[법인세부과처분취소][공2011하,1316]
In a case where Gap corporation's domestic company Gap engaged in the export and import transactions of foreign corporations, imported goods from foreign exporters who have no domestic permanent establishment in the form of a deferred payment letter of credit to foreign corporations, and exported goods to foreign importers Byung located in a third country through a telegraph transfer method, etc. and received payments to Eul for a deferred payment period, the case affirming the judgment below holding that the interest paid Eul corporation's domestic source interest income of a foreign corporation with no domestic place of business is subject to corporate tax withholding.
The case affirming the judgment below which held that in case where Gap corporation Gap's domestic exporter Eul without a domestic permanent establishment was involved in the export and import transaction of foreign corporations and imported goods such as old, gold, bean, and A under the deferred payment terms and conditions of the L/C to foreign corporations, and transacted through relay trading with foreign importer Byung who has a third country's country's country's country's country's whole transfer transfer transfer and deferred payment terms and conditions of L/C, but Eul corporation was involved in Eul corporation's purchase of goods and borrowed funds equivalent to Eul's sales price with Eul corporation's purchase price and interest payment with Eul corporation's purchase price and interest payment with Eul's domestic corporation, the above transaction was merely a type of relay trading, and the interest payment was made with Gap corporation's domestic corporation's interest income with no domestic place of business's domestic corporation's interest income.
Article 14(2) of the Framework Act on National Taxes, Articles 2(1), 4(2), 93 subparag. 1, and 98(1) of the former Corporate Tax Act (Amended by Act No. 7317, Dec. 31, 2004); Article 16(1) of the former Income Tax Act (Amended by Act No. 7289, Dec. 31, 2004);
Both parties to the lawsuit (Attorneys Jeong Byung-chul et al., Counsel for the plaintiff-appellant)
The director of the tax office
Seoul High Court Decision 2007Nu32091 decided May 30, 2008
All appeals are dismissed. The costs of appeal are assessed against each appellant.
We examine the grounds of appeal.
1. Plaintiff’s ground of appeal
Article 98(1) of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006) provides that a person who pays a foreign corporation with no domestic place of business an interest income, etc. shall withhold and pay a certain percentage of the amount as corporate tax on the income for each business year of the relevant corporation when he/she pays the interest income, etc. Meanwhile, Article 4(2) of the former Corporate Tax Act (amended by Act No. 10423 of Dec. 30, 2010) provides that “The provisions on the calculation of the amount of taxable income for the corporation shall apply to the calculation of the amount of taxable income, notwithstanding the name or form of the income, profit, etc.,
According to the reasoning of the judgment below, the court below found, based on the evidence of its employment, ① the Plaintiff, a general trading company, was unable to obtain a discriminatory collection from a financial institution due to the International Monetary Fund (IMF) relief financing situation, and the Plaintiff was subject to the collection of non-discriminatory funds from the financial institution to the 2004 business year from 199. ② The Plaintiff was punished by a fine of 10% of the amount equivalent to the interest accrued to the Plaintiff on the ground that the Plaintiff had been subject to a 0-day total export transaction with interest payment terms and conditions for giving credit to a foreign corporation without a domestic permanent establishment (hereinafter “foreign exporter”) in the form of a letter of credit for the purpose of the deferred payment terms and conditions for giving credit extended to an overseas exporter. ④ The Plaintiff was subject to a 10-day total export transaction with interest payment terms and conditions, and the Plaintiff was subject to a 10-day total export discount agreement or 10% of the amount equivalent to the interest accrued from the domestic exporter.
Based on such factual basis, the lower court determined that: (a) the instant transaction was a transaction in which an overseas exporter sold goods to an overseas exporter and received sales proceeds from an overseas exporter under the pre-determined condition that the Plaintiff intended to borrow funds from an overseas exporter under the pre-determined condition that the said overseas exporter would have been an intermediate trader; (b) the Plaintiff borrowed funds equivalent to the sales proceeds from the overseas exporter in the form of an overseas exporter who received the said sales proceeds by the said overseas exporter under the pretending to be the intermediary exporter; and (c) the principal and interest on the said loan was repaid to the overseas exporter in the form of payment of the purchase proceeds and the gift tax following the purchase of goods; and (d) the Plaintiff’s payment of the principal and interest on the said loan was merely a transaction
In light of the above provisions and relevant legal principles and records, such judgment of the court below is just and there is no error in the misapprehension of legal principles as to the principle of substantial taxation as otherwise alleged in the ground of appeal
2. As to the Defendant’s ground of appeal
According to the reasoning of the judgment below, the court below held that it was unlawful to determine the tax base amount by adding the amount equivalent to the tax withheld amount to the gift tax amount actually paid by the plaintiff to the foreign exporter in calculating the interest income amount subject to corporate tax, on the ground that there is no evidence to prove that the plaintiff paid the gift tax amount to the foreign exporter after deducting the withholding tax amount, and there is no evidence to prove that the plaintiff paid the balance after deducting the withholding tax amount.
In light of the records, we affirm this judgment of the court below as just and there is no error in the misapprehension of legal principles as to the calculation method of interest income as otherwise alleged in the ground of appeal.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Hong-hoon (Presiding Justice)