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

Whether or not to lend a house to a homeless employee shall be determined in light of the time of acquisition, the date of establishment registration of neighboring mortgage, etc.

In the event that the date of registering the establishment of a mortgage is earlier than the date of acquisition of the relevant house with respect to a loan to homeless employees, if the date of registration of the establishment of a mortgage and the date of acquisition of the relevant house are equal, and if the registration of the establishment of a mortgage is completed within three months from the date of acquisition of the relevant association's house from

2010Nu431 Revocation of Disposition of Corporate Tax Imposition

AAAA

○ 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 tax amount calculated by the defendant ○○ Head of the tax office exceeds 568,653,69, and 490 won in the imposition of corporate tax for 1993 on March 22, 199, and ② the tax amount calculated by adding 872,651,200, special rural development tax for rural development tax for 49,848,070, and the amount calculated by adding 872,651,200, and special rural development tax for 39,457,740 won, and the amount calculated by adding 815,215,390,397, and 390 won in the imposition of corporate tax for 1993, and the amount calculated by adding 1,132,142,142, and 150,000 in the imposition of corporate tax for 194, 1995, and 3630,251,25,290.1.

(2) On March 15, 2002, the portion exceeding 598,237,370, and 563,830, and 830 won of corporate tax in the year 1996 when the head of ○○○○ Tax Office imposed corporate tax in the amount of KRW 759,563,820, and special rural development tax in the amount of KRW 574 and 200.

Each cancellation shall be revoked.

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

2. Of the total costs of litigation, the part arising between the Plaintiff and Defendant ○○ Head of the tax office is 4 minutes, and 3 minutes are borne by the Plaintiff, the remainder is borne by Defendant ○○ Head of the tax office, and 5 minutes between the Plaintiff and Defendant ○○ Head of the tax office, and 4 minutes are borne by the Plaintiff, and the remainder is borne by Defendant ○○ Head

1. Purport of claim

The head of ○○ Tax Office revokes the imposition of the Plaintiff for the business year 1993, the corporate tax of 748,653,690, the corporate tax of 1994 1,132,142,142, and 150, the special tax in agricultural and fishing villages 49,848,070, the corporate tax of 1995 815,215,390, the special tax in agricultural and fishing villages 37,063,980, the special tax in agricultural and fishing villages 37,063,980, the tax amount of 1996 521,660, the special tax amount of 210, the special tax in agricultural and fishing villages, the special tax in agricultural and fishing villages 37,063,980, the special tax amount in 1996 521, the special tax in rural and fishing villages 4350, each of the tax amount in 2005,59.7.15

2. Purport of appeal

Of the judgment of the first instance, the part against the plaintiff seeking revocation is revoked. The decision of the court of first instance against the plaintiff shall be revoked by the head of the tax office of ○○ for the year 1993, the corporate tax of 708, 117, 893 on March 22, 199, the corporate tax of 1993, the corporate tax of 1,071,603,662 on March 15, 200, the special tax in agricultural and fishing villages of 47,423,956, the corporate tax of 759,251, 222, the special tax in agricultural and fishing villages of 195 for the year 195, and the special tax in farming and fishing villages of 34,671,660, the corporate tax of 503,820, the corporate tax of 198, and the special tax for rural development of 205,198, and the tax imposition shall be revoked for each of the plaintiff.

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 OO1 [the former EEE (hereinafter referred to as the "EEE") was merged with the former EEE (hereinafter referred to as the "former EEE") on January 6, 199, and its trade name was changed to the FFF, and its trade name was changed to AAAAAAAA on May 20, 2002], which is a non-permanent employee (a non-permanent employee who is not an officer) of the plaintiff, to whom the funds required for the acquisition and lease of housing below the national housing size defined in the Housing Construction Promotion Act were loaned at an annual interest rate of 1%, which is lower than the normal interest rate.

(2) The director of the tax office of ○○○○ Tax Office, based on the new handling date stated in the "Detailed Statement of Housing Fund Loans" submitted by the Plaintiff around February 199, (1) acquired a house before the Plaintiff’s employees and completed the registration of ownership transfer (i.e., where a new house is acquired after acquiring a new house), (2) acquired a new house with a new loan prior to the transfer of a previous house, and (3) acquired a house exceeding the scale of national housing with a loan of a national housing fund, and (4) additionally acquired a new house after acquiring a house below the scale of national housing (hereinafter referred to as “the loan of this case”) on the ground that the loan of the Plaintiff’s employees (hereinafter referred to as “the employees of the Plaintiff who received the loan corresponding to the above through the above”) is an amount of temporary payment irrelevant to the duties paid to the employees of the related parties, and (4) calculated under the former Corporate Tax Act (amended by Act No. 5581, Dec. 28, 1998; hereinafter the same shall apply) and (4).7).

B. Imposition and reduction of corporate tax for the business year 1993 by the head of ○○ Tax Office

(1) The head of the ○○ Tax Office imposed corporate tax 1,262,487,650 on the Plaintiff on March 22, 1999 (or 907,125,880 won for the former EE, 355,361,770 won for the former DD) by adding the difference between the interest on low-income loan for housing and the amount equivalent to the interest calculated on the basis of the monthly interest rate for 1993 to its gross income.

(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 ○○ Tax Office

(1) On March 15, 200, the head of the tax office imposed corporate tax of KRW 1,132,142,150,150 and special rural development tax of KRW 49,84,070 on the plaintiff for the business year 194 by adding the tax of KRW 2,149,642, and 684 in the same way as above to gross income.

(2) The plaintiff filed an objection against the above defendant on June 13, 200, but the above defendant rejected the request for adjudgment on July 14, 200 of the same year, and on October 6, 2000, the plaintiff made a decision of dismissal to the Director of the National Tax Tribunal, and on July 11, 200, the Director of the National Tax Tribunal made a decision of partial acceptance to correct the pertinent tax base and tax amount by re-auditing whether the loan to the lender of housing funds, etc. within three months from the date of house acquisition constitutes a loan under the proviso of Article 46 (2) 7 of the former Enforcement Decree of the Corporate Tax Act, but the above defendant did not make a separate decision of dismissal thereafter.

D. Imposition of corporate tax and special tax for rural development for the business year 1995 by the head of ○○ Tax Office

(1) On March 12, 2001, the head of the tax office imposed corporate tax of 815, 215, 390, and 37,063, and 980 on the plaintiff for the business year 1995 by adding corporate tax of 2,243,393, and 782 in the same way as above to gross income.

(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 dismissed the request on September 14 of the same year.

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

(1) On February 1, 2002, Defendant ○○ Head of the tax office imposed corporate tax of KRW 521,660,210 and special rural and fishing villages tax of KRW 43,450 on the Plaintiff (former EEE part) by including corporate tax of KRW 1,094,032,34 in the above way as to the annual business portion 196 in the above way, and imposed corporate tax of KRW 521,660,210, and special rural and fishing villages tax of KRW 43,450 on this. On May 2, 2002, the Director of the National Tax Tribunal requested the Director of the National Tax Tribunal for the

(2) On March 15, 2002, the head of the defendant ○○○○ Tax Office imposed corporate tax of KRW 75,563,820 and KRW 574,200 on the part of the plaintiff (former DD parts) for the business year 1996 by adding corporate tax of KRW 1,589,650,797 in the above way as to the portion of the business year 1996 to the gross income. On May 3, 2002, the plaintiff filed a request for the adjudgment with the Director of the National Tax Tribunal, but the Director of the National Tax Tribunal rejected the request 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;

At the first instance court, the Plaintiff sought revocation of the imposition of KRW 43 and 450 on February 1, 2002 by the head of ○○○○ Tax Office, and the court of the first instance rejected the said request. As the Plaintiff did not appeal on its part, the special taxation 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 7486369,690, and KRW 708, KRW 117 and 893, and KRW 205, KRW 197, KRW 200, KRW 200, KRW 2136, KRW 250, KRW 297, and KRW 296, KRW 305, KRW 296, and KRW 305, and KRW 97, KRW 196, and KRW 29,57, and KRW 3016,57, and KRW 29707.36,5, and

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 the loan of housing on the basis of the latest date of repayment, not the first loan date for the Plaintiff’s employees, and when housing funds are exchanged, it was impossible to clarify the date of the first loan because only the loan agreement, etc. prepared at the time of substitution, was discarded when the former loan documents are exchanged and only the loan agreement, etc. prepared at the time of substitution.

O The head of ○○ Tax Office demanded the submission of the loan specifications rapidly on the ground that there was no long-term period of national tax exclusion, so once available computer loans were submitted by stating the date of new transaction as the new transaction date, but it was disregarded even though it was recently known to the tax official in charge that most of the computer loans fall under exchange days and did not fall under the first loan day.

O Housing Association's housing and most houses including the housing have been loaned prior to the establishment of the right to collateral security, and since the establishment of the right to collateral security has been completed by acquiring the ownership of the housing thereafter, the first loan date is the same as or ahead of the date of the establishment of the right to collateral security.

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

O) Therefore, in calculating the unfair act of loans of this case, the defendant should 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 employee who received the loan of housing fund 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 person who received the loan was using the loan as housing acquisition fund, and the fact that the person who received the loan used it as housing acquisition fund is proved to have sufficiently proven the fact 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, and the loan was directly deposited from the Plaintiff bank to housing association, 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 법인이 그 사용인에게 금전 등을 낮은 이율로 대부한 경우에 그 행위는 원칙 적으로 구 법인세법 시행령 제46조 제2항 제7호 본문에 해당하여 부당행위계산부인의 적용대상이 된다. 그러므로 법인이 그 대부행위에 대한 부당행위계산부인의 적용을 배 제하려면, 구 법인세법 시행령 제46조 제2항 제7호 단서가 정한 요건, 즉 ㉮ 대부받은 사용인이 무주택자이고, 생 사용인이 취득하거나 임차한 주택이 국민주택규모 이하의 규모이며，㉯ 보조금의 지급금액이 구 법인세법 시행규칙 제22조 제1항에서 정한 2，000만원을 초과하지 아니한다는 3가지 요건이 모두 충족됨을 입증하여야 할 것이다. ㉰ 구 법인세법 시행령 제46조 제2항 제7호 단서에서 정한 '무주택사용인'에 해 당하는지 여부는 그것이 원인무효이거나 다른 특별한 사정이 없는 한 건물등기부에 주택을 소유한 것으로 기재되어 있는지 여부에 따라 판단하여야 하고, 또한 원칙적으로 주택취득자금의 대부시에 무주택자일 것을 요한다. 다만, 법인이 채권의 보전을 위하여 담보대출을 원칙으로 하는 관계로 무주택사용인이 부득이 다른 자금으로 주택을 먼저 취득한 후 그 주택을 담보로 제공하고 법인으로부터 주택자금을 대부받아 주택취득자금을 상환하였다면 구 법인세법 시행령 제46조 제2항 제7호 단서 규정의 입법취지에 비추어 그 단서 소정의 무주택사용인에 해당한다고 봄이 상당하다.

(2) If a person applies for a loan in a homeless situation and receives a loan after acquiring a house, it shall be deemed that the case falls under the proviso, unless there are special circumstances. However, in case where a person receives a loan after applying for a loan, he shall independently acquire a house, it shall be done at the time near the acquisition of the house, 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 the house, it may be excluded from the application of the unfair calculation method

③ 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 redemption of the house concerned shall be asserted and verified by the corporation’s side that intends to exclude the application of the avoidance of wrongful calculation and calculation. However, if the application for the loan was made before acquiring the house, it can be presumed that the loan was actually used for the redemption of the house acquisition fund.

(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 to purchase a house without a house, but he received a loan within 3 months after acquiring a house due to the loan due to the problem in the loan procedure, it is reasonable to view that the employee constitutes a "employee without a house" under the proviso. In such a case, the burden of proof as to whether the loan made before and after the acquisition of a house takes place in 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 by applying for the loan at a close time after acquiring the house due to the loan procedure problems, the loan to such employee is highly likely to be the fund required for acquiring the house. In such a case, even if the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act is deemed to be a homeless employee under the ordinary social norms, it cannot be said that it is unfair by disregarding the economic rationality in light of social norms. Therefore, in such a case, without any separate proof as to “the fund was used for the repayment of the fund required for acquiring the house in question,” the loan to a homeless employee under the proviso can be recognized as a loan

(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 date of new treatment of the loan is estimated as of the date when the mortgage was transferred to a new house, it is difficult for the plaintiff to use the new house as the date when the mortgage was established. Therefore, if the loan is established as a new house, it is hard to use the new house as the date when the loan was established as the date when the loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was held as the date when the first loan was made within three years before the date when the loan was held as the date when the first loan was held as the date when the loan was made within 193 months.

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, leapG (************************)) on August 17, 1987, the date of the establishment registration of a mortgage on the place of the Plaintiff’s establishment of a mortgage on August 19, 1987, there is no dispute between the parties as to the fact that the date of the establishment registration of a mortgage on the place of the Plaintiff’s submission was earlier than June 19, 1987, and the fact that the Plaintiff filed an application for a loan before acquiring a house and received the loan is presumed to have been. Accordingly, 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 economic rationality is neglected, and the “the fund was used for the repayment of the funds used for acquiring the relevant house,” and it shall be excluded from the subject of the act of denial of a loan by deeming it to be an unfair act of housing purchase.

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

In light of the following facts, among the Plaintiff’s employees, the date of registration of creation of a neighboring mortgage and the date of acquisition of the relevant house are the same, there is no dispute between the parties. In full view of the overall purport of the pleadings at the testimony of the first instance court witness Hah and the first instance court witness Hah (except for the portion not trusted in the rear) and the overall purport of the pleadings, this case’s loan to the Plaintiff’s employees, who are not the general public, may be acknowledged as having been established as a collateral on the next day of the date of application for loan. In light of the above, if the date of registration of establishment of a neighboring right is the same as the date of acquisition of the relevant house, it is reasonable to view that the time of application for withdrawal of the loan secured by the collateral is more advanced than the date of acquisition of the house unless there are special circumstances. Accordingly, in light of the above legal principle as seen earlier, it cannot be said that the economic rationality is unreasonable because it constitutes a non-existent employee under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act.

(4) The Plaintiff’s assertion that the portion of the loan funds of the association was acquired within 3 months from the date of acquiring the Plaintiff’s house under the name of the association and that the establishment registration was made for the said employees to acquire the house under the name of the association is not subject to dispute between the parties as stated below. The Plaintiff’s assertion that the loan funds of the association should not be used for the purpose of acquiring the house under the name of the association within 13 months prior to the date of acquiring the house under the name of the association. The Plaintiff’s assertion that the loan funds of the association should not be used for the purpose of acquiring the house under the conditions as stated in the proviso of Article 4(1), (4), (6) of the former Housing Construction Promotion Act, and Article 42(3) and (9) of the Enforcement Decree of the same Act, because there were no reasonable grounds to acknowledge that the loan funds of the association were to be used under the name of the head of the association within 1 to 3 years prior to the date of acquiring the house under the name of the association. The Plaintiff’s assertion that the loan funds should be used for the association.

(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, if the Plaintiff’s employees’ title of the instant loan is presumed to have been acquired within 3 months after the Plaintiff’s acquisition of the instant loan, it shall not be applied to the Plaintiff’s wrongful acquisition of the loan. However, if the date of establishment of a mortgage was conducted within 3 months after the acquisition of the relevant house, it shall be deemed that the loan was also made within 3 months after the acquisition of the relevant house. Thus, according to the Plaintiff’s reasoning that the Plaintiff’s provision on “loan” under Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act was not applicable to the Plaintiff’s transfer of ownership as collateral at the time of acquisition of the relevant house (Article 11(1)) and that the Plaintiff’s application for a housing loan should not be deemed to have been made within 1 months after the date of acquisition of the relevant loan, and that the Plaintiff’s application for a new house loan under the premise that the loan was made within 3 months after the date of acquisition of the relevant house by means of wrongful calculation.

The plaintiff's assertion in this part is without merit.

(f)Indembar;

Then, the plaintiff's assertion in this case is 1. 5 0 6 , 1. 2 0 5 0 , 2 1. 3 0 5 , 2 9 0 , 3 9 , 2 9 , 3 9 , 3 9 , 1. 5 , 3 0 , 9 , 1. 7 , 3 9 , 4 , 9 , 9 , 9 , 1. 7 , 4 , 9 , 9 , 7 , 9 , 9 , 9 , 7 , 9 , 9 , 7 , 9 , 7 , 9 , 9 , 7 , 9 , 9 , 7 , 9 , 9 , 9 , 9 , 7 , 9 , 9 , 00 . . . . . . . . 5 . . .

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.