If the requirements for bad debt are not satisfied at the time of subrogation

A claim for reimbursement due to the Plaintiff’s performance of guaranteed obligation cannot be counted as deductible expenses for the pertinent business year because it did not meet the requirements for bad debt at the time of payment by subrogation.

Article 34 (Inclusion of Bad Debt Reserve Fund in Loss)

1. The part concerning the disposition of imposition of corporate tax for the business year of 2000 among the judgment of the first instance shall be revoked;

2. The plaintiff's claim is dismissed.

3. 5 minutes of the total costs of the lawsuit are assessed against the plaintiff, and the remainder is assessed against the defendant.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 115,542,651 remaining after the reduction of corporate tax of KRW 485,36,490 against the Plaintiff on December 1, 2002 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On April 25, 1985, ○○ Construction Co., Ltd. (hereinafter referred to as “○○ Construction”) was established for the purpose of apartment construction and housing site construction business, etc., and the total amount of its capital was KRW 5.38 billion. Of shares 1,056, 58% of 1,056, 15% of 1,000 shares, ○○○, a representative director, was in possession of 5%, 5% of 00, 3% of 00, 000, 000, and 2% of 00, respectively.

나. 그런데 ○○건설은 그 목적사업 중 토목건축공사업에 관한 권리 • 의무 일체를 분할하여 원고를 설립하기로 하고, 1999. 5. 13. 그 분할계획서(갑 제13호증)에 대한 주주총회의 승인결의를 거쳐 1999. 6. 20. 신설회사인 원고의 설립등기를 1999. 7. 3. ○○건설의 분할등기를 각 경료하였는바, 위 분할계획서에 의하면 분할시 총 264,000주의 주식을 발행하여 ○○건설의 주주들에게 그 지분비율에 따라 배당하고, 원고의 목적사업을 토목건축공사업 및 이에 부대하는 일체의 사업으로 하며, 원고는 분할 전 ○○건설의 채무 중 출자한 재산에 관한 채무만을 ○○건설은 그 외의 채무만을 각 부담하는 것으로 되어 있다.

C. At that time, ○○ Construction publicly announced that creditors would raise an objection to the company division on behalf of the creditors pursuant to Articles 530-9(4) and 527-5(1) of the Commercial Act, but it did not individually issue a peremptory notice for the submission of an objection to the creditors known to the creditors.

D. After that, on September 14, 199, ○ Construction reported the transfer of construction by designating the transferee to ○○ Do Governor as the Plaintiff. On October 1, 1999, ○○ Do Governor accepted the report on the condition that the transferee will take over all the existing obligations based on the transferor’s mutual guarantee.

E. Meanwhile, around December 31, 1996, ○ Construction guaranteed obligations to the Credit Guarantee Fund of a limited partnership ○○ Comprehensive Construction (hereinafter referred to as “○○ Construction”) and guaranteed obligations to other construction companies by mutual guarantee methods, including guaranteeing obligations to the Credit Guarantee Fund of ○○ Construction (hereinafter referred to as “○○ Construction”) around December 11, 1997. Since ○○ Construction was subject to a disposition on deficits from the head of competent tax office on October 31, 1999, ○○ Construction was subject to a disposition on deficits from the head of competent tax office on October 31, 1999, and ○○ Construction was subject to a decision of approval of composition from ○ District Court on June 30, 199, ○ Construction lost its guarantee obligation equivalent to 1.1 billion won as of December 31, 199, which actually exceeded 2 times the cumulative deficits as of December 31, 199.

F. Accordingly, on April 28, 200, 000, 000 KRW 3.4 billion was demanded from the Plaintiff to pay the debt amount of KRW 8.4 billion which is equivalent to KRW 35.4% of the guaranteed debt amount as at the time of 00 million. On May 8, 2000, the Plaintiff agreed between 00 and 00 to the effect that the Plaintiff shall pay the guaranteed debt amount of KRW 1.5 billion, but he shall exercise the right to indemnity against the principal debtor and shall not exercise the guaranteed debt amount for 0.3 billion. ○○ Construction shall pay the debt amount of KRW 26,621,708,000, KRW 309, KRW 279, KRW 309, KRW 298, KRW 29,000, KRW 309, KRW 309, KRW 29,005, KRW 29,000, KRW 29,000, KRW 29,3975,29.

G. After calculating the tax base and tax amount by appropriating the corresponding amount of the repayment in deductible expenses, the Plaintiff filed a corporate tax return for the 2000 business year with the head of ○○ Tax Office on the basis of the calculation. On December 1, 2002, the Plaintiff’s act that the Plaintiff paid to ○○ Construction an amount equivalent to the repayment amount of the instant case to the specially related person was an act of paying a loan irrelevant to business, and thus constitutes wrongful calculation, the Plaintiff’s act of not-Inclusion in deductible expenses and disposal of retained earnings. The Plaintiff’s temporary payment interest (58,007,254, 2000, 120,481, 204, 200,4811) included the pertinent provisional payment interest (58,99,98,137 won in deductible expenses and other related interest (in addition, the Plaintiff’s tax base and tax amount for the instant business year 200,3004,209, 2009, 2004, 20094, 3005,301.

H. On March 5, 2003, the Plaintiff filed an appeal with the National Tax Tribunal on the instant disposition, but was dismissed on November 5, 2003.

I. The plaintiff filed a lawsuit claiming revocation of the disposition of this case by asserting that the act of paying the amount equivalent to the repayment amount of this case to ○○ Construction does not constitute a wrongful calculation, and the first instance court accepted the plaintiff's claim, but the defendant appealed, but the trial prior to remand was dismissed by the defendant's appeal. The defendant appealed against this judgment. The defendant reversed part of the judgment of the first instance court prior to remand on the ground that the plaintiff's act of paying the amount equivalent to the repayment amount of this case to ○○ Construction is not subject to the denial of wrongful calculation, but the plaintiff's claim for reimbursement due to subrogation for ○○ Construction cannot be deemed as satisfying the requirements for bad debt since it is possible to exercise the right of reimbursement since 204, and therefore it cannot be deemed as satisfying the requirements for bad debt.

(j) On February 13, 2007, after the instant lawsuit was remanded, the Defendant revoked the disposition of imposition, excluding the portion (283,660,300 won) on which the Plaintiff subrogated for the guaranteed debt of ○○ Construction and was in the process of trial and was included in the calculation of losses pursuant to the purport of reversal and transmission, and subsequently corrected corporate tax for the business year 200 to KRW 115,542.651 for the Plaintiff.

Facts without any dispute over recognition, Gap evidence 2 through 5, Eul evidence 6-1 to 6-1, Gap evidence 7-1, 2, 3, Gap evidence 8, 9, Gap evidence 10-1 through 6, Gap evidence 11, 123 and 13, Gap evidence 14-1, 2, 3, 15 through 18, 24-2, 3, 5 through 8, 11 through 15, and Eul evidence 1 through 4, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination on the legality of the disposition imposing corporate tax for the business year 2000

According to the above facts and the evidence evidence No. 19, at the time of the plaintiff's subrogation for the guaranteed obligation of ○○ Construction before the above division, ○○ General Construction, which is the principal debtor, had already been unable to exercise its claim for reimbursement after receiving a disposition on default from the head of the competent tax office on the payment of national taxes (the plaintiff's subrogated amount of 810 million won for the guaranteed obligation of ○○ General Construction, is merely about 16.7% of the total guaranteed obligation amount of ○○ Construction, which is about 4.85 billion won, and less than 3.3% of the total guaranteed obligation amount of ○○ Construction, and there is no room for other joint and several guarantors to claim for reimbursement). It can be known that there was a situation in which ○○ Construction, which can exercise its claim for reimbursement since 2004 with the decision of ○○ Construction's approval for composition.

In light of the above circumstances, it is reasonable to include a claim for reimbursement due to the performance of a surety obligation on ○○ General Construction among the claim for reimbursement arising from the Plaintiff’s subrogation in deductible expenses in deductible expenses because it is not possible to exercise the right of reimbursement as a result of the performance of a surety obligation on ○○ Construction as at the time of the above subrogation. However, it cannot be deemed that the claim for reimbursement due to the performance of a surety obligation on ○○ Construction as at the time of the above subrogation satisfies the requirements for bad debt as at the time of the above subrogation, as the Plaintiff was also the person who is also the owner of the right of reimbursement. Therefore, it cannot be immediately included in deductible expenses for the pertinent business year. Therefore, the Defendant’s imposition of corporate tax of 485,336,490 won on the Plaintiff in deductible expenses for all the claim for reimbursement due to the performance of a surety obligation on ○○ General Construction as at the time of the above subrogation. However, in this case, it cannot be deemed that the Defendant’s claim for reimbursement due to the performance of a surety obligation on ○○ Construction is admitted as deductible expenses.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition