Seocho 2014west 4162 (Law No. 14, 2016)

A surcharge paid by the Mutual-Aid Association which is a nonprofit corporation in addition to the amount equivalent to the shares of its members with profits from profit-making business shall be included in deductible expenses.

A surcharge paid in addition to the amount equivalent to the charges of members shall be a profit-making business if the profit-making business is a revenue source and if the surcharge falls under the interest cost, it shall be a loss of the

Article 3 of the Corporate Tax Act

2016Guhap6854 Revocation of Disposition rejecting to correct corporate tax

AA Mutual Aid Association

Head of Mapo Tax Office

August 29, 2017

October 12, 2017

1. The Defendant’s rejection of correction of KRW 2,529,050,660 for the business year 2010 against the Plaintiff on May 15, 2014 is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a non-profit domestic corporation (hereinafter referred to as a "non-profit corporation") that operates a member's pay, lease, and various welfare and welfare projects for its members in order to promote their stable livelihood and welfare by establishing and operating an efficient mutual aid system for those who are or were a public official of AA pursuant to the AA Mutual-Aid Association Act.

B. The Plaintiff received a certain amount from its members each month (hereinafter referred to as “charges”) and invested in stocks, bonds, real estate, etc. with the financial resources, or run various profit-making businesses, such as the operation of a AA Hospital funeral hall, and pays the total amount of the principal amount paid by its members as retirement benefits (hereinafter referred to as “the instant retirement benefits”) according to the criteria for payment prescribed by the Plaintiff’s articles of incorporation in the case of retirement, dismissal, etc.

C. As above, the Plaintiff: (a) accumulated KRW 71,09,074,223, which is the remainder after deducting the balance of reserve requirements accumulated in the account book at the end of the pertinent business year (if any member who paid charges as of the end of the pertinent business year retires temporarily) while filing a corporate tax return for the income accrued from profit-making business in the end of the pertinent business year; and (b) additionally included the amount of KRW 53,00,000,000, which is the maximum amount of reserve requirements for the proper purpose business in deductible expenses by reporting and coordinating the amount of KRW 11,33,356,402; and (c) reported and paid corporate tax by calculating the calculated tax amount of KRW 2,469,338,408, which is the total amount of reserve requirements to be paid at the end of the pertinent business year.

D. On March 27, 2014, the Plaintiff filed a claim for correction with the Defendant for refund of KRW 2,529,050,60 for the pertinent business year, which was paid in excess of the tax amount, on the ground that all of the reserves for payment of KRW 71,09,074,223, which was additionally accumulated in the business year 2010, should be directly included in deductible expenses when calculating income for profit-making business, as described in the following table, should be directly included in deductible expenses. However, on May 15, 2014, the Defendant rejected the Plaintiff’s request for correction on the ground that the whole reserves for payment of KRW 71,09,074,223 should be included in deductible expenses for profit-making business (hereinafter “instant disposition”).

Classification

Initial Declaration

When filing a request for rectification

net income

20,751,166,231

20,751,166,231

Gross Income/Non-deductible Expenses

179,853,357,488

179,853,357,488

/ Non-Inclusion in gross income

189,271,167,317

207,370,241,540

Amount of income;

11,33,356,402

△△6,765,717,821

Tax Base

11,33,356,402

△△6,765,717,821

calculated tax amount

2,469,338,408

0

Additional Tax

59,712,252

0

Amount of final tax

2,529,050,665

0

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 29, 2014, but was dismissed on April 14, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 9, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

A) In the first place, as long as corporate tax is imposed on the income accrued from profit-making business, which the Plaintiff received from its members, an additional amount paid to its members should be included in deductible expenses, as it falls under the interest expenses paid as a consideration for the payment of charges. Even if an additional amount is paid as retirement benefits determined as the Plaintiff’s proper purpose business, the additional amount paid by the Plaintiff is the expense corresponding to the profits accruing from the operation of the charges, and thus, constitutes deductible expenses for profit-making

B) Preliminaryly, the amount of the surcharge falls under the expenditure of profit-making business rather than the expenditure of the instant retirement benefit business as the Plaintiff’s proper purpose business, and should be included in the loss of profit-making business, or if the surcharge should be excluded from the loss of profit-making business because it falls under the expenses of profit-making business, such as the Defendant’s assertion, it should be deemed that the profit-making business is not a profit-making business but a profit

C) Ultimately, the Defendant’s disposition that did not accept the Plaintiff’s request for correction on a different premise should be revoked on the ground that the Plaintiff’s request for correction was unlawful, even if the Plaintiff did not include the entire reserves of KRW 71,09,074,223 additionally accumulated in the business year 2010, or where the Plaintiff did not regard the Plaintiff’s operating profit of the charges as taxable income for the pertinent business year.

2) The defendant's assertion

A) The payment of surcharges itself has the same nature as the Plaintiff’s dividends to its members, so it cannot be deemed expenses for profit-making business. Of the amounts appropriated as reserves for the proper purpose business under the Corporate Tax Act, only within the maximum amount can be recognized as losses pursuant to special cases under the Corporate Tax Act. Even if the expenses for the payment of surcharges constitute accounting expenses, the payment of surcharges is similar to the distribution of profits to its members, and capital transactions such as the disposal of earned surplus are not included in deductible expenses under the Corporate Tax Act, so it cannot be deemed as deductible expenses under the Corporate Tax Act.

B) In accordance with relevant Acts and subordinate statutes, such as the Corporate Tax Act, in the case of interest paid by a corporation, if the interest corresponding to the period that has already lapsed is appropriated as deductible expenses for the pertinent business year in the settlement of accounts, it shall be deemed as deductible expenses for the pertinent business year, and since the additional amount claimed by the Plaintiff to be included in deductible expenses is not appropriated as deductible expenses

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Contents of the articles of incorporation regarding the Plaintiff’s business are as follows.

Article 27 (Purpose Business) The Mutual-Aid Association shall carry on the following business to achieve its objectives:

1. Allowances for members prescribed in the articles of incorporation and Article 9 of the Benefit Regulations, such as membership retirement, death, official duty, childbirth, marriage, scholarship, etc.;

2. Lending loans to members;

3. The management of various welfare businesses and facilities for members;

4. Support for research activities for the development of AA administration and land, etc. used by AA government agencies;

5. Fund creation projects to achieve the objectives of the Mutual-Aid Association, such as charges, government subsidies, inheritance, donation, donation, contribution, etc.;

6. A wooden money trust and welfare savings.

Article 28 (Profit-Making Business) (1) The Mutual-Aid Association may conduct the following profit-making business to achieve its purpose:

1. Trading, etc. of financial investment instruments (all financial instruments aiming at interest, disposal profit, etc.);

2. General projects;

(3) The general projects referred to in paragraph (1) 2 shall be as follows:

1. Earnings generated from businesses prescribed by the relevant Acts and subordinate statutes, such as manufacturing, construction, wholesale and retail business, consumer product repair business, real estate leasing, and business services;

2. Disposal of fixed assets; and

3. Business in which interest income other than those under paragraph (1) 1 accrues.

4. Business (investment, etc.) in which dividend income and shares are generated.

5. Other revenues accruing from continuing action other than those mentioned above in return for consideration.

6. Security business:

7. Sanitary management service business;

8. Dispatching workers;

9. Disease control and disinfection business;

10. Facilities maintenance business.

11. General service business;

12. Parking lot management business;

2) In the case of the instant retirement benefit, which is defined as the objective business under Article 27 subparagraph 1 of the Plaintiff’s articles of incorporation, the member becomes a member by filing an application for membership pursuant to the Plaintiff’s articles of incorporation and the AA Mutual Aid Benefit Regulations (hereinafter “the benefit regulations”), and paying the charges. The member shall select the number of shares desired within 60 units and pay the charges of KRW 5,000 per month for each month. If the member retires from office, he/she shall be paid a surcharge added to the charges that he/she has already paid during his/her retirement, and if the member loses his/her qualification due to retirement, cancellation, etc. other than death, he/she shall be paid a surcharge calculated by adding a surcharge calculated by applying the rate of early withdrawal rate stipulated in the articles of incorporation to the charges paid during his/her retirement [each of the above allowances shall be calculated by applying the rate of 14.5% per annum to the amount paid by the members and the rate of interest (additional rate) calculated by applying the above rate of 10% per annum from 10 to 5.0% per year elapsed.

3) Details of the articles of incorporation and benefit regulations regarding the Plaintiff’s membership eligibility and acquisition of qualification are as follows.

Articles of Incorporation

Article 4 (Qualification for Membership and Admission) (1) Members of the Mutual-Aid Association shall be classified into general members and special members.

(2) A person falling under any of the following subparagraphs shall be eligible to join a general member:

1. A public official of the StateA under the Public Officials Act;

2. Public officials of autonomousA under special Acts for the establishment of Jeju Special Self-Governing Province and the development of free international cities;

3. Public officials in general service, technical service, extraordinary civil service, and in indefinite contract service who serve at a AA government agency;

4. Officers and employees of the Mutual-Aid Association;

(3) Persons eligible to join a special member shall be those who have served for not less than three years in total as general members.

Article 5 (Acquisition of Qualifications) (1) A person who intends to become a general member or special member shall apply for membership in accordance with the procedures for entry determined by the Mutual-Aid Association, and a general member shall obtain the qualifications for the first charge and the special member from the date of payment of the first deposit, respectively.

Article 6 (Rights and Obligations) Members shall have the following rights and obligations:

1. A member shall have the right to claim the return of the charges or deposits paid when he/she loses his/her eligibility or withdraws from the Mutual-Aid Association by sources;

2. Members shall receive welfare benefits from the Mutual-Aid Association, such as the use of welfare facilities;

3. Every member shall be obligated to pay a prescribed contribution or deposit and to cooperate in the operation of the Mutual-Aid Association;

Article 7 (Disqualifications) If a member falls under any of the following subparagraphs, he/she shall be disqualified:

1. Retirement;

2. Withdrawal or cancellation;

3. Expulsion.

4. Where he/she fails to pay contributions for at least six consecutive months;

5. Death;

Benefit Regulations

Article 3 (Membership Procedures) (1) A person eligible to become a member under Article 4 of the Articles of Incorporation shall obtain the qualification for a member by paying the first contribution.

4) Details of the articles of incorporation and benefit regulations concerning the Plaintiff’s capital, charges, and benefits are as follows.

Articles of Incorporation

Article 29 (Classification of Balance Sheets) (1) The balance sheet of the Mutual-Aid Association shall be divided into assets, liabilities and capital.

(2) The following capital among the capital shall be the basic capital, and the extra capital shall be divided and indicated in accordance with the corporate accounting standards, such as earned surplus:

1. Capital acquired at its incorporation, succeeded or held; and

2. Assets, the board of representatives of which resolves to include them in basic capital, among the assets donated or acquired free of charge;

3. Other assets determined by the board of representatives to be included in the basic capital among earned surplus.

Article 37 (Charges) (1) General members shall bear the charges per unit of Gu desired, but it shall be 5,000 won per unit of Gu.

(2) The limits on subscription coverage and the management and operation of charges shall be prescribed by separate regulations.

Article 38 (Methods for Payment of Charges) Members shall pay contributions according to the prescribed procedures monthly.

Article 40 (Kinds of Benefits) (1) The kinds of benefits to members shall be as follows:

1. Retirement benefits:

2. Benefits for Line of Duty Death:

3. Death benefits;

(2) Types of relief money for members shall be as follows:

1. Aid money for medical treatment for official duties;

2. Childbirth assistance money, marriage congratulatory money, etc.;

3. Scholarships;

(3) The amount of benefits under subparagraph 1 of the preceding paragraph shall be calculated and paid in accordance with the standards for the payment of benefits under attached Table 2: Provided, That the rate of prohibition on retirement benefits under attached Table 2 shall apply from October 1, 1989 to March 31, 199; the rate of prohibition on retirement benefits under attached Table 2 shall apply from April 1, 199 to August 31, 199; the rate of prohibition on retirement benefits under attached Table 2 shall apply from September 1, 199 to June 30, 202; the rate of prohibition on retirement benefits under attached Table 2 shall apply from July 1, 200 to December 31, 2005 to the rate of prohibition on retirement benefits under attached Table 2 (10%); the rate of prohibition on retirement benefits under attached Table 2-1 shall apply from July 1, 202 to the rate of prohibition on retirement benefits under attached Table 2-1 (28).

Article 40-2 (Adjustment of Retirement Benefit Rate) (1) When the standard interest rate changes by 10% or more than the time the final benefit rate is adjusted, the table of prohibition on retirement benefit rate in attached Table 2 may be adjusted.

(2) The standard interest rate under paragraph (1) shall be the average interest rate for one-year term deposits in five commercial banks higher than the standard equity capital ratio of the Bank for International Settlements for the last one year.

Article 40-3 (Refund of Charges) (1) Where a general member is disqualified for reasons falling under Article 7 (2), 3 or 4 of the articles of association, the charges shall be refunded.

(2) The refund of charges shall be subject to the application of the payment rate of early withdrawal's benefits in attached Table 2, and the benefits calculated shall be paid.

Article 41 (Calculation of Benefits) When a member is disqualified, the calculation of the amount of benefits shall be made from the month in which the date he/she acquires qualification to the month in which he/she has paid charges, but the amount of charges shall not be included.

Benefit Regulations

Article 6 (Limits on Subscription to and Payment of Charges) (1) The limit of subscription to and subscription to the membership provided for in the provisions of Article 37 (2) of the Articles of Incorporation shall not exceed 60.

(2) Members shall pay contributions based on the number of units to the chairperson from their monthly salary via the head of a branch office or sub-branch.

Article 9 (Payment of Benefits and Support Payments) (1) Benefits for members shall be paid as follows:

1. Retirement benefits: Retirement benefits (including early withdrawal);

2. Where he/she died on duty: Retirement benefits and benefits for death on duty;

3. Where he/she dies: Retirement benefits and benefits for death on duty;

(2) Support funds to members shall be paid as follows:

1. Injury sustained due to official injuries: Aid money for medical treatment additional to official injuries;

2. Where a member, she or her spouse has given birth: Childbirth;

3. Where a member is married to another person: Marriage congratulatory money.

4. Where a member himself/herself files an arbitration or lawsuit to remedy his/her rights and recover honor in connection with his/her official business: legal aid.

(3) Retirement benefits shall be paid in accordance with the table of checks prepared according to the payment criteria for retirement benefits in attached Table 2A, which is prepared according to the table of checks, and the amount of retirement benefits shall be paid in accordance with the table of checks, such as ordinary net duty, special net duty and death benefits, medical assistance for official duty and assistance for childbirth, marriage congratulatory money shall be paid in accordance with the table of payments in attached Table 1 1 'B', 'B-1', 'B-1', 'Ma', and 'Ma', and detailed matters as the scope of

(4) The refund of charges under Article 40-3 of the articles of incorporation shall be made in accordance with the table of payment rates in attached Table 2 B of the articles of incorporation.

5) The number of the Plaintiff’s members is 000 won as of December 31, 2010, and the Plaintiff’s payment reserves (the remaining amount of payment reserves as of the end of the business year 2009 that lasted in that month) as of the end of the business year 2010 are 364,782,648,836 won; the reduced amount of payment reserves in the business year 2010 is 32,594,489,347 won; the increased amount is 491,723,598 won; and the remaining amount of payment reserves as of the end of the business year 2010 that reflects it is 332,679,83,087 won (=364,782,648,648,636 won - 32,594,489,347 won + 491,75,798 won as of the end of the business year 20107.

6) As above, the Plaintiff included KRW 403,778,957,310, and KRW 71,074,223, which is the difference between KRW 332,679,883,087 and the balance of reserve requirements as of the end of the pertinent business year, in the amount of reserve requirement transfer on the Plaintiff’s income statement for mutual aid business in the business year of 2010, and filed corporate tax returns and pays KRW 53,00,000,000, which is the maximum amount of reserve requirement for special purpose business, in deductible expenses by filing a report and adjustment.

[Ground of recognition] Facts without dispute, Gap's entries in Gap's 2 through 6, 10 through 14, 19, and the purport of the whole pleadings

D. Determination

1) Deductible expenses for profit-making business of a nonprofit corporation

A) The former AA Mutual Aid Association Act (amended by Act No. 12913, Dec. 30, 2014; hereinafter “AA Mutual Aid Association Act”) (hereinafter “AA Mutual Aid Association Act”) provides that a person who intends to become a member while a national public official, etc. under the AA Public Officials Act is eligible to become a member of the AA Mutual Aid Association shall obtain the qualification on the date when he/she submitted an application for membership and paid the first contribution (Article 7); a member is entitled to pay the contribution and cooperate in the operation of the AA; a member is entitled to use the benefits and rental and welfare facilities as prescribed by the articles of association; a member is disqualified or voluntarily withdraws from the Mutual Aid Association due to retirement, etc. (Article 8); the AA Mutual Aid Association shall pay benefits to a member, establish and operate welfare facilities for a member, and conduct business for raising funds to the extent necessary to achieve the purpose thereof (Article 16(1)); and the State’s capital and subsidies (Article 17(1)7).

B) Meanwhile, the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter “Corporate Tax Act”) provides that a nonprofit corporation is liable to pay corporate tax on “income for each business year and capital gains from land, etc.” (Article 3(1)). The income of a nonprofit corporation for each business year shall be the income generated from the following businesses or revenues (Article 3(3)). In addition, Article 29(1) of the Corporate Tax Act provides that where a nonprofit corporation appropriates reserves for proper business purposes to its deductible expenses for each business year in order to disburse reserves for proper business purposes to its deductible expenses, it shall be included in deductible expenses within a certain limit. Article 29(3)4 provides that where a nonprofit corporation fails to use reserves for proper business purposes within five years after the end of the business year in which the reserves for proper business purposes are appropriated as deductible expenses, such balance shall be included in deductible expenses for the pertinent business year which includes the date on which the relevant cause occurred, and it shall not be included in deductible expenses for 20 years after 20.

C) In light of the above provisions of the statutes and the purport of the reserve fund for proper purpose business, where a non-profit corporation, a mutual aid association runs a profit-making business with the charges received from its members and pays the surcharges collected by adding them to the amount equivalent to the charges paid by its members, even though the payment of such surcharges constitutes the proper purpose business of the mutual aid association, if there is any cost incurred in relation to the profit-making business of the mutual aid association which is a non-profit corporation, since corporate tax is imposed on the income amount generated from the profit-making business in order to carry out the proper purpose business, it should be recognized as losses for profit-making business, and there is no reason to regard

2) Whether an additional amount is a cost corresponding to the Plaintiff’s profit-making business

A) Relevant legal principles, etc.

The principle of response to profits and expenses refers to the calculation and indication of realized profits and the cost, expenses, and losses related to such profits or expenses by comparing them with the actual profits and the expenses for the same transaction or case at the same time. The purpose of this principle is to prevent distortion of awareness about profits and expenses by allowing the recognition of the same transaction or case at the same time. While the Corporate Tax Act does not explicitly stipulate it, the income of a domestic corporation for each business year is "the amount obtained by deducting the total amount of losses belonging to the business year from the total amount of earnings belonging to the business year in question" under Article 14 (1). The method of recognizing the expenses according to the principle of response to profits and expenses is the method of recognizing the expenses when the direct causal relationship with the acquisition of profits is established (e.g., cost of sales or sales), but it is reasonable and systematic allocation method (e., depreciation costs, etc. of tangible assets), and where the cost of the corporation is deemed to have contributed to the profit-making activities for a certain period of time, it can be known that the corporation acquires fixed assets and its own assets without any clear recognition or necessity (e.)

On the other hand, a profit-making corporation has equity capital and other capital by raising funds to run a profit-making business. Where equity capital is raised, corporate tax is imposed, dividend income received by shareholders shall be deducted from dividend income within a certain scope for the adjustment of double taxation, and where other capital is raised, corporate tax shall be imposed on the dividend income less the interest paid, and interest income shall be imposed on the creditor separately. Where a non-profit corporation operates a profit-making business with a member's contribution and distributes part of the profit to the members, if the contribution has the nature of equity capital, if the amount to be distributed to the members of the non-profit corporation has the nature of equity capital, it may be deemed that it is used for the proper purpose business if the amount to be distributed to the members of the non-profit corporation satisfies certain requirements, and the non-profit corporation shall be subject to special inclusion in deductible expenses such as the proper purpose business reserve fund for profit-making business within a certain limit. If the member's contribution has the nature of lending that is a non-profit corporation's interest income, the non-profit corporation shall bear corporate tax on the amount deducted

However, an additional amount of benefits paid by a non-profit workplace mutual-aid association upon retirement or withdrawal from the member among the excessive refund of a workplace mutual-aid association returned by the member is subject to interest income tax pursuant to Article 16 (1) 10 of the Income Tax Act and Article 26 (2) of the Enforcement Decree of the Income Tax Act, and an additional amount of benefits paid before retirement or withdrawal from the member is subject to interest income tax pursuant to Article 16 (1) 12 of the Income Tax Act (see Supreme Court Decision 2007Du18284, Feb. 25, 2010). This is because a non-profit corporate mutual-aid association, which is a non-profit corporate mutual-aid association, has the nature of interest paid in proportion to the size and value of the original, as well as whether a non-profit corporate

Furthermore, if the additional amount of the benefits paid to the partners is interest income, the non-profit corporation shall be deemed to have paid the interest expenses, and if the additional amount of the benefits paid to the partners is deemed to fall under the interest income, it shall be subject to the taxation system under our tax law, and if the additional amount of the benefits paid to the partners is deemed to fall under the interest income, it shall be subject to the application of the special case of inclusion in deductible expenses for the proper purpose business, even if the non-profit corporation is subject to the application of the special case of inclusion in deductible expenses for the proper purpose business, so the non-profit corporation's profits in the taxation stage of corporate tax and the income tax assessment stage of the partners. Accordingly, there may be opinions that the additional amount of the benefits paid to the partners shall be deemed to have been used for the proper purpose business and the kinds of income paid to the partners as interest income. However, if the expenditure of the non-profit corporation is deemed to have been used for the proper purpose business, it shall not be deemed to have been subject to the interest income tax. As seen earlier, so long as the amount paid to the partner is a non-profit corporation in proportion to the amount used in tax law.

Therefore, it is reasonable to view that, when a non-profit corporation returns charges received from its members under certain conditions, such as the retirement, cancellation, or maturity of its members and pays additional charges calculated according to the rate of the member's contribution, payment period, and agreement, if such additional charges are recognized as interest expenses, the interest expenses may be included in the deductible expenses for profit-making business of the mutual-aid association.

B) Determination

In light of the above legal principles, in full view of the following circumstances acknowledged by the Health Team, the above fact of recognition, and the purport of the entire argument, it is reasonable to view that the amount of the retirement benefit of this case can be included in the deductible expenses concerning the plaintiff's profit-making business as the cost of financing charges or interest for profit-making

① The Plaintiff, as a consideration for the deposit of charges, set the amount calculated by applying the rate of interest determined by the articles of incorporation, etc. in consideration of the standard interest rate in commercial banks, etc. as an additional charge to the instant retirement benefit regardless of the performance of the charges, was set as the amount calculated by applying the predetermined interest rate according to the prior agreement, regardless of the performance of the charges, and the amount of the charges and the amount calculated by applying the predetermined interest rate in advance to the amount of the charges during the payment period, regardless of the existence of the performance of the charges or the possible

② The Plaintiff received contributions from a member representing 000 persons and paid surcharges from profits earned from investing in various financial products, real estate, etc., and the Plaintiff’s member selects the number of shares of 5,000 won per month and pays charges of 5,000 won per month per month. If the causes, such as retirement, death, cancellation, etc., occur, the Plaintiff is entitled to receive benefits added to the charges that have been paid during that period. The method of operating and paying the retirement benefits of this case does not differ differently from bank or other financial institutions’ regular payments.

③ Also, as seen above, the amount of the instant retirement benefit is only subject to the interest income tax pursuant to Article 16(1)10 of the Income Tax Act, and it is not subject to the dividend income. As such, it is logical to view that the amount of the surcharge is also equivalent to the interest expense and is different from the dividend income to the members, and it is also consistent with the taxation system under the Korean tax law.

④ 피고는 AA공제회법에서 회원들이 납입하는 부담금을 자본금으로 규정하고 있으므로, 이 사건 퇴직급여의 재원이 되는 부담금의 법적 성격 또한 자본금으로 보아야 하고, 부가금은 출자금에 대한 과실로 손금에 산입할 수 없는 배당금의 성격을 가진다고 주장한다. 그러나, ㉠ 부담금은 동시에 이 사건 퇴직급여의 원금에 해당하고, 원고의 회원들이 언제든 회원에서 탈퇴하여 부담금의 반환을 구할 수 있는 점, ㉡ 위에서 본 바와 같이 이 사건 퇴직급여의 부가금이 이자소득세의 과세대상이 될 뿐, 배당소득의 과세대상이 되는 것이 아닌 점, ㉢ 원고가 회원들로부터 부담금을 납입받거나 회원들에게 부담금을 반환함에 있어 증여세가 과세되지도 않는 점, ㉣ 원고와 유사한 성격의 비영리법인인 DD공제회, EE공제회 및 FF공제회의 경우 그 근거 법률에서 회원들의 부담금와 관련하여 '자본금'이라는 용어 대신 '재정'이라는 용어를 사용하고 있는 점 등을 고려할 때, 부담금 및 부가금의 성격과 관련한 피고의 위 주장은 받아들이기 어렵다.

(5) Where a nonprofit corporation operates a profit-making business, Article 113(1) of the Corporate Tax Act provides that separate accounting shall be made for assets, liabilities, and profits and losses belonging to the profit-making business and those belonging to other business than the profit-making business, respectively. Article 113(6) of the Corporate Tax Act and Article 156 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010) delegates that Article 76 of the Enforcement Rule of the Corporate Tax Act provides that where a nonprofit corporation uses or transfers assets belonging to other business for profit-making business, the value of assets based on the market price of the relevant assets shall be accounted for the original capital. However, this is merely a provision for the separate accounting for promoting the accuracy of calculating taxable income and the amount of tax, and it cannot be deemed that the substance of charges or surcharges in relation to the members cannot be deemed as capital stock even if the Plaintiff did not account for the interest-making business expenses.

3) Time when interest expense is recognized as deductible expenses and whether it is appropriated as deductible expenses

A) Article 70(1)2 of the Enforcement Decree of the Corporate Tax Act, upon delegation under Article 40(2) of the Corporate Tax Act, provides that "in the case of interest and discount paid by a corporation, the business year in which losses accrue shall be the business year in which the date falling under the receipt date under Article 45 of the Enforcement Decree of the Income Tax Act (Article 45(9) of the Enforcement Decree of the Income Tax Act provides that in the case of excess refund of a workplace mutual-aid association, the date of payment of excess interest and additional interest pursuant to the agreement shall be the receipt date of interest income): Provided, That in the settlement of accounts, where the interest and discount amount corresponding to the period which has already lapsed is calculated as losses for the business year concerned, it shall be calculated as losses for the business year concerned." Therefore, where a non-profit corporation pays an excess refund of a workplace mutual-aid association, the interest paid shall be included in the expenses on the date of actual payment,

Meanwhile, matters concerning report adjustment must be reflected under tax-related Acts, so even if the corporation did not reflect them as deductible expenses at the time of settlement adjustment, it should be recognized as deductible expenses. However, in the case of matters concerning settlement adjustment, the corporation should choose whether the corporation would be recognized as deductible expenses in advance or as deductible expenses in the future. Thus, if a non-profit corporation does not reflect the deductible expenses, which are matters concerning settlement adjustment, in the settlement of accounts, in the settlement of accounts, it can be recognized as deductible expenses only at the time of settlement of accounts. Thus, even if the non-profit corporation did not reflect other items, which are matters concerning settlement adjustment, in the settlement of accounts, in principle, it cannot be replaced by the new items not reflected in the settlement of accounts at the beginning settlement of accounts within the scope of the denial amount, unless there are special circumstances. However, it is reasonable to view that the legal evaluation of items concerning the settlement of accounts, which are different items from the items concerning the settlement of accounts, should be considered as deductible expenses if it is reflected in the matters concerning settlement adjustment of accounts other than the items concerning the settlement of accounts.

Therefore, even if a non-profit corporation erroneously appropriated the interest corresponding to the excess repayment from a workplace mutual-aid association to its members at the time when the settlement of accounts becomes final and conclusive as the reserve requirements for its proper purpose business, there is a conflict of view as to whether the excess repayment from a workplace mutual-aid association to be paid to its members should be deemed as the interest paid or as the amount to be used for the proper purpose business, and such two matters of settlement adjustment are the same as the specific item of deductible expenses that the non-profit corporation intends to recognize the amount to be paid to its members as deductible expenses. Therefore, it can be deemed that the interest paid under the proviso of Article 70 (1) 2 of the Enforcement Decree

B) From the end of 2010, the Plaintiff calculated KRW 71,09,074,223 by subtracting the balance of the reserve requirements at the above time from the total amount of KRW 4032,679,83,087 at the above time as at the end of the business year 2010 as the reserve requirement transfer amount, the Plaintiff’s total amount of KRW 71,09,09,074,223 as at the expense item in the account for mutual aid project profit and loss statement for 2010 can be deemed as having been appropriated as the interest rate corresponding to the business year 2010, based on the principle of accrual of the above reserve requirements. Thus, the Plaintiff’s total amount of KRW 71,09,074,223 as interest expense is recognized as deductible expenses pursuant to the proviso of Article 70(1)2 of the Enforcement Decree of the Corporate Tax Act. The Plaintiff’s assertion that the above amount of the reserve requirement transferred to the above 70th business year as well as the above amount of the profit and loss reserve.

(iv)the calculation of a legitimate tax amount;

Ultimately, if the Plaintiff’s total amount of KRW 71,09,074,223 of the reserve fund for special purpose business included in deductible expenses exceeds the maximum amount of KRW 53,00,00,000 in the calculation of deductible expenses when filing a corporate tax return for the business year 2010 is included in deductible expenses as interest expenses, the corporate tax amount for the business year 2010 shall be zero as stated in the table in Article 1(d) and the initial determined tax amount is more than 2,529,050,660, and thus, it is unlawful that the Defendant refused the Plaintiff’s request for reduction of KRW 2,529,050,660 in the corporate tax for the business year 2010 (the Defendant asserted that there is an error in calculating the Plaintiff’s above reserve fund for special purpose business in calculating the amount of KRW 71,09,074,223 in the Plaintiff’s financial statements, or that there is no objective error in calculating the Plaintiff’s payment amount.

5) Sub-committee

Therefore, since the instant disposition is unlawful, it should be revoked (as long as the Plaintiff’s primary assertion is accepted, it shall not be determined as to the conjunctive assertion).

3. Conclusion

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