전 대표이사에 대한 대여금의 미수이자채권의 대손금 귀속시기를 민법상 소멸시효가 완성된 때로 보는 것이 타당함.[국승]
Daegu High Court 2012Nu2154 (Law No. 18, 2013)
It is reasonable to regard the time of the loan and the bad debt belonging to the former representative director as the time when the extinctive prescription is completed under the Civil Act.
In light of the fact that various loans, etc. are defined as bonds subject to the establishment of allowance for bad debts under the Corporate Tax Act, and there is no provision that claims for interest are viewed differently from loans, and in principle, according to the state and accessory theory, interest claims are considered as included in original bonds, it is reasonable to regard the period of bad debts of attempted interest claims as when the extinctive prescription period
Article 34 (Inclusion of Bad Debt Reserve Fund in Loss)
Article 62 of the Enforcement Decree of Corporate Tax Act
2013Du3979 Revocation of Disposition of Imposing Corporate Tax
(B)B
Head of the Tax Office
Daegu High Court Decision 2012Nu2154 Decided January 18, 2013
July 11, 2013
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
In light of the legal principles as seen earlier, the lower court’s determination that an act of a company for its business purposes constitutes commercial claims subject to the extinctive prescription period of five years under Article 64 of the Commercial Act, as well as commercial claims arising from loans that both parties engage in commercial activities. Such commercial activities include not only fundamental commercial activities falling under any subparagraph of Article 46 of the Commercial Act, but also ancillary commercial activities performed by merchants for business purposes. Furthermore, according to Articles 5(2), 5(1), and 47(1) and (2) of the Commercial Act, a company’s act of operating a business is deemed as a commercial activity even if it did not engage in commercial activities, and the act of a merchant is presumed to have been conducted for business purposes. Therefore, in light of the legal principles as seen earlier, the lower court’s determination that the Plaintiff’s act of operating a company was presumed to have been conducted for business purposes, barring counter-proof, and thus, constitutes a commercial activity (see, e.g., Supreme Court Decision 2005Da7863, May 27, 2005).
2. Regarding ground of appeal No. 2
The court below held that Article 62 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008 and enforced January 1, 2009, hereinafter "former Corporate Tax Act") provides that "amount which has been extinguished by the extinctive prescription under the Commercial Act" as one of bad debt. However, Article 1 of the above Enforcement Decree provides that "amount which has been extinguished by the extinctive prescription under the Commercial Act shall not be "amount which has been terminated by the extinctive prescription under the Commercial Act" but shall be "amount which has been terminated by the extinctive prescription under the Commercial Act" and it shall be interpreted that such amount includes not only the original amount which has been committed, but also the money which has been committed. ② Basic interest claim, which is the basis of the occurrence of the share interest claim, is established under the premise of the original claim, and therefore, it is justified in its judgment that the above provision of Article 40 (1) of the former Corporate Tax Act provides that "the business year of accrual of earnings and losses of a domestic corporation shall be included in deductible expenses."
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.