학교법인이 수익사업회계에 속하던 자산을 비영리사업회계로 전출하였다는 이유만으로는 손금에 산입할 수 없음[국승]
Seoul High Court 2011Nu17297 ( November 30, 2011)
No deductible expenses shall be included only on the ground that a school foundation transfers assets belonging to the accounts for profit-making business to the accounts for profit-making business.
When a school foundation has used assets for profit-making business from the time it transfers assets belonging to the accounts for profit-making business to the accounts for profit-making business, and thereafter uses the actual assets for profit-making business, the assets belonging to the accounts for profit-making business shall not be included in the calculation of losses solely on the ground that they transfer the assets to the accounts
2012Du690 Revocation of Disposition of Imposing Corporate Tax
AAAA New Institute of Education
Head of Seodaemun Tax Office
Seoul High Court Decision 2011Nu17297 Decided November 30, 2011
March 28, 2013
The judgment below is reversed, and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below determined that 0. The plaintiff calculated the total amount of 0.0 won for non-profit business (the maximum amount of 00.0 won for non-profit business which was actually used for 0.0 billion won for non-profit business (the total amount of 0.0 won for non-profit business) under 0.0 billion won for non-profit business (the maximum amount of 0.0 billion won for non-profit business) which was actually used for 20.0 billion won for non-profit business (the total amount of 0.0 billion won for non-profit business was actually used for 0.0 billion won for non-profit business) and the amount of 0.0 billion won for non-profit business which was actually used for 20 billion won for non-profit business (the total amount of 0.0 billion won for non-profit business for non-profit business) under 0.0 billion won for non-profit business (the amount of 200 billion won for non-profit business shall be included in deductible expenses for 20.0.0 billion won)
2. However, we cannot accept the judgment of the court below for the following reasons.
As recognized by the court below, the plaintiff sold the original asset with the permission to dispose of the property for profit-making purposes as the disposal price of the original asset for the purpose of acquiring the property for profit-making purposes, and the sales price of the original asset for the original asset is the most part of the transfer amount. As such, the transfer amount in this case was planned to be used for profit-making business at the time of the transfer to the accounting for profit-making business, and only KRW 00,000, out of the actual transfer amount in this case, was used for profit-making business, and the remainder was used for profit-making business. Thus, if the above asset belonging to the accounting for profit-making business was used for profit-making business, since it was transferred to the accounting for profit-making business, the above asset was used for profit-making business from the time of the transfer to the accounting for profit-making business, in light of the legislative intent of Article 29 of the former Corporate Tax Act, it cannot be included in the calculation of losses only for the reason that the plaintiff transferred the asset belonging to the accounting for profit-making business, regardless of whether it actually used the amount for profit-making business.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.