In order to constitute a wrongful calculation under the Corporate Tax Act, whether the intent of tax avoidance is necessarily required (negative)

Article 20 of the Corporate Tax Act and Article 46 (2) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14080, Dec. 31, 1993); “Where it is deemed that the tax burden on corporate income has been unjustly reduced” means the case where the transaction type of the corporation conducted by the corporation concerned is objectively deemed to be unfair in terms of tax law because it disregards economic rationality, and thus, it does not necessarily mean that the transaction type of the corporation is recognized to be unfair in terms of tax law. Therefore, it does not constitute wrongful calculation even with the intent to avoid

Article 20 of the Corporate Tax Act; Article 46 (2) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14080, Dec. 31, 1993)

Supreme Court Decision 87Nu357 delivered on October 13, 1987 (Gong1987, 1728) Supreme Court Decision 89Nu8095 delivered on May 11, 1990 (Gong1990, 1292) Supreme Court Decision 92Nu114 delivered on October 13, 1992 (Gong192, 3169) Supreme Court Decision 92Nu6730 delivered on October 13, 1992

Sung Construction Co., Ltd. (Attorney Lee Jong-chul, Counsel for the defendant-appellant)

The Director of Gangnam District Office

Seoul High Court Decision 94Gu33110 delivered on April 19, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below determined that the above non-party 1 transferred the above non-party 2's shares to the non-party 2 on February 1, 1989, and the non-party 1 agreed to transfer the above land of this case to the non-party 2. The non-party 1 was the representative director of the plaintiff company on March 10, 1989, and the non-party 1 resigned from the representative director on April 22 of the same year. The plaintiff company reported the corporate tax base for the 1992 business year (from January 1, 1992 to December 31, 1992) to the non-party 2 as the above non-party 1's owner and the representative director on August 20, 198, the above non-party 2 acquired the above land of this case to the non-party 1, the above non-party 3's acquisition price and the price for the non-party 1's transfer to the above non-party 1's company 2.

Examining the relevant evidence in light of the records, the above recognition and determination by the court below is just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or incomplete deliberation, such as the theory of lawsuit.

In addition, Article 20 of the Corporate Tax Act and Article 46 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14080 of Dec. 31, 1993) "Where it is deemed that the tax burden on corporate income has been unjustly reduced" means the case where the transaction type of the corporation conducted by the corporation concerned is objectively deemed to be unfair in terms of tax law because it disregards economic rationality, and thus it is recognized that it is unfair in terms of tax law (see Supreme Court Decisions 87Nu357 delivered on Oct. 13, 1987; 92Nu114 delivered on Oct. 13, 1992, etc.). It does not necessarily mean that it does not constitute wrongful calculation only with the intent to avoid or reduce the tax burden.

The judgment of the court below to the same purport is just, and there is no error of law by misapprehending the legal principle as to the denial of wrongful calculation, or by failing to examine it, and the judgment of this court cited by the theory of lawsuit is not inconsistent with the above judgment. All arguments are without merit.

2. On the second ground for appeal

According to Article 59-2 (4) of the Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994), Article 124-2 (13) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14861 of Dec. 30, 1995) and Article 53 (1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993), in calculating gains on transfer of land, etc. on which special surtax is imposed on a corporation, the time of acquisition and transfer shall be the date of settlement if the date of settlement of the price is clear, but if the date of settlement is unclear, it shall be the date of receipt of registration on the date of the balance payment agreement or register, etc. stated in a sales contract.

As seen earlier, the court below recognized the fact that the Plaintiff Company transferred the instant land to Nonparty 1 on August 20, 1992 and processed the price set off against the provisional payment. The special surtax of this case is related to the transfer margin accruing from the transfer of the instant land to Nonparty 1, and the time of the transfer is the set-off disposition, which is the date of the settlement of the price. In full view of the records and relevant statutes, the judgment of the court below is acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or by failing to deliberate, such as the theory of lawsuit.

The judgment of the court cited by the theory of lawsuit is related to the case where the date of settlement of price is unclear, and it is not appropriate to invoke the case differently from the case in question. There is no reason to interpret this.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)