Whether it constitutes non-business real estate

Since the land of this case falls under the case where the rent is limited by the approval of the Minister of Trade, Industry and Energy under the former Industrial Complex Management Act and it is excluded from non-business real estate, the amount equivalent to the interest paid on the loan shall be included in the calculation of losses.

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

1. The Defendant’s disposition of imposition of KRW 33,938,260, 4,60, 609, 750, 1114, 122,330, 29, and 29,357, and 970, the corporate tax for the business year belonging to the business year 191, which reverts to the Plaintiff as of February 16, 1995, shall be revoked. 2. The litigation cost shall be borne by the Defendant.

1. Details of taxation; and

The following facts are not disputed between the parties, or are recognized by the whole purport of Gap evidence 2, Gap evidence 3-1 and 2, Gap evidence 5-1 and 2, Gap evidence 6-3, Eul evidence 1-1 to 10, Eul evidence 2-1 through 8, Eul evidence 3-1 to 3-8, and there are no objections.

가. 원고는 삭카린, 발포제 등 화공약품 제조업 등을 목적으로 하는 법인으로서 ㅇㅇ ㅇㅇ구 ㅇㅇ동 ㅇㅇ의 ㅇ 소재 공장시설만으로는 삭카린을 포함한 그 원료인 O.T.S.A.와 발포제 등의 수요에 충당할 수 없어 1988. 10. 10. 산업기지개발공사로부터 분할전의 ㅇㅇ시 ㅇㅇ구 ㅇㅇ면 ㅇㅇ리 ㅇㅇ 공장용지 82,575㎡를 취득하고 원고명의의 소유권이전등기를 경료한 다음 1989. 5. 1. 그 토지상에 총면적 15,000㎡의 O.T.S.A. 관련 공장을 신축하였다.

나. 한편, 원고는 전량 수입에 의존하여 오던 발포제의 주원료인 하이드라이진 하이드레이트(이하 H-H라고 한다)를 국내에서 생산하기 위하여 일본의 ㅇㅇ화학주식회사와 합작하여 그 제조공장을 건립하기로 하여 1988. 9. 15. 재무부장관으로부터 외국인투자인가를 받아 같은 해 11. 2. 그 인가조건에 따라 ㅇㅇ화학주식회사와 합작투자한 한국ㅇㅇ주식회사(1994. 3. 18. ㅇㅇ주식회사로 상호가 변경되었다. 이하 소외회사라고 한다)를 설립하고, 그 합작투자법인이 건축할 H-H 제조공장의 부지 마련을 위하여 ㅇㅇ공업단지내에 위치한 위 공장용지 82,575㎡ 중 29,767㎡에 대하여 공업단지관리법의 규정에 따라 1989. 2. 17. 상공부장관으로부터 임대동의를 받은 다음 그해 5. 1. 위 29,767㎡를 임대보증금 450,000,000원에 소외회사에 임대하였다. 이 토지는 그해 8. 19. 위 공장용지 82.575㎡에서 ㅇㅇ시 ㅇㅇ구 ㅇㅇ면 ㅇㅇ리 ㅇㅇ의 ㅇ 공장용지 29,767㎡(이하 이 사건 토지라고 한다)로 분할되었고, 소외회사는 그 지상에 12개동 연면적 3,167.9㎡의 공장공장을 건축하여 1990. 12. 27. 그 소유권보존등기를 마쳤으며, 원고는 1992. 4. 23. 이 사건 토지를 소외회사에 양도하고 소유권이전등기를 하여 주었다.

C. As for the Plaintiff’s lease of this case’s land from May 1, 1989 to March 27, 1992, the Defendant determined that: (a) the Plaintiff’s lease income for one year constitutes non-business real estate stipulated in corporate tax-related Acts and subordinate statutes that was enforced at the time because the annual rent income falls short of a certain ratio of land value; (b) it is reasonable to exclude the Plaintiff’s interest paid for the loan of 1990 business year, 191 business year, 192 from deductible expenses; (c) the amount equivalent to the interest paid (70,85,703 won in 1990; (d) 225,840,773 won in 191; (e) 62,841, 381, and 99 won in corporate tax for 192; and (e) 390,970 won in corporate tax for 19; and (e) 199,390 won in corporate tax amount to be imposed; and (e) 196.3.94.

2. The parties' arguments;

The defendant asserts that the above taxation disposition is legitimate in accordance with the relevant Acts and subordinate statutes, and the plaintiff asserts that the tax disposition of this case is unlawful, since the real estate, the rent of which is limited by the provisions of Acts and subordinate statutes prescribed in Article 18 (3) 11 of the Enforcement Rule of the Corporate Tax Act or the approval of the competent Minister under the Acts and subordinate statutes, and the land annexed to the building, where a person who makes a joint investment with a foreigner leases the land to a foreign-capital invested company under the conditions approved by the government, it falls under the land within the standard area (standard area for factory location) under subparagraph 2 and part of the interest on loans under Article 18-3 (1) of the Corporate Tax

3. Whether the taxation disposition is legitimate

A. First, we examine the relevant laws and regulations.

(1) Article 18-3 (1) of the former Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 190) provides that the amount determined by the Presidential Decree within the limit of the total assets falling under any of the following subparagraphs shall not be included in deductible expenses in calculating the income amount of each business year from among interest on loans paid by a domestic corporation holding assets falling under one of the following subparagraphs, and subparagraph 3 provides that real estate which is not directly related to the corporation’s business shall be excluded from deductible expenses. Article 43-2 (5) of the Enforcement Decree of the same Act (including the Enforcement Decree and the Enforcement Rule of the same Act before it was amended by Presidential Decree No. 13195 of Dec. 31, 190) (including the real estate rent for 190) (including the real estate rent for 20/100 and the land which is not directly related to the corporation’s business under the above Act, and its specific standard area shall be prescribed by the Enforcement Rule No. 150/138 of the Housing Act before it is leased real estate for non-business purposes:

(2) Article 18-3 (1) of the Corporate Tax Act amended on December 31, 190 provides that with respect to domestic corporations which acquire or hold assets falling under any of the following subparagraphs, the amount calculated under the conditions as prescribed by the Presidential Decree (limited to interest on loans equivalent to the value of the concerned assets) shall not be included in deductible expenses in calculating their income amount for each business year; and Article 43-2 (1) of the Enforcement Decree of the Corporate Tax Act (amended by the Presidential Decree No. 13195, Dec. 31, 1990) provides that real estate rent for the first time from the date of entry into force of the above Act; Article 18-3 (1) of the Enforcement Decree of the Corporate Tax Act provides that real estate falling under subparagraph 3 shall be excluded from the date of entry into force of the above Act; Article 18-1 of the Enforcement Decree of the same Act provides that real estate rent for the first time from the date of entry into force of the above Act; Article 18-1 of the Enforcement Rule of the Act shall be excluded;

B. Furthermore, we examine the instant case.

(1) The fact that the instant land falls under the standard area for factory location, and that the amount of rent for one year for the instant land during the year to which the instant tax was attributed falls short of the statutory lease price prescribed in Article 18(3)11 of the Enforcement Rule as seen above (the percentage of the value of the instant land) is not a dispute between the parties.

(2) Article 12(4) of the former Industrial Complex Management Act, which was in force at the time of the lease of the land in this case, provides that an occupant enterprise or support enterprise shall not lease its site, factory and other facilities. However, Article 6(2) of the Enforcement Rule of the same Act provides that an occupant enterprise or support enterprise may lease part of its site, factory and other facilities with the consent of the management agency. Article 12(4) proviso of the Enforcement Rule of the same Act provides that an occupant enterprise or support enterprise shall submit to the management agency a document stating the reason for the lease, a copy of the contract for lease, a detailed statement of the contents of the lease. Article 12(4) of the former Industrial Complex Management Act, which was enacted and promulgated on January 13, 190 and enforced on January 13, 191, shall be removed from Article 2 of the Addenda of the Industrial Complex Management Act, and Article 39(4) of the Enforcement Decree of the Industrial Complex Management Act (amended by the Ordinance of the Ministry of Land, Infrastructure and Transport, Jan. 7, 1994).

On the other hand, if the statement Nos. 1 and 2 of the evidence Nos. 5-1 and 2, testimony for the replacement of the witness, and the result of the fact-finding conducted by the Minister of Trade, Industry and Energy, the plaintiff submitted to the Minister of Trade, Industry and Energy an application for the lease agreement with the Minister of Trade, Industry and Energy on February 17, 1989 regarding the lease of the land of this case, including the area, the lease period, and the lease price (the lease deposit amount). However, the lease period was stated as KRW 450,00,00 on February 1, 1989, and the lease price was stated as KRW 450,00,00, and the copy, etc. of the lease agreement was submitted to the Minister of Trade, Industry and Energy on the condition of the lease agreement. The plaintiff submitted the first lease deposit to the Minister of Trade, Industry and Energy, but rejected the application for the lease agreement with the Minister, Industry and Energy, and there is no counter-proof.

According to the above Acts and subordinate statutes and the facts of recognition, the lease of the land in this case constitutes a case where the rent is limited by the approval of the competent Minister pursuant to the provisions of Article 18 (3) 11 of the Enforcement Rule, and the land in this case is excluded from non-business real estate in this respect.

(3) The fact that the land in this case was leased to use as a site for H-H manufacturing factories of the non-party company, a joint venture, was seen earlier. The defendant asserts that the land in this case was attached only to the new building owned by the leased corporation and the land in this case was not leased because the plaintiff did not own the land attached to the plaintiff's factory building. Thus, it does not constitute a ground for exclusion from non-business real estate as stipulated in Article 18 (3) 11 of the Enforcement Rule of the Corporate Tax Act because the land in this case was not leased. However, in comparison with the related provisions of the Act and the Enforcement Decree, it is reasonable to exclude the land in this case from the standard area of non-business real estate in this case, since the above provision of the Act and the proviso of Article 18 (3) 11 (b) of the above Rule (the previous provision also purport with the same purport in its contents) in case where the land in this case is leased to a foreign-capital invested company. It is reasonable to exclude the land in this case from the above standard area of non-business real estate.

(4) Therefore, since the land of this case does not fall under non-business land prescribed by the relevant laws from the business year 1990 to the business year 192, the amount equivalent to the interest paid on the loan of this case should be included in the calculation of losses. Thus, the defendant's taxation of this case, which was calculated by non-business inclusion in the calculation of losses, is not unlawful

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the taxation disposition of this case is justified, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition.

May 29, 190