부당행위계산 부인대상 해당여부[국패]
Whether the calculation of wrongful acts is subject to rejection;
It is difficult to view that the change in the rate of remuneration distribution is an abnormal act lacking economic rationality in light of sound social norms and commercial practices, so it cannot be viewed as an act subject to rejection of unfair calculation.
Article 52 (Dispudiation of Wrongful Calculation)
Article 88 (Calculation Type, etc. of Wrongful Acts)
The appeal is dismissed.
Costs of appeal are assessed against the Defendant
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Article 52 of the Corporate Tax Act provides that a corporation’s wrongful calculation under the provision of Article 52 of the Corporate Tax Act is deemed to have avoided or reduced tax burden by abusing all the forms of transaction listed in each subparagraph of Article 8(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17457, Dec. 31, 2001) without using a reasonable method by a person with a special relationship. In a case where a corporation’s wrongful calculation under the provision of Article 88(1) of the former Enforcement Decree is deemed to have avoided or reduced tax burden, the taxation authority denies it and deemed to have income objective and reasonable in the manner prescribed by the Acts and subordinate statutes. In light of the economic person’s position, the determination of whether an economic rationality exists shall apply only to the case where it is deemed to have neglected the economic rationality due to the wrongful and unreasonable calculation. The determination of whether the transaction is made by removing only the price of the transaction in question from a transaction with a person without a special relationship, not just because it merely constitutes an ordinary transaction in the form of transaction with a person without a special relationship.
Examining the reasoning of the judgment below in light of the records and the above legal principles, it is just that the court below determined that the change in the rate of the Plaintiff’s salary distribution in this case was an abnormal act that lacks economic rationality in light of sound social norms and commercial practice, and it is difficult to view it as a ground for rejection of unfair calculation. There is no error of law by misapprehending the legal principles on the rejection of unfair calculation under the Corporate Tax Act, as otherwise alleged in the ground of appeal.
2. Regarding ground of appeal No. 2
The burden of proving that transactions between a corporation and a related party constitute grounds for denial of wrongful calculation under the Corporate Tax Act is the tax authority (see Supreme Court Decision 95Nu3589 delivered on December 26, 1995).
In the same purport, the court below's decision that the tax disposition in this case is unlawful on the ground that there is insufficient evidence to prove that the change in the rate of the remuneration in this case constitutes the ground for rejection of unfair calculation, and there is no error in the misapprehension of legal principles as to the burden of proof as to the facts requiring taxation, or erroneous determination of facts against the rules of evidence, etc.
3. Conclusion
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.