Seoul Administrative Court-2014-Guhap-5650 ( October 06, 2015)

A claim for penalty and claim for indemnity may not be included in the gross income double;

(As in the judgment of the court of first instance, it is difficult to deem that there was a practical increase in assets merely because it actually received part of the damage incurred due to the nonperformance of obligation, by appropriating the down payment for claims such as the indemnity amount for which the down payment has been finalized.

Seoul High Court-2015-Nu-37824 ( August 18, 2015)

ㅇㅇ실업 주식회사

ㅇㅇ세무서장

Some of the national plaques

on October 30, 2015

on 18, 2015

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The Defendant’s disposition of imposing corporate tax of KRW 00,000,000 for the business year 2008 against the Plaintiff on October 4, 2011 is revoked each exceeding KRW 00,000,000 among the disposition of imposing corporate tax of KRW 00,000,000 and exceeding KRW 00,000 among the disposition of imposing corporate tax of KRW 00,000,000 for the business year 209.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the court of first instance is revoked, and the defendant revoked the part exceeding KRW 00,000,000 among the disposition of imposition of corporate tax of KRW 00,000,000 against the plaintiff on October 4, 201.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: Article 8 (2) of the 4th judgment of the court of first instance and Article 8 (2) of the 4th judgment of the court of first instance, and Article 4 (4) of the 4th judgment of the court of first instance are as stated in the grounds for the judgment of the court of first instance, except where the 4th judgment of the court below is used as follows. Thus, it is cited in accordance with the main text of

2. Parts to be dried;

A. The corporate tax imposed for the business year 2008

1) Time to cancel the contract

A) Relevant legal principles

A claim for performance that includes the purport that a contract shall be rescinded as a matter of course, if performed within the prescribed period, may be deemed to have expressed in advance the intention of rescission on the condition that the performance is not performed within the prescribed period at the time of the request for performance. However, in order for one of the parties having the simultaneous performance to lawfully acquire the right of rescission for the reason of the other party’s delay, if the fulfillment period indicated in the request for performance is determined as “within a certain period”, the claimant for performance shall, in principle, continue to provide the performance during the prescribed period, and if such date is determined as “a certain date”, the performance must be provided on such date (see, e.g., Supreme Court Decision 92Da28549, Dec. 22, 1992

In addition, even if the contract is agreed to the effect that if the buyer fails to pay the price by the due date for the payment of the remainder, the contract shall be automatically terminated, the intention and fact of the contract shall not be deemed automatically terminated unless the seller offers performance and places the buyer at the delay of performance. However, if there are special circumstances under which the buyer promises to perform the contract by the due date and agrees to accept the contract automatically if the buyer fails to pay the balance by the due date for the payment of the remainder (see, e.g., Supreme Court Decision 95Da5467, Mar. 8, 196).

B) Determination

앞서 든 증거에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 ① BBBBB은 잔금 지급기일이 도과한 이후 수 차례에 걸쳐 원고에게 잔금 지급기일의 연기를 요청하였으나 연기된 잔금지급기한이 도과하도록 잔금을 지급하지 못하였던 점, ② 이에 원고는 이미 2008. 4. 00.자 통지로 계약 해제의사를 밝혔으나 BBBBB이 해제통보철회를 요청하여 다시 잔금지급기한을 유예해 주었던 점, ③ 원고는 2008. 5. 00.자 통지로 '종전에 계약해지통보가 있었지만 BBBBB의 철회 요청으로 계약 해지가 바로 이행되지 않고 보류되고 있다'고 하면서 '연체이자 상환이 이루어지지 않을 경우 계약해제에 대한 법적 착수에 임할 것이다'라고 하였는바, 당시 원고의 의사는 연체이자 상환 없이 2008. 5. 00.이 도래하면 종전의 해제통지에 의한 효과가 즉시 발생하는 것으로 보겠다는 의사인 것으로 보이는 점, ④ 원고는 이러한 통지를 하고 얼마 되지 않은 2008. 5. 00. 이 사건 계약이 해제되었음을 전제로 박ㅇㅇ과 부동산 매매계약을 체결하고 2008. 6.00. 중도금 000억 원을 수령하기까지 한 점, ⑤ 2008. 6. 00.자 통지에서 원고는 BBBBB을 상대로 이 사건 계약이 이미 해제되었음을 전제로 손해배상을 구하고 있을 뿐, 이 사건 계약을 해제한다는 명시적인 의사표시는 하지 않은 점, ⑥ 원고가 2008. 5. 00.자 통지 당시 원고 채무의 이행제공을 하였다고 볼 자료가 없으나 이는 2008. 6. 00.자 통지 당시에도 마찬가지이고, BBBBB은 2008. 2. 0.자로 원고에게 잔금 지급기일을 2008. 2. 00.까지 연기해 줄 것을 요청하면서 위 잔금지급일을 이행하지 못하였을 경우 원고의 일방적인 처분을 수용하고, 동 건과 관련하여 일체의 권리를 주장하지 않겠다는 의사를 표시하였는데 BBBBB은 위 일시를 도과하도록 잔금을 지급하지 못하였으므로 그 이후로는 원고가 이행제공을 하지 않더라도 해제권을 취득한다고 볼 여지가 있는 점, ⑦ 원고는 BBBBB에 대하여 계약해제를 원인으로 한 손해배상을 구하면서 이 사건 계약이 2008. 5. 00. 해제되었다고 주장하였고(서울중앙지방법원 2008가합91468), 위 법원은 이 사건 계약이 2008. 5. 00. 해제되었다는 내용의 판결을 선고하여 그대로 확정된 점 등을 종합하면 원고는 2008. 5. 00.자 통지로서 2008. 5. 00. 내에 연체이자 상환이 없는 것을 정지조건으로 한 해제의사표시를 적법하게 하였다고 봄이 상당하다.

Therefore, as the BBB did not repay overdue interest but became due on May 00, 2008, the instant contract was rescinded on May 00, 2008.

2) Whether earnings are included in gross income

가) 계약금 ㅇㅇ억 원의 성격

Where a contract is rescinded due to a cause attributable to the party to the contract, whether the contract deposit belongs to the other party or whether the contract deposit is a penalty for penalty for breach of contract, etc. is individually determined in a specific case by comprehensively taking into account the contract, etc. However, since the penalty for breach of contract is presumed to be an estimate for the amount of damages under Article 398(4) of the Civil Act, special circumstances should be asserted and proved that the penalty for breach of contract is to be interpreted as a penalty for breach of contract (see, e.g., Supreme Court Decision 200Da35771, Dec. 8, 200). In this case,

① 원고가 이 사건 매매계약이 체결되기 전 000억 0천만 원을 채권최고액으로 하여 CC은행에 대하여 BBBBB을 채무자로 하는 근저당권을 설정하여 준 것은 계약금으로 그에 따른 손해를 담보할 수 있다고 신뢰하였기 때문이라고 보이는 점, ② 원고와 CC은행은 원고의 계좌에 계약금이 입금된 이후에 근저당권설정계약의 효력이 발생하는 것으로 특약하였고, 원고와 BBBBB은 계약금에 관하여 CC은행에게 원금과 이자금액 ㅇㅇ억 원의 130% 범위 내에서 채권담보 설정을 할 수 있도록 특약하였는 바, 이는 계약금 상당의 예금채권을 BBBBB의 CC은행에 대한 채무의 담보로 삼거나, 적어도 BBBBB이 CC은행에 대한 채무를 변제하지 아니한 경우 위 계약금이 위 채무의 변제에 사용될 수 있다는 점이 예정된 것으로 보이는 점, ③ 원고는 BBBBB에 대하여 이 사건 계약의 해제로 인한 손해배상으로 원고의 CC은행에 대한 대위변제금과 이 사건 부동산 임대료 상당의 금액에서 계약금 ㅇㅇ억 원을 공제한 나머지 금액만을 청구금액으로 삼았던 점, ④ 달리 이 사건 계약에서 계약금을 위약벌이라고 볼 만한 특별한 사정이 보이지 않는 점 등을 종합하면 이 사건 계약금은 위약벌이 아니라 이 사건 계약과 관련하여 발생하는 원고의 손해를 전보하기 위한 손해배상의 예정액이라고 봄이 상당하다.

B) Whether the down payment was included in gross income

(1) Relevant legal principles

Article 40(1) of the Corporate Tax Act provides that "the fiscal year of accrual of earnings and losses of a domestic corporation for each fiscal year shall be the fiscal year which includes the date on which the concerned gross income and losses are determined." The principle of confirmation of rights adopts the principle of confirmation of rights. In principle, in cases where there is an interval between the time and the time of the confirmation of the rights causing income and the time of the realization of income, the rights shall be deemed to have accrued at the time when the rights are determined on the basis of the time when the rights occur. In order to determine that the income has accrued, even if it is not necessary until the income has been realized in reality, the rights to generate income shall be considerably mature and determined in light of the possibility of realization thereof, and whether the rights to generate income are mature and finalized shall be determined by comprehensively taking into account the specific nature and contents of individual rights and the various matters of legal and factual relations (see, e.g., Supreme Court Decisions 2003Du14802, Nov. 25, 2004; 2011Du145, Dec.

Meanwhile, since a guarantor who has performed a guaranteed obligation acquires a claim for reimbursement equivalent to the amount of the reimbursement for the principal obligor or other joint and several sureties, he/she shall not be deemed to have suffered losses from the reduction of the amount of the reimbursement for the guaranteed obligation immediately due to the performance of the guaranteed obligation: Provided, That if the principal obligor and other joint and several sureties are not able to exercise a claim for reimbursement against the principal obligor or other joint and several sureties because they have already become bankrupt at the time of the performance of the guaranteed obligation, and there is no assets to be executed to them, etc., and thus, they cannot exercise a claim for reimbursement against the principal obligor or other joint and several sureties, the guarantor's claim for reimbursement may be deemed as the amount of losses accrued to the guarantor and included in deductible expenses (see, e

(2) In the instant case:

The contract of this case was cancelled on October 0, 2008, and the down payment was finally reverted to the Plaintiff. However, the purport of the entire argument is to add the following evidence: (i) the secured debt amount of the instant real estate, which was completed in the name of theCC Bank, at the time of the rescission of the contract of this case, exceeded KRW 0 billion; and (ii) the Plaintiff was required to repay the secured debt in order to recover the ownership of the instant real estate provided as security upon the rescission of the contract of this case; and (iii) the Plaintiff’s disposal of BB by subrogation of the secured debt amount of KRW 0,00,000,000 as a surety at the time of the cancellation of the contract of this case, was not only to have a claim for reimbursement of the down payment amount equivalent to KRW 0,00,00,000,000, which was actually attributable to the Plaintiff’s claim for reimbursement of the down payment of KRW 20,000,000,000,000.

Therefore, the defendant asserts that the claim for indemnity amounting to KRW 0,00,000, which occurred by subrogation, constitutes "claim for indemnity arising from debt guarantee" under Article 34 (3) 1 of the former Corporate Tax Act, and thus, the provision regarding inclusion of allowance for bad debts in deductible expenses cannot be applied. However, even if the down payment in this case is deemed to be an issue of whether or not the down payment in this case is included in deductible expenses of claim for indemnity incurred newly after being included in gross income (it can be clearly known that the down payment in this case has the nature of compensating the plaintiff's losses under the contract in this case even if the BBB's repayment ability is the same, it cannot be included in gross income as long as the down payment in this case has the nature of compensating the plaintiff's losses under the contract in this case, such as the case where it is evident that the debtor's ability to pay the down payment in gross income is nonexistent, etc.). On other premise, the defendant's assertion on the other premise is without merit (the point at which the contract in this case is cancelled).

(3) Sub-decisions

Ultimately, regardless of the time of rescission of the contract of this case, this part of the disposition taken in the calculation of the sum of the down payment of this case is unlawful.

B. The imposition of corporate tax for the business year 2009

1) Relevant legal principles

A) Article 341 of the former Commercial Act (amended by Act No. 10281, May 14, 2010) provides that “A company shall, when it retires its shares (Article 341) or when it takes over the whole business of another company (Article 102(1)1), when it is necessary to achieve its purpose in executing the rights of the company (Article 2(2)), when it is necessary to deal with the shares of the company (Article 3(3) or when it is necessary to deal with the shares of the company (Article 4(4)), when the shareholder exercises his/her appraisal right, he/she shall not acquire its shares on its own account (Article 342).” Article 342 provides that the company shall without delay take procedures

B) Article 28(1)4(b) of the former Corporate Tax Act (amended by Act No. 9898 of Dec. 31, 2009) and Article 53(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21972 of Dec. 31, 2009) provide that interest on loans equivalent to the amount of loans unrelated to the business of the relevant corporation shall not be included in deductible expenses, regardless of its name, such as provisional payments, etc. to the related parties holding by the relevant corporation. Article 52(1) of the former Corporate Tax Act and Articles 88(1)6 and 89(3) of the Enforcement Decree of the same Act provide that where it is deemed that a corporation’s tax burden on the corporation’s income has been unjustly reduced by lending money to a related party without compensation, the tax authority shall be deemed as wrongful calculation and shall be included in gross income.

C) On the other hand, whether a sale of stocks constitutes a transfer of stocks as an asset transaction, or a retirement of stocks or a refund of capital, which is a capital transaction, should be determined based on the contents and intent of the transaction and the intent of the parties. However, in light of the substance over form principle, the entire process of the transaction, including the content and form of the contract in question, the process of concluding the contract in question, the method of determining the price, and the progress of the transaction, should be actually identified and determined (see, e.g., Supreme Court Decision 2012Du27091,

2) In the instant case:

A) The validity of acquiring the instant shares

Pursuant to the relevant provisions, the shareholders of this case requested the Plaintiff to purchase their own shares on October 00, 2009, and the Plaintiff resolved to acquire their own shares by holding a board of directors on October 0, 2009. However, in full view of the evidence evidence Nos. 3 and 4 adopted earlier, the representative director of the board of directors as of October 0, 2009 explained that "it is difficult to find a way for the Plaintiff to sell its own shares as soon as possible," that "the Plaintiff’s representative director at the board of directors as of October 0, 200 should find a way for the Plaintiff to retire its own shares." The Plaintiff failed to take the procedure for the retirement of shares for 2 years after the purchase of the shares of this case; the Plaintiff’s corporate tax integration for the Plaintiff from December 0, 201 to January 00, 201; the Plaintiff’s corporate tax consolidation for the Plaintiff’s own shares for the purpose of acquiring its own shares for 00 years after the acquisition of shares.

B) Whether the inclusion in earnings was included in earnings

(1) The shareholders of this case constitute the shareholders of this case as shareholders of the company. The plaintiffs asserted to the effect that the shareholders of this case acquired the shares of this case in order to adjust the share ownership upon their request against the plaintiff's acquisition of shares of DDR companies operating the golf course business. However, in light of Article 341 of the former Commercial Act, which provides for the reasons for acquiring their shares, it is difficult to view that the plaintiff's acquisition of the shares of this case is related to the business of the shareholders of this case. As seen earlier, the invalidity of the acquisition of shares of this case is deemed as seen earlier. Nevertheless, since the plaintiff delayed the collection of the shares paid from the shareholders of this case who held the purchase price of shares without justifiable grounds for the purchase price of shares, the amount equivalent to the unpaid price constitutes the provisional payment without any relation to the business, and thus, the tax burden has been unjustly reduced due to the lack of economic rationality in light of sound social norms and commercial practice, it is legitimate to recognize the defendant's acquisition of the shares of this case as the shareholders of this case's business year.

[See Supreme Court Decision 2007Du5646]

(2) On this ground, the Plaintiff asserts to the effect that even if the acquisition of the instant shares is null and void because it violates the former Commercial Act, the taxation of capital gains tax should be deemed null and void under the tax law, or that the Plaintiff has justifiable reasons for failing to recover the purchase price of the instant shares, in light of the following: (a) the shareholders were holding the purchase price of the instant shares; (b) the Plaintiff did not restore to the original state five years after the acquisition of the shares; (c) the Plaintiff was actually conducted a stock retirement; (d) the Plaintiff’s acquisition of the instant shares was based on the premise that the acquisition of the shares was effective; (e) the Plaintiff’s interests were not undermined; and (e) the Plaintiff requested an accounting corporation to assess the value of the instant shares; and (e) the Plaintiff filed a request to retire the instant shares on December 0, 201, even if the acquisition of the instant shares is null and void under private law.

However, in light of the fact that the Plaintiff was holding until the retirement of the shares, and thus, the Plaintiff could recover the sales price from the shareholders of this case and return the shares at the same time before the retirement of the shares, and the disposition of imposition of corporate tax for the business year 2009 against the Plaintiff is related to the interest to recognize the money paid as the sales price for shares to the shareholders of this case. Since the disposition of imposition of capital gains tax on some shareholders is related to the income accrued from the transfer of shares, it cannot be deemed that the disposition of imposition of capital gains tax is a double disposition. Thus, it is legitimate to include the recognized interest and the amount equivalent to the gross income in the business year 2009, since the Plaintiff cannot be deemed to have justifiable grounds for delaying the collection of the sales price for shares, since the Plaintiff’s delay in the collection of the sales price for shares is not a legitimate reason. Meanwhile

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining parts shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and it is dismissed as it is so decided as per Disposition.