction and the instant request for correction cannot be deemed to have violated the aforementioned legal principles and the instant disposition on February 15, 2013.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The reasoning for this part of the court's explanation is the same as that for the corresponding part of the judgment of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Determination

1) Facts of recognition

A) The 12 construction companies, including ELD Construction Co., Ltd., concluded on behalf of the Plaintiff the instant concession agreement with the Ministry of Construction and Transportation on April 3, 1997, with the following contents.

(1) In accordance with the Private Capital Inducement Promotion Act (referring to the Private Capital Inducement Promotion Act, Act No. 4773) and this Convention, the Government shall designate a project implementer as a project implementer for the project, and establish rights to manage and operate the National Highway, and designate, approve, establish and grant the project implementer the qualifications and rights to perform the following acts. ① The design and construction of the roads and the facilities and their accessory facilities under the implementation plan and this Convention; ② the free use of the site for the construction of the roads and their accessory facilities under paragraph (1); ③ the maintenance, repair, operation, and collection of tolls for the facilities under paragraph (3) of this Article, and the operation of the facilities under paragraph (3) of this Article, except as otherwise expressly provided for in this Convention. ② The project implementer shall transfer the rights to manage and operate the facilities under paragraph (3) of this Article to the Government for more than 30 years after the date of operation; and ② the project implementer shall transfer the rights to operate and operate the facilities under paragraph (3) of this Article to the Government for more than 50 years after the date of operation of this Convention.

B) On December 14, 2000, the Plaintiff entered into a concession agreement for the instant project modification including the following contents with the Ministry of Construction and Transportation.

Article 2. Definition 28. Tolls in the main sentence: 90% of the estimated toll revenue for a specific business year specified in Appendix 6. The rate of return on the business of Article 40 shall be 9.24%, and the rate of return on the business of Article 40 shall be 9.24%.

C) On February 16, 2001, the Plaintiff borrowed KRW 730 billion from the Korea Development Bank as senior loans. On February 19, 2001, the Korea Development Bank transferred the credit of KRW 730 billion to the Plaintiff to the Korea Development Bank Specialized in C&C. The Plaintiff’s senior loan interest rate is as follows.

A lump-sum repayment shall be made on February 27, 2006 at the interest rate of 6.92% of the principal repayment with the maturity of 370% on February 27, 2006, and on February 27, 2007 at the temporary repayment of 7.42% on February 27, 2008 at the maturity of 507.62% on February 27, 2009 at the temporary repayment of 507.62% on February 27, 2009, with the maturity of 1,700.7.82% on February 27, 201, 9, 200 on two equal installment repayment in the year 109, from February 27, 2011 to the maturity of 11% on February 27, 2011, and 2.008.62% from February 4, 2016 to the maturity of 11 year.

D) The Plaintiff commenced its operation from December 23, 2002.

E) On Feb. 14, 2004, construction companies (excluding treatment construction companies) that are the Plaintiff’s investors agreed to transfer 90.5% of the Plaintiff’s shares to Muuri, subject to the conclusion of the transaction, in a case where conditions such as the Government’s approval are met (i.e., the revised contract was concluded on Sept. 21, 2004 and February 2, 2005).

F) On June 18, 2004, the Plaintiff submitted to the Minister of Construction and Transportation a plan for the change of investors and refinancing of the following contents:

1. 5th-2nd-2nd-2nd-2nd-5th-2nd-2nd-2nd-2nd-5th-2nd-3th-2nd-2nd-300 billionth-2nd-5th-2nd-5th-2nd-5th-2nd-300 billionth-2nd-36th-200 billion capital of Korea Infrastructure Investment Company (Korean Lora Ltd. Ltd., Ltd., Ltd., Ltd., Ltd., 90.5% of the shareholding ratio of stockholders: LG Construction Co., Ltd., Ltd., Gold Industry Co., Ltd., Ltd., Ltd., 1, 500, 100, 100% of the capital ratio of stockholders: 11,800, 100% of the total amount of subordinated loans, 2000,0000 won prior to the change of the capital ratio of 5th-2nd-5th-3600 billion capital ratio (300 billion won).

G) On November 26, 2004, the Plaintiff submitted to the Minister of Construction and Transportation a letter of commitment related to the change of investors and re-financing, including the fact that the minimum operating guarantee rate was reduced from 90% to 82% of the revenue of the estimated toll. On December 26, 2004, the Minister of Construction and Transportation approved the change of investors and re-financing plan on the condition that the consent of the general lender of senior debts and shareholders who did not transfer shares and the changes in the concession agreement are reflected in the agreement.

H) On February 5, 2005, the Plaintiff entered into a concession agreement with the Ministry of Construction and Transportation for the following changes (as shown in Appendix 1 of Article 9(1) below, Annex 6 is as listed in Annex 1 of this Decision, and as listed in Annex 7-1 of this Decision, the details attached to this concession agreement for operating expenses under Article 6 below are as listed in Annex 2 of this Decision).

Article 6 (1) of the concession agreement shall be amended as follows: ① Operational costs of Article 39 (1) of the concession agreement shall be KRW 5,21 billion as of January 1, 2000. Article 9 (1) of the concession agreement shall be amended as follows: (3) Article 46 (2) of the concession agreement shall be amended as follows: (2) Where the actual amount of tolls revenue for each business year is below the base toll revenue for 20 years from the date of operation pursuant to the Enforcement Decree of the Public-Private Partnerships Act, the Decree of the Public-Private Partnerships Act, and the annual plan, etc., exceeds 10% of the total amount of tolls revenue for 10% and 20% of the total amount of tolls revenue for 20% as of January 1, 200, and where the actual amount of tolls revenue for 20% exceeds 10% of the total amount of tolls revenue for the pertinent business year and 20% of the total amount of tolls revenue for 20% as of 19% of the relevant business year:

I) On February 14, 2005, the Plaintiff entered into a modified loan agreement with the UNFCCC Specialized Company on Asset-backed Securitization, a senior owner:

The withdrawal of deposit in the operation account of the operating account of Article 5 (3) (C) of the Table contained in the main text shall be made in the order of the following specifications during the construction period and the operation period on a monthly basis based on the estimated deposit withdrawal amount to be determined by the lender. Therefore, in cases where the lender considers that the funds for the payment of the preceding priority items are insufficient on a monthly basis, the withdrawal for the payment of the following items shall not be allowed: (1) Tax and public charges under the Acts and subordinate statutes; (2) Tax and public charges under the Acts and subordinate statutes; (3) project expenses for the instant project during the construction period, such as construction expenses; (2) the principal of the loan; (7) the repayment of the principal of the loan; (3) the payment of interest on the subordinated loan; (4) the payment of interest; (1) the payment of interest and principal (limited to cases permitted under this Agreement) the period of this Agreement shall not be made without the prior consent of the lender, except in cases where the following requirements are met during the period of this Agreement:

(j) On May 3, 2005, 15.5% of the Plaintiff’s shares were transferred to the Korea Teachers’ Pension Foundation, and 15% of the Plaintiff’s shares were transferred to the Korean National Bank Co., Ltd. on May 4, 2005.

(k) On May 20, 2005, the Plaintiff reduced the amount of KRW 274,893,750,000, excluding the amount invested by Daewoo Construction Co., Ltd., for consideration in accordance with the refinancing plan, and entered into a subordinated loan agreement to borrow the same amount from shareholders to a lower order. On September 20, 200 of the same year, the Plaintiff reduced the amount of KRW 28,856,250,000 (hereinafter the above creditors are referred to as “instant subordinated loan lender”). The main contents of the subordinated loan agreement are as follows.

Section 4) The term "high interest rate" in Section 2 shall be 6% per annum until the end of 207, and shall not be paid by the end of 200,00 won per annum for subordinated loan 40,000 won per annum (in the case of a long-term loan 40,000 won per annum 5,000 won per annum 5,00 won per annum for subordinated loan 5,00 won which shall be payable by the first five (in the case of a long-term loan 5,00 won which shall be payable by the first five (in the case of a long-term loan 4) interest rate per annum and the first five (in the case of a long-term loan 5,00 won which shall be payable by the first five (in the case of a long-term loan 5) interest rate per annum interest rate per annum for subordinated loan 1,000,000 won which shall be payable by the first five (6) interest rate per annum interest rate per annum interest rate per annum). It shall also be paid by the preceding interest rate per annum 2).

l) According to Article 7 of the Private Investment Act, the detailed guidelines for re-financing prepared in 2004 by the Ministry of Strategy and Finance and publicly announced by the Korea Development Institute in accordance with the Ministry of Strategy and Finance in accordance with Article 7 of the Public-Private Partnerships Act are as follows: “If a project operator submits a re-financing plan containing the competent authority and the project operator’s profit sharing method, methods of calculating investors’ expected profit sharing, and results, etc., the Korea Development Institute’s public investment management center will conduct a substantive review of the adequacy of preparing a financial model regarding the overall re-financing plan, adequacy of calculating a shared profit sharing, appropriateness of a method of sharing shared profit sharing, etc.; and if necessary after consultation with the competent authority and the project operator, the amended concession agreement shall be concluded after deliberation by the Public-Private Partnership Project Deliberation Committee;

(m) In principle, the annual plan is based on the rate of profit sharing between the competent authority and the concessionaire following refinancing. According to the review of the actual application of the instant project refinancing prepared by the new accounting firm on April 2006, the lower rate of minimum revenue guarantee on the basis that the rate of profit sharing due to refinancing is 50:50,000, should be 5.45% to 5.76%.

n) The detailed guidelines for re-financing include the effects of corporate tax on interest expenses, early dividend effects as the effects of capital restructuring, and include the reduction of usage fees, minimum operating guarantee, and reduction of the period of use without compensation due to the methods of using common interests.

(o) According to the current status of the shareholder loans of a private investment project implementer in the request for disposition of the audit results on May 201 by the Board of Audit and Inspection, the interest rate for subordinated loans of other private investment projects is 20% to 48% in the case of the Seoul metropolitan metropolitan circulation road, 12% to 40% in the case of the Daegu-si Busan-si Highway, 7% to 65% in the case of the Dongwest-si Road, 6% to 20% in the case of the U.S. Mangsan-si School, and 27.4% in the case of the Bag-si (1-1 phase), from the minimum of 6% to the maximum of 65% in the case of the Magnan-si

(p) As a result of the Plaintiff’s request for an analysis of market price of the interest rate on subordinated loans of this case to Durroan Jinjin Accounting Corporation and Samil Accounting Corporation, Jinjin Accounting Corporation, on August 2009, selected asset-backed securities transaction as comparative transaction in accordance with the method of computing the arm’s length price under the Adjustment of International Taxes Act, and calculated the appropriate interest rate on subordinated loans as 17.3% by undergoing adjustment, and Samjin Accounting Corporation also determined that the appropriate interest rate was 19.8% to 23.75% by similar method on September 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 14, Gap evidence 24 to 32, Eul evidence 7 and 12 (including branch numbers, if any) and the purport of the whole pleadings

2) Sub-committee

A) Whether there is a special relationship between the Plaintiff and the lender of the subordinated loan in the instant subordinated loan agreement

Article 88(1)3 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22951, Jun. 3, 2011; hereinafter “Enforcement Decree of the Corporate Tax Act”) stipulates that one of the objects of wrongful calculation as prescribed by Article 52 of the Corporate Tax Act is where a corporation transfers assets to persons with a special relationship, such as shareholders, etc., at a price lower than the market price. Here, “market price” refers to an objective exchange value formed through a general and normal transaction, and the determination is based on the time of transaction. As such, if the time and time of transaction differs, whether it constitutes wrongful calculation should be determined at the time of transaction (see Supreme Court Decision 2010Du1484, May 27, 2010).

In light of the above legal principles, the following circumstances revealed in light of the facts acknowledged as seen earlier, i.e., (i) the parties to the instant subordinated loan loan agreement between the Plaintiff and the lender of the instant subordinated loan; (ii) at the time when the Plaintiff submitted a change of investors and a refinancing plan to the Minister of Construction and Transportation on June 18, 2004, the remaining lenders of the subordinated loan was not confirmed; (iii) the interest rate of the subordinated loan under the change of investors and refinancing plan is not the same as the final determined interest rate on May 20, 2005; and (iv) the approval of the Minister of Construction and Transportation is related to the change of investors and refinancing plan; and (v) the interest rate of the instant subordinated loan cannot be deemed to be determined as the interest rate of the instant subordinated loan; and (v) the point at which the interest rate of the instant subordinated loan agreement between the Plaintiff and the lender of the instant subordinated loan was concluded on May 20, 2005 and September 20, 2005.

B) Whether the market value of the instant subordinated loan is 13.41% or more

(1) Article 52(1) of the Corporate Tax Act provides that “where a domestic corporation’s act or calculation of its income amount is deemed to have unjustly reduced the tax burden on the corporation’s income through transactions with a specially related person, the income amount for each business year of the corporation may be calculated regardless of the calculation of the corporation’s act or income amount (Calculation by Wrongful Acts).” Paragraph (2) of the same Article provides that “The wrongful calculation father shall be based on “the market price at which the wrongful calculation father applies or is determined as applicable to sound social norms and commercial practice and normal transactions between unrelated parties.” In addition, Article 88(1)7 of the Enforcement Decree of the same Act provides that “where money or other assets or services are borrowed or received at a rate higher than the market price, rate, or rent than the market price,” and Article 89(3) provides that “the reasonable loan interest rate or weighted average loan interest rate as provided by Ordinance of the Ministry of Strategy and Finance” shall be the market price at the time of lending or borrowing money.

Meanwhile, in a case where a corporation’s wrongful calculation division under Article 52(1) of the Corporate Tax Act does not follow a reasonable method of a person with a special relationship and instead of using various forms of trade listed in each subparagraph of Article 88(1) of the Enforcement Decree of the Corporate Tax Act to avoid or reduce tax burden, it is deemed that the person with the authority to taxation authority denies or reduces the tax burden. It is limited to a case where the person with taxation authority deems that the calculation of an unnatural and unreasonable act was neglected the economic rationality due to disregarding the calculation of an unfair act from the economic standpoint. Determination of the economic rationality is based on whether the transaction was conducted in light of sound social norms or commercial practice, and the determination of whether the transaction was conducted is conducted in a way that lacks economic rationality in light of the circumstances of the transaction, such as the transaction price between the non-specially related persons and the special circumstances at the time of the transaction (see Supreme Court Decision 2007Du14978, May 13, 2010).

(2) In full view of the following circumstances, the Defendant’s assertion 13.41% can be deemed as the pertinent market price, in light of the content and legal principles of the foregoing relevant provisions, based on the following circumstances: (a) the facts of recognition as seen earlier, as well as the evidence Nos. 7, 14, and 15, together with the purport of all pleadings

First, it is common that the interest rate should be determined by adding the maturity premium and the risk premium to the interest rate that did not put up the risk. Since the maturity premium is more likely to change the value of the claim, it means demanding a higher return with compensation. The risk premium means demanding an additional return on the uncertainty due to the debtor's credit rating or the terms and conditions of the contract of the claim. However, the subordinated loan and the senior loan are transactions for the same type of funds except for the difference between the repayment of principal and interest and the order of providing collateral. Since the repayment terms and conditions of the subordinated loan are higher on the ground that they are higher than the senior loan, it is reasonable to calculate the interest rate by adding various premium on the basis of the interest rate of the senior loan.

Second, the defendant calculated 13.41% of the market price by adding 8.62% of the standard market price, 1.53% of the maturity premium, 1.62% of the subordinated risk premium, and 1.64% of the interest on the deferred payment period. Each of the above elements is reasonable because the plaintiff asserted that the plaintiff filed a request for a trial on September 15, 201 for the taxation disposition by the defendant.

Third, the defendant did not reflect 207 billion won of 307 billion won of 207 billion won of 307 billion won of 205 billion won of 200 billion won of 307 billion won of 205 billion won of 307 billion won of 300 billion won of 205 billion won of 307 billion of 200 billion won of 307 billion of 205 billion of 200 billion of 3 billion won of 204 billion of 300 billion of 205 billion of 3 billion of 207 billion of 2003 billion of 200 billion of 200 billion of 3 billion of 3 billion of 4 billion of 206 of 200 billion of 3 billion of 200 billion of 3 billion of 70 billion of 3 billion of 3 billion won of 200 billion of 3 billion won of 3 billion won of 200 billion of 203 billion won of 3 billion of 3 billion of revenues of 2.

Next, the term of repayment of subordinated loans is terminated in 2022, but the term of repayment of subordinated loans is not guaranteed from 2023 to 2029, and the term of repayment of subordinated loans is examined as to the termination date of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity of the term of validity

Fourth, the purpose of re-financing is to increase investors' expectation profits by changing the structure of capital, shares of investors, and conditions of financing outside capital, and thus, it is fundamental to conduct from the standpoint of investors. In the case where a corporation unfairly evades or reduces tax burden by abusing various forms of transactions without reasonable means from a person with a special relationship, the taxation authority denies it and it is different from the institution which is deemed that there is an objective and reasonable income in the manner prescribed by the law. In this case, the fact that the interest cost would be reduced if the amount reduced with consideration through re-financing is converted to the subordinated loan, and the interest rate on the subordinated loan through re-financing would not be deemed to have been high, and it is necessary to re-examine whether the competent authority unfairly avoided or reduces tax burden as an unfair act. Therefore, even if the interest rate in this case is unreasonable, the Plaintiff’s interest rate, other than the market price of the subordinated loan through re-financing, could not be seen as an unreasonable act and thus, it would be more specific that the Plaintiff would not be able to benefit the Plaintiff through the re-financing of this case.

Fifth, the Plaintiff asserted that the terms and conditions of the instant subordinated loan lender were determined prior to the investment, and that the lender of the instant subordinated loan was not finally determined when the Plaintiff submitted a plan for change of investors and re-financing to the Minister of Construction and Transportation on June 18, 2004. However, it is identical to the fact that the lender of the instant subordinated loan was not determined when it submitted the plan for change of investors and re-financing to the Minister of Construction and Transportation on June 18, 2004. However, from 2009 to 2012, there was a provision that the said investor would pay the interest rate of 15% for the subordinated loan, which was already involved in the instant decision making, and the final interest rate was determined after the Plaintiff became a specially related person, it cannot be deemed that the lender of the instant subordinated loan lender was not involved in the determination of the said interest rate at all.

Sixth, Durwork Jin-jin Accounting Corporation and Samil Accounting Corporation calculated the reasonable interest rate based on the comparative interest rate provided by the debtor on corporate bonds or asset-backed claims, but there is no evidence to acknowledge that the debtor is a debtor whose large sales are guaranteed for a long time through MRG as the plaintiff. Therefore, it is difficult to compare the calculation result in this case.

Sixth, in the case of other public-private partnership projects, the interest rate of subordinated loans shall vary from 6% to 65% according to the characteristics of the project, but there are many disputes as to whether the interest rate is appropriate in the case of other public-private partnership projects, and as there are differences in the degree of guarantee of MG or the characteristics of the project, it is difficult to apply the other public-private partnership

Eighth, the Plaintiff did not enter into an agreement on delay of the interest payment of the subordinated loan in this case. However, the Plaintiff asserts that since the amount equivalent to the interest was paid only under the nominal interest without any overdue interest even though it was paid more than seven years or later than the initial payment period, the effective interest rate does not significantly fall short of the nominal interest rate. However, according to Article 70(1)2 of the Enforcement Decree of the Corporate Tax Act and Article 45(1)1 of the Enforcement Decree of the Income Tax Act, in relation to the interest payment, the interest is included in the deductible expenses in the business year to which the date of redemption under the agreement belongs, and thus, it is reasonable to determine whether

C) The legality of the instant disposition

Ultimately, at the time of the instant subordinated loan loan loan agreement, the Plaintiff and the lender of the instant subordinated loan were in a special relationship, and it is reasonable to regard the market value of the instant subordinated loan as 13.41% asserted by the Defendant. Since the 16% asserted by the Plaintiff may be deemed to be abnormal when it lacks economic rationality in light of sound social norms and commercial practices, the Defendant’s disposition based on such premise is lawful.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed in its entirety as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and all of the plaintiff's claim of this case is dismissed.

[Attachment]

Judges Lee Jung-hun (Presiding Judge)

Note 1) However, the operating cost is only the basis for the unexpected price on January 1, 200 and is the result of deducting this amount. The actual operating cost may be more than the concession agreement. However, considering the fact that the operating cost was additionally paid only to the extent of 15% of the expected operating cost from 2003 to 2012 (Evidence A 23), and that the rate of price increase is not excessive even if it was reflected in the operating cost, it is the same that a large amount of sales is guaranteed to the Plaintiff despite a difference in the amount.

본문참조판례

대법원 2010. 1. 28. 선고 2008두1795 판결

대법원 2009. 7. 23. 선고 2007두21297 판결

대법원 2010. 5. 27. 선고 2010두1484 판결

대법원 2010. 5. 13. 선고 2007두14978 판결

대법원 2013. 9. 27. 선고 2013두10335 판결

본문참조조문

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원심판결

- 대전지방법원 2014. 5. 21. 선고 2013구합100339 판결