Seoul Administrative Court 2001Gu 39714 (Law No. 10, 2007)

In case where the use of the house is unclear at the low interest rate when the house purchase fund is loaned to the homeless employees, etc., it shall be subject to a wrongful calculation.

With respect to a loan to a homeless employee's house purchase fund, if the date of registration of establishment of a neighboring house is earlier than the date of acquisition of the relevant house, if the date of registration of establishment of a neighboring house and the date of acquisition of the relevant house are identical, it is recognized within the extent that the registration of establishment of a neighboring house in the name of the plaintiff has

Seoul High Court 2010Nu431 Revocation of Disposition of Corporate Tax Imposition

AA Bank, Inc.

○ Head of tax office et al.

Seoul Administrative Court Decision 2001Gu39714, 2002Guhap19718, Jan. 10, 2007

July 7, 2011

September 8, 2011

1.The judgment of the first instance shall be modified as follows:

A. As to the plaintiff:

(1) On March 22, 1999, the part which exceeds the corporate tax of 748,653,690, and 568,99, and 490 won in the imposition of corporate tax of 1993 on March 22, 199; ② the part which exceeds 872,651, 39, 457, and 740 won in the imposition of corporate tax of 1994 on March 15, 200; the part which exceeds 1,132,142, and 150 in the imposition of corporate tax of 1994 on March 15, 200; the special rural development tax of 49,848,00, and the part which exceeds 39,457, and 740 won; and the part which exceeds 815,215,390,390,390,37, and special rural development tax of 201, and 25294,2515,29.25.

(2) On March 15, 2002, the part of the disposition imposing corporate tax of 759,563,820, special rural development tax of 574 and 200, which exceeds 598,237,370, special rural development tax of 563,830 shall be revoked.

B. The plaintiff's remaining claims against the defendants are dismissed.

2. Of the total costs of the lawsuit, the part arising between the Plaintiff and the Defendant Heavy Tax Office shall be 4 minutes and 3 others shall be borne by the Plaintiff, the remainder by the Defendant Heavy Tax Office, and the part arising between the Plaintiff and the Defendant Seodaemun Tax Office shall be 5 minutes, and 4 others shall be borne by the Plaintiff, and the remainder by the Defendant Seodaemun Tax Office.

1. Purport of claim

With respect to the plaintiff, the head of the defendant Jungbu Tax Office revokes the disposition of imposition of the corporate tax 748, 653, 690 won for the business year 1993, the corporate tax 1,132,142, 150 won for the business year 194, special rural development tax 49,848,070 won for the business year 1995, 815,215,390, special rural development tax 37,063,980 won, special rural development tax 37,063,980 won for the business year 1996, 521,60,60, special rural development tax 43,450 won for the special rural development tax for the business year 1993, and special rural development tax for the plaintiff 202, and the special rural development tax for each of the defendant 15,205,705,79,500,500.

2. Purport of appeal

In the judgment of the court of first instance, the part against the plaintiff seeking revocation is revoked.

With respect to the plaintiff, the head of the defendant Jungbu Tax Office revokes the disposition of imposition of corporate tax of 708, 117, 893, 1993, corporate tax of 1994, corporate tax of 1,071,603,662, special tax in agricultural and fishing villages of 47,423,956, corporate tax of 1995, corporate tax of 759,251,222, special tax in agricultural and fishing villages of 34,671,671, and 60, corporate tax of 1996, corporate tax of 1993, corporate tax of 197,820, and special tax of 34,671, and 60, corporate tax of 1996, corporate tax of 50,820,198, and special rural development tax of 305,195,205, and special rural development tax of 305,1995.

1. Details of the disposition;

A. Loans to the Plaintiff’s employees without any house;

(1) The plaintiff is a corporation that has its head office and operates banking business in Jung-gu Seoul Special Metropolitan City 000 [the former CCB bank (hereinafter referred to as the "Gu CE bank") was merged with the former NAB bank (hereinafter referred to as the "Gu NAB bank") on January 6, 199 and its trade name was changed to DB bank, and its trade name was changed to AAB bank on May 20, 2002, the company was changed to the AAB bank], and the non-resident employees belonging to the plaintiff (a non-resident employee who is not an executive officer) have loans at the interest rate of 1% per annum, which is lower than the normal interest rate.

(2) On the basis of the date of new handling as stated in the "detailed statement for each house loan applicant" submitted by the plaintiff around February 199, the head of Jung-gu Tax Office (hereinafter "the loan of this case") had the plaintiff's employees acquired a house before the loan was made (i.e., the acquisition of a new house), ② the acquisition of a new house with a new loan prior to the transfer of the previous house, and ③ the acquisition of a house exceeding the scale of national housing with a loan of a house below the size of national housing, and ④ the acquisition of a new house after a loan of a house below the size of national housing (hereinafter "the plaintiff's employees who received the loan of this case") was additionally acquired a new house (hereinafter "the loan of this case") on the ground that the loan of this case is an amount of temporary payment not related to the business paid to the employees of the related parties, and the difference between the interest of this case and the interest of this case under the former Corporate Tax Act (amended by Act No. 581 of Dec. 28, 1998; hereinafter the same shall apply) and the interest of this case.

(b) Imposition and reduction of corporate tax for the business year 1993 by the director of the medium and small tax office;

(1) On March 22, 1999, the defendant middle-class tax office imposed corporate tax of KRW 1,262,487,650 (or KRW 907,125,880 for the former BB bank, and KRW 355,361,770 for the former EE bank) on the income amount in 193, which is the difference between the interest on low-income loan and the amount equivalent to the interest calculated on the basis of the monthly interest rate for the current EE bank.

(2) After that, the plaintiff's objection, request for grievance, request for review and adjudgment were partly cited in the initial disposition, and in the process, 418,606,160 won when the first correction was made, 84,036,130 won when the second correction was made, 11,191,660 won when the third correction was made, and 513,83,960 won when the third correction was made, and 748,653,693, and 960 won when the total amount was reduced, the corporate tax disposition for the business year 193 would eventually be 748,653, and 690 won when the second correction was made.

(c) Imposition and reduction of corporate tax and special tax for rural development for the business year 1994 by the head of Jung-gu Tax Office;

(1) On March 15, 200, the defendant middle-class tax office added corporate tax of 2,149,642, and 684 in the same way as above to the plaintiff for the business year 194 and imposed corporate tax of 1,132,142,150 and special rural development tax of 49,848,070.

(2) The plaintiff raised an objection against the above defendant on June 13, 2000, but the above defendant is the same year.

7.14. A decision of dismissal was made on October 6, 200 by the Plaintiff, and on July 11, 2001, the Director of the National Tax Tribunal, the Director of the National Tax Tribunal, the Director of the National Tax Tribunal, made a decision on the partial acceptance of the Plaintiff to correct the relevant tax base and tax amount by re-audit as to whether a loan to a lender of housing funds within three months from the date of acquiring a house constitutes a loan under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act. However, the above Defendant did not make a separate decision of correction thereafter.

(d) Imposition of corporate tax and special tax for rural development for the business year 1995 by the chief of the secondary tax office of the defendant;

(1) On March 12, 2001, the Defendant’s Vice-Chairperson added corporate tax of KRW 2,243,393,782 in the same way as above to the Plaintiff for the business year of 1995 and imposed corporate tax of KRW 815,215,390 and special tax in agricultural and fishing villages of KRW 37,063,980.

(2) On May 15, 2001, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service, but the Commissioner of the National Tax Service on September 9 of the same year

14. The decision of dismissal was made.

E. Imposition of corporate tax and special rural development tax by the Defendants in the business year 1996

(1) On February 1, 2002, the head of the Defendant Middle-gu Tax Office imposed corporate tax of KRW 521,660,210 and special rural development tax of KRW 43,450 on the Plaintiff (former BB bank parts) by adding corporate tax of KRW 1,094,032,34 in the above method as to the annual business portion of 1996 to the gross income. On this issue, the Plaintiff filed a request with the Director of the National Tax Tribunal on May 2, 2002, but the Director of the National Tax Tribunal dismissed on November 5 of the same year.

(2) On March 15, 2002, the director of the tax office of South Korea imposed corporate tax of KRW 759,589,650,797 on the portion of the Plaintiff (Gu EE Bank part) for the business year 1996 in the above way, and imposed corporate tax of KRW 759,563,820 and special rural development tax of KRW 574,200. On this, the Plaintiff requested the Director of the Tax Tribunal for the adjudgment on May 3, 2002, but the Director of the Tax Tribunal rejected on November 5 of the same year.

F. As above, the imposition of this case by adding the corporate tax for the business year 1993, the corporate tax for the business year 1994 through the business year 1996, and the special rural development tax for the business year.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1 through 6, Eul evidence 2-1 through 4, Eul evidence 3-1 through 4, Eul evidence 4-1, 2-1 through 3, Gap evidence 7-1, 2, Gap evidence 15-1, 2, Gap evidence 16-1, 2, Gap evidence 17-1, 18-1, 2, Eul evidence 18-1, 1-2, Eul evidence 1-1 through 13, Eul evidence 1-1 through 15, Eul evidence 3-1 through 15, Eul evidence 3-1 through 15, Eul evidence 4-1 through 11, Eul evidence 5-17, Eul evidence 1-1 to 6-1, Eul evidence 1-4, evidence 3-1 to 3-1, evidence 1-3, evidence 5-1 through 5-17, evidence 1-6-1 through 7-4, evidence 7-1-1-

2. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought revocation of the imposition of KRW 43 and 450 on February 1, 200 1, 1996 by the head of the tax office, and the court of the first instance rejected the request. As the Plaintiff did not appeal with respect to its part, the special taxation for agricultural and fishing villages for the business year 1996 is not included in the subject of this Court. In addition, the court of the first instance does not impose the Plaintiff, with respect to the tax amount exceeding KRW 748653 and 690 on March 22, 1993, the tax amount exceeding KRW 708, 117 and 893, and the tax amount exceeding KRW 20.15, and the tax amount exceeding KRW 20, 132,132,142,150, and special agricultural and fishing villages tax for the business year which exceeds KRW 250, 297, and 309,296, and one special agricultural and fishing villages tax for the Defendant.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) The argument on the first loan date

O The Plaintiff managed a housing loan on the basis of the date of the first loan to the Plaintiff’s employees, not the date of the first loan, and when housing funds are exchanged, the Plaintiff discarded the previous loan-related documents and kept only the loan agreement, etc. prepared at the time of substitution. Therefore, it is impossible to clarify the date of the first loan.

As the head of ○○ Tax Office demanded the submission of the loan specifications on the ground that there was a long period of time for the exclusion of national taxes, the head of ○○ Tax Office stated the date of the electronic loan as a new handling date, but it did not neglect it even though it was widely known to the tax official in charge that most of the electronic loan was due to the recent large exchange days and was not the first loan date.

The first loan date is the same as or ahead of the date of the registration of the establishment of a neighboring mortgage because most of the housing units including the housing units of the housing association had been loaned prior to the establishment of a mortgage, and since the registration of the establishment of a neighboring mortgage was conducted by acquiring the ownership of the housing units thereafter, the first loan date.

(O) If the first day is considered to be the date of the first loan under the loan specification, it is inevitable to view that the loan was made only after several months or more have passed since the registration of establishment of collateral security was made for the security. This is only a very unrealistic family.

O) Therefore, the Defendant’s wrongful calculation of the loan of this case shall regard the loan of this case as the first loan day around the date of establishment of the right to collateral security as the first loan day and determine whether the loan employee constitutes a homeless employee.

(2) Claim on loans made after the acquisition of a house

Pursuant to the regulations, the Plaintiff’s employee applied for a loan within three months prior to the acquisition of a house (the acquisition of a partnership house or the acquisition of a general house for sale in lots) or within three months after the acquisition of a house, the loan was deemed to have been used for the acquisition of the house, and thus, the Plaintiff’s employee could not apply the wrongful calculation of the presumed amount of the loan to have been made within three months after the acquisition of the house. However, in cases where the date of establishment of a collateral security was made within three months after the acquisition of the house, barring any special circumstance, the loan of a house should also be deemed to have been made within three months after the acquisition

O. In particular, it is proved that the loans to housing association members were loaned as housing acquisition fund, and that the fact that the company acquired the house immediately before the loan was made, and that the officer or employee who received the loan used the loan as housing acquisition fund is confirmed to have used the loan as housing acquisition fund, and these evidence alone is sufficient to prove that the loan in this case was used as housing acquisition fund. In addition, since the loan to housing association members was extended as down payment and intermediate payment, etc. of association housing loans directly from the bank of the Plaintiff, it cannot be said that it is irrelevant to the acquisition of association housing.

B. Relevant statutes

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

C. Relevant legal principles

(1) The legal doctrine relating to the "unclaimed Housing" as expressed in the Supreme Court Decision 2004Du14397, 2005Du10163 Decided February 24, 2006

① In a case where a corporation lends money, etc. to its employee at a low interest rate, the act falls under the main sentence of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act, and thus, the application of the wrongful calculation avoidance is subject to the application of the wrongful calculation avoidance. Therefore, in order to eliminate the application of the unfair calculation avoidance of the lending act by the corporation, the requirements under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act, namely, the requirements under Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act, i.e., the leased employee is a non-resident, and the leased employee is smaller than the national housing scale, and iii) the amount of the subsidy does not exceed 20 million won under Article 22(1) of the former Enforcement Rule of the Corporate Tax Act, 3rd requirements must be satisfied. (4) Whether the payment of the subsidy is harmful to the "employee without house" under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act, barring any other special circumstance.

(5) If a person applies for a loan in a homeless state and receives a loan after acquiring a house, it shall be deemed that the provisions of the proviso shall apply unless there are special circumstances. However, in case where a person receives a loan by applying for a loan after an independent acquisition of a house, it shall be done at the time near a house acquisition, as well as when it is proved by relevant documentary evidence that the loan was used for the repayment of the fund required for acquiring a house, it may be excluded from the application of the unfair calculation

(6) In a case where a homeless employee received a loan after acquiring a house first, even if the loan was actually used at the time near the house after acquiring the house, the fact that the loan was actually used for the repayment of the house acquired at the time of the acquisition of the house must be asserted and verified by the corporate entity intending to exclude the application of the avoidance of wrongful calculation and calculation. However, if the application for the loan was made before the acquisition of the house, the fact that the loan was actually used

(2) Detailed review of the business burden of the 'non-housing use words'

According to these legal principles, even if an employee applied for a loan of the house purchase fund in a situation where he/she is homeless, but he/she received a loan within 3 months from the acquisition of the house due to the due process of the loan, it is reasonable to view that the employee constitutes a "employee without a house" under the proviso. In such cases, the burden of proving whether the loan made before and after the acquisition of the house was required for the house acquisition fund can be divided as follows.

(1) Where an application for a loan is filed before acquiring a house.

In a case where an employee applied for a loan to purchase a house without any house, and then received a loan at the close time after acquiring a house due to a loan due to a problem in the lending procedure, the relevant employee’s loan is highly likely to be the fund required for acquiring the house. Therefore, in such a case, even if the employee falls under a homeless employee as prescribed by the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act, it cannot be said that the economic rationality is neglected in light of social norms.

Therefore, in this case, it can be recognized as a loan for housing purchase to a homeless employee under the proviso without a separate proof of "the fund was used for the repayment of the fund required for acquiring the house in question."

(2) Where an application for a loan is filed after acquiring a house.

In the case of an employee who received a loan at a close time within three months after acquiring a house by applying for a loan after acquiring a house, it cannot be said that it is clear whether the loan is the fund used for acquiring the house in question or whether it is a half-day loan. Thus, it can be recognized as a loan to a homeless employee under the proviso of the proviso, only when the Plaintiff proves that the loan was used for the repayment of the fund required for acquiring the house in question by relevant documentary evidence, etc.

(3) Organization of issues

In this case, as seen earlier, the Plaintiff’s act of lending the Plaintiff’s employee at a low interest rate of housing acquisition funds falls under the main sentence of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act, and thus, it is subject to the avoidance of wrongful calculation. Therefore, in order for the Plaintiff to not be subject to the avoidance of wrongful calculation, the Plaintiff must prove that the above act satisfies the requirements under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act. In this case, the main issue is whether the Plaintiff’s employee is a homeless employee among the above requirements is whether the Plaintiff’s employee is a homeless employee. Therefore, the Plaintiff’s first determination of the point of time of initial loan of housing acquisition funds to the Plaintiff’s employee and its basis is examined as to whether the Plaintiff’s employee constitutes a homeless employee under the proviso of Article 46(2)7

In particular, in the case of this case, only the time of acquiring a house and the time of establishing a mortgage are revealed in the registry, but the plaintiff did not express the time of the loan application and the time of loan. Therefore, in order to apply the legal principles of burden of proof as seen earlier, it is necessary to recognize the time of loan application and the time

D. Determination on the point of time of initial loan of housing acquisition fund

The plaintiff asserts that since the new handling date under the "detailed statement for each house financing loan applicant" was estimated based on the date of the recent substitution, there is a lot of difference between the actual first loan date and the actual first loan date, the creation date of the right to collateral security, which can be seen as identical or similar to the actual last first loan date, should be deemed as the first loan date and the determination of wrongful calculation should be made on the basis of this.

The following circumstances acknowledged by Gap evidence 6-1 through 4, Gap evidence 19-1, 2, and 3 as the reasons for the above disposition, i.e., (i) if an employee of the plaintiff's housing financing regulations requests a loan of the housing fund until 3 months prior to or late after the acquisition of a house, the due date for payment shall be 3 years and the house acquired by the loan shall be set up within the limit of 20 million won. (ii) The date of acquisition of the loan under the description of the loan shall be 3 years from January 1, 1993 as the date of the loan preparation, and it is hard to see that the new house is newly established as the date of the loan from the date of the above 3 years prior to or after the acquisition of the loan due date.

E. Specific determination on whether the employee is a homeless employee

(1) In order to apply the “legal doctrine on the burden of proof as to whether the loans made before and after the date of acquiring a house is a house acquisition fund” as seen above, it should be clear at the time of applying for a loan to the loan of this case, and accordingly, the relationship should be followed after the date of acquiring a house. Since the Plaintiff submitted only the date of acquiring a house and the date of registering the establishment of a house near the date of acquiring a house on the registry as evidence, the time of applying for a loan should be inferred based on this.

(2) Where the date of registration of establishment of a neighboring house is earlier than the date of acquisition of the relevant house;

Of the Plaintiff’s employees, the Plaintiff’s leF (**************************) on June 17, 1987, which was the date of the registration of the establishment of a new house on which the Plaintiff’s establishment was registered, did not conflict between the parties. As such, it is presumed that the Plaintiff filed an application for a loan prior to the acquisition of a house and the receipt of the loan was presumed to have been made in accordance with the legal principles as seen earlier. Therefore, in such a case, considering that the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act is a homeless employee, it cannot be deemed that the Plaintiff’s employees might be deemed to have neglected economic rationality in light of social norms, and the “the said funds was used for the repayment of the funds required to acquire the relevant house” should be deemed to be excluded from the object of the revocation of the purchase of a house without any separate proof.

(c) Where the date of registration of establishment of a neighboring house and the date of acquisition is identical;

The Plaintiff’s assertion that the Plaintiff’s establishment registration date of a house and the date of acquisition of the house at issue were identical to that of the Plaintiff’s employees and that the Plaintiff’s establishment registration date of the house at issue is not subject to dispute between the parties. Considering the overall purport of the Plaintiff’s testimony of 13 or 190 witnesses of the first instance court (excluding the portion not trusted thereafter), the Plaintiff’s assertion that the loan was not subject to the Plaintiff’s establishment registration date of the house at issue and 3 years prior to the date of acquisition of the house at issue, and that the Plaintiff’s use of the house at issue constitutes an unlawful act of acquiring the house at issue, and thus, the Plaintiff’s assertion that the loan was not subject to the Plaintiff’s establishment registration on the house at issue, and that the Plaintiff’s use of the house at issue constitutes an act of acquiring the house at issue within 1 or 3 years prior to the date of the application for the establishment registration date, and that the Plaintiff’s assertion that the loan was not subject to the Plaintiff’s ownership of the house at issue.

(5) Where the date on which the establishment registration of neighboring houses is completed is within three months from the date of acquisition of the relevant house;

In addition, according to the Plaintiff’s bylaws, where the Plaintiff’s employees are presumed to have acquired the instant loan within 3 months after acquiring the instant house, the Plaintiff’s employees cannot apply to the acquisition of the loan. However, if the date of establishment of a mortgage was conducted within 3 months after acquiring the relevant house, barring any special circumstance, the Plaintiff’s loan constitutes a homeless employee under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act. According to the Plaintiff’s evidence No. 6-2 and No. 4, the Plaintiff’s provision on the loan should be applied to the Plaintiff’s acquisition of the relevant house as collateral immediately when acquiring the relevant house (Article 11(1)), and the Plaintiff’s application for the transfer of the ownership of the relevant house cannot be seen as having been made within the maximum of 3 months from the date of transfer of the ownership (Article 12(1)) and there is no reasonable ground to view that the Plaintiff’s application for the transfer of the relevant house by acquiring the relevant house as evidence within 3 months after acquiring the relevant house.

(f)Indembar;

Then, the plaintiff's assertion in this case is 1 0. 1 5 7 6 , 2 1 0 5 , 3 9 2 1 5 , 3 9 2 9 , 3 9 2 9 , 3 9 5 , 9 2 9 , 9 7 , 9 2 9 , 9 7 , 9 7 , 9 . 9 7 , 1994 , 1995 , 3 9 . 9 , 9 7 , 9 , 9 6 , 9 , 9 , 9 , 7 , 9 , 9 , 9 , 9 , 9 , 9 , 9 , 9 , 7 '7 , 9 '7 , 9 , '7 , 9 '5 , '7 , 9 '. '2 ' ' '2 . . . . .

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair on the basis of some conclusion, the plaintiff's appeal is partially accepted and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.