Seoul Administrative Court-2015-Gu 72825 ( October 22, 2016)

It is premised on the fact that ‘deductible expenses' is legally included in the amount included in deductible expenses under Article 11 (7) of the Enforcement Decree of the Corporate Tax Act.

The returned amount included in the calculation of earnings in the business year 2009 shall not be deemed as the calculation of losses that should not be included in the calculation of losses in the business year 2004, i.e., the returned amount of losses in the business year 2004.

Article 11 of the Enforcement Decree of the Corporate Tax Act

2016Nu35412 Revocation of revocation of the imposition of additional tax

○ ○ Private Teaching Institutes

○○ Head of tax office

November 4, 2016

December 2, 2016

1. Revocation of a judgment of the first instance;

2. On January 10, 2014, the Defendant’s disposition of imposition of penalty tax of KRW 00 of the corporate tax attributed to the Plaintiff for the business year 2009 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, as an educational foundation under the Private School Act, operated the ○○ Automobile Private School and the ○○ Automobile Private School. The Plaintiff’s business year was from March 1 of the previous year until February 28 of the previous year.

B. On March 26, 1998, the Plaintiff sold the ○○ Automobile Private Teaching Institute to ○○○○○○○○○○○○○ on January 5, 1999, and then appropriated the amount equivalent to KRW ○○ billion, which is the difference between the total purchase price and the book value, as a tangible asset disposal profit, at the time of filing a corporate tax return for the business year 1999, the Plaintiff appropriated the amount equivalent to KRW ○○ billion, which is the difference between the total purchase price and the book value, as a tangible asset disposal profit, as a reserve for the proper purpose business, and included the amount equivalent to KRW

C. After that, when filing a corporate tax return for the business year 2004, the Plaintiff included ○○○○○, which was not used for the proper business purpose by the fifth anniversary of the end of the business year 1999, in the deductible expenses, in the gross income by appropriating ○○○○, which was not used for the proper business purpose business, as the non-business profit in the business year 2004, and at the same time, ○○○

라. 그리고 원고는 또다시 2009 사업년도 법인세를 신고하면서, 위와 같이 2004 사업연도에 설정하여 손금에 산입한 고유목적사업준비금 중 2004 사업연도 종료일 이후 5년이 되는 날까지 고유목적사업에 사용하지 않은 ■■■원을 2009 사업연도의 영업외수익으로 계상하여 익금에 산입함과 동시에 △△△원을 재차 고유목적사업준비금으로 설정하고 영업외비용으로 계상하여 손금에 산입하였다(별지 1 참조).

E. On June 19, 200 to August 3, 2009, the director of the Seoul Regional Tax Office notified the Defendant of the fact that the Plaintiff, on the ground that the Plaintiff established a reserve fund for the proper purpose business, was excluded from the income subject to the establishment of the reserve fund, that the amount of earnings returned to the Plaintiff for the proper purpose business, which was not used within five years, should be deducted from the income subject to the establishment of the reserve fund. Accordingly, on January 10, 2014, the Defendant notified the Plaintiff of the correction and notification of the amount of ○○○ (including additional tax ○○) of the corporate tax belonging to the business year 2009 (hereinafter “instant disposition for the imposition of the corporate tax”).

F. The Plaintiff filed an appeal with the Tax Tribunal on the disposition of imposing additional tax (hereinafter referred to as the “disposition of imposing additional tax”) among the above disposition of imposing additional tax, but the Tax Tribunal dismissed the Plaintiff’s appeal on June 9, 2000.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 3 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

한번 고유목적사업준비금으로 설정되었다가 사용되지 않는 잔액은 그 설정일로부터 5년이 경과하는 날이 속하는 사업연도에 반드시 과세되어야 하므로, 이 사건의 경우 원고가 1999 사업연도의 법인세 신고시 고유목적사업준비금으로 설정하였다가 2004 사업연도 종료일까지 사용하지 않은 ○○○원은 전액 영업외수익으로 익금산입되어 최종 과세되었어야 하고 더 이상 손금에 산입될 여지가 없었다. 그럼에도 불구하고 원고가 2004년도 사업연도의 법인세 신고시 그 중 ○○○원을 다시 고유목적사업준비금으로 설정하고 영업외비용으로 계상하여 손금산입한 것은 부적법하므로, 피고는 마땅히 부과제척기간이 도과되기 전에 2004 사업연도의 손금산입을 부인하고 법인세를 경정・고지하는 부과처분을 했어야 한다. 따라서 원고가 위 2004 사업연도의 손금산입이 적법한 것을 전제로 또다시 그 중 고유목적사업에 미사용한 ■■■원을 2009 사업연도의 영업외수익으로 계상하였다한들 그것이 2009 사업연도의 익금이 될 수가 없으므로, 원고가 그와 같이 존재하지 않는 익금을 전제로 재차 고유목적사업준비금 설정 및 손금산입한 것이 부인된다고 하더라도 그만큼 익금이 증가할 수가 없어 이 사건 법인세 부과처분은 그 자체가 위법하다.

Even if not, since the plaintiff filed a corporate tax return in 199, it is believed that the business year is legally authorized to set the reserve fund for proper purpose business and to include the expenses in deductible expenses as above, based on the Corporate Tax Act, the Enforcement Decree, relevant general rules, and the regulations related to the establishment and return of the reserve fund for proper purpose business, etc., and thus, it is unlawful to impose the penalty tax in this case on the ground that there is a justifiable reason that it is not likely to cause

3. Related statutes;

Attached Form 2 shall be as listed in attached Table 2.

4. Determination

(a) Legal nature of inclusion in the calculation of losses in the business year 2004 and whether the exclusion period of imposition expires;

1) Whether the establishment of reserve funds for proper business purposes and inclusion in deductible expenses in the business year 2004 is legitimate

Article 29 (1) of the former Corporate Tax Act (amended by Act No. 7838 of Dec. 31, 2005; hereinafter referred to as the "former Corporate Tax Act") provides that "where non-profit domestic corporations (limited to organizations prescribed by the Presidential Decree in the case of organizations deemed corporations) have appropriated reserve funds for proper business purposes as deductible expenses within the scope of the total amount under the following subparagraphs for their proper business purposes or designated donations (hereafter referred to as " proper business purposes, etc." in this Article)" in each business year, they shall be included in deductible expenses in calculating their income for the corresponding business year, and they shall include the interest income amount and dividend income amount under subparagraphs 1 through 3 and 50/100 (referring to the amount calculated by multiplying the amount of income generated from profit-making businesses other than those under subparagraphs 1 through 3 of Article 7 of the former Enforcement Decree of the Corporate Tax Act by 80/100 where they have appropriated funds for proper business purposes other than those under subparagraph 2 of the same Article for proper business purposes by the date."

In full view of the above provisions, even if there are incomes which are subject to corporate tax, such as interest income and dividend income in a non-profit domestic corporation and income generated from profit-making business in the concerned business year, if the concerned corporation intends to appropriate them as reserves for its proper purpose business and use them for its proper purpose business within five years, it shall be allowed to include them in the calculation of losses, and where it is not used for the proper purpose business within five years, it shall be allowed to withdraw the corporate tax exemption and impose corporate tax again if the exempted reserves for proper purpose business are not used for the proper purpose business within five years. This is rather than used for the purpose of profit-making business or for holding assets not directly related to the proper purpose business, the legislative purpose of the former Corporate Tax Act is to use them as soon as possible for the proper purpose business itself

In addition, considering the contents of Article 3 (2) 1 through 6 of the former Corporate Tax Act, Article 2 of the former Enforcement Decree of the Corporate Tax Act, and Article 56 (3) of the former Enforcement Decree of the Corporate Tax Act clearly limit income generated from profit-making business under Article 29 (1) 4 of the former Corporate Tax Act to "income generated from profit-making business in the pertinent business year", and the legislative purport of the above provisions that the exempted reserve fund for proper purpose business under Article 29 (1) 4 of the former Corporate Tax Act intends to use the exempted reserve fund for proper purpose business as soon as possible within a certain period of use, if a non-profit domestic corporation that included the reserve fund for proper purpose business in deductible expenses has any balance remaining after five years from the date it is used for the proper purpose business or designated donation, it shall be deemed that the reserve fund for proper purpose business is included in deductible expenses within five years from the date it is included in the "income generated from profit-making business in the pertinent business year", and shall not

Therefore, ○○○○ out of the balance of the reserve fund for essential business in 1999 returned by the Plaintiff in 2004 was included in the total amount of gross income in the business year of 2004 and could not be included in the deductible expenses. Thus, the Plaintiff should have included the ○○○ in the deductible expenses as above when filing a report of the corporate tax in 2004.

2) Whether the exclusion period for imposition of corporate tax for the business year 2004 has lapsed

Meanwhile, as a matter of principle, taxes in the form of tax return, such as corporate tax, shall not be imposed after the lapse of five years from the date on which a taxpayer is entitled to impose national tax (Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 7329 of Jan. 5, 2005). If a taxpayer fails to file a return of tax base within the statutory due date of return, the tax liability shall be determined when the taxpayer voluntarily determines the tax base and amount of tax, and if there is no return or omission in the return, the tax liability shall be determined by the determination or correction of the tax authority. Meanwhile, national tax shall not be imposed after the lapse of five years from the date on which the tax base and amount of tax can be imposed (Article 10(1)3). If a taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means, it shall not be imposed after the expiration of the statutory due date of return (Article 12-3(1)1 of the Enforcement Decree of the same Act).

In this case, as seen earlier, it should be deemed that the Plaintiff, while filing a corporate tax return on May 2004, set up ○○○○ as the reserve for the proper purpose business as above and added the deductible expenses again, should have been deemed as having been deductible expenses by the Defendant. However, even if the period of exclusion of corporate tax is the maximum period, it seems that the Defendant did not take a disposition of correction on the corporate tax for the 2004 business year from the expiration of the statutory due date of return (within three months from the month belonging to the expiry of the business year, and in this case, May 31, 2004) until the closing date of the argument in this case, ten years from the expiration of the statutory due date of return (in this case, May 31, 200) until the closing date of the argument in this case.

B. Whether the inclusion in the gross income in the business year of 2009 is legitimate

그런데 앞서 인정한 사실관계에 의하면, 원고 역시 2009 사업연도 법인세 신고를 하면서 2004 사업연도의 위 ○○○원의 손금산입이 적법한 것이었음을 전제로 그 중 5년간 고유목적사업에 사용하지 않은 ■■■원을 다시 2009 사업연도의 영업외수익으로 계상하여 익금으로 산입하였으므로, 이를 법인세법상 새로운 익금으로 볼 수 있는지 여부에 관하여 살피건대, 구 법인세법(2010. 1. 1. 법률 제9924호로 개정되기 전의 것) 제15조와 구 법인세법 시행령(2010. 2. 18. 대통령령 제22035호로 개정되기 전의 것) 제11조는 익금의 범위에 대하여 '당해 법인의 순자산을 증가시키는 거래로 발생하는 모든 수입'을 의미하는 순자산증가설에 입각하여 여러 가지 예시적 규정을 하고 있다. 그 중 특히 위 구 법인세법 시행령 제11조 제7호는 '손금에 산입한 금액 중 환입된 금액'을 익금으로 보고 있으나, 어디까지나 여기에서 말하는 '손금'은 적법하게 산입된 것임을 전제로 한다고 할 것이므로, 원고의 위 2009 사업연도의 고유목적사업준비금 환입과 같이 2004년 사업연도에 손금으로 산입되지 말았어야 할 손금, 즉 2004년 사업연도의 부적법한 손금산입을 환입한 경우에는 위 조항의 익금에 해당한다고 볼 수 없다. 그리고 그밖에 달리 2004 사업연도의 익금으로 과세되었어야 할 금액이 잘못 이연된 결과로 인하여 원고에게 발생한 위 환입금에 관하여 이를 2009 사업연도에 대한 법인세법상의 익금에 해당한다고 해석할 수 있는 아무런 법령상의 근거가 없는바, 결국 이러한 결과는 원고의 2004 사업연도의 법인세에 대한 부과제척기간이 경과한 당연한 귀결이라고 할 것이다.

C. Sub-committee

따라서 원고가 2009 사업연도에 익금으로 산입한 ■■■원은 법인세법상 2009 사업연도의 익금에 해당한다고 볼 수 없으므로, 위 금원이 익금에 해당함을 전제로 하여 그 중 △△△원에 관하여 한 원고의 손금산입 및 이에 대한 손금부인을 이유로 한 피고의 이 사건 부과처분은 모두 위법하다.

5. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition imposing the penalty tax of this case shall be accepted on the ground of the reasons, and the judgment of the court of first instance shall be revoked on the ground that it is unfair to conclude otherwise, and it is so decided as per Disposition