[법인세부과처분취소][공1988.10.15.(834),1280]
Cases where Article 20 of the Corporate Tax Act was not an improper act
Even if Party A, while purchasing Company B’s assets with a loan claim against Company B, agreed between Company B and Company B to pay for the said transaction (value-added tax) on behalf of Company B, and Party A did not offset the said loan claim, barring any special circumstance to recognize that this agreement was made for the purpose of tax avoidance, it cannot be deemed as an unfair act.
Article 20 of the Corporate Tax Act
[Judgment of the court below] Korea Electric Industry Corporation (Attorney Park Jong-sik, Counsel for plaintiff-appellant)
Head of Yeongdeungpo Tax Office
Seoul High Court Decision 84Gu477 delivered on January 29, 1985
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal by the defendant litigant are examined.
1. According to the reasoning of the judgment below, the court below determined as follows: (a) on December 15, 1980, when the plaintiff had a claim such as a loan of KRW 854,141,545 against the above non-party company with a special relationship with the plaintiff on December 15, 1980, that the non-party company evaluated total assets of the above non-party company as KRW 478,205,60,000; (b) upon the above sale, the above non-party company acquired the remainder amount of KRW 384,205,60,00 from the above non-party company's loans to the above non-party company for the above 384,205,60,000 from the amount equal to the above loans to the above non-party company; and (c) on that date, the non-party company should receive the above input tax amount from the plaintiff and pay the above non-party company 1 to the above non-party company 5 amount to offset the above non-party company 1.
2. According to the above facts of the judgment below, the plaintiff could reduce the amount of bad debts by offsetting the amount of the input tax amount of KRW 45,919,560, which the above non-party company held against the plaintiff with the loan claims against the non-party company. However, even if the above non-party company agreed to pay the above input tax amount on behalf of the non-party company as the taxpayer, and agreed to pay it on behalf of the non-party company as the taxpayer, it cannot be viewed as an unfair act unless there are special circumstances to recognize that the agreement not to offset was made for the purpose of tax avoidance.
The judgment of the court below to the same purport is just and there is no error of law by misunderstanding the nature of value-added tax and the legal principles.
3. 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.
Justices Lee Jae-seok (Presiding Justice)