Since the claim for reimbursement of this case is the claim for reimbursement arising from the debt guarantee, such bad debt shall not be included in the amount of loss.

The grounds for not including the bad debt of this case in deductible expenses through the previous disposition of this case are claims for indemnity arising from the debt guarantee, and such bad debt cannot be included in deductible expenses.

Article 19-2 (Non-Inclusion of Bad Debts in Loss) of Corporate Tax Act

2014Guhap5829 Disposition of revocation of refusal to correct corporate tax

○ Construction Corporation

○ Head of tax office

July 9, 2015

August 20, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant's rejection of an application for rectification of corporate tax for the business year 2009 filed against the plaintiff on February 27, 2014

The disposition shall be revoked.

1. Grounds for rejection disposition;

A. On May 14, 2008, the Plaintiff (hereinafter “A”) obtained a loan of KRW 4 billion from BB on the loan of KRW 5 billion from BB on May 14, 2008. On December 30, 2008, the Plaintiff subrogated the above AA’s loan of KRW 4 billion to BB on December 30, 2008, and around that time, included the claim for reimbursement of KRW 4 billion against A in the account book (hereinafter “instant claim for reimbursement”).

나. AA는 원고에 대한 구상채무의 상환 목적으로 2008. 12. 31. 원고에게 아파트 신축사업을 위하여 CC, DD, EE, FF, GG, HH, II(JJ),KK, LL, MM, NN, OO(PP), 주식회사 QQ, RR, SS, TT, UU 등과 체결한 토지매매계약상의 매수인지위를 양도하였다.

C. On January 14, 2009, the Plaintiff opened a board of directors to pay an intermediate payment or a balance to the land owner for the remaining company funds to make it difficult for the Plaintiff to continue the new apartment construction business by paying an intermediate payment or a balance to the land owner, and eventually, it was impossible to recover KRW 1,195,798,000 already paid down payment. Ultimately, the amount equivalent to the down payment that cannot be recovered as above (hereinafter “the instant bad debt”) out of the claim for indemnity in the instant case was resolved to redeem the bad debt, and the amount of income to be included

The corporate tax was reported and paid in 2009.

D. However, pursuant to Article 19-2 (2) 1 of the Corporate Tax Act that provides that the bad debt amount of the indemnity claim arising from the debt guarantee cannot be included in deductible expenses, the Defendant shall not be included in deductible expenses.

On August 17, 2010, the Plaintiff issued a revised and notified the Plaintiff of KRW 272,641,270 of the corporate tax for the business year 2009 (hereinafter “former Disposition”). The Plaintiff and AA asserted that the instant claim cannot be deemed a claim for reimbursement arising from the debt guarantee to the same company, and appealed to the Tax Tribunal on November 3, 2010, but was dismissed on November 4, 201.

마. 이후 AA는 아래 표 기재와 같이 FF 등 매도인들을 상대로 기 지급한 계약금 또는 명도비의 반환을 구하는 소를 제기하였으나, SS과의 소송에서 'SS은 AA에게 750만 원을 지급하라'는 내용의 화홰권고결정이 확정된 것을 제외하고는 소가 각하되거나 청구기각판결이 선고되었다(원고가 FF 등을 상대로 제기한아래 표 기재 민사소송 결과를 '이 사건 확정판결 등'이라 한다).

바. 원고는 2009 사업연도 법인세와 관련하여 이 사건 대손금 및 토지매도인 EE, 주식회사 QQ, UU에게 지급한 중도금 합계 371,000,000원(이하 '이 사건 중도금'이라 한다) 상당액을 손금에 산입하여 달라는 내용의 경정청구를 하였으나, 피고는 2014. 2. 27. 위 경정청구를 거부하였다(이하 '이 사건 거부처분'이라 한다). 원고는 이 사건 거부처분에 불복하여 2014. 3. 6. 국세청장에게 심사청구를 하였으나, 2014. 6.경 기각되었다.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2-1 to 23, 3-1, 2, 3-3,

4, 5 evidence, 6-1 to 9, 7-1 to 7, each entry of Nos. 1 and 2, and pleadings

The purport of the whole

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

In relation to the corporate tax for the business year 2009, the Plaintiff shall be entitled to the instant bad debt and part payments

1,028,598,00 won (i.e., total claim amount of KRW 1,036,098,000) which was revealed to have been lost by A in the final and conclusive judgment, etc. of this case - 7,50,000 won which is recognized to have to be paid to A in the calculation of losses, and on that basis, the following points are indicated in the order (hereinafter referred to as "claim in the order") as follows.

1) Of the claim for reimbursement of this case, the amount equivalent to the bad debt and intermediate payment of this case is identified as an irrecoverable claim by the final and conclusive judgment, etc., which constitutes grounds for filing a subsequent claim for correction under Article 45-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010).

2) At the time of the previous disposition of this case, the Defendant:

The claim for return was assessed and taxed as the claim for return, and the sale of land was final and conclusive.

It was rarely impossible to recover down payment from the people. However, the defendant's final judgment of this case is final and conclusive.

The instant rejection disposition was rendered to the effect that the parties cannot be included in deductible expenses solely on the ground that they are AA. This is against the substance over form principle, and the discretion of the tax officials is the discretion.

It goes beyond the limit.

3) The tax authority imposed the instant disposition of refusal against the seller of land by deeming the down payment, etc. that he/she did not return to A as other income, but did not include the down payment, etc. that could not be returned from the seller of land in deductible expenses. This is contrary to the principle of double taxation prohibition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the assertion of Paragraph (1)

The grounds that the Defendant did not include the instant bad debt in deductible expenses through the previous disposition of this case are claims for indemnity arising from the debt guarantee, and such bad debt is not included in deductible expenses pursuant to Article 19-2 (2) 1 of the Corporate Tax Act, which provides that the relevant bad debt shall not be included in deductible expenses. Even if the Plaintiff acquired the claim for refund of purchase price that A acquired from AA in lieu of the claim for reimbursement of this case by taking over the status of purchaser under the above sales contract from AA in lieu of the claim for reimbursement, it is merely a modified object of the above claim for reimbursement, and the nature of the claim is still a claim

As a result, since the bad debt of this case differs from that of this case which cannot be recovered by the final judgment, etc., the plaintiff's letter of order is without merit on a different premise.

2) Determination as to the assertion of Paragraph (2)

In the previous disposition of this case, the assessment of the Plaintiff’s claim for the refund of the purchase price against the land seller that the Plaintiff acquired from AA is merely a result that the instant bad debt cannot be included in deductible expenses.

In addition, this part of the Plaintiff’s assertion seems to be premised on the fact that the Plaintiff and AA are substantially the same company and that the Plaintiff’s claim for the refund of the purchase price acquired in lieu of the instant claim for reimbursement is the Plaintiff’s business credit. However, in light of the fact that the Plaintiff and AA independently settled accounts as a separate legal entity, and that the land seller enter into a contract with the land seller and the payment was made,

Therefore, this part of the plaintiff's assertion is without merit, since the rejection disposition of this case violates the substance over form principle or deviates from the limits of discretion.

3) Determination as to the assertion of Paragraph (3)

Even if a seller of land receives the down payment, etc. from AA and is subject to taxation, it differs from the Plaintiff’s liability to pay corporate tax, and not only the Plaintiff’s liability for corporate tax but also from the taxpayer, and such circumstances cannot be the basis for including the instant bad debt in deductible expenses. Therefore, there is no room to deem the instant rejection disposition to violate the double taxation

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.