The payment of the leased house lease fund is made in lieu of the provision of the company house, and its substance can be the same as the provision of the company house.

In the event that a company house is provided to an employee, the payment of the leased house of this case can be the same as the provision of the company house in substance, considering the fact that the company house of this case was made in lieu of the provision of the company house, considering the fact that the company house of this case was excluded from the object of the wrongful calculation, but the employee was subsidized with the house rental fund of this case because the employee was not provided with the house.

2011Guhap34115 Disposition of revocation of refusal to correct corporate tax

XX Co., Ltd

The director of the tax office

April 18, 2012

May 4, 2012

1. The Defendant’s rejection disposition against the Plaintiff regarding KRW 000 and the calculated tax amount of KRW 000 is revoked, among the disposition of reduction or correction of corporate tax for the business year of March 26, 2010, which belonged to the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff's status and the circumstances leading to the correction related to the provisional payment;

(1) 원고는 1999. 1. 4. 주식회사 QQ은행과 주식회사 HH은행이 합병하여 신설된 법인으로 2002. 5. 20. '주식회사 LL은행'에서 현재 상호로 변경하였다.

(2) 주식회사 QQ은행은 1997 사업연도부터 1999 사업연도까지 뒤에서 보는 바와 같이 자신의 명의와 계산으로 국민주택규모 이하의 주택(이하 '이 사건 임차주택'이라 한다)을 임차하는 형식을 취하되 실질적으로는 '복지지침'에 따라 일정 요건을 갖춘 종업원들에게 임차에 소요되는 자금을 무상으로 지급하고, 이 사건 임차주택에 관한 임대차보증금을 업무용 고정자산 중 임대차보증금으로 계상하고 위 각 사업연도별 법인세를 신고하였다.

(3) On March 31, 2003, the defendant corrected and notified the plaintiff on March 31, 2003 that "the lease deposit of the leased house of this case was paid by business related to related parties, so the recognized interest is included in the calculation of earnings as stated in the table 1, and the related interest was corrected in the calculation of earnings as well as the amount of losses for each business year from 1997 to 1999, and then the corporate tax belonging to the business year 199 and the corporate tax belonging to the business year 199 was corrected and notified.

The details of tax adjustment related to the lease deposit related to the leased house in this case as shown in Table 1.

(The following table omitted):

(b) The details of the first rejection of correction and objection;

(1) On January 31, 2007, the Plaintiff sought on the following grounds: “The Plaintiff provided the Defendant with the leased house which remains in the lease term as of April 3, 2000 constitutes “the offer of a house-to-house, which is not subject to the avoidance of unfair act and calculation.” As of March 31, 2003, the Plaintiff, upon the correction disposition of March 31, 2003, deducted the amount related to the above house from the gross income and the loss carried forward incurred by the inclusion in deductible expenses and the calculation of corporate tax base and tax amount for the pertinent business year (in addition to the aforementioned loss carried forward deduction, the tax base shall be reduced from KRW 00,00, which is the previous return amount, and the calculated tax amount shall be reduced from KRW 00 to KRW 00,000, respectively).” (hereinafter “the first request for correction”).

"(2) On December 27, 2007, the defendant filed a petition with the Tax Tribunal for a trial seeking the revocation of the first rejection disposition of correction from March 20, 2008, "(3) on the ground that it did not file a petition for dissatisfaction within 90 days from the date of the disposition ( March 31, 2003) to the date of the disposition, and that the period of exclusion of corporate tax belonging to the business year before March 31, 2005 expires, the first rejection disposition of correction (hereinafter "the first rejection disposition") was made on the ground that "(3) on March 23, 2008, the plaintiff filed a petition for a trial with the Tax Tribunal for the revocation of the first rejection disposition of correction from taxable income, and on August 23, 2010, the tax Tribunal revoked the first rejection disposition of correction from taxable income, and received a correction of the tax base and the amount equivalent to the amount equivalent to the tax amount to be deducted from deductible income for each business year as the total amount equivalent to 000 won and the tax amount deducted from deductible income.

(c) The details of the second rejection of correction and objection;

(1) On March 28, 2008, on the same ground as the first request for correction, the Plaintiff made a request to the Defendant on March 31, 2003, for the following reasons: (a) on April 3, 2000, the Plaintiff: (b) deducted each amount related to the housing, the period of which is terminated as of March 3, 200, from the inclusion of gross income; and (c) deducted each amount related to the housing, the period of which is terminated as of April 3, 200, from the inclusion of gross income; and (d) deducted the corporate tax base for the pertinent business year from the amount of KRW 00 to the amount of KRW 00, and the calculated tax amount from KRW 00 to the amount of KRW 00, respectively; (c)

(2) On July 7, 2008, the defendant issued a rejection disposition of correction on the same ground as the first rejection disposition (hereinafter referred to as the "second rejection disposition") to the plaintiff.

(3) On October 2, 2008, the Plaintiff filed a petition with the Tax Tribunal for a trial seeking revocation of the second corrective refusal disposition. On December 29, 2010, the Tax Tribunal rendered a decision that “the amount equivalent to the interest recognized as included in the calculation of earnings in the business year 1999 shall be included in the calculation of earnings, and the amount equivalent to the non-deductible interest shall be included in the calculation of earnings, and the amount equivalent to the non-deductible interest shall be included in the calculation of losses, and the amount equivalent to the non-deductible interest shall be included in the calculation of losses, so that the amount

(d) Circumstances leading up to the refund of the corporate tax reverted to the business year 2004.

(1) On February 12, 2010, the Defendant rendered a disposition to rectify the corporate tax base for the business year 2004 to the Plaintiff from KRW 000 to KRW 00,000 according to the “Supreme Court Decision 2008Du1795 Decided January 28, 2010,” which held that “the Defendant’s rejection of the reduction or correction of the corporate tax base for the business year 2004, which reverts to the Plaintiff on March 2, 2006, shall be revoked.”

(2) Around that time, the Defendant paid to the Plaintiff the remainder, excluding the penalty tax, out of the amount already paid by the Plaintiff as corporate tax for the business year 2004 according to the above corrective disposition.

E. Reasons for the refusal of correction of the instant case

On March 26, 2010, the Plaintiff claimed on the Defendant that the corporate tax base for the business year 2005 should be reduced to KRW 000 and the tax amount should be reduced to KRW 000 on the same ground as the first and second requests for correction, but did not receive any notification from the Defendant (hereinafter “instant refusal disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 13, Eul evidence No. 1 (including provisional number), the purport of the whole pleadings

2. Whether the disposition rejecting the correction of this case is legitimate

A. The plaintiff's assertion

Since a company house was provided to an employee, the lease deposit for the leased house of this case is not a business-related provisional payment, or even if it was deemed that the lease deposit was lent to an employee, it is not subject to the unfair calculation by making economic rationality. Therefore, since the interest recognized as to the lease deposit and the interest paid for the leased house of this case in the business year 197 and 1998 are increased when the amount of losses is deducted from the gross income and the amount equivalent to the interest paid for the leased house of this case, the losses should be deducted from the business year of 2005 on the premise that the legitimate losses that could have been deducted in the business year of

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the scope of a provisional payment by a competent office, etc.

According to the opposite interpretation of Article 46 (2) 7-2 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998; hereinafter the same), if a corporation provides a company house to an executive or employee who is not an investor or a contributor of a corporation, "the act of providing a company house to an employee who is not an investor or a contributor of a corporation" is excluded from the subject of unfair act and calculation denial (Article 88 (1) 6 of the Enforcement Decree of the Corporate Tax Act amended by Presidential Decree No. 15970 of Dec. 31, 1998, stipulated this), "the provision of a company house" does not constitute "the amount of a loan under Article 43-2 (2) 2 of the Corporate Tax Act", and therefore, the actual provision of a company house does not constitute "the amount of a loan to an employee who is not a business director," and thus, it shall be determined as the object of unfair act denial [Article 46 (2)7), Enforcement Decree of the Corporate Tax Act or the payment of the payment.

According to Article 28 (2) of the "Welfare Standards" that the Plaintiff entered into a lease contract in its name and paid the lease deposit (the certificate No. 13-2). However, if a beneficiary employee participates in the Plaintiff's employee housing association, the return of the lease deposit until the time of moving into the association house is delayed, and pursuant to Article 33 (2) of the "Welfare Guidelines", the employee who moves into the association must guarantee the return of the lease deposit. Under Article 36 (3) of the "Welfare Guidelines", the employee's head who moves into the association should recover the lease deposit within a certain period of time from the employee who lost his/her entitlement to benefit, and the employee's payment of the lease deposit should be determined if he/she could not recover the lease deposit within the period of time, and the employee's payment of the loan deposit would be more likely to be more than the employee's payment of the loan deposit under the name of the Plaintiff's own housing and the employee's payment of the loan deposit for housing without consideration for the reasons that it would be more favorable than the employee's payment of the housing.

(2) Regarding deduction of losses carried forward

(A) Even if the total amount of losses which belongs or comes to belong to a business year falls under all the losses under the Corporate Tax Act, and the amount which is assessed as losses at the time of the final return such as corporate taxation standards or the investigation and determination of the government's tax base, etc. are not the losses, and the tax base or tax amount cannot be contested any longer after the determination of the corporate tax base for a business year based on the premise that the tax base is not deducted, even though the losses carried forward cannot be assessed as losses, the corporation liable to pay taxes may again assert that, in a dispute over the validity of the disposition imposing corporate tax for a business year subsequent to the determination of the tax base, separate from the finalized tax base, the previous tax base is erroneous or that there is losses that may be deducted from the income under the relevant provisions of the Corporate Tax Act (see Supreme Court Decision 2001Du2652, Nov. 26, 2002). Further, the losses carried forward should be deducted in order from the amount that occurred in a business year prior to the determination of the tax base and the amount of losses carried forward within 20 years.

(B) Although there is no dispute over the amount of the corporate tax attributed for the business year of 1997 and 1998 returned to the instant case, it can be said that there is a loss that has not been deducted among the losses carried over in the business year of 1997 and 1998, the corporate tax base and tax amount to be deducted for the pertinent business year should be calculated again on the premise that the legitimate loss carried over, which had been deducted for the business year of 1997 through 2004, was successively deducted in order.

Furthermore, as seen earlier, the Defendant deemed the lease deposit for the leased house of this case as the provisional payment without office and adjusted the Plaintiff’s losses for the business year of 1997 to the amount of KRW 00,000, and the amount of losses for the business year of 1998 to the amount of KRW 00,000. Thus, if the interests recognized as the lease deposit for the business year of 197, 1998 as well as the amount of interest paid for the lease deposit for the business year of 1997 as non-Inclusion in gross income and non-Inclusion in deductible expenses, the losses for the business year of 1997 and the amount of losses for the business year of 1998 shall be additionally recognized as KRW 0,00,00,000,000,000,000,000,000,000,000,000,000,00,000,00.

Cumulative Losses Carried forward by business year

① For the business year 1997 through 2000: -00 won (=100 won for the business year 1997 + 000 won for the business year 1998 + 000 won for the business year 1999 + 000 won for the business year 2000)

② Business year 2001: -00 won (=income amount of 000 won for the business year 2001 + Income increase of 000 won for the business year - 1997 through 2001 cumulative carried forward loss for the business year 00)

③ 202 Business Year: -00 won (=income amount of 000 won for the business year - 000 won accumulated carried forward for the business year 2001)

(4) Business year 2003: -00 won (=income amount of 000 won for the business year - 000 won accumulated carried forward for the business year 2002)

⑤ 2004 Business Year: -00 won (=income amount of 000 won for the business year - 000 won accumulated carried forward for the business year 2003)

The amount of income (loss) and the amount of deduction of loss carried forward for each business year as shown in Table 2.

(The following table omitted):

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.