[법인세등부과처분취소][공1991.1.15.(888),264]
The case holding that it constitutes an unfair act of donation, since a juristic person takes the form of money and valuables donated free of charge to the State with the intention of evading tax burden, and delivered to a person in a special relationship with the juristic person.
The plaintiff is a corporation established on July 6, 1984, in which the insurance business for the vehicles belonging to the Public Security Headquarters was conducted en bloc, and the amount of net income during the pertinent period from 1985 to 1987, after its establishment, was donated to the head of the Public Security Headquarters under the name of the Promotion Fund, etc. in the case of re-in Korea, which owns not less than 98 percent of the total stocks issued by the plaintiff corporation over the pertinent business year from 1985 to 1987, and the head of the Public Security Headquarters shall deposit the above donations with the head of the Public Security Headquarters under the name of the Promotion Fund, etc., and promptly deliver them to the Council in the above case without undergoing prescribed procedures, such as depositing the above donations to the public official in charge of accounts, if the amount exceeding the statutory limit for the designated donations is in excess of the above amount of the above donations under Article 46 (2) of the Enforcement Decree of the Corporate Tax Act, it is not difficult to view it as a donation
Article 20 of the Corporate Tax Act; Article 18(1) of the former Corporate Tax Act (Amended by Act No. 4020, Dec. 26, 198); Article 42 subparag. 15 and 46 of the Enforcement Decree of the Corporate Tax Act; Article 17 subparag. 15 of the Enforcement Rule of the Corporate Tax Act
Attorney Park Jong-chul et al., Counsel for the plaintiff-appellant
Head of Western Tax Office
Seoul High Court Decision 89Gu8226 delivered on May 30, 1990
The original judgment shall be reversed and the case shall be remanded to the Seoul High Court.
As to the Grounds of Appeal
According to the reasoning of the judgment, the court below acknowledged that the plaintiff's insurance business for the vehicle belonging to the Public Security Headquarters, which is a non-life insurance business, was conducted in a lump sum, 45,00,000 won in the business year 1985, 50,000 won in total in the business year 1986, and 60,000 won in the business year 1987, and it was deposited with the head of the Public Security Headquarters under the name of the Public Security Association in the case of aid money or 40,000 won in the business year 20,000 won, and issued the money to the Public Security Association of Korea (hereinafter referred to as "the Public Security Association of Korea") to use the money for the improvement of the welfare of its members for the above 10,000 won in the case of the above 20,000 won in consideration of the above 8,000,000 won in consideration of the provisions on partial issuance of approval authority to the public Security Association of 30,00, respectively.
However, at the fifth date for pleading of the court below, the defendant, with the intention of evading tax burden, such as corporate tax on income, was actually distributed part of the income from the donation to the association where there is a special relationship under Article 46 (1) of the Enforcement Decree of the same Act with the plaintiff. On the other hand, once the above donation was delivered to the public security headquarters, the above donation was a measure to ensure that the above donation was in the form of "money and valuables donated free of charge to the State" under Article 18 (2) 1 of the same Act by intervention in the name of the public security headquarters, which is a state agency. Thus, the above donation was actually identified and is deemed to be a donation to the association under Article 42 subparagraph 15 of the Enforcement Decree of the same Act and subparagraph 15 of the same Act, and it is difficult for the court below to find that the above donation was a donation to the public security headquarters for each business year after collecting the above amount of the donation from 1,2,3 evidence No. 1,25 and evidence No. 8-1,23 of the above total amount of the donation for each business year.
Nevertheless, the lower court, without determining the Defendant’s above assertion, determined that the instant taxation was unlawful solely on the ground that, inasmuch as the said donations were deposited with the head of the Public Security Headquarters on a primary basis, they should be deemed money and valuables donated to the State free of charge, regardless of the method of ex post facto disposal. In so doing, the lower court erred by misapprehending the party’s assertion or by misapprehending the legal doctrine on the Corporate Tax Act, thereby adversely affecting the conclusion of the judgment. Therefore, the lower court’s judgment on this point is with merit
Therefore, the original judgment shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-ju (Presiding Justice)