Supreme Court-2014-Du-4301 (Law No. 29, 2017)

A person with a special relationship shall provide a company house to a person with a special relationship free of charge or as a rent below the market price, and when the expenses for the maintenance of the company house are paid, it shall

Where private housing is provided to a person with a special relationship with no compensation or at a rent lower than the market price, it is subject to unfair calculation, and the maintenance expenses, management expenses, user fees, and related expenses for private housing used by stockholders (not including minority shareholders), contributing executives of the corporation, or their relatives shall not be selected by either of them.

Article 27 of the Corporate Tax Act, Article 52 of the Corporate Tax Act

2017Nu7180 Revocation of Disposition of Imposing corporate tax, etc.

K○○ Shipping, Inc.

○ Head of tax office

Seoul Administrative Court Decision 2013Guhap57266 decided March 21, 2014

[Attachment Judgment]

Seoul High Court Decision 2014Nu48230 Decided October 2, 2014

Supreme Court Decision 2014Du43301 Decided August 29, 2017

November 15, 2017

December 20, 2017

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

Of the disposition imposing corporate tax on the Plaintiff on March 2, 2012, 54,924,960 won (including additional tax), 40,434,144 won, corporate tax for the business year 79,625,769 (including additional tax), the amount exceeding 45,718,210 won, and 105,74,580 won (including additional tax) of corporate tax for the business year 2007; the amount exceeding 56,209,49,497, 768,650 (including additional tax); the amount exceeding 63,867,80,80, 897, 2079, 2747, 2067, 209, 20747, 209, 20747, 209, 3067, 479, 279, 2798, 2794, 2067, 27984, 2067

2. The plaintiff's remaining appeal is dismissed.

3. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance shall be revoked. The defendant's imposition of corporate tax of KRW 54,924,960 (including additional taxes), ② the imposition of corporate tax of KRW 79,625,769 (including additional taxes), ② the imposition of KRW 1,268,112 among the imposition of corporate tax of KRW 79,625,769 (including additional taxes), and KRW 105,774,580 (including additional taxes) among the imposition of corporate tax of KRW 7,709,654, corporate tax of KRW 80,76,478,650 (including additional taxes), and the imposition of KRW 62,76,478,478, KRW 797, KRW 1967, KRW 2089, KRW 2097, KRW 7689, KRW 4798, KRW 2097, KRW 2097, KRW 197, KRW 2097, KRW 289, KRW 2097,8196, KRW 2797,79496,86,27.

1. Details of the disposition;

The reasoning for this part of this Court is that the relevant part of the reasoning for the judgment of the court of first instance is the same as that for the corresponding part of the reasoning for the judgment of the court of first instance (as stated in the second to fourth, the second to fourth). Thus, the meaning of the language used in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (as stated in the

2. Whether the instant disposition is lawful

A. Change of the defendant's grounds for disposition

After remanding on November 10, 2017, pursuant to the purport of the judgment of remanding at the trial, the Defendant: (a) included the reason for disposal related to the provision of the instant real estate in the instant disposition; (b) the Plaintiff’s act of providing the instant real estate at no charge or at a low price to Park○○○○; hereinafter the same shall apply); (c) Article 52(1) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same shall apply); (d) Article 88(1)6 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010; hereinafter the same shall apply); and (d) included the difference between the market price of the instant real estate rent and the rent the Plaintiff received from Park○○ in gross income pursuant to Article 89(1), (2), and (4) of the Enforcement Decree.

B. The plaintiff's assertion

The Plaintiff asserts as follows as to the grounds for disposition that the Defendant changed as above (the Plaintiff’s assertion as to whether the interest income of this case in the disposition of this case was shipping income was withdrawn from the trial after remand).

1) The Plaintiff provided the instant real estate, which is a company house owned by the Plaintiff, at no charge or at a low price, to Park ○○○. The Plaintiff provided a company house free of charge to other executives and employees, and the provision of the instant real estate, which is a company house at no charge or at a low price, does not constitute an unfair act unreasonably reducing tax burden. Thus, the Plaintiff’s provision of the instant real estate to Park ○○ without charge or at a low price, cannot be deemed as subject to unfair act and calculation under Article 52(1) of the former Corporate Tax Act and Article 88(1)6(b) of the Enforcement Decree of the Corporate Tax Act (in light of the provisions of Article 88(1)6(b) of the former Enforcement Decree of the Corporate Tax Act, where a company house is provided at a lower price to shareholders or contributors rather than to employees who are not shareholders or investors

2) Even if the instant real estate provided at no charge or at a low price to Park ○○ is subject to the avoidance of wrongful calculation, it is logical contradictory in light of the following: (a) exclusion of the instant real estate from deductible expenses in addition to the difference between the market price of the instant real estate rent and the rent actually received; and (b) exclusion of the cost of maintaining and managing the instant real estate from deductible expenses in addition to the lessor’s profit.

C. Relevant statutes

Attached Form 1 is as shown in the relevant statutes.

(d) Facts of recognition;

1) On October 26, 2005, the Plaintiff purchased the instant real estate from Fin○ Co., Ltd. and completed the registration of ownership transfer and the registration of ownership preservation on July 28, 2006 and June 1, 2007, respectively.

2) Since April 207, 2007, after completion of the above building, Park○ entered into a lease contract with the rent of KRW 18 million per annum on October 29, 2008 and the term of the lease from November 1, 2008 to October 31, 2009, and extended that contract by December 31, 2010.

3) As of October 26, 2007, Park○-○ owned 27.06% of the Plaintiff’s shares as of October 26, 2007 as the largest shareholder. From around 2006 to around 2010, the time when the instant disposition became vested, the Plaintiff was serving as the advisor.

[Ground of recognition] Facts without dispute, Gap evidence 5, Gap evidence 6-1, 2, Gap evidence 7, Eul evidence 3, 7, 8, 10, and 13, and the purport of the whole pleadings

E. Determination

1) First, as alleged by the Plaintiff, the concept of "private housing", as alleged in the first argument, includes that the employee provides a house owned by the employer free of charge or at a low price to its executives and employees. However, Article 88 (1) 6 (b) of the former Enforcement Decree of the Corporate Tax Act only provides a company housing (including a lessee's house as provided by Ordinance of the Ministry of Strategy and Finance) to shareholders, etc., executives who are not investors or investors (including minority shareholders, etc.) and employees as one type excluded from the object of unfair calculation from the case of lending or providing money, assets, or other services free of charge or at an interest rate, rate, or rent lower than the market price. Since the above provision provides a company housing to the shareholders, etc., investors, or employees who are not investors or investors, the above provision can not be seen as being subject to unfair calculation and determination, and as such, it does not constitute a case where the company housing is provided to executives or employees who are not investors or investors, or where the company housing is provided to the shareholders, etc. or employees, it does not constitute unfair calculation.

2) Next, in the case of a general lease as alleged by the Plaintiff, even if the rent includes the portion corresponding to the expenses for the maintenance and management of the relevant real estate, the provision of assets free of charge or at low-price in the form of wrongful calculation avoidance under Article 52(1) of the former Corporate Tax Act and Articles 88(1)6, 89(2), (4), and (5) of the former Enforcement Decree of the Corporate Tax Act provides that the difference between the market price of the rent and its gross income shall be included in the calculation of earnings, and Article 27 subparag. 2 of the former Corporate Tax Act and Article 50(1)2 of the former Enforcement Decree of the Corporate Tax Act provide that the maintenance expenses, management expenses, user fees, and other related expenses for the private house used by the relevant corporation’s stockholders, etc. (excluding minority stockholders, etc.), or the contributing executives or their relatives shall not be included in the calculation of losses as unrelated to business. Thus, the Plaintiff’s assertion is without merit.

3) Therefore, when calculating the reasonable amount of tax and the notice of change in the amount of income resulting therefrom in accordance with the above changed grounds for disposition, the “reasonable amount of tax” column and “justifiable amount of income” column are the same as the stated amount (the aforementioned legitimate amount of tax and the pertinent legitimate amount of income are not in dispute between the parties). Therefore, the pertinent disposition in the instant case should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed for lack of merit. Since the judgment of the court of first instance has some different conclusions, the plaintiff's appeal is accepted in part, and the part of the judgment of the court of first instance against the plaintiff falling under the order of cancellation under the above part of the judgment of the court of first instance shall be revoked, and the part of the disposition of this case in excess of the amount stated in the "reasonable tax amount" as well as "justifiable tax amount" as "justifiable tax amount" shall be revoked, and the remaining appeal of the