Whether a right to indemnity has occurred when a surety liability was subrogated in lieu of damages

As a result, the guaranteed debt was repaid on behalf of the debtor in lieu of damages on the damages incurred by the unilateral interruption of the construction contract, the disposition of non-deductible the amount equivalent to the deductible expenses is unreasonable.

The contents of the decision shall be the same as attached.

1. The part of the disposition imposing corporate tax for the year 2005 imposed by the Defendant on the Plaintiff on September 1, 2006 which exceeds KRW 2,275,415,144 of the disposition imposing corporate tax for the year 2005 shall be revoked.

2. The litigation costs shall be borne by the defendant.

It is the same as the disposition.

1. Details of the disposition;

A. On June 25, 2003, the Plaintiff, as a construction company, entered into a construction contract with the executor (ju), who is the main complex development project located in the OO-dong 966-8, 970-3 at OO-si, and entered into a construction contract with the construction company at KRW 40,539,000 (hereinafter referred to as the “instant construction contract”), which stipulates the construction cost as KRW 40.39,000 (hereinafter referred to as the “instant construction contract”). (ju) The △ Industrial Development was granted a loan from the main Solomon Mutual Savings Bank, etc. (hereinafter referred to as the “loan Financial Institution”), and the Plaintiff jointly and severally guaranteed the obligation for the instant construction project with the △△O on September 203.

B. The Plaintiff, while continuing the instant construction project, has re-examineed the feasibility of the instant construction project due to unsold housing units, etc., and, in the event of continuing the construction project, the Plaintiff’s financial structure has rapidly deteriorated due to the borrowing of PtF funds, payment guarantee, and interest burden, and was anticipated to incur a large amount of loss, the instant construction project was unilaterally discontinued around June 2004.

C. After September 22, 2004, the Plaintiff agreed on the instant construction contract with the Development of the Seocho Industry. (1) When the Plaintiff agreed on September 22, 2004, the Plaintiff: (a) to repay the obligations under the withdrawal contract that the Development of Seocho Industry entered into with the lending financial institution; and (b) to waive the right to indemnity for the development of Seocho Industry where the obligations under this agreement are fully fulfilled; (b) to confirm that the development of Seocho Industries does not have any right, including the damage claim, to the Plaintiff in relation to the instant project when the Plaintiff performs the obligations under the preceding Article. (3) In order to properly handle the accounts, such as the financial loans and interest, etc., for which the Plaintiff is liable for compensation for damages, both parties agreed that the legal agreement procedure should be followed by filing a civil suit with the respective litigation parties.

D. In accordance with the above agreement on September 30, 2004, the Plaintiff repaid the total amount of 14.25 billion won to the lending financial institution, and accounted for the bad debt depreciation in 2005. Accordingly, the Defendant: (a) deemed that the Plaintiff performed the guaranteed obligation and voluntarily renounced the claim for reimbursement; and (b) deemed that the Plaintiff voluntarily renounced the claim for reimbursement, and thus, (c) included the total amount of KRW 16,252,725,121 (the amount including KRW 172,365,621, which was subrogated on August 17, 2005 on behalf of the Plaintiff on September 1, 2006, corrected the Plaintiff’s income amount for the business year of 205; and (d) rendered the first disposition imposing corporate tax of KRW 5,215,827,310 for the year 205 (hereinafter “first disposition”).

E. On December 14, 2006, the Plaintiff was dissatisfied with the initial disposition and filed an appeal with the Tax Tribunal on December 14, 2006. On June 15, 2009, the Tax Tribunal: (a) the first disposition taken by the Defendant on June 15, 2009 by the Plaintiff was to include the total amount of KRW 10,161,161,27,725,121 (the total amount of KRW 7.125,00,00,000,000,000,000) out of the total of KRW 16,252,725,725,121 (the sum of the total amount of KRW 7.125,00,00,000,000,000,000,000,000 won and the remainder of the tax base and the amount of the appeal were dismissed on September 22, 2004,

F. As to the reasons why the Tax Tribunal dismissed the above KRW 7.125 billion, it stated that the Plaintiff alone bears the obligation to jointly bear the obligation of KRW 7.125 billion equivalent to KRW 1/2 of KRW 14.25 billion paid by the Plaintiff, which the Plaintiff alone bears, and that the Plaintiff can exercise the right to claim reimbursement against the (ju △△△△△△) △△O, and that this is excluded from deductible expenses.

G. According to the purport of the above judgment decision, the Defendant issued a corrective disposition for reduction of the amount of KRW 4,673,33,892 against the Plaintiff (hereinafter “instant disposition for imposition”).

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 17 (including each natural disaster) and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The assertion

The plaintiff asserts that the amount of KRW 14.25 billion paid by the plaintiff to a lending financial institution should be included in the calculation of losses, since it was not paid as the compensation for damages for the development of the △△ industry in △△△△, it cannot be claimed that the amount of KRW 7.125 billion should not be claimed in the calculation of losses.

In this regard, the defendant asserts that the plaintiff's payment of the loans by the △△△△△△ Development is not included in the calculation of losses, as the plaintiff subrogated for the debt of the loans by the △△△△△ Development, and the joint guarantor has waived the right to indemnity against the △△△△△O.

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

C. Determination

1) The legal nature of KRW 14.25 billion repaid by the Plaintiff

Article 19(1) and (2) of the Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008) provides that the amount of losses incurred by transactions that reduce the net assets of a corporation is the amount of losses incurred by transactions that reduce the net assets of a corporation, and such losses are generally accepted as losses or expenses incurred in connection with the business of the corporation in general or directly related to profits. The amount of losses incurred due to the reasons attributable to the corporation that operated the business is all economic losses that accrue or will accrue to the corporation.

According to the above facts, the plaintiff unilaterally suspended the construction contract of this case and is liable for damages due to nonperformance of the construction contract of this case (this is the reason for the decision of the Tax Tribunal binding upon the relevant administrative agency) and upon the termination of the agreement made on September 22, 2004, the plaintiff performed the obligation to repay the loan to the lending financial institution of the △ Industrial Development in lieu of compensation for damages. Thus, 14.25 billion won repaid by the plaintiff is "compensation amount" and this constitutes losses under Article 19.17 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19891 of Feb. 28, 2007).

2) Whether the Plaintiff’s joint guarantor (owner) joint guarantor (△△△O) has a claim for reimbursement

A) As seen earlier, as long as the above KRW 14.25 billion is deemed as damages, even if the Plaintiff took the method of subrogated to a lending financial institution in the performance of the liability for damages, this does not change from the Plaintiff’s performance of his/her guarantee obligation, but from the fact that the development of the housing industry for the State-owned, the primary debtor, is not the performance of his/her obligation, so there is no room for the Plaintiff’s joint guarantor(s) to claim compensation against △△△O.

B) In the event that the Defendant made a disposition of citing the grounds for objection in the course of the method of filing a dissatisfaction with respect to a tax disposition, the Defendant cannot reverse the same issue without any special reason and repeat the previous disposition. However, if the Defendant was issued a disposition of revocation of a tax disposition due to special reasons, such as using a trick, it may make a final determination of the previous tax disposition (see Supreme Court Decision 82Nu63, Jul. 26, 1983). (See Supreme Court Decision 82Nu63, Jul. 26, 1983). In addition, the Defendant asserts that the Plaintiff unilaterally renounced the total amount of the guaranteed obligation exceeding the actual amount of damages, and thus the previous tax disposition may be returned. However, the Tax Tribunal did not have any evidence to acknowledge the Plaintiff’s assertion as to the Plaintiff’s repayment financial institution as the damages for the development

C) In relation to this, the Defendant asserts to the effect that, on the premise that △△△△△△△△△O may claim reimbursement of KRW 7.125 million as the performance of the guaranteed obligation. The Tax Tribunal also states to the effect that some of the above claims were dismissed in its decision, but it appears to be inconsistent with the fact that the above claims were recognized as compensation for damages. Even if the Plaintiff’s subrogation as the Tax Tribunal deems it as the nature of the performance of the guaranteed obligation, the joint guarantee is to ensure the performance of the principal obligation without bearing any final burden as to the principal obligation (Article 428 of the Civil Act) and the joint guarantor is not entitled to claim reimbursement against the principal obligor regardless of the amount arising out of 200,000,000 from 40,000,000,000 from 20,0000,0000,0000,0000,0000,0000,000,000,0000,000,00.

3) Sub-decisions

Therefore, the disposition of this case that determined the tax base and tax amount of 7.125 billion won, which is equivalent to 14.25 billion won out of the 14.25 billion won repaid by the Plaintiff, is unlawful on the premise that the joint guarantor (ju △△△△△△) can seek reimbursement against the joint guarantor (ju △△△△△△)O.

Therefore, the above KRW 7.125 billion should be added to deductible expenses. In this case, the justifiable amount of tax is the same as the statement of calculation of the amount of tax in the attached list (which does not clearly dispute by the defendant). Accordingly, the portion exceeding KRW 2,275,415,144 in the disposition of this case should be revoked.

3. Conclusion

Thus, the plaintiff's claim of this case is accepted on the ground of the reasons.