Seocho 2013west 492 (2013.03)

In calculating the re-investment amount of an affiliated company of the subsidiary that is excluded from the exclusion of income dividends, the affiliated company does not include foreign corporations.

In calculating the re-investment amount of an affiliated company of the subsidiary that is excluded from the exclusion of income dividends, the affiliated company does not include foreign corporations.

2013Guhap63063 Revocation of Disposition of Corporate Tax Imposition

-Appellee

AAAA Stock Company

-Appellant

The director of the tax office

July 10, 2014

1. 피고가 2012. 10. 4. 원고에 대하여 한 2008 사업연도(2007. 4. 1. ~ 2008. 3. 31.) 법인세 〇〇〇원의 부과처분을 취소한다.

2. The costs of the lawsuit are assessed against the defendant.

1. Details of the disposition;

가. 원고는 금융투자업을 영위하는 법인으로 BB 주식회사(이하 'BB'이라 한다)의 지분을 50% 이상 보유하고 있다. BB은 2008 사업연도(2007. 4. 1. ~ 2008. 3. 31., 이하 같다)에 외국법인인 CCt(Hong Kong) Limited(이하 '홍콩 법인'이라고만 한다)에 〇〇〇원을 출자하였다.

나. 원고는 2008 사업연도에 BB으로부터 〇〇〇원의 배당금을 지급받았다. 원고는 배당금에 익금불산입률 50%를 곱하여 계산한 〇〇〇원(익금불산입 대상금액)에서 지급이자 〇〇〇원을 차감한 〇〇〇원을 익금불산입액으로 하여 법인세를 신고하였다. 즉 원고는 '지주회사의 수입배당금액의 익금불산입'에 관한 구 법인세법(2008. 12. 26. 법률 제9267호로 개정되기 전의 것, 이하 '법'이라 한다) 제18조의2 제1항 제4호 단서 규정을 적용하여, BB이 홍콩 법인에 출자한 금액 중 일정액 〇〇〇원(이하 '재출자액'이라 한다)'도 익금불산입 차감금액이 아니라 익금불산입액에 포함하는 것으로 '익금불산입액'을 산출하고, 법인세를 신고하였다.

C. Article 18-2(1) of the Act is that the Plaintiff is not a holding company.

The proviso to subparagraph 4 shall not apply, and the amount of re-investment shall be determined to be the amount of non-Inclusion in gross income pursuant to Article 18-3 (1) 4 of the same Act, and the amount of non-Inclusion in gross income shall be

다. 이에 따라 피고는 재출자액을 익금불산입액에서 차감(결국 익금에 산입)하여 2012. 10. 12. 원고에게 2008 사업연도 법인세 〇〇〇원을 경정・고지하였다(이하 '이 사건 처분'이라 한다).

D. On September 3, 2013, the Plaintiff appealed and filed an appeal, and the Tax Tribunal dismissed the appeal on September 3, 2013.

was received.

[Ground of recognition] Evidence Nos. 1 through 4, Evidence Nos. 1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 18-3(1)4 of the Act provides for the exclusion of general dividends from taxable income (Article 18-3(1)4)

Article 18-2(1)4 of the Act shall apply mutatis mutandis to the exclusion of import dividends from taxable income (Article 18-2(1)4 of the Act).

Article 18-2 (1) 4 of the Act shall apply mutatis mutandis to the main sentence of Article 18-2 (1) 4 of the Act, and the proviso to Article 18-2 (1) 4 of the Act, which does not deduct the amount of re-investment from the amount of gross income, shall also apply mutatis mutandis. Therefore, when calculating the amount of dividends for import of a general corporation, the amount re-invested by B, an institutional investor, pursuant to the proviso to Article 18-2 (1) 4 of the Act,

2) Article 18-3(1)4 of the Act provides that the domestic corporation has paid dividends.

The main sentence of Article 18-2(1)4 of the Act shall apply mutatis mutandis to the investment in "domestic affiliated companies."

BB only re-investmented only in Hong Kong corporations which are not domestic affiliated companies.

section 18-3(1)4 of the Act does not apply.

B. Relevant statutes

Attached Form. The entry in the relevant statutes is as follows.

(c) The history of amendment;

1) The Monopoly Regulation and Fair Trade Act (hereinafter “Mono Regulation Act”) on February 5, 199

As amended by Act No. 5813, the establishment of a holding company was allowed.In the case of a holding company, it is a subsidiary.

The main income is the dividend received from the company.In order to support the smooth establishment and operation of the holding company by adjusting and resolving double taxation on the dividend income of the holding company, Article 18-2 of the Act was newly established on December 28, 199. Article 18-2(1)4 of the Act provides that the amount of re-investment calculated by reflecting the re-investment ratio shall be deducted from the amount of non-Inclusion in the calculation of gross income if the subsidiary of the holding company re-investment in the affiliate with an aim to curb affiliated expansion due to chain investment.

2) On December 29, 200, Article 18-3 of the Act (Non-Inclusion of the dividend amount of a general corporation in gross income) was newly established in order to promote the equity of taxation between the holding company and the general corporation by introducing the double taxation adjustment system with respect to the dividend received by the general corporation. There was no provision that deducts the amount of re-investment from the gross income at the time of its establishment.

3) Following the amendment on December 29, 200, Article 18-2(1)4 of the Act, in light of the fact that a second-tier subsidiary holding company under the Financial Holding Companies Act is allowed, exclusion from gross income was allowed in cases where a subsidiary of a financial holding company re-invested to a second-tier subsidiary. In addition, on December 31, 2001, in cases where a subsidiary of a financial holding company is an institutional investor, exclusion from gross income was allowed. On December 30, 2003, even in cases where a subsidiary under the Monopoly Regulation Act has invested in a second-tier subsidiary related to business as determined by the Fair Trade Commission

4) As amended on December 31, 2005, Article 18-3(1) of the Act was newly established, Article 18-3(1)4 of the Act, which deducts the amount of re-investment from the amount of non-Inclusion in gross income when a subsidiary of an ordinary corporation re-investment in an affiliate company.

5) The original purpose and relationship of the system for exclusion from taxable income of the double taxation adjustment between corporations

For the repeal of regulations without regulation, the amounts of dividends for import, as amended on December 26, 2008, shall not be included in the gross income of dividends for import.

Articles 18-2 (1) 4, 18-3 (1) 4, and 18-3 (1) of the Act to deduct the amount of re-investment when calculating.

4 Nos. 4 were deleted.

D. Determination

1) Whether the proviso of Article 18-2(1)4 of the Act applies mutatis mutandis

Considering the following circumstances, Article 18-3(1)4 of the Act provides that Article 18-2(1)4 of the Act shall apply.

The proviso to subparagraph 4 shall not apply mutatis mutandis to the provisions of subparagraph 4 (a), (b), and (c).

(1) The proviso to Article 18-2 (1) 4 (a) of the Act shall be pursuant to subparagraph 1-3 of Article 2 of the Monopoly Regulation Act.

If a subsidiary makes investments in a second-tier subsidiary determined by the Fair Trade Commission, the amount to be excluded from gross income

Article 2 subparagraph 1-3 of the Monopoly Regulation and Fair Trade Act and Article 2 (3) of the Enforcement Decree of the same Act shall be excluded from deductions.

company is an affiliated company of the holding company and the shares held by the holding company are the largest investment among related parties.

domestic company whose business is controlled by the holding company because it is equal to or greater than the shares owned by it;

Article 2 subparag. 1-4 of the Monopoly Regulation and Fair Trade Act and Article 2(4) of the Enforcement Decree of the same Act stipulate that a second-tier subsidiary is an affiliated company of a subsidiary, whose largest shareholder is equal to or greater than the shares held by the subsidiary, among specially related persons, and whose business is controlled by the subsidiary. The proviso of Article 18-2(1)4 (b) of the Act excludes a second-tier subsidiary from the deduction of the amount of re-investment from the deduction of the amount of non-investment in the second-tier subsidiary under Article 2(1)2 of the Financial Holding Companies Act (amended by Act No. 9788, Jul. 31, 2009); Article 2(1)2 of the former Financial Holding Companies Act (amended by Act No. 9788, Jul. 31, 2009); Article 18(1)4 (c) of the Enforcement Decree of the Financial Holding Companies Act excludes a second-tier subsidiary from the deduction of the amount of investment in the second-tier subsidiary under Article 18(2) of the Act.

② The term "applicable mutatis mutandis in the legislative techniques" means the modification and application to the extent necessary. Article 18-3 (1) 4 of the Act is a provision concerning "an affiliated company of a general corporation, which has paid dividends to a general corporation," and there is no room for application of the proviso to Article 18-2 (1) 4 of the Act, the Monopoly Regulation and Fair Trade Act provided for in Article 18-2 (1) 4(a), (b), and (c) of the Financial Holding Companies

③ As revealed in the amendment history, the proviso of Article 18-2(1)4(a), (b), and (c) of the Act permits re-investment under the Financial Holding Companies Act and the Monopoly Regulation and Fair Trade Act, the provisions of Article 18-2(1)4(a) and (c) include the amount to be excluded from gross income on the ground that there is no reason to deduct the amount of re-investment from the amount of exclusion from gross income. Other domestic corporations that paid dividends to a general corporation, as an affiliated company of a general corporation, are not allowed to re-investment under the Financial Holding Companies Act, and whether to allow re-investment under the Monopoly Regulation and Fair Trade Act vary in accordance with separate provisions, such as prohibition of cross-investment, etc. Therefore, the proviso of

(4) Article 18-3 (1) 4 of the Act shall apply mutatis mutandis to "Article 18-2 (1) 4 of the Act".

of section 18-2(1)4, the dividend amount received from the affiliates is the same as that of section 18-2(4).

The calculation of the amount of re-investment by an affiliate in consideration of the amount of investment in another affiliate shall be made.

applicable mutatis mutandis to food.

⑤ As alleged by the Plaintiff, another domestic corporation that paid dividends to a “general corporation” constitutes an institutional investor.

section 18-3(1)4 of that section, if it is intended to include only the amount of exclusion from gross income.

It is only required to be provided in the proviso. A. not applicable mutatis mutandis, including, but not limited to, subparagraph (b)

There is no reason to apply the provisions of Article 18-2 (1) 4 of the Regulation.

2) Whether Article 18-3(1)4 of the Act applies when an affiliated company re-investments a foreign corporation

As seen in the history of the above amendment, the provisions for exclusion of import dividends from taxable income in the Monopoly Regulation and Fair Trade Act

Do to adjust double taxation on the dividend income of holding companies when allowing the establishment of a corporation

The Monopoly Regulation and Fair Trade Act and the Financial Holding Companies Act

Article 18-2 (1) 4 of the Act provides that "affiliated company under the Monopoly Regulation and Fair Trade Act" shall be included in "affiliated company" in Article 18-2 (1) 4 and Article 18-3 of the Act. Therefore, the amount of re-investment of an affiliated company of a domestic corporation, which is the item to be deducted from gross income, shall be deducted from the amount of gross income only when re-investment in an affiliated company as provided for in the Monopoly Regulation and Fair Trade Act, is re-investment in the affiliate company as provided for in the Monopoly Regulation and Fair Trade Act. Article 2 of the Monopoly Regulation and Fair Trade Act provides that "enterprise group" means a group of companies substantially controlled by the same person (where the same person is a company, it refers to one or more companies controlled by the same person, and if the same person is not the same person, it is called that the two or more affiliated companies belong to the same enterprise group, and that the company is called the affiliate of each other. Meanwhile, if the purport of the entire pleadings in subparagraph 5 of the same Article is added to gross income, it does not constitute the plaintiff's 1B or affiliate.

3. Conclusion

Then, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

(c)