[법인세부과처분취소][공2013상,77]
[1] The case affirming the judgment below holding that in case where Gap limited liability company, etc., a special purpose company, filed a corporate tax base return for inclusion in deductible expenses for consulting service expenses paid to Eul assets management company, but the above service expenses were revealed to be processed expenses, and disposed of as other income, and then applied for income deduction for additional dividends, but the tax authorities subsequently recognized the above application and subsequently applied for income deduction for additional dividends, but the above dividends shall be subject to income deduction pursuant to Article 51-2 (1) of the former Corporate Tax Act
[2] Where there is a correction or re-determination of an increase in the original taxation disposition during the course of a lawsuit seeking revocation of a tax imposition disposition, the case where a person can seek revocation by amending the purport of the claim without going through a prior procedure for the correction or re-determination of a correction, and in this case, whether it is necessary to comply with the filing period for modifying the purport of the claim in a case where the initial lawsuit is filed within
[1] In a case where Gap limited liability company, a special purpose company for securitization under the Asset-Backed Securitization Act, etc. reported corporate tax base by adding consulting service expenses paid to Eul assets management company to deductible expenses, but the above service expenses were revealed to be processed expenses, and the income was disposed of as other income and applied for income deduction to deduct additional dividends from the income amount in the pertinent business year, but the tax authority recognized the non-approval of an application for income deduction pursuant to the additional dividend, and then issued an increase or decrease in corporate tax, the case affirming the judgment below that the tax authority's disposition should be unlawful for the pertinent business year under Article 51-2 (1) of the former Corporate Tax Act (amended by Act No. 7838, Dec. 31, 2005).
[2] In a case where a legitimate revocation suit against the initial tax imposition disposition is pending and there is a correction or re-determination that changes the original imposition of the same object of taxation, the grounds for revocation (actual illegality) alleged as existing in the initial imposition disposition exists in the same manner as in the decision of correction or re-decision of correction, and where it is deemed that the initial imposition is unlawful, the plaintiff can seek revocation of the correction or re-decision of correction by modifying the purport of the claim without having to go through a separate procedure for the previous trial as to the decision of correction or re-decision of correction, and in such a case, if the initial lawsuit is instituted within the legitimate filing period, it is not necessary to separately determine whether the plaintiff complies with the filing period for modifying the purport of the claim against the decision of correction
[1] Article 51-2 (1) 1 of the former Corporate Tax Act (amended by Act No. 7838 of Dec. 31, 2005); Article 86-2 (1) of the former Enforcement Decree of Corporate Tax Act (amended by Presidential Decree No. 18174 of Dec. 30, 2003) / [2] Article 2 of the Administrative Litigation Act
[2] Supreme Court Decision 80Nu522 delivered on February 9, 1982 (Gong1982, 343)
The Hague-Backed Co., Ltd. and one other (Law Firm LLC, Attorneys Yoon Sejong-ri et al., Counsel for the plaintiff-appellant)
The Head of the District Tax Office (Law Firm Squa, Attorneys Lee Hong-hoon et al., Counsel for plaintiff-appellant)
Seoul High Court Decision 2009Nu5147 decided April 2, 2010
All appeals are dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Regarding ground of appeal No. 1
A. Article 51-2(1)1 of the former Corporate Tax Act (amended by Act No. 7838, Dec. 31, 2005; hereinafter the same) provides that “where a special purpose company under the Asset-Backed Securitization Act distributes not less than 90/100 of the distributable profits as prescribed by the Presidential Decree, the amount shall be deducted in calculating the income amount for the pertinent business year.” Article 86-2(1) of the former Enforcement Decree of Corporate Tax Act (amended by Presidential Decree No. 18174, Dec. 30, 2003) provides that “where a special purpose company under the Asset-Backed Securitization Act distributes dividends not less than 90/10 of the distributable profits as prescribed by the Presidential Decree, the amount shall be deducted in calculating the income amount for the pertinent business year.” Article 86-2(1) of the former Enforcement Decree of Corporate Tax Act (amended by Presidential Decree No. 18174, Dec.
B. (1) The lower court, based on the evidence of 20: ① the Plaintiffs’ 2, a special purpose company for the return of 0G 2, a revised tax base of 0,000 won (hereinafter “Plaintiff 1”; ② the Nonparty 2, a revised tax office of 0,000,000 won for each of the above 3G 2,00,000 won for 5,000 won for 20,000 won for 0,000 won for 20,000 won for 5,000,000 won for 4,000,000,000 won for 5,000,000 won for 4,000,000 won for 5,000,000 won for 5,00,000,000 won for 2,000,000 won for 5,000,000 won for 5,000,00 won.
(2) Based on the above factual basis, the lower court determined that, even if the Plaintiffs did not dispose of the consulting service costs of this case as retained earnings, and instead disposed of as other income (e.g., outflow of income), as long as the Plaintiffs had the right to claim damages, etc. regarding the amount equivalent to the consulting service costs of this case to HAK, etc., and thus recovered, the increase in the amount of income resulting from the non-deductible of consulting service costs of this case is reserved against the Plaintiffs. Thus, the additional dividend resolution is legitimate, and the dividend should be deducted from the amount of income of the Plaintiffs in the business year 2003 pursuant to Article 51-2(1) of the former Corporate Tax Act. Accordingly, the part of the Defendant’s non-deductible of each of the instant orders for correction was unlawful.
(3) In light of the above provisions and the records, we affirm the above fact-finding and determination by the court below as just, and there were no errors by misapprehending the legal principles regarding the income deduction of dividends from a special purpose company, or by exceeding the bounds of the principle of free evaluation of evidence in violation of
2. As to the grounds of appeal Nos. 2 and 3
A. Article 4(1) of the former Adjustment of International Taxes Act (amended by Act No. 9266, Dec. 26, 2008; hereinafter “State Adjustment Act”) provides for “the tax authorities may determine or rectify the tax base and tax amount of a resident (including a domestic corporation and a domestic place of business) on the basis of the arm’s length price where one of the parties to an international transaction falls short of or exceeds the arm’s length price.” Article 5(1)1 of the same Act provides for “the method of calculating the arm’s length price” as one of the methods of assessing the arm’s length price: “the method of deeming the arm’s length price as the arm’s length price for an independent business operator who has no special relationship with a resident or a foreign specially related party,” and Article 5(1)1 of the former Enforcement Decree of the Adjustment of International Taxes Act (amended by Presidential Decree No. 18628, Dec. 31, 2004; hereinafter “State Enforcement Decree”) provides for a reasonable comparison of the arm’s length price between the parties or special relationship with the following.
Article 5(1)1 of the former Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (amended by Presidential Decree No. 2035, Oct. 13, 2011; Presidential Decree No. 2014, Oct. 13, 2011; Presidential Decree No. 2014, Oct. 23, 2011; Presidential Decree No. 2015, Oct. 22, 2011; Presidential Decree No. 2013, Jan. 22, 2011; Presidential Decree No. 20135, Oct. 31, 2011; Presidential Decree No. 2020, Jan. 22, 2011; Presidential Decree No. 2020, Feb. 22, 2011; Presidential Decree No. 20135, Jan. 1, 201).
B. Based on evidence adopted, the lower court: ① acquired Composition Bonds and Convertible Bonds amounting to KRW 28,009,077.49, 761,255,680 from 200 to 30% of the total book value of the Plaintiff 2’s LS 1 to 60% of the annual interest rate of KRW 137,200,000,000,000 per annum 1 to 30% of the issued value of the instant LS 1 to 20% of the issued value of the instant underlying assets; ② The lower court acknowledged the portion of the instant LS 2’s annual interest rate of KRW 1 to 30% of the issued value of the instant underlying assets to 30% of the issued value of the instant LS 1 to 30% of the issued value of the instant underlying assets to 40% of the annual interest rate of KRW 180,741.7% of the issued value of the instant underlying assets (hereinafter “Plaintiff 2”).
Based on the above facts, in light of the text and text, amendment history, etc. of the relevant provisions, including Article 5(1)1 Item 1 of the Enforcement Decree of the National Assistance Act, the lower court determined that, even if the comparable transaction in the comparable third party pricing method is limited to an international transaction among the trades between independent business operators having no special relationship, the Defendant not only selected the comparable securitization transaction in the instant case as the comparable transaction, which is the “domestic transaction” but also falls under the case where the difference between the securities issuance transaction in the instant securitization bonds and the comparable securitization transaction in the instant case, has a significant impact on the calculation of normal interest rate. However, even if the Defendant partly adjusted the difference in calculating the normal interest rate, it is difficult to view that such adjustment was a reasonable adjustment that could eliminate such difference in the situation, and thus, it cannot be deemed that the interest rate of 16.98% per annum calculated based on the comparable securitization transaction in the instant case cannot be deemed the normal interest rate (the normal interest rate) under Articles 4 and 5(1)1, etc.
C. In light of the aforementioned legal principles, the lower court erred by misapprehending the legal doctrine that the Defendant’s selection of the comparable securitization transaction, which is a domestic transaction, as the comparable transaction, was unlawful on the premise that the comparable transaction in the comparable third party pricing method is limited to the international transaction among the trades between unrelated independent business operators.
However, in light of the reasoning of the lower judgment and the evidence duly admitted, the type of issuance, currency, maturity, issuance ratio of asset-backed securities to underlying assets, credit reinforcement, and the Defendant’s adjustment of the aforesaid transaction, and the difference between the following: (a) the type of underlying assets between the instant securitization bond issuance transaction and the instant securitization transaction; and (b) the type of issuance, currency, maturity, the issue ratio of asset-backed securities to underlying assets; (c) the period of issuance; and (d) the Defendant’s adjustment of the aforesaid transaction; and (e) the difference between the pre- and post-order bonds’ share ratio and the structure difference, etc., it is difficult to deem that the Defendant
Therefore, on the ground that the Defendant’s annual interest rate of 16.98% calculated based on the comparable securitization transaction in the instant case cannot be deemed as the normal price (normal interest rate) stipulated in Articles 4 and 5(1)1 of the National Assistance Act, etc., the lower court’s conclusion that the transfer price portion against Plaintiff 2 was unlawful is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the selection of comparable transactions, etc. in calculating the normal price, thereby affecting the conclusion
3. Regarding ground of appeal No. 4
A. In a case where a legitimate revocation lawsuit against the initial tax imposition disposition is pending, where there exists a correction or re-decision of correction that changes the original imposition of the same subject matter of taxation, and where there exists a correction or re-determination of correction that is alleged to exist in the initial imposition disposition, and where the initial imposition disposition is deemed unlawful, the plaintiff can seek a revocation of the correction or re-determination of correction by modifying the purport of the claim without having to go through a separate procedure for the previous trial as to the decision of correction or re-determination, and in such a case, if the initial lawsuit is instituted within the legitimate filing period, it is not necessary to separately determine whether the period of filing a lawsuit against the correction or re-determination of correction is complied with (see Supreme Court Decision 80Nu522, Feb. 9, 1982, etc.).
On the other hand, where a party and a lawsuit whose subject matter of lawsuit are identical are filed differently time, the lawsuit which was filed later is unlawful because it violates the principle prohibiting double lawsuit. In this case, the criteria for identifying a prior suit and a subsequent suit shall follow the time when the lawsuit is pending, i.e., the time when the complaint or a written application for modification is served on the defendant (see, e.g., Supreme Court Decision 94Da12517, Nov. 25, 1994).
B. According to the records, the plaintiffs filed the lawsuit of this case on March 11, 2009. The plaintiffs filed the lawsuit of this case on February 3, 2008, when the lawsuit of this case was pending in the court of first instance, and on March 6, 2009, when the lawsuit of the court of first instance was pending in the court below after going through a new trial procedure, they filed an application for modification of the purport of this case to seek cancellation of the increased portion than the initial tax amount. The conjunctive each of the initial dispositions of this case and each of the dispositions of this case were to be filed on March 11, 2009. The plaintiff filed an application for modification of the purport of this case to the defendant on March 11, 2009. The grounds for rejection of each of the initial dispositions of this case and each of the dispositions of this case were common for the non-party consulting service non-party consulting service non-party consulting service non-party's non-party consulting service non-party's claim of this case.
C. Examining the above facts in light of the legal principles as seen earlier, the lower court’s decision on the merits on the premise that the Plaintiffs’ above amendment of the purport of the claim is lawful is justifiable, and it did not err by misapprehending the legal principles on the period of filing a lawsuit or the interest of a lawsuit following the amendment of the purport
4. Conclusion
Therefore, all appeals are 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 on the bench.
Justices Park Poe-young (Presiding Justice)