(영문) 부산고등법원 2013.10.25.선고 2013누20097 판결

The Defendant’s disposition to recover each earned income tax of KRW 2,734,610 for the year 208 against the Plaintiff on June 18, 2012, KRW 4,010 for the year 209, KRW 4,010,420 for the year 209, KRW 3,471,870 for the year 2010, and the disposition to recover each earned income tax of KRW 3,67,100 for the year 2008, KRW 3,677,100 for the year 2008, KRW 1,724,740 for the year 209, KRW 3,744, and KRW 400 for the year 2010 for the year 200.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, which cited it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In certain cases, the Supreme Court considers that the provision of a company subsidy is the same as the provision of a company house excluded from the subject of the avoidance of wrongful calculation under the Corporate Tax Act. However, in interpreting the same provision as the Enforcement Decree and the Enforcement Rule of the Income Tax Act, the above interpretation of the Supreme Court is valid

2) In the case of a co-lease, the Plaintiff, as a party to the lease contract, has the right to claim the return of the lease deposit directly, and the lease contract is concluded after review and approval in accordance with the Plaintiff’s internal regulations. Thus, Article 38 subparag. 6 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23987, Jul. 24, 2012; hereinafter “former Enforcement Decree of the Income Tax Act”) and Article 15-2 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 355, Jun. 28, 2013; hereinafter “former Enforcement Rule of the Income Tax Act”) constitutes “housing directly leased and provided to employees free of charge.”

3) The imposition of the labor income tax on the amount of support is in violation of the principle of tax equality only when a person separates a person who receives a single rental house and a person who receives a joint rental house from another person.

4) Therefore, a joint lessee’s house does not constitute a company house that is excluded from the scope of wage and salary income. The instant disposition should be revoked as it is unlawful.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) Article 38(1)6 and 7 of the former Enforcement Decree of the Income Tax Act provides that "the profits from receiving a house" and "the profits from obtaining a loan for purchasing or renting a house at low interest or without compensation by an employee" shall be deemed as falling under the earned income subject to the imposition of wage and salary income tax. However, the proviso of Article 38(1)6 of the former Enforcement Decree of the Income Tax Act provides that "the case where an employee receives a company house as prescribed by Ordinance of the Ministry of Strategy and Finance shall be excluded from the scope of wage and salary income." Article 15-2(1) of the former Enforcement Rule of the Income Tax Act provides that "a house directly leased to an employee and gratuitously provided a leased house in the application of Article 38(1)1 of the former Enforcement Decree provides that "the house where an employer provides a leased house as a company house, if an employee, etc. enters into a house before or after the lease period, it shall be deemed that it constitutes a company house only where another employee, etc. enters into a lease contract with the Plaintiff and the joint lessee.

2) The interpretation of tax laws is to be interpreted in accordance with the text of the law, barring special circumstances, and it is not permitted to expand or analogically interpret without any reasonable attention, and in particular, it accords with the principle of fair taxation to strictly interpret the provision that is obviously preferential in terms of the requirements for reduction or exemption (see Supreme Court Decision 2002Du9537, Jan. 24, 2003).

However, the prior meaning of the "private house" as stipulated in Article 38 (1) 6 of the former Enforcement Decree of the Income Tax Act is the "house created by the employer to use it as a house for employees' living." Since it is not newly constructed or reconstructed for many households, it is generally difficult for the employer to function as a house for only a part of the house. Unlike economic interests, and the tenant's lease only a part or a part of the house is a common tenant. In light of the fact that the company's house, which is an object of interest outside the scope of earned income as stipulated in Article 38 (1) 6 of the former Enforcement Decree of the Income Tax Act and Article 15-2 (1) and (2) of the former Enforcement Rule of the Income Tax Act, is generally expected to be the case where the employer owns or rents the whole or part of the house, or where the employer only leased it to the employee, if the employer gains the profit of the employee from the lease without compensation, it becomes an object of "the profit of the employer and the employee's profit from the lease."

In full view of the above circumstances, it is reasonable to view that a “house” under Article 15-2(1) of the former Enforcement Rule of the Income Tax Act constitutes a “house directly leased and provided to an employee for free.” In order to view that a “house provided to an employee by an employer by a leased and provided is capable of performing the function of a house, and the employer has the right to manage and dispose of the house entirely.” In accordance with the language and text of the above provision, it is reasonable to view that only a “part of a house or a part of a house that cannot perform the function of a house by an employer,” or a “part of a house,” which is merely a joint lessee, provides an employee with a house that does not have the right to manage

3) Article 52 of the Corporate Tax Act provides that a corporation's rejection of unfair calculation under the provision of Article 52 of the Corporate Tax Act does not go through a normal economic person's reasonable method in trading with a person in a special relationship and thereby unfairly avoid or mitigates the tax burden by abusing all the forms of trade listed in each subparagraph of Article 88 (1) of the Enforcement Decree of the Corporate Tax Act. It is deemed that the taxation authority denies or reduces the tax burden. It applies only to a case where, from the economic person's standpoint, it is deemed that the person who has the right to taxation denies or loses income objective and reasonable by the method prescribed in the law. (See Supreme Court Decision 95Nu8751 delivered on July 26, 196.) The provision on " rejection of unfair calculation" under the Corporate Tax Act and "the scope of earned income under the Income Tax Act" differs in its legislative purpose or legislative purpose, and the purpose of imposing corporate tax and labor income tax are different, imposition method, etc., so it is not jointly applied to the employer and employee under the Act.

4) In addition, comprehensively taking account of the overall purport of the arguments in the evidence Nos. 1 and 2, in order for the Plaintiff to move into the jointly leased house, the Plaintiff applied for the selection and application of the leased house directly and the Plaintiff received such application was reviewing only the external reasons related to the Plaintiff’s eligibility to support the Plaintiff and the return of the lease deposit. In the event of retirement, purchase, transfer, temporary retirement, etc. of the Plaintiff’s employee who moved into the jointly leased house, the relevant employee shall pay the Plaintiff the lease deposit in full at once. Unlike the provision of Article 15-2(2) of the former Enforcement Rule of the Income Tax Act, the Plaintiff did not specifically provide a scheme for the Plaintiff’s employee moving into the jointly leased house to move into the house. Thus, it is reasonable to view that the Plaintiff’s employee who moved into the house is the main tenant of the jointly leased house, and there is no difference between the Plaintiff’s profit from the Plaintiff’s employee’s moving into the jointly leased house and the Plaintiff’s profit from the lease without compensation.

5) The Plaintiff asserts to the effect that the economic benefits that employees receive are the same as the common rentr's and the private rentr's house, unlike the private rentr's house, imposing the labor income tax on the provision of the common rentr's house goes against the principle of tax equality.

However, the above discrimination between the employee who was provided with a private rental house and the employee who was provided with a private rental house for the same economic benefits is different from the type and type of profit that the employee received, as well as the above discrimination is determined by a legislative decision under Article 20 of the Income Tax Act, Article 38 (1) 6 and 7 of the former Enforcement Decree of the Income Tax Act, Article 15-2 (1) and (2) of the former Enforcement Rule of the Income Tax Act, which provide that only when the employee receives a specific company house, the benefits that the employee would obtain by having provided a specific house shall be excluded from the scope of wage and salary income, so it cannot be concluded that there is no reasonable ground. This discrimination also arises between the employee who was provided with a private rental house and the employee who received a free lease of the funds required for the private rental house without compensation.

Therefore, it is difficult to view that the circumstance that the issue of such discrimination as alleged by the Plaintiff is in violation of the principle of tax equality, or that the case constitutes a "house provided free of charge by the Plaintiff to the employees by directly leasing the house provided by the Plaintiff."

6) Ultimately, the co-lease that the Plaintiff provided to the employees does not constitute a “house that is directly leased and provided to the employees free of charge.” Thus, the Defendant’s disposition of this case is lawful, and the Defendant’s allegation on the original intent made on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety because it is without merit, and since the judgment of the court of first instance with different theories is unfair, it is revoked and all of the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges

Maximum seal (Presiding Judge)

Oral Dus

Kimok-Dhan

Site of separate sheet

Relevant statutes

/ Income Tax Act

Article 20 (Earned Income)

(1) Earned income shall be the following income, generated in the relevant taxable period:

1. Salary, remuneration, annual allowance, wage, bonus, allowance, and other salaries of a similar nature, which are received by furnishing labor;

such institution.

3. The amount treated as a bonus under the Corporate Tax Act;

(1) The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23987, Jul. 24, 2012)

Article 38 (Scope of Earned Incomes)

(1) The earned income referred to in Article 20 of the Act shall include the following incomes:

6. Benefits obtained by receiving the housing: Provided, That such benefits shall be those which are not the stockholders or investors.

A shareholder shall include a director who is a minor shareholder or an officer who is not a director (a non-profit corporation or individual);

Persons who receive wage and salary income from the State or local government shall be included in the Ministry of Strategy and Finance.

In cases of receiving a company house as prescribed by the Ordinance, it shall be excluded.

7. The capital required for an employee to purchase and rent a house (including the land attached to the house) at low interest; and

interest derived from a loan without compensation;

(1) Enforcement Rule of the former Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 355 on June 28, 2013)

Article 15-2 (Scope of Resignations)

(1) "A company house specified by Ordinance of the Ministry of Strategy and Finance" in the proviso to Article 38 (1) 6 of the Decree means a company

employee or executive officer under the same proviso (hereafter referred to as "employee, etc." in this Article)

State provided free of charge or at a low price, or directly leased by an employer and provided to employees free of charge;

home means home.

(2) In applying the provisions of paragraph (1), where an employer provides a leased house as a company house, the term of lease.

When an employee, etc. is transferred to other office, retired or directors, other employees, etc. shall move into the relevant house.

Only in the case of a company house shall be deemed a company house: Provided, That this shall not apply to cases falling under any of the following subparagraphs:

this provision.

1. An employee who moved in has retired from office or has directors, but has not moved in from among the employees, etc. of the relevant workplace;

If there is no deceased person;

2. A housing lease contract concluded by the lessee, where the remaining period of the relevant leased house is not more than one year;

refusal to renew the proceedings;

m. Corporate Tax Act

Article 52 (Dispudiation of Wrongful Acts)

(1) The head of a tax office or the Commissioner of the competent Regional Tax Office having jurisdiction over the place of tax payment shall calculate income

A corporation through transactions with a specially related person prescribed by Presidential Decree (hereinafter referred to as "specially related person").

(2) If it is deemed that the tax burden on income has been reduced unreasonably, the act of the corporation

Each business year of the corporation, regardless of the calculation of the above or the income amount (hereinafter referred to as the "Calculation of Wrongful Acts").

The Do's income amount may be calculated.

(2) For the purposes of paragraph (1), sound social norms and commercial practices and determination between persons who are not specially related persons shall be made.

price applicable or deemed to be applicable to any commercial transaction (rate interest rate, rent, and exchange rate);

(3) Domestic corporations shall have transactions with specially related persons for each business year, as prescribed by Presidential Decree.

The statement shall be submitted to the head of the tax office having jurisdiction over the place of tax payment.

(4) In applying paragraphs (1) through (3), the types of wrongful calculation, the assessment of market price, etc. shall be based on the type of wrongful calculation.

Necessary matters shall be prescribed by Presidential Decree.

【Enforcement Decree of the Corporate Tax Act

Article 88 (Calculation Type of Wrongful Acts)

(1) "Where it is deemed that any act makes the burden of tax reduced unreasonably" in Article 52 (1) of the Act means the following:

Cases falling under any of the following subparagraphs:

6. Lending money and other assets or services free of charge or at an interest rate, tariff, or rental rate lower than the market price;

2. Where he/she has provided or provided: Provided, That any of the following cases shall be excluded herefrom:

(b) A resignation to officers (including officers who are minority shareholders, etc.) and employees who are not stockholders or contributors;

Where a home (including a tenant's home prescribed by Ordinance of the Ministry of Strategy and Finance) is provided;

Enforcement Rule of Corporate Tax Act

Article 42-3 (Scope of Rental Housing Units)

"Lease house prescribed by Ordinance of the Ministry of Strategy and Finance" in Article 88 (1) 6 (b) of the Decree means a house that a corporation directly leases and provides an executive officer or employee (hereafter referred to as "employee, etc." in this Article) with free lease and that an employee, etc. resides for the lease period except in the following cases:

1. Expected to move in from among the employees, etc. of the relevant corporation after the relocated employees, etc. have retired or moved in;

in the absence of such person

2. A housing lease contract concluded by the lessee, where the remaining period of the relevant lessee's housing contract does not exceed one year;

Finally, the renewal shall be refused.

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