Seoul High Court 2005Nu18534 (Seoul High Court 2006.30)

Whether an act of offering bank deposits as security and allowing a person with a special relationship to obtain loans constitutes a business-related provisional payment

The provisional payment in office refers to a case of direct lending, and includes cases equivalent to loans due to its nature. An act of providing time deposits as security to a bank and an act of borrowing loans from a bank by a person with a special relationship cannot be deemed a direct lending act for a person with a special relationship as a separate juristic act. Thus, the provisional payment in office

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

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The appeal is dismissed.

The costs of appeal are assessed against the defendant.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

Article 28 (1) 4 (b) of the Corporate Tax Act and Article 53 (1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008) include not only purely meaningful loans, but also loans corresponding to the nature of claims, and also cases where the provisional payments are provided with interest at a reasonable interest rate. Whether the provisional payments are related to the business should be objectively determined on the basis of the purpose of business, business contents, etc. of the relevant corporation (see, e.g., Supreme Court Decision 2006Du15530, Sept. 25, 2008).

In addition, in principle, provisional payment in office refers to a case of direct lending, and also includes a case corresponding to a loan due to its nature. In this case, the Plaintiff’s deposit of a fixed deposit and the loan to FF Bank (hereinafter “GG Bank”) for HH unemployment Co., Ltd. (hereinafter “Nonindicted”) are separate legal acts. Although the Plaintiff offered a fixed deposit claim against the GG Bank as security, it cannot be deemed a direct lending act against the non-party company even if the Plaintiff offered a fixed deposit claim against the GG Bank as security, it does not constitute a direct lending act against the non-party company. This also applies even if the Plaintiff offered a fixed deposit claim as security to the non-party company (see, e.g., Supreme Court Decision 2004Du1360, May 25, 2006).

In light of the above legal principles and the records, the court below acknowledged the facts based on the adopted evidence, and held that the plaintiff's offering of his term deposit claims against the GG bank as security cannot be deemed as the lending act against the non-party company in receiving a loan from the GG bank, and there is no error of law such as misunderstanding of legal principles as otherwise alleged in the ground of appeal.

In addition, the court below did not consider that the act of the plaintiff's act of offering security is not included in the loan which is subject to the regulation of provisional payment, and only cancelled the defendant's disposition related to it, and it does not cause a problem of double taxation. Therefore, there is no violation of law such as omission of

Therefore, the appeal is dismissed, and the 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.