Whether the advance appropriation of principal in advance is subject to wrongful calculation in interest between persons with a special relationship

Considering the legal point of view and economic situation, the taxation of this case, which is based on the premise that the agreement on appropriation of performance is denied as a wrongful calculation, is unlawful.

Article 28 (Non-Inclusion of Paid Interest in Loss)

Article 52 (Dispudiation of Wrongful Calculation)

1. Revocation of a judgment of the first instance;

2. The Defendant limited to the Plaintiff on February 1, 2004:

more than 103,949,385 won out of the corporate tax of 390,682,040 won for a business year of 198;

in excess of 140,688,677 of the corporate tax of 1999 KRW 355,743,000,00;

over KRW 108,550,208 out of corporate tax of 293,415,100 for 200 business year;

over KRW 184,968,528 out of the corporate tax of 2001 356,001,560,000;

Each disposition of imposition of corporate tax for 2002 shall be revoked in the portion exceeding 51,264,564 won out of 119,362,220 won.

3. The costs of the lawsuit are assessed against the defendant in both the first and second instances.

The same shall apply to the order.

1. Details of the disposition;

A. As of December 31, 1994, the Plaintiff is a corporation with the purpose of manufacturing and trading electronic equipment, and as of December 31, 1994, the Plaintiff was paid KRW 2.57 billion as of December 28, 1995, and the amount of KRW 1,641,798,829 as of December 31, 1994, and was paid KRW 2.577 billion as of December 28, 1995, and all of these payments were agreed to be appropriated for the repayment of the credit (hereinafter referred to as the “Agreement on the Appropriation of Performance”). The above attempted amount was paid on two occasions on February 26, 2002 and October 24, 202.

B. Around August 2003, the defendant conducted a tax investigation on the plaintiff's 203.8.2 with regard to the above amount of interest accrued from 20.2 billion won and the above amount of interest accrued from 1,641,798,829 ( ① interest 1,641,829 won =931,201, 200-17, 201, 201, 931, 201, 170-17, 1741, 1741, 208, 209, 200, 2000 won and 209 of the above amount of interest accrued from 2.4 years to 200,000 won and remaining amount of interest accrued from 1,641,000 won and 2.4 years to 206,000 won of the above amount of interest accrued from 20,000 won and remaining amount of interest accrued from 97.2 years to 19.4 years to 2.2.2

Business year

Recognition Interest

Gross income

Paid interest

Non-Inclusion

Underreported Amount

Total

Additional Imposition

Corporate Tax

1998

388,715,277 won

212,947,177 won

819,856,053 won

390,682,040 won

199

236,740,882 won

176,88,197 won

690,842,208 won

355,743,00 won

200

214,117,218 won

181,069,994 won

631,789,125 won

293,415,100 won

201

232,025,203 won

177,886,560 won

858,780,911

356,001,560 won

202

121,963,953 won

79,785,748 won

357,184,618 won

19,362,220 won

* The business year of the plaintiff is from January 1 to December 31.

[Grounds for Recognition of Facts: No dispute between the parties, or described in Gap evidence 4-2 to 6]

2. The plaintiff's assertion

A. The allegation of illegality of the denial of wrongful calculation

The defendant, around December 31, 1994, as to the plaintiff's attempted interest 1,641,798,829 won as of December 31, 1994 as of the 195 disposition of this case, as to the plaintiff's attempted interest 1,641,798,829 won as of December 31, 1994, "the special relation is maintained with a related party, and it has not been recovered from the last day of the fiscal year which includes the date of the occurrence of interest until one year from the last day of the fiscal year which includes the date of the occurrence of interest," and as to the plaintiff based on general rule 1-27.3 of the former Corporate Tax Act (amended by Presidential Decree No. 1996, Aug. 1, 196), the defendant included the amount of interest and the amount equivalent to the attempted interest as the beneficiary's income as of December 31, 199.

Therefore, in the event that the above lending and borrowing of money remains in existence between o and o, it is necessary for o to keep the tax authorities in place the amount equivalent to the attempted loan and the amount to be incurred in the future to be included in the calculation of earnings as the recognized interest rate. Meanwhile, oo is a company that produces goods exported by the plaintiff as its subsidiary company from 1990 to 192, and oo has considerably deteriorated its financial status due to long-term labor-management regulations, etc. between 1990 and 192, and it is difficult for o to lend money to the plaintiff immediately before the bankruptcy. In the situation where o continues to exist until 195, it is not necessary for o to repay the above lending and borrowing of money with the money borrowed from a financial institution to avoid tax burden due to the same reason, so it cannot be deemed an unfair act that lacks economic rationality, and thus, the agreement of this case that was made in such circumstance does not constitute an unfair act of satisfaction of payment.

B. As to the violation of the principle of good faith or the principle of trust protection

On November 1, 1995, the defendant, as seen earlier, included the plaintiff's attempted interest on KRW 1,641,798,829 as the recognition interest rate for the plaintiff, and imposed corporate tax upon the plaintiff through the tax adjustment that denies interest accrued to the plaintiff and the non-deductible expense, and imposed corporate tax upon the plaintiff through the tax adjustment that does not include the non-deductible expense. In the disposition of this case, the agreement on the appropriation of the claim of this case constitutes "Calculation of wrongful act" under the premise that the above attempted interest and the existence of the claim are in violation of the principle of trust and good faith and trust protection.

(c) argument about the challenge of the exclusion period.

In order to dispose of the income equivalent to an accrued interest and an accrued amount on the premise that the Defendant’s agreement on the appropriation of debt was denied as a wrongful calculation, and that the repayment amount remains first, the Defendant’s agreement on the appropriation of debt should be made within the exclusion period of corporate tax assessment for the business year, i.e., the business year in which the agreement on the appropriation of debt was reached, i.e., the business year in which the agreement on the appropriation of debt was made, and each of the dispositions

D. The allegation of illegality of the imposition of penalty tax

On November 1, 1995, the defendant did not think that the plaintiff's attempted interest on the plaintiff'sO was denied, that it was in gross income as well as disposed of income from other outflow of the company, and did not think that the repayment should be made first of the above attempted interest and the claim at the time of the agreement on appropriation of appropriation of the company's income. In the payment of corporate tax from the business year of 1998 to 2002, the defendant failed to report the interest rate on the remaining principal as corporate income if the repayment was first appropriated as the attempted interest and the interest rate on the remaining principal was not reported as corporate income. Thus, there is a justifiable reason for neglecting the above duty to report. Nevertheless, the defendant imposed penalty on the ground of the above duty to report

3. Determination

(a) Related Acts and subordinate statutes;

The entry in the attached Form shall be as follows.

(b) recognised facts;

(1) “O” is a company established by the Plaintiff by investing 49.9% shares in around 1970, and that produces and supplies electronic equipment exported by the Plaintiff.

(2) The Plaintiff discontinued production from October 1990 to December 31, 1994, the agreement rate of KRW 3,507,760,00 among the period from October 10, 1990 to December 31, 1994 was set as the monthly interest rate publicly notified by the Commissioner of the National Tax Service, and collected KRW 934,760,000 among the principal amount, and collected KRW 1,641,798,829 (the principal amount to be received was KRW 257,300,000 as of December 31, 1994).

(3) The Plaintiff included the loan and the attempted interest in the balance sheet for each business year, and o also included the loan and the unpaid interest in the balance sheet, and filed a tax return accordingly.

(4) Ao regional tax office conducted a tax investigation with respect to the Plaintiff on November 1, 1995, and recognized the instant loan as a provisional payment unrelated to business under Article 28(1)4(b) of the Act. Accordingly, the Defendant did not collect interest on the instant loan, which is a provisional payment irrelevant to business from o, a related party, for a long period of not less than one year. Thus, prior to the amendment of Rule 1-2-7.3 (amended on August 1, 1996) of the former Corporate Tax Act, the number and content of the instant loan was revised on November 1, 201, and now 4-0.6) based on the following: (a) the Plaintiff did not collect the instant loan from the end of the business year to which the date on which the interest accrued belongs; (b) disposed of the loan as other outflow from the company; and (c) the Defendant did so for a period of not more than 19 years to 194 years from the end of each business year to 196 years from the end of each business year to which the date on which the interest accrued.

(5) General Rule 1-2-7.3 of the Corporate Tax Act provides for the following:

(1) Where the provisional payment, etc. and the amount equivalent to the interest accrued from fund transactions with a person with a special relationship fall under any of the following subparagraphs, it shall be deemed that they have been disposed of under Article 94-2 (1) of the Decree: Provided, That this shall not apply where there is a justifiable reason not recovered or where it is objectively proved that

1. Unclaimed provisional payments, etc. and accrued interest until the special relationship is extinguished;

2. Interest which, in case where the special relationship continues, has not been recovered from the last day of the business year in which the interest is generated until one year.

(2) The provisional payments, etc. pursuant to the provisions of paragraph (1) shall be deemed disposed of in the business year which includes the date set forth in the following subparagraphs:

1. Provisional payment: The date special relationship is extinguished;

2. Interest on attempted: The day one year lapses from the end of the business year in which the occurrence date falls: Provided, That where special relationship is terminated within one year, the day on which the special relationship is terminated.

(3) Where an attempted interest deemed disposed of pursuant to paragraph (1) is received thereafter, such interest shall be deemed the carried forward income and shall not be included in the gross income in calculating the income amount for the business year received.

(4) The unpaid interest of the other party corresponding to the attempted interest who is deemed disposed of pursuant to the provisions of paragraph (1) shall not be deemed as a debt until the other party actually pays it. Therefore, the unpaid interest shall be included in the gross income in calculating the income amount for the business year which includes the date on which one year has elapsed from the end of the business year in which the accrued, and such unpaid interest shall be included

(6) As recognized in the above 1-A, the Plaintiff received KRW 2.57 billion from Doo on December 28, 1995, immediately after the above corporate tax was corrected, and agreed to appropriate the loan principal for the repayment of the loan principal. The Plaintiff received KRW 1,641,798,829 on two occasions on February 26, 2002 and October 24, 2002. The Defendant conducted a tax investigation with respect to the Plaintiff on August 28, 2003, subject to the disposition of this case as stated in the above 1-B.

(7) Meanwhile, the tax base of the Plaintiff’s business year and the corporate tax additionally imposed in relation to each of the dispositions of this case, which increased as a result of the Defendant’s denying the Defendant’s rejection of the instant application for appropriation, are as follows:

Business year

Original Report

Tax Base

This case's appropriation of performance

result of the denial

increased tax bases

The plaintiff was before

paid corporate tax

This case's appropriation of performance

result of the denial

Additional

imposed corporate tax

1998

1,991,578,760 won

601,662,354 won

545,642,052 won

286,732,655 won

199

6,246,512,316 won

413,629,079 won

1,737,023,448 won

215,054,323 won

200

2,545,253,794 won

395,187,212

700,671,062

184,864,892 won

201

2,038,065,458 won

409,911,763 won

58,658,328 won

171,033,032 won

202

2,515,973,056 won

201,749,701 won

67,312,725 won

68,097,656

【Ground for Recognition of Facts: The parties are not in dispute, or Gap evidence No. 5 is written, and all the arguments are purported]

C. Determination on the motion for exclusion period

Corporate tax is established at the end of the taxable period for each business year of the first accounting period prescribed by Acts and subordinate statutes or the corporation's articles of incorporation.The date when corporate tax can be imposed is the day after three months have elapsed from the end of the business year, which is the deadline for filing the tax base and the deadline for filing the tax amount, and the right to impose corporate tax becomes extinct at the expiration of the exclusion period. Therefore, if corporate tax is established for each business year, the exclusion period from the day following the expiration of the taxable period to three months, and it is not run at the time of the occurrence of the act affecting the establishment

D. Determination of the illegality of the denial of wrongful calculation

The phrase “justifiable calculation” of the Corporate Tax Act means the calculation of the act of reducing or removing the burden of tax when a taxpayer takes a reasonable transaction form. Article 52 of the Corporate Tax Act provides that a corporation and a person with a special relationship should first be deemed to have abused all types of transaction under each subparagraph of Article 8(1) of the former Enforcement Decree of the Corporate Tax Act (amended by the Presidential Decree No. 17457, Dec. 31, 2001) and thus, the tax authorities would have neglected the economic rationality, and thus, to fair taxation and to prevent tax evasion by deeming the same income as reasonable in terms of tax law. Since the Plaintiff’s act of 19 years old interest was not considered to have been appropriated for the same purpose as that of the above 9 years old interest income, the Plaintiff would not be deemed to have received any unfair calculation of the remaining amount from the 19 years old interest rate in view of sound social norms or commercial practice (see, e.g., Supreme Court Decision 201Du7868, Sept. 4, 2002).

In relation to the following economic situation, Hoo is a company established by investing 49.9% in the Plaintiff and supplying the goods exported by the Plaintiff at the lower office. While the Plaintiff continued to pay the principal and interest during the 1990 fiscal year from the 1990 fiscal year to the 1994 fiscal year, even though it is difficult to repay the principal and interest due to the lack of circumstances, Hoo continued to repay the loan to the Plaintiff with the amount borrowed from a financial institution to avoid taxation subject to inclusion in the calculation of accrued interest in the next fiscal year. Although the Plaintiff was aware of the difficult financial situation of Hoo, it was the position to avoid taxation subject to the recognition of interest rate in the subsequent fiscal year. Thus, the Plaintiff and Hoo agreed to pay part of the loan and interest interest to the Plaintiff, but in consideration of the legal point of view as seen earlier, it appears that the Plaintiff and Hoo agreed first agreed to pay the principal in the most appropriate way to the Plaintiff.

In light of the above legal point of view, economic situation, etc., the appropriation of principal between the Plaintiff and Doo cannot be deemed as a normal economic transaction (it is different from the case of the instant disposition without a correction disposition in 96).

Therefore, the taxation of this case, which is based on the premise that the above agreement on appropriation of performance is denied as a wrongful calculation, is illegal.

(d) The calculation of a legitimate tax amount;

The legitimate tax base to be paid by the Plaintiff is the sum of the increased tax base [the aggregate of the under-reported amounts on the table of paragraph 1(b) above - the inclusion of the interest in gross income + non-deductible of the interest paid] that is not related to the loan of this case in the tax base originally reported under the following table 1 (1). The legitimate tax amount is the corporate tax additionally imposed, 3. The corporate tax additionally imposed, 5. The amount exceeding the legitimate tax amount stated in the paragraph 5 should be revoked.

Business year

(1) The initial report

Tax Base

(2) Increase.

Tax Base

(3) Additional roads

imposed corporate tax

(4) The case

Additional due to the denial of satisfaction of obligation

imposed corporate tax

(5) Political tax amount;

1998

1,991,578,760 won

218,193,599 won

390,682,040 won

286,732,655 won

103,949,385 won

199

6,246,512,316 won

277,213,129 won

355,743,00 won

215,054,323 won

140,688,677 won

200

2,545,253,794 won

236,601,913

293,415,100 won

184,864,892 won

108,550,208 won

201

2,038,065,458 won

48,869,148 won

356,001,560 won

171,033,032 won

184,968,528 won

202

2,515,973,056 won

155,434,917 won

19,362,220 won

68,097,656

51,264,564 won

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance which dismissed it is unfair, so it is revoked, and the plaintiff's appeal is justified and it is so decided as per Disposition.

Relevant statutes

[Corporate Tax]

Article 28 (Non-Inclusion of Paid Interest in Deductible Expenses)

(1) The interest on any of the following borrowings shall not be included in deductible expenses in calculating the income amount of a domestic corporation for each business year:

4. Of interest on loans paid during each business year by a domestic corporation which acquires or possesses assets falling under one of the following items, the amount calculated under the conditions as prescribed by the Presidential Decree (limited to interest on loans equivalent to the value of the relevant assets):

(b) Provisional payments, etc. prescribed by the Presidential Decree to a person with a special relationship under Article 52 (1) without connection with the business of the relevant corporation; and

Article 52 (Disliability of Evaluation of Wrongful Acts)

(1) Where it is deemed that the tax burden of a domestic corporation has been unjustly reduced due to transactions with persons with a special relationship as prescribed by the Presidential Decree (hereinafter referred to as "specially related persons"), the head of the district tax office or the head of the competent regional tax office having jurisdiction over the place of tax payment may calculate the income amount for each business year of the relevant corporation regardless of the activities or calculation of the income amount of the relevant corporation (hereinafter referred

(2) In the application of the provisions of paragraph (1), the standard for determination shall be the prices applied or to be applied in sound and generally accepted practices and normal transactions between persons without a special relationship (including rates, interest rates, rents, exchange rates and other corresponding rates; hereafter referred to as "market price" in this Article).

(3) A domestic corporation shall submit a detailed statement describing transactions with a specially related person for each business year as prescribed by the Presidential Decree.

(4) In applying paragraphs (1) through (3), matters necessary for the types of wrongful calculation, assessment of market price, etc. shall be prescribed by Presidential Decree.

【Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17457 of Dec. 31, 2001)】

Article 53 (Non-Inclusion of Interest Paid in respect of Non-Business Assets, etc.)

(1) The term “those as prescribed by the Presidential Decree” in Article 28 (1) 4 (b) of the Act means the lending amount of funds that is not related to the business of the concerned corporation regardless of its name: Provided, That the amount as prescribed by the Ordinance of the Ministry of Finance and Economy shall

(2) The term “amount calculated under the conditions as prescribed by the Presidential Decree” in Article 28 (1) 4 of the Act means the amount calculated by the following formula:

Aggregate of the asset value of the paid interest X(1) and 49(1) / Total borrowed money

Article 88 (Calculation Type of Wrongful Acts)

(1) "Where it is deemed that the tax burden has been unjustly reduced" in Article 52 (1) of the Act means cases falling under any of the following subparagraphs:

6. Where money and other assets or services are provided with no compensation or at a rate or rent lower than the market price: Provided, That this shall not apply where company housing is provided to officers who are not stockholders or investors (including officers who are minority shareholders under Article 87 (2)) and employees;

9. Other cases in which it is deemed that activities, calculations, or other distributions of the profits of the juristic person corresponding to subparagraphs 1 through 8 have occurred.

(2) The provisions of paragraph (1) shall apply to transactions between the relevant corporation and the specially related person (including transactions conducted through persons other than the specially related persons) as of the time of such acts: Provided, That determination of a corporation with a special relationship under paragraph (1) 8 (a) and Article 45 (1) 1 of the Act shall be based on the period from the starting date of the business year immediately preceding the business year to which the date of the registration of the merger belongs (referring to the starting date first, where different corporations are merged

[Supreme Court Decision 2006Du14513 (Law No. 21, 2008)]

* Note *

(i)

* Note *

(ii)

* Note *

(iii)