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(영문) 대법원 2007. 11. 30. 선고 2006두4509 판결
이자 지급 약정이 있는 소비대차계약서에 대한 부당행위계산 부인[국패]
Title

Wrongful calculation of a loan contract for consumption under which interest payment is agreed;

Summary

Since it is not borrowed without compensation or at a rate lower than the market price, it is borrowed at the rate of 13% per annum higher than 11% per annum, which is the monthly interest rate for the current account, it is unlawful to include the recognized interest.

Related statutes

Article 52 of the Corporate Tax Act § 52. Denial of wrongful calculation

Article 87 of the Enforcement Decree of the Corporate Tax Act

Text

The part of the lower judgment against the Plaintiff shall be reversed, and that part of the case shall be remanded to the Daegu High Court.

Reasons

1. Regarding ground of appeal No. 1

In full view of all of the wrongful calculation provisions concerning loans to specially related persons, such as Article 20 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998; Articles 46(2)7 and 47(1) and (2) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15797 of May 16, 1998); provided that the pertinent corporation does not have loans with a higher interest rate than the current interest rate, the relevant corporation shall not be deemed to constitute wrongful calculation if it loans money to specially related persons by setting the monthly interest rate or higher interest rate (see, e.g., Supreme Court Decision 2005Du9415, Sept. 20, 2007).

According to the facts acknowledged by the court below, the ○ industry (hereinafter referred to as the "○ industry") set loans 5.45 billion won (hereinafter referred to as the "the money of this case") to the plaintiff who is a specially related person on April 4, 1995 at the interest rate of 13% per annum. According to the records, the overdraft interest rate determined by the Commissioner of the National Tax Service around April 1995 can be recognized as 13% per annum, and there is no evidence to find that there was a loan higher than the overdraft interest rate in the ○ industry around that time, it cannot be said that the ○ industry loaned the money to the plaintiff at a fixed interest rate equivalent to the overdraft interest rate per annum and lending the money at a low interest rate.

Nevertheless, the lower court determined that the instant tax disposition based on the denial and the disposition of income was lawful on the premise that the ○ Industry lent the instant money to the Plaintiff without compensation. In so doing, the lower court erred by misapprehending the legal doctrine on the denial of wrongful act and calculation, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

1. As to the second ground for appeal

According to the Corporate Tax Act, in a case where a corporation’s act of wrongful calculation is deemed to have avoided or reduced tax burden by abusing all the forms of transactions listed in the Enforcement Decree of the same Act without using a reasonable method with a person having a special relationship, the said act shall be deemed to have been denied by the person having a right to taxation, and it shall be limited to the case where, in light of the economic person’s viewpoint, it is deemed that the person disregards the economic rationality due to the act of wrongful and unreasonable calculation. Determination as to the existence of economic rationality shall be limited to the case where only the price of the pertinent transaction is separated from the transaction in the form of transaction with a person who is not a special relationship, and shall not be deemed to have been done just because it does not fall under the case where the transaction was conducted in the form of transaction with a person having a special relationship, but shall be determined by considering the overall circumstances of the transaction in detail according to whether the transaction was conducted with a sound social sense or with an economic rationality in light of commercial practice (see, e.g., Supreme Court Decision 2004Du3724, Sept. 8, 206).

In light of the evidence adopted by the court below, the plaintiff owned 16,00 shares of 240,00 shares of 16,00 shares of 40,00, and operated 00,000 won as the representative director around 192, and the plaintiff concluded a contract with 16,40,000 won of shares of 90,00 won to 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,000 won of 9,00 won of 9,000 won of 9,000 won of 9,000 won of 9,00 won of 9,000 won of 9,000 won of shares of 9.

On the other hand, the facts are identical to this, since ○○ Construction substituted for the share acquisition price to be paid to the Plaintiff, it does not have a duty to return it to ○○ Industries even if the Plaintiff did not contribute to ○○ Private School. Nevertheless, it is difficult to view that ○○ Industries can seek a return of the instant money to the Plaintiff or exercise a claim for interest on the instant money, in light of the circumstances related to the instant loan transaction, as long as the Plaintiff’s establishment of a new school juristic person, and until ○○ Industries could make it possible for the Plaintiff to manage the instant money as a loan to the Plaintiff, it is merely for ○ Industries to make it possible for the Plaintiff to manage the instant money as the loan to the Plaintiff. Thus, it is difficult to see that ○○ Industries is an unfair ground for appeal in light of the circumstances related to the instant loan transaction, including the fact that it is difficult to deem that ○○ Industries can seek a return of the instant money to the Plaintiff, or that it is possible to exercise a claim for interest on the instant money.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

- Finally -

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