[법인세부과처분취소][미간행]
In a case where Gap bank appropriates the interest calculated as interest expenses in the settlement of accounts for the business year 2003, 2004, 2005, and included the total amount of interest calculated as expenses for the business year 2003 and 2004 when it reported corporate tax for the business year 2004, and included it in the deductible expenses when it reported corporate tax for the business year 2005, and the tax authorities included the amount of interest appropriated as expenses for the business year 2003 and 204, and imposed corporate tax and under-reported additional tax for the business year 2005, it included the interest appropriated as deductible expenses for the business year 2005, on the ground that the amount of interest appropriated as expenses for the business year 2003 and 2004, and imposed corporate tax and under-reported additional tax for the business year 203 and 2004, the case affirming the judgment below that appropriated the interest appropriated as deductible expenses for the business year 204, not for the business year 2005,
Article 42(1) of the former Corporate Tax Act (Amended by Act No. 10423, Dec. 30, 2010); Article 70(1)2 of the former Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No. 21302, Feb. 4, 2009)
Han Bank Co., Ltd. (Law Firm LLC, Attorneys So-young et al., Counsel for the plaintiff-appellant)
The director of the tax office
Seoul High Court Decision 2012Nu38420 decided October 30, 2013
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. Article 42(1) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010) provides, “In cases where the book value of assets and liabilities possessed by a domestic corporation is increased or decreased, the book value of the relevant assets and liabilities shall be the value before the evaluation in calculating the income amount for the business year to which the date of the evaluation belongs and each subsequent business year.” The legislative purport of this provision is to ensure the fairness of taxation by uniformly identifying taxable income and, at the same time, exclude the taxpayer from calculating the income amount by transactions such as disposal of assets and liabilities, etc., and reflect the unrealized profits and losses following the evaluation of assets and liabilities in calculating the income amount for the pertinent business year, without reflecting in principle the calculation of the income amount for the pertinent business year.” (see Supreme Court Decision 2007Du19683, Dec. 10, 209, etc.).
Meanwhile, Article 70(1)2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009; hereinafter the same) provides that the interest paid by a corporation shall be deductible expenses for the business year which includes the date of receipt of income under Article 45 of the Enforcement Decree of the Income Tax Act: Provided, That in the settlement of accounts by a corporation, where the interest on the period which has already passed is appropriated as deductible expenses for the business year concerned, it shall be included in deductible expenses for the
2. In light of the following circumstances acknowledged by the judgment below, the court below determined that the amount appropriated as interest expense item for the term deposit of this case at the time of the settlement of the business year 2003 and 2004 as interest expense item for the term deposit of this case is only corresponding to the depreciation amount of the discounted debt estimated by the settlement of present value according to the lapse of the period, and that the above accounting accounts cannot be deemed as "where the interest, etc. corresponding to the period which has already lapsed is appropriated as deductible expenses for the business year concerned" under the proviso of Article 70 (1) 2 of the former Enforcement Decree of the Corporate Tax Act, since the above accounting accounts cannot be deemed as "where the interest, etc. corresponding to the period which has already lapsed is appropriated as deductible expenses for the business year concerned" under the proviso of Article 70 (1) 2 of the former Enforcement Decree of the Corporate Tax Act, since the amount calculated by the plaintiff in relation to
① The structure of the instant term deposit is identical as the “principal contract” in which the principal of the term deposit is paid at maturity and the “observer contract” in which the interest is paid in connection with the stock price index. Among them, the structure of the instant term deposit is determined to be 14% if the interest rate is increased by 20% or more than the subscription date, based on the term deposit account opened on February 25, 2003 by the Information and Communications Department (hereinafter “first term deposit”), the Plaintiff returned the principal amount of KRW 50 billion at the maturity date, and the interest rate shall be determined by comparing the KOSP 200 stock price index on the subscription date and the 200 stock price index on the immediately preceding two business days before the maturity date.
② When accounts for the first time deposit are kept, the Plaintiff appropriated 4,357,50,000 won as the price for the “right to receive interest in connection with the stock price index” in accordance with the option contract on the subscription date, as the item for the outstanding amount, and then appropriated 1,850,45,200 won in the business year 2003, and 2,184,719,180 won in the business year 2004, and 322,335,620 in the business year 205 as the outstanding amount for three business years, and then appropriated the same amount as interest expense item for three business years. This can be viewed as 50 billion won in the name of the principal in relation to the second time deposit contract, and 45,642,50,000 won in the value of the outstanding amount, 405,700 won in the difference between the amount of the principal and 500 billion won in the value of the outstanding amount.
③ On the other hand, on August 14, 2003, prior to the maturity date of the first time deposit, the interest rate of 20% increased by 14% compared to the subscription date, and the interest rate of 7,009,589,040 won was determined to be paid at maturity. However, the Plaintiff failed to separately appropriate the said interest as deductible expenses for each business year in response to the deposit period for which the said interest was already expired at the closing date of the business year from 2003 to 205.
④ The amount of KRW 4,357,50,00,00 appropriated as items to be the outstanding amount at the time of the date of opening the first time deposit is calculated by multiplying the principal by 8.715% set in advance at the rate of KRW 50 billion, which is only scheduled to be redeemed in proportion to the deposit period in each business year, and it is not calculated by the interest rate fixed according to the change in the stock price index.
3. Examining the above legal principles, regulations, and records, we agree with the above determination by the court below is just. Contrary to the allegations in the grounds of appeal, the plaintiff did not err by misapprehending the legal nature of interest expenses appropriated in the settlement of accounts for the business year 2003 and the 2004 business year or by misapprehending the legal principles as to the period of attribution of losses.
4. Therefore, the appeal is 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 Kim Chang-suk (Presiding Justice)