(b) Provisions concerning the non-deductible of taxes and public charges paid in connection with non-business real estate;

B. Article 18-3 of the former Corporate Tax Act (amended by Presidential Decree No. 4282 of Dec. 31, 1990), Article 43-2(5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13195 of Dec. 31, 1990), and Article 18(3)1, 2, and 4 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 1990) only regulates the non-deductible of the interest paid on the loans of a corporation, and Article 16 subparag. 7 of the same Act (amended by Presidential Decree No. 13195 of Dec. 31, 1990), and Article 18(3)1, 2, and 4 of the same Act do not regulate the non-deductible of the interest paid on the loans of a corporation, and Article 16 subparag. 7 of the same Act and Article 111 of the Enforcement Rule of the same Act separately stipulate.

1. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the real estate held by the plaintiff on November 3, 1990 constitutes real estate for non-business purposes under Article 18-3 (3) of the former Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990; hereinafter the same shall apply), Article 43-2 (5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13195 of Dec. 31, 1990; hereinafter the same shall apply), and Article 18 (3) 1, 2, and 4 of the Enforcement Decree of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1818 of Apr. 4, 1990; hereinafter the same shall apply), since the court below held the above real estate for non-business purposes under Article 18 (3) 1, 2, and 1988 of the above Enforcement Decree of the same Act, which the plaintiff's total amount of interest paid to non-business purposes.

2. However, it is difficult to accept the decision of the court below that the real estate owned by the plaintiff was all non-business real estate under the corporate tax law.

A. Article 18-3 (1) 3 of the Corporate Tax Act provides that the amount prescribed by the Presidential Decree among interest on loans paid by a corporation which owns real estate not directly related to the business of the corporation in each business year shall not be included in the calculation of losses in calculating the income amount of the relevant business year. Article 43-2 (5) of the Enforcement Decree which was delegated the scope of non-business property of the corporation pursuant to paragraph (3) of the same Article provides that "real estate not directly related to the business of the corporation concerned" means the real estate prescribed by the Ordinance of the Ministry of Finance in consideration of the period after the acquisition of the relevant real estate, the amount of income generated from the relevant real estate, the area of buildings, and the degree of relation to the business of the corporation concerned. Article 18-3 (3) of the Enforcement Decree of the same Act lists individual types of real estate to be deemed non-business property of the corporation. Article 18-3 (1) 1 of the same Act provides that six months (2 years in case of land without buildings or facilities) shall not be used directly for the business of the corporation concerned.

As such, the legislative intent of which requires the exclusion of interest paid on borrowings for non-business use of a corporation is to improve the financial structure of the corporation and prevent non-productive real estate speculation (see, e.g., Supreme Court Decisions 92Nu4109, Dec. 22, 1992; 92Nu6976, Feb. 12, 1993; 92Nu6976, Feb. 12, 1993). In adjusting the amount of income through the exclusion of interest paid on borrowings of the corporation from deductible expenses, the purpose of legislation, which provides that the corporation's possession of real estate for non-business use, shall be determined specifically by taking into account the above legislative intent, whether the real estate owned by the corporation falls under non-business use of real estate under each subparagraph of

B. First of all, in order to determine whether the real estate owned by the Plaintiff is a non-business real estate under Article 18(3)1 of the Enforcement Rule of the Corporate Tax Act, the issue of whether it is directly used or provided for the duties of the Plaintiff corporation individually prescribed in other laws, etc. shall not be considered as the criteria for determining whether it is used or provided.

However, Article 19 of the Insurance Business Act which regulates matters concerning the business activities of the insurer, such as the Plaintiff, provides that “the insurer shall manage the property under the conditions as prescribed by the Presidential Decree,” and Article 14(1) of the Enforcement Decree of the same Act, which delegated by the insurer, provides that “the insurer shall use the property by the following methods.” Article 14(2) of the same Act provides that “acquisition and use of the property” as one of the above methods of use of the property. Meanwhile, Article 15(1)2 of the Enforcement Decree of the same Act provides that the insurer shall not exceed 15/100 of the total assets where the insurer owns the real property as the above method of use of the property. This does not change from the fact that the insurer compels the owner of the real property by the method of using the property within a certain scope to prepare for the payment of insurance proceeds (see Supreme Court Decision 83Nu58, Aug. 23, 1983).

In light of the legislative intent of the relevant provisions, if the Plaintiff corporation, as the insurer, acquires and holds the real estate in its holding within 8 percent of the total assets as one of the methods of using the property in accordance with the provisions of the Insurance Business Act, as it is alleged by the Plaintiff (the articles of incorporation of the Plaintiff corporation bound in the record also provides for the acquisition and holding of real estate for the business purpose of the Plaintiff corporation), it shall not be deemed that the Plaintiff has the real estate for non-business use under Article 18(3)1 of the Enforcement Rule of the Corporate Tax Act.

C. However, according to the records, among the real estate held by the plaintiff, the land land directly used in the building or its category is part of forest land. If the land annexed to the building in question exceeds the basic area stipulated in Article 18 (3) 2 of the Enforcement Decree of the Corporate Tax Act, it may be deemed non-business use, and in this case, it may be deemed that the land annexed to the building in question constitutes non-business use real estate under Article 18 (3) 4 of the Enforcement Decree of the Corporate Tax Act, unless there are special circumstances.

D. Nevertheless, the court below did not examine these points in detail and judged whether the above real estate owned by the plaintiff is a real estate for non-business use. Under the premise that the pertinent provisions of the above insurance business law cannot be considered, the whole real estate is included in real estate for non-business use under the above corporate tax law. Thus, the court below did not err in the misapprehension of legal principles as to the scope of non-business use of the corporation under the Corporate Tax Act. The ground for appeal pointing this out is with merit.

3. In addition, this case's taxation disposition, which was rendered ex officio in addition to the amount of the Plaintiff's loan interest, is also applied to the Defendant's taxation disposition in addition to the amount of the real estate value of the Plaintiff's loan, including taxes and public charges, 54,182,172 won, such as the property tax on the said real estate, as well as the amount of the Plaintiff's loan interest, in addition to the amount of the real estate value of the said real estate. It is recognized that it was made by applying each provision of Article 18-3 (3) of the Corporate Tax Act, Article 43-2 (5) of the Enforcement Decree of the Corporate Tax Act, and Article 18 (3) 1, 2, and 4 of the Enforcement Decree of the same Act, and on the grounds

Article 18-3 of the Corporate Tax Act, Article 43-2 (5) of the Enforcement Decree of the same Act and Article 18 (3) 1, 2, and 4 of the Enforcement Decree of the same Act only regulate the exclusion of losses with respect to the interest paid on the loan of a corporation, and they do not regulate the expenses, maintenance expenses, repair expenses, and losses related to the acquisition and management of assets not related to the business of the corporation, and the exclusion of losses with respect to the acquisition and management of the assets not related to the business, and they are separate provisions in Article 16 subparagraph 7 of the same Act, Article 30 subparagraph 1 of the Enforcement Decree of the same Act, Article 11 of the Enforcement Decree of the same Act, and Article 16 subparagraph 7 of the same Act, Article 30 subparagraph 1 of the same Act, and Article 11 of the Enforcement Decree of the same Act. On the other hand, even if examining the evidentiary materials of the tax disposition of the above real estate, the tax

Therefore, the court below should have separately examined whether the expenditure cost for the above portion of the taxes and public charges of real estate constitutes the management and maintenance cost for the assets unrelated to the business under Article 16 subparag. 7 of the Corporate Tax Act and Article 30 subparag. 1 of the Enforcement Decree of the same Act (see Supreme Court Decision 91Nu1981, Oct. 27, 1992). Ultimately, the court below pointed out that the court below erred in failing to exhaust all necessary deliberations by applying the aforementioned portion of the non-deductible expenses of the taxes and public charges to the non-deductible expenses of the above taxes and public charges.

4. Therefore, without examining other grounds of appeal, we reverse the judgment of the court below and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)