[법인세부과처분취소][공2003.2.15.(172),531]
[1] Whether Article 18-3 (2) 3 of the former Corporate Tax Act, Article 43-2 (11) of the former Enforcement Decree of the Corporate Tax Act, and Article 18 (2) 8 of the former Enforcement Rule of the Corporate Tax Act are invalid against the limit of delegated legislation under the Constitution and the principle of clarity of taxation requirements (negative)
[2] Whether a real estate used for a lease, whose annual revenue is not less than 3/100 of the pertinent real estate value, constitutes an exception to the leased real estate under Article 18(2)8(d) of the former Enforcement Rule of the Corporate Tax Act (negative)
[1] Article 18-3(2)3 of the former Corporate Tax Act (amended by Act No. 5581, Dec. 28, 1998) provides that if the pertinent corporation possesses real estate for a certain purpose of use only, it shall delegate the scope of its assets to the Presidential Decree so that it may be subject to the objective purpose of its delegation, regardless of whether it has relations with its business. The legislative purpose of the above provision is to prevent the deterioration of the financial structure of an enterprise due to unreasonable corporate expansion dependent on other capital, to prevent the productive investment in real estate and non-productive business, and to encourage the sound economic activities of an enterprise through the productive management of financial assets, and to promote efficient use of land. In addition, Article 18-3(2)3 of the former Enforcement Decree of the Corporate Tax Act (amended by Act No. 5581, Dec. 28, 1998) provides that "real estate for use as prescribed by Presidential Decree No. 97 of the former Enforcement Decree of the Corporate Tax Act shall be deemed unreasonable and unreasonable in light of its objective purpose and objective purpose of delegation of real estate law.
[2] Real estate under Article 18 (21) 8 (d) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 557 of March 21, 1996) and Article 18 (21) 8 (d) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 622 of March 29, 1997) provide as an exception to the leased real estate shall not be deemed as real estate falling under the proviso of Article 18 (3) 11 (a) of the Enforcement Rule of the same Act (amended by Ordinance of the Prime Minister No. 557 of March 21, 1996), or real estate falling under the main sentence of Article 18 (3) 11 (a) of the same Act (amended by Ordinance of the Prime Minister No. 622 of March 29, 197), and real estate falling under the real estate for non-business purposes under Article 18 (3) 10 (a) of the above Enforcement Rule (amended by Ordinance of the Prime Minister of March 57, 197).
[1] Article 18-3 (2) 3 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998), Article 43-2 (11) (current deleted) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998), Article 18 (2) 8 (current deleted) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 557 of Mar. 21, 1996), Article 18 (2) 2 (d) (current deleted) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 622 of Mar. 29, 197) / [2] Article 557 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister of the Prime Minister of Mar. 21, 1996) and Article 18 (1) (d) (1) (1) of the current Act
[1] Constitutional Court Decision 2000HunBa14 decided Oct. 31, 2002 (HunGong74, 924) Supreme Court Decision 97Nu10642 decided Oct. 10, 1997
Seoul High Court Decision 2001Na14488 delivered on August 1, 201
Head of Seocho Tax Office
Seoul High Court Decision 99Nu4992 delivered on January 20, 2000
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. On the first ground for appeal
Article 18-3 (2) 3 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) provides that if the pertinent corporation possesses real estate for a specific purpose, it shall deny the inclusion of interest paid in the calculation of losses, regardless of whether it has relations with its duties, it shall restrict the delegation of the scope of its assets to the Presidential Decree, to comply with the objective purpose of its delegation.
In addition, considering the legislative purport of this provision is to prevent the aggravation of the financial structure of an enterprise due to unreasonable corporate expansion dependent on other capital, to prevent indiscreet corporate expansions on real estate speculation and non-productive type of business by financial assets, to induce the sound economic activities of an enterprise through the productive management of corporate funds, and to promote efficient utilization of the land, the "real estate used for the purpose prescribed by Presidential Decree" as referred to in this provision refers to a case in which the holding of real estate by a corporation with a high ratio of other capital is deemed to be an inefficient and non-productive management of corporate funds in light of its objective purpose. Thus, this provision is a case in which the scope of delegation can be objectively predicted.
In addition, it is recognized that the necessity of delegation is recognized as it is difficult to define certain real estate as real estate in accordance with the situation of the real economy in Korea or changes in various economic conditions, such as real estate policy and business policy, etc. Therefore, this provision does not violate the principle of prohibition of comprehensive delegation legislation (see Constitutional Court Order 2000Hun-Ba14, Oct. 31, 2002).
In addition, Article 43-2 (11) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998) stipulates specific examples to realize the legislative intent of the parent law, while it appears that detailed matters are delegated to the Enforcement Rule so that it can be prescribed by the Enforcement Rule by appropriately considering the matters prescribed by the Enforcement Decree in line with the socioeconomic situation. Meanwhile, Article 18 (21) 8 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 557 of Mar. 21, 1996) and Article 18 (2) 8 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 622 of Mar. 29, 197) provide that interest on loans exceeding a certain standard on a corporation possessing real estate leased for the above legislative purpose should not be included in deductible expenses in terms of tax policy, and it does not necessarily mean that the legislative purport is unreasonable or unreasonable in consideration of the above legislative purport.
Ultimately, real estate leased under these regulations is obviously meaningful in light of the legislative intent of these regulations and the contents of the relevant regulations and the language thereof, so it does not violate the principle of clarity of taxation requirements.
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.
The grounds of appeal disputing this issue are rejected.
2. On the second ground for appeal
According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that real estate not falling under the main sentence of Article 18 (3) 11 (a) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 557 of March 21, 1996 (hereinafter referred to as the "former Enforcement Rule") and Article 18 (21) 8 (d) of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Prime Minister No. 622 of March 29, 197 (hereinafter referred to as the "amended Enforcement Rule") provides as an exception to the real estate exclusively leased under Article 18 (3) 11 (a) of the former Enforcement Rule or Article 18 (3) 11 (a) of the former Enforcement Rule is excluded from non-business real estate under the main sentence of Article 18 (3) 11 (a) of the former Enforcement Rule.
In light of the relevant laws and regulations, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the exception of leased real estate as otherwise alleged in the ground of appeal.
The ground of appeal disputing this issue is rejected.
3. Therefore, the appeal is dismissed, and all 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 Yoon Jae-sik (Presiding Justice)