Appropriateness of liquidation income from dissolution

Since the damage claim has become final and conclusive by judgment, it is legitimate to impose tax on the income of each business year because it does not fall under realization according to the liquidation procedure.

Article 79 (Calculation of Liquidation Income Amount due to Dissolution of Corporate Tax Act

Article 61 (Calculation of Liquidation Income Amount from Dissolution of Corporate Tax Enforcement Rule)

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of KRW 683,750,510 of corporate tax for the business year 2001 against the Plaintiff on March 3, 2003 and KRW 8,951,150 of corporate tax for the business year 2002 shall be revoked.

1. Details of the disposition;

가. 원고는 ◯◯시 ◯◯구 ◯◯동 ◯◯◯-◯◯에서 의약품제조업 등을 영위하던 법인으로서 1976.2.15. ◯◯지방법원 ◯◯지원으로부터 해산명령을 받고 1977.12.31. 해산등기를 마쳤다.

나. 원고는 해산에 따른 청산절차가 진행중인 1998년경 ◯◯지방법원에 국가를 상대로 부동산소유권이전등기의무의 이행불능에 따른 손해배상청구소송을 제기하여 1999.6.11. 같은 법원으로부터 '손해배상금 1,178,765,000원 및 이에 대한 1995.5.17.부터 완제일까지 연25%의 비율에 의한 금원'의 지급을 명하는 원고 일부승소 판결을 선고받았고, 이에 쌍방이 항소를 제기하였으나, 항소심인 ○○고등법원은 2001.7.11. 각 항소를 기각하는 판결을 선고하였으며, 위 판결은 그 무렵 확정되었다.

C. On September 1, 2001, the Defendant deemed the damages payable by the State to the Plaintiff according to the above judgment as liquidation income, and notified the Plaintiff of KRW 572,53,649 of the corporate tax on the liquidation income for the business year from January 1, 2001 to August 31, 2001, and KRW 216,532,117 of the corporate tax.

D. Accordingly, the Plaintiff filed a request for review with the Commissioner of the National Tax Service for the reason that it is unreasonable to impose the total amount of the claim for damages as liquidation income without deducting the litigation costs, etc. of the instant lawsuit. On November 8, 2002, the Commissioner of the National Tax Service decided to determine the amount of income for the pertinent business year based on the premise that the damages incurred after the registration of dissolution should first be imposed by deeming the amount of income for each business year as the amount of income for each business year, and then the amount of corporate tax should be imposed on the liquidation income by determining whether the litigation costs, etc. alleged by the Plaintiff constitute deductible expenses

마. 한편 국가는 2001.12.21. 원고에게 위 확정판결에 따른 손해배상 원리금으로 금2,163,115,420원(이하 '쟁점 손해배상금'이라 한다)을 변제공탁하였는데, 피고는 위 심사결정에 따라 2003.3.3. 원고에 대하여 당초 고지한 청산소득에 대한 법인세 및 법인원천세를 취소한 후 쟁점 손해배상금을 2001 사업연도 소득으로 보아 익금에 산입하고 변호사 ◯◯◯외 3인의 보수 등 금302,669,066원, 급여 금32,000,000원, 기타 소송관련 비용 금526,250원 합계 금335,195,316원을 손금에 산입하여 2001 사업연도 법인세683,750,510원을 부과함과 아울러, 원고와 ◯◯◯변호사 사이의 ◯◯지방법원 ◯◯지원 ◯◯◯◯가합◯◯◯◯사건의 조정조서에 기한 채무면제이익 금59,674,334원을 2002사업연도 익금에 산입하여 2002사업연도 법인세 8,951,150원을 부과하는 이 사건 처분을 하였다.

(In fact that there is no dispute, Gap's evidence 1 through 4, Gap's evidence 6-1, 6-2, Eul's evidence 1-1 to 9, Eul's evidence 2-1 through 4, Eul's evidence 3, 4, Eul's evidence 5-1 through 7, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Judgment on the plaintiff's assertion

(a)the plaintiff's assertion;

(1) The key issue damages and the profit from debt exemption are finalized in the process of collecting and converting (cash) residual assets after the date of the registration of the dissolution of the Plaintiff Company. Thus, the instant disposition, which was taxed by deeming it as income of the business year, is unlawful.

(2) Even if the key damages and the gains from exemption from liabilities are considered as income of the pertinent business year, since the Plaintiff spent 2,479,51,076 won as litigation costs, salary, etc., the Plaintiff should be included in the deductible expenses for the business year of 2001, since it spent 2,479,551,076 won in the relevant lawsuit, including the claim for damages of this case. Thus, even if all of the business years of 201 and 202 business years did not generate any income, it is unlawful to recognize only some of the

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) 원고가 1967.7.18 ◯◯시◯◯구◯◯동 ◯◯-◯◯ 대2,186평을 국가로부터 매수하여 그 무렵 대금을 완납하였으나 그 중 365평(그 후 같은 동 ◯◯-◯◯ 대334㎡ 외4필지로 분할됨, 이하 '이 사건 부동산'이라 한다)에 관하여 소외 ◯◯◯등이 국가를 상대로 소유권이전등기청구소송(◯◯지방법원 ◯◯가◯◯, ◯◯고등법원 ◯◯나, 대법원◯◯다◯◯)을 제기하여 승소확정판결을 받아 1967.9.4. 그 앞으로 소유권이전등기를 마쳤다.

(2) 그 후 국가는 1968.12.31. ◯◯◯ 등이 법원을 기망하여 승소판결을 받았다는 이유로 ◯◯고등법원 ◯◯나◯◯ 판결을 재심대상판결로 한 재심의 소를 제기하여(당시 원고는 국가의 보조참가인으로 위 소송에 참가하였음) 1989.12.6. 재심대상판결 등을 취소하고 ◯◯◯ 등의 청구를 기각하는 판결을 선고받아 1990.6.26. 위 재심판결이 그대로 확정되었다.

(3) 한편 원고는 위와 같이 이 사건 부동산을 국가로부터 매수한 후 등기부당 소유 명의가 ◯◯◯ 등에게 이전되었음에도 계속하여 이를 관리하다가 1976.2.16. ◯◯지방법원 ◯◯지원으로부터 해산명령을 받아 1977.12.31. 해산등기를 마쳤는데, 그후 소외 ◯◯◯이 청산인으로 선임되어 1982.5.27.까지 청산사무를 수행하다가 1997.6.16. ◯◯◯가 청산인으로 선임되어 청산사무를 처리하고 있다.

(4) 원고는 1992년경 국가를 상대로 이 사건 부동산에 관한 소유권이전등기절차의 이행을, 이 사건 부동산의 전득자 등을 상대로 그들 명의의 각 등기의 말소를 구하는 소송(◯◯지방법원 ◯◯지원 ◯◯가합◯◯)을 각 제기하여 국가에 대하여는 승소하였으나, 전득자 등에 대하여는 그들이 위 부동산을 시효취득하였다는 이유로 패소하여 1994.7.8. 패소판결이 확정되었다.

(5) 이에 원고는 앞서 인정한 바와 같이 국가를 상대로 이 사건 부동산의 소유권 이전등기의무의 이행불능에 따는 손해배상청구소송을 제기하여 제1심(◯◯지방법원 ◯◯가합◯◯)에서 쟁점 손해배상배상금의 지급의 명하는 일부승소 판결을 받았고, 이 판결에 대하여는 항소심, 상고심을 거친 후 2001.7.11. 항소심(◯◯고등법원 ◯◯나◯◯)에서 대법원의 파기환송 판결의 취지에 따라 항소를 기각함으로써 그대로 확정되었다.

(6) 한편 원고는 이 사건 손해배상청구소송을 수임하여 수행하였던 변호사 ◯◯◯이 제기한 ◯◯지방법원 ◯◯지원 ◯◯가합◯◯ 보수금 등 사건에서, 2002.11.8. ◯◯◯과 사이에, 원고가 ◯◯◯에게 보수금 등으로 금 266,577,287원을 지급하되 ◯◯◯이 ◯◯◯등을 상대로 제기한 배당이의 사건의 조정조서에서 ◯◯◯의 배당액으로 확정된 금 201,902,953원을 수령하면 위 보수금 등 채무 중 나머지 금 64,674,334원의 채무를 면제하기로 하는 조정이 성립되었는데, 그 무렵 ◯◯◯이

201,902,953 won was paid by dividends and the above exemption from liability became final and conclusive.

Facts without dispute, Gap's evidence Nos. 77, 9, 10, Eul's evidence Nos. 6 and 7, the purport of the whole pleadings

D. Determination

(1) Judgment on the plaintiff's first argument

Where a domestic corporation is dissolved, the liquidation income amount shall be calculated by deducting the total amount of paid-in capital, investments, and surplus funds (total amount of equity capital) as of the date of dissolution (registration for dissolution) from the value of residual assets (the date of dissolution) of the corporation’s dissolution (the date of registration for dissolution) (Article 79(1) of the Corporate Tax Act, Article 121(1) and (2) of the Enforcement Decree of the Corporate Tax Act), and in calculating the liquidation income from dissolution of a domestic corporation, if there is any income amount for each business year generated during the period of liquidation, such income amount shall be included in the income amount for each business year of the relevant corporation (Article 79(5) of the Corporate Tax Act): Provided, That the amount disposed of by a corporation for realization during the period of liquidation of assets as of the

In light of the above relevant laws, liquidation income from dissolution is taxed corporate tax on income that is not imposed on income for each business year at the last stage of the extinguishment of corporate personality. Thus, even if a corporation is liquidated, if there is income for each business year generated during the period of liquidation, it is liable to pay corporate tax on income for each business year of the relevant corporation. In other words, corporate tax on liquidation income from dissolution is the value increase in the holding period of assets, which is the value increase in the holding period of assets that does not include income for each business year, and is subject to corporate tax on income for each business year due to the shortage of profits or assets, excessive appraisal of liabilities, error, etc., which is subject to corporate tax on income for each business year. It is deemed that the income subject to corporate tax on income from dissolution is taxed at the stage of realizing

With respect to the instant case, while the Plaintiff was holding the right to claim for the transfer registration of the instant real estate as of the date of the date of the registration of the dissolution, and the Plaintiff was partly winning the instant lawsuit due to nonperformance, and the judgment became final and conclusive. As such, the confirmation of damages claim or the deposit for repayment of damages at issue cannot be deemed to constitute realization in accordance with the liquidation procedures for distribution of residual property, the key issue is the amount of income in the business year of 2001, which is the time the judgment became final and conclusive. Furthermore, the obligation exemption is also exempted from the part of the liabilities incurred during the liquidation of dissolution, which was part of the liabilities included in the business year of 2001, and thus, it shall be the amount of income in the business year of

Therefore, it is legitimate to include the issues arising in the business year 2001, for which the claim for damages in this case was finalized after the date of the registration of the dissolution, and the gains from debt exemption in the business year 2002, respectively, as income amount for each business year, and to impose corporate tax. Therefore, the plaintiff's first assertion in all other

(2) Judgment on the second argument by the Plaintiff

The business year in which the earnings and losses of a domestic corporation's operating capital accrue shall be the business year to which the date on which the earnings and losses are determined belongs (Article 40 (1) of the Corporate Tax Act), and according to the respective statements of the evidence No. 14-8 and No. 9 of the evidence No. 14-9, the debt amount of KRW 2,479,551,076 claimed by the plaintiff that the plaintiff should be included in deductible expenses in the business year 2001 can be recognized as the total amount of the debt incurred during the period since the plaintiff was dissolved and until 2002. Thus, even if the above debt occurred, it shall not be immediately included in deductible expenses in the business year 2001, and under the above circumstances, it is necessary to prove that

However, the statements in Gap evidence 7, Gap evidence 8-1 through 9, Gap evidence 9-13, Eul evidence 14-1 to 17, and Gap evidence 15-1 to 13-13 are insufficient to recognize that the whole amount of the plaintiff's claim's claim's debt amount exceeds 335,195,316 won as deductible expenses acknowledged in the above disposition circumstances, and 2,479,551,076 won is confirmed in the business year 2001, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's second argument is without reason to examine.

3. Conclusion

Therefore, since the disposition of this case is legitimate, the plaintiff's claim of this case seeking its revocation is dismissed as it is without merit, and it is so decided as per Disposition.

Related Acts and subordinate statutes

Corporate Tax Act

Article 3 (Scope of Taxable Income) (1) Corporate tax shall be imposed on the following incomes: Provided, That with respect to nonprofit domestic corporations and foreign corporations, it shall be imposed only on income under subparagraph 1:

1. Income for each business year; and

2. Liquidation income.

Article 14 (Income for Each Business Year) (1) Income for each business year of a domestic corporation shall be the total amount of earnings during the business year minus the total amount of losses incurred during the business year.

(2) The amount of losses of a domestic corporation for each fiscal year shall be the total amount of earnings during the fiscal year deducted from the total amount of losses incurred during the fiscal year.

Article 15 (Scope of Gross Income) (1) Gross income shall mean the amount of profits generated by transactions which increase the net assets of the concerned corporation, except for capital input or financing and other transactions as provided in this Act.

(3) Matters necessary for the scope and classification of profits under the provisions of paragraph (1) shall be prescribed by the Presidential Decree.

Article 19 (Scope of Deductible Expenses) (1) Deductible expenses shall be limited to the amount of losses incurred by transactions which reduce the net assets of the corporation, excluding refund of capital or financing, disposition of surplus funds and those provided for in this Act:

(2) The losses under the provisions of paragraph (1) shall be losses or expenses generated in connection with the business of a corporation which are generally accepted as normal or directly related to profit, except as otherwise prescribed by this Act and other Acts and subordinate statutes.

(3) Matters necessary for the scope and types of losses under the provisions of paragraphs (1) and (2) shall be prescribed by the Presidential Decree.

(1) The fiscal year of accrual of earnings and losses of a domestic corporation shall be the fiscal year which includes the date on which the concerned earnings and losses are settled.

Article 77 (Tax Base) The tax base for corporate taxes on liquidation income of a domestic corporation shall be the amount of liquidation income under the provisions of Articles 79 through 81.

Article 79 (Calculation of Liquidation Income Amount from Dissolution) (1) Where a domestic corporation is dissolved (excluding dissolution due to merger, or division), the liquidation income amount (hereinafter referred to as "settlement income from dissolution") shall be the amount calculated by deducting the sum of the paid-in capital or investment funds and surplus funds as of the date of the registration of the dissolution (hereinafter referred to as "total amount of equity capital") from the value of residual assets from dissolution of the corporation.

(2) Where a domestic corporation in the process of liquidation due to dissolution continues to conduct the business under the provisions of Article 229, 285, 519, or 610 of the Commercial Act after part of the residual assets from dissolution are distributed to the stockholders, the liquidation income amount from dissolution of the corporation shall be the total amount of equity capital as of the date of the date of the registration of the dissolution deducted from the total amount of the residual assets distributed from the date of the registration

(3) In the calculation of the liquidation income from dissolution of a domestic corporation, if there is corporate tax on the refund under the Framework Act on National Taxes during the period of liquidation, the appropriate amount shall be added to the total amount of equity capital as of the

(4) In the calculation of the liquidation income from dissolution of a domestic corporation, if there is any deficit brought forward to the domestic corporation as prescribed by the Presidential Decree as of the date of the registration of the dissolution, this shall be offset against the amount equivalent to the total amount of equity capital of the corporation as of the date of the date of the registration of the dissolution: Provided, That the amount of deficit brought forward shall not exceed the amount of surplus funds out

(5) In the calculation of the liquidation income from dissolution of a domestic corporation, the income amount for each business year generated during the period of liquidation shall be included in the calculation of the income amount for the relevant business year of the corporation.

(6) In the calculation of the liquidation income amount under paragraph (1) and the income amount for each business year during the period of liquidation under paragraph (5), the provisions of Articles 14 through 54 shall apply mutatis mutandis except where provided for in paragraphs (1) through (5).

(7) In applying the provisions of paragraphs (1) through (6), matters necessary for the calculation of the value of residual property shall be prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy.

Enforcement Decree of Corporate Tax Act

제121조 (해산에 의한 청산소득금액의 계산) ①법 제79조제1항의 규정에 의한 잔여재산읭 가액은 자산총액에서 부채총액을 공제한 금액으로 한다.

(2) The term “total assets” in paragraph (1) shall be the sum total of assets as of the date of the registration of the dissolution, and for debentures to be collected and assets to be converted:

1. For debentures to be collected and assets to be converted to currency, the amount as of the date of collection or conversion; and

2. For cases of distribution prior to collection or conversion, the amount evaluated in accordance with the market price as of the date of distribution.

Enforcement Rule of Corporate Tax Act

Article 61 (Calculation of Liquidation Income Amount from Dissolution) The amount disposed of (including the disposal amount of inventory assets for refund) by a corporation during the period of liquidation as of the date of the date of the registration of the dissolution shall be included in liquidation income: Provided, That this shall not apply to income from business or lease, or interest on public bonds, debentures and deposits generated from the business concerned where it continues to conduct a business before dissolution during the period

Finally.