Cho-2013-China-4211 (2014.06.09)

Whether senior interest rates and subordinated interest rates are abnormal in lack of economic rationality in light of sound social norms or commercial practices.

Although the Defendant did not cancel the disposition on the senior loan, the loss incurred only by the cancellation of the part on the subordinated loan, which eventually resulted in the cancellation of the entire notified tax amount, the Plaintiff’s revocation lawsuit is unlawful as there is no benefit of lawsuit.

Article 52 of the Corporate Tax Act: Denial of Wrongful Calculation

Incheon District Court-2014-Gu 2206 ( December 21, 2018)

OOOOOBA

O Head of tax office

November 16, 2018

December 21, 2018

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Facts of recognition;

A. On December 24, 1996, the Plaintiff is a corporation established for the purpose of constructing and operating SS tunnels connecting scambling highways and △△ Bureau roads pursuant to the former Promotion Act for the Inducement of Private Capital (amended by Act No. 5654, Jan. 21, 1999; hereinafter referred to as the “former Private Investment Act”).

나. 원고의 주주는 2010. 4. 9. DDDD 등 건설사에서 □□□SSS터널사모특별자산투자신탁(대출채권)의 신탁업자인 TTTTTT(이하 'TTT'라 한다)로변경되었고, 그 과정에서 원고는 자금 재조달을 위하여 주식회사 ☆캐피탈(이하'☆캐피탈'이라 한다)과 2010. 3. 29. 원금 총액이 00,000,000,000원을 초과하지 않는 범위에서 연 8.5%의 고정금리로 장기 대출하는 선순위대출약정을 체결하고(이하'이 사건 선순위차입금'이라 한다), 같은 날 ☆캐피탈이 TTT와 □□□자산운용 주식회사(이하 '□□□자산운용'이라고만 한다)에게 위 대출채권을 양도하였고, 2010. 4. 30. 원금 총액이 00,000,000,000원을 초과하지 않는 범위에서 대출금의 최초 인출일로부터 2014년 12월에 도래하는 이자지급일까지는 연 14%, 그 이후부터 2019년 12월에 도래하는 이자지급일까지는 연 18%, 그 이후의 이자지급일에는 연 20%의 각 이자율을 적용하는 후순위대출약정을 체결하고(이하 '이 사건 후순위차입금 이라 한다),같은 날 ☆캐피탈이 TTT와 □□□자산운용에게 위 대출채권을 양도하였다.

C. The Defendant, while raising the instant subordinated loan and subordinated loan from TT 2. 1. The Defendant deemed that 20.0 won was higher than the interest rate of 10.5% per year (2010, 8.5% per year, 2011, 6.9%) while 10.4% per year for the instant subordinated loan and subordinated loan from 20.0,00,615,709 won (200,931, 917, 2000, 2000, 2011, 2010, 2000, 2010, 200, 200, 2012, 200, 2013, 793, 200, 2010, 200, 200, 200, 200, 213, 209, 2013, 206, 2017.

E. In accordance with the decision of the Tax Tribunal, the Defendant reviewed the appropriate interest rate, but determined that the initial investigation and disposition were legitimate, and notified the Plaintiff thereof.

F. On June 17, 2013, the Plaintiff filed the instant lawsuit against the Defendant requesting revocation of the disposition of imposition of corporate tax amount of KRW 00,396,030 (including additional tax) for the business year 2012, and the corporate tax for the business year 2010, and for the business year 2011, the revocation of the disposition of rejection of corporate tax for the business year 2013. The Defendant revoked the portion concerning the instant subordinated loan of KRW 00,931,917 for the business year 2010 for the business year 2010, for the instant subordinated loan of KRW 00,469,99 for the business year 200,260,260,394 for the business year 2012 and notified the amount of losses for the business year 200,000,704, 205, 2004, 2005, 2005, 2014

The total notified tax amount was revoked).

2. Whether the lawsuit of this case is lawful

If an administrative disposition is revoked, the disposition is no longer effective, and no longer exists, and a revocation lawsuit against an nonexistent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012). The Defendant rendered a disposition of reduction or correction as sought by the Plaintiff regarding corporate tax for the business year 2010 and 2011, and the fact that the entire revocation of the disposition of imposition of corporate tax for the business year 2012 is the same as recognized earlier. As such, the instant lawsuit seeking the revocation of a disposition that does not exist due to its extinguishment, and is unlawful as there is no benefit of lawsuit, as it does not exist any benefit of lawsuit.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.