Whether the sale of machinery in a leasing company under the so-called "Sale and Lese Bk contract after the sale" constitutes "disposition, which is the reason for additional collection for the amount of tax deducted under the temporary tax credit system for investment (negative)

The so-called "Sale and Lese Bk contract" has the substance of physical financing, and is a kind of a financial lease contract. If a tax accounting lease contract has been concluded, the lessee borrowed the amount equivalent to the acquisition value of the leased goods from the lessee company to purchase the leased goods, and shall be deemed to be appropriated as the assets (Article 2-3-579(1) of the General Rules of the Corporate Tax Act before the amendment of April 1, 1997). Even if the contents of the lease contract include the sale of the machinery and equipment subject to the contract have no change before and after the above contract, it is reasonable to view that the investment assets subject to the deduction of the investment tax are maintained as they are, even if the contents of the lease contract do not change in the use relationship of the leased goods, the sale of machinery and equipment pursuant to the lease contract does not constitute "disposition of additional collection for the amount of tax deducted by the temporary tax credit system."

Article 72(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3865 of Dec. 26, 1986) (see current Article 27(1)); Article 92 subparag. 2 (see current Article 124 subparag. 3); Article 57-2(1) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12750 of Jul. 4, 1989) (see current Article 24(1))

Criminal Food Co., Ltd. (Attorney Zoo-won, Counsel for defendant-appellant)

Head of the Daegu Tax Office

Daegu High Court Decision 97Gu1625 delivered on November 6, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Article 72(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3865 of Dec. 26, 1986) and Article 57-2(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12750 of Jul. 4, 1989) provide that with respect to an amount invested by a national by December 31, 1986 in order to newly acquire business machinery and equipment used directly for manufacturing business or mining business, an amount equivalent to 3/100 (10/100 in case of an investment by using domestic machinery and equipment) of the amount invested in the relevant taxable year shall be deducted from income tax or corporate tax for the relevant taxable year, and Article 92 subparag. 2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 1991) provides for a short-term reduction of tax amount to be imposed on the said asset by deducting the corresponding amount of investment to be collected within 97.

According to the decision of the court below, the plaintiff is a corporation that manufactures and sells clean beverages for the 1986 business year. The plaintiff invests 2,853,587,00 won in acquiring the machinery of this case, and deducts 285,358,700 won from corporate tax pursuant to the above Regulation of Tax Reduction and Exemption Act. The plaintiff's use of the machinery of this case for the plaintiff's factory as it is, and then, the plaintiff's sale of the machinery of this case to the non-party lessee company for 2,16,826,239 won, and it is not equivalent to the above 7th anniversary of its acquisition price of the machinery of this case. The plaintiff's sale of the machinery of this case to the non-party lessee company for 105,842,00 won, monthly rent for 81,00 won, 200 won, and 30th of its acquisition price of the machinery of this case after the expiration of the contract.

Although the reasoning of the judgment of the court below is not appropriate, the conclusion that the sale of the machinery of this case does not constitute a "disposition," which is a ground for collection, is just, and there is no error of law such as misunderstanding of legal principles or incomplete hearing. The argument is without merit.

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.

Justices Cho Chang-hun (Presiding Justice)