원고는 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대지 1,663.7평방미터 및 그 지상 건물 789.32평방미터를 소유하고 있는데, 피고는 원고 소유의 위 대지중 구 법인세법 시행규칙 제18조제3항제2호 소정의 용적율초과분 대지 487.76평방미터(이하 이 사건 토지라 한다)를 비업무용부동산으로 보고 이 사건 토지의 자산가액을 구 법인세법 시행령(1990. 12. 31. 대통령령 제13195호로 개정되기 전의 것) 제43조의2 제2항 또는 구 법인세법시행령(1993. 12. 31. 대통령령 제14080호로 개정되기 전의 것) 제43조의 2 제8항 에 의하여 취득가액・장부가액 및 기준시가중 가장 높은 가액인 장부가액(1990. 12. 18. 자산재평가법에 의하여 재평가된 가액임)으로 평가한 다음 이에 의하여 이 사건 토지에 관련된 차입금이자를 계산하고 이를 각 사업년도의 소득금액 계산상 손금에 불산입한 채 원고에게 1994. 7. 19. 별지제1목록기재 부과처분세액란 기재의 법인세를 부과,고지(이하 이 사건 부과처분이라고 한다)한 사실은 당사자 사이에 다툼이 없거나 을제1호증의 1 내지 15, 을제2호증의 1 내지 13, 을제3호증의 1 내지 13, 을제4호증의 1 내지 3의 각 기재에 변론의 전취지를 종합하여 이를 인정할 수 있고 달리 이에 반하는 증거가 없다.

2. Whether the instant disposition is lawful

A. The parties' assertion

In regard to the defendant's assertion that the disposition of this case is legitimate on the grounds of the above disposition grounds and applicable provisions of law, the plaintiff asserts that since Article 43-2 (2) of the former Enforcement Decree of the Corporate Tax Act and Article 43-2 (8) of the former Enforcement Decree of the Corporate Tax Act are invalid on the grounds as follows, the corresponding part of the disposition of this case based on the provision of the above Enforcement Decree of the Corporate Tax Act is unlawful, and therefore, the part of the disposition of this case which

First, Article 18-3 (1) of the former Corporate Tax Act and Article 43-2 (1) and (2) of the former Enforcement Decree of the Corporate Tax Act (amended by December 30, 1989) do not provide for the detailed calculation method concerning the total amount of assets, which are one of the elements for calculating the interest paid to non-deductible expenses, as of December 30, 1989, and Article 43-2 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 43-2 of the Corporate Tax Act as of December 30, 1989) provides that the total amount of assets under paragraph (2) shall be the largest amount of acquisition value, book value, and standard market value, and it is impossible to provide all matters related to calculating the tax base or amount of taxes in the laws and regulations, but it is against the principle of no taxation without law. The total amount of assets in this case falls under the size and limit of the interest paid to non-deductible expenses among the calculation of the tax base, and thus, it does not constitute a violation of no provision of the law.

Second, Article 18-3 (1) of the former Corporate Tax Act does not delegate the same amount to the Presidential Decree, and even if there is a delegation of domestic affairs, the asset value refers to the amount obtained by deducting depreciation allowances from the acquisition cost by acquisition cost, i.e., book value unless there is a special provision in the law (in the case of land, the book value and acquisition price are the same as the book value because depreciation is not performed) and the method of calculating the total assets under Article 18-3 (1) of the former Corporate Tax Act before the above amendment does not provide specific method of calculating the total assets. Thus, the total assets within the meaning of Article 18-3 (1) of the former Corporate Tax Act mean the amount obtained by deducting depreciation allowances by acquisition cost (the book value or acquisition value in the case of land) in accordance with the above general principle, but the above Enforcement Decree of the former Corporate Tax Act provides that the largest amount of acquisition price, book value, and standard market value against it shall be the total assets. Thus, the provisions of Article 43-2 (2) or (8) of the former Enforcement Decree of the Corporate Tax Act are invalid without delegation or invalid.

(b) Related statutes;

Article 18-3 (1) of the former Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990) provides that among interest on loans paid during each business year by a domestic corporation which holds assets falling under any of the following subparagraphs, the amount determined by the Presidential Decree within the limit of assets in the following subparagraphs shall not be included in deductible expenses in calculating the income amount for each business year. subparagraph 3 of the above provision provides that real estate which is not directly related to the business of the domestic corporation shall be amended as of December 31, 1990 and Article 18-3 (1) of the former Corporate Tax Act (amended by Act No. 4664 of Dec. 31, 1993) provides that among interest on loans paid during each business year by the domestic corporation which acquires or holds assets falling under any of the following subparagraphs, the amount calculated as prescribed by the Presidential Decree (limited to interest on the relevant assets amount) shall not be included in deductible expenses in calculating the income amount for each business year, but shall not be included in the real estate price increase as prescribed by the Presidential Decree:

Article 43-2 (1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 12878 of Dec. 30, 1989) provides that "the amount prescribed by Presidential Decree" in Article 18-3 (1) of the Act refers to the aggregate of the amounts calculated by the following formula, and subparagraph 1 of the attached Form 2 shall be deemed as falling under Article 18-3 (1) 1, 2, and 3 of the Act among the formula in paragraph (1), the above provision provides that "the total value of the assets falling under Article 18-3 (1) 1, 2, and 3 of the Act means the amount calculated by the drop number of the book value of the assets as of December 30, 1989, and Article 43-2 (1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195 of Dec. 31, 190) refers to the total value of the assets calculated by the following formula in Article 18-13 (1) of the Act means the following formula:

C. Determination

(1) As to the plaintiff's first argument, the interest paid and its limit and assets subject to non-Inclusion in deductible expenses are prescribed by the Presidential Decree, by providing that the amount of interest paid to non-deductible expenses shall be within the limit of interest equivalent to the value of the pertinent asset within the scope prescribed by the Presidential Decree. Thus, as long as the Corporate Tax Act provides for the interest paid not to include the interest in deductible expenses as the basic element of the provision on non-deductible expenses of the interest paid and its limit and the method of calculating the total value of assets for non-business purposes, which are not only necessary elements of calculating the interest paid, shall not be deemed to be in violation of the principle of no taxation without law, since the provisions of the former Enforcement Decree of the Corporate Tax Act, which provide for the method of calculating the total value of assets for non-business purposes, stipulated in the Enforcement Decree, which

(2) The plaintiff's second assertion that the former Corporate Tax Act provides for the payment of interest and its limit and assets that are not included in deductible expenses, while the specific contents are delegated to Presidential Decree, and the method of calculating the total amount of interest paid not to deductible expenses is determined at the same time. In light of the statutory system, the above provision of the Enforcement Decree of the Corporate Tax Act concerning the evaluation of the total amount of assets cannot be deemed to be a provision without delegation of the mother Act. Meanwhile, the value of assets held by the corporation is nothing more than the general principle concerning the cost for acquisition of assets, i.e., the cost of acquisition of assets, unless otherwise provided for in the statutes. In applying the individual provision of the Corporate Tax Act, the issue of whether the meaning of the value of assets is based on the general principle of the above individual provision of the Corporate Tax Act shall be separately determined in consideration of the purport of the above individual provision, and since the above provision of Article 18-3 (1) of the former Corporate Tax Act, which provides for the exclusion of deductible expenses of interest, does not stipulate the acquisition value of assets for non-business purposes.

3. Conclusion

Therefore, under the premise that the disposition of this case is unlawful, the plaintiff's claim of this case seeking the revocation of the portion exceeding the tax amount stated in the item column for the re-calculated tax amount in the attached Table 1 among the disposition of this case is dismissed. It is so decided as per Disposition