Seocho 2010Ch2170 ( October 18, 2011)

loans, etc. paid to a person with a special relationship shall not be directly related to the business, and such loans, etc. shall constitute a provisional payment

It is difficult to see that an agreement on the discount of sales and a loan between the plaintiff and a related party are in an inevitable quid pro quo relationship, and it is difficult to see that there is a direct relation in light of the plaintiff's business purpose, business contents, etc., and thus deemed a provisional payment without any work

2011Revocation of disposition of revocation of corporate tax, etc.

AA transportation corporation

Head of Yangcheon Tax Office et al.

March 2, 2012

March 30, 2012

1. The portion exceeding 5,286,338 of the corporate tax for the business year 2007; the portion exceeding 5,774,107 of the corporate tax for the business year 75,898,160; the portion exceeding 51,774,107 of the value-added tax for the business year 2007; the portion exceeding 1,523,333 of the amount exceeding 10,290,40 of the value-added tax for the business year 2007; the portion exceeding 4,977,133 of the amount exceeding 10,290,40,40 of the amount exceeding 10,290,40 of the value-added tax for the second year of 207; the portion exceeding 10,806,16,158 of the amount exceeding 10,106,100 of the value-added tax for the 2008 business year; and the portion exceeding 1,5,303,38363

2. The plaintiff's remaining claims against the head of Yangcheon Tax Office and all the claims against the head of the Seoul Regional Tax Office are dismissed.

3. Of the litigation costs, 4/5 shall be borne by the Plaintiff, and the remainder by the head of Yangcheon Tax Office, respectively, and the Plaintiff shall be borne by the Plaintiff and the head of the Seoul Regional Tax Office.

【Defendant Yangcheon Tax Director】

The head of Yangcheon Tax Office imposed corporate tax on the Plaintiff on February 3, 2010, the amount of KRW 38,604,380 for the business year of 2004, KRW 43,59,710 for the business year of 2005, KRW 55,648,780 for the business year of 2006, KRW 68,212, and KRW 290 for the business year of 2007, the imposition disposition of corporate tax of KRW 75,898.160 for the business year of 2008, and the imposition disposition of corporate tax of KRW 75,898.160 for the business year of 2007, KRW 319,060 for the business year of 207, KRW 10,290, KRW 440 for the business year of 207, KRW 680 for the business year of 208, KRW 308 for the business year of 208.

[Defendant Head of Seoul Regional Tax Office]

On February 3, 2010, the director of the Seoul Regional Tax Office revoked the notification of changes in the amount of income that the income earner reported to the Plaintiff on February 3, 2010 to 28,939,894.

1. Details of the disposition;

A. The Plaintiff is a corporation operating a taxi transport business and a real estate leasing business, and the Plaintiff is a corporation that is engaged in the taxi transport business and real estate leasing business (hereinafter referred to as “CC”), CC (hereinafter referred to as “DD Transport”), DD Transport Stock Co., Ltd. (hereinafter referred to as “EE Transport”), EE Transport Stock Co., Ltd. (hereinafter referred to as “FF Unemployment”) and FF Unemployment Co., Ltd. (hereinafter referred to as “CC, etc.”) are all companies that the Plaintiff’s representative director, YB, and family members hold 100% of the Plaintiff’s shares, and all companies are related parties to the Plaintiff and the Plaintiff (hereinafter referred to as “CC, etc.”) pursuant to Article 87(1)3 and 4 of the Enforcement Decree of the Corporate Tax Act (amended by Ordinance No. 19891, Feb. 28, 2007).

B. The director of the Seoul Regional Tax Office, from August 11, 2009 to October 30, 2009, instructed the Plaintiff’s consolidated investigation into corporate taxes for the business year from 2004 to 2008, confirmed that the Plaintiff obtained loans from financial institutions, etc. to 2004 to 2008, borrowed pride, and received interest of 6% per annum from 2000-0,000 and 0% per annum from the Plaintiff’s representative director from 2004 to 2008 (hereinafter “the instant loans”); and notified the Plaintiff to the head of the Seoul Regional Tax Office, the Plaintiff confirmed that the Plaintiff leased the above EE transportation and DD transportation (hereinafter “G transportation, etc.”), from May 13, 2007 to 31, 2008.

C. In addition, on February 3, 2010, the Defendant Seoul Regional Tax Office recognized the Plaintiff’s loans to the representative director JeongB, and disposed of KRW 28,939,894 as a result of the Plaintiff’s recognition of the representative director’s loans, and notified the change in the amount of income in relation to the said loans.

D. As indicated below, Defendant Yang 2: (a) deemed that the Plaintiff loaned 6% per annum toCC, etc. at lower than the market price (9% per annum); (b) Article 52 of the Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter the same shall apply); (c) Articles 88(1)6 and 89(3) of the Enforcement Decree of the Corporate Tax Act; (d) Article 43(1) of the Enforcement Rule (amended by the Ordinance of the Ministry of Finance and Economy No. 547, Mar. 30, 2007; hereinafter the same shall apply); (c) Article 201-31 of the Enforcement Decree of the Corporate Tax Act (amended by the National Tax Service Notice No. 2001-31, hereinafter referred to as the “Enforcement Decree”); and (d) Article 25(1) of the same Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 9301, Mar. 1, 2007; hereinafter the same shall apply); and (c)

E. On February 3, 2010 and the 8th of the same month, the Defendant rendered a total of 38,604,380 won in the business year 2004, 43,59,710 won in the business year 2005, 55,648,780 won in the business year 2006, 68,212,290 won in the business year 2007, 75,898,160 won in the business year 75,898,320 won in the business year 207 and 1,319,060 won in the total of 2,319,2710,440 won in the business year 207, 2710,683 won in the business year 207, 208, 2008, 36308, 2008, 203630, 2008.

F. On April 30, 2010, the Plaintiff filed an appeal with the Tax Tribunal on each of the instant dispositions by the Defendants, but the Tax Tribunal dismissed the Plaintiff’s appeal on April 18, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 through 7, 8 (including natural disaster ; hereinafter the same shall apply) through 14, the purport of the whole pleadings and arguments

2. Defenses by the director of the tax office on the merits of the case;

The above defendant asserts that since the plaintiff did not file a request for a trial with the Tax Tribunal on the part of the claim for revocation of the disposition of value-added tax in this case, it is unlawful due to the failure of essential procedures under Article 56 (2) of the Framework Act on National Taxes. According to each of the evidence Nos. 2 and 4, the plaintiff filed a request for a trial with the Tax Tribunal on each of the dispositions in this case including the disposition of value-added tax, but the Tax Tribunal omitted the judgment regarding the disposition of value-added tax. Therefore, this part of the lawsuit in this case is possible to file an administrative litigation because it falls under the case where the decision was not notified within the period of decision pursuant to the proviso of Article 56 (3) of the Framework Act on National Taxes. Accordingly, this part of the claim in this case is legitimate.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) As to the recognized interest and inclusion in gross income

According to Article 52(1) and (2) of the Corporate Tax Act, where it can be deemed that the tax burden on corporate income has been unjustly reduced, and the interest rate determined as applicable to normal transactions between persons who are not persons with a special relationship is required to be concrete in subordinate statutes, such as the Enforcement Decree. Accordingly, Article 89(3) of the Corporate Tax Act and Article 43(1) of the Enforcement Rule of the same Act are unlawful and unconstitutional, since Article 52(1) of the Enforcement Decree and the Enforcement Rule of the same Act do not apply uniformly to all enterprises without considering the characteristics of each enterprise and apply interest convergence determined by the Commissioner of the National Tax Service taking into account the distribution rate of corporate bonds with three-year maturity, thereby failing to fulfill the legislative intent of the above provision on calculating unfair acts. Even if it is necessary to determine uniform interest rate, the notice by the National Tax Service, which applies the interest rate of 9% per annum that reflects the normal market price, is unlawful as exceeding the delegation limit of superior statutes.

2) As to the provisional payment without office

The Plaintiff concluded a discount agreement withCC (CC) which is a LPG gas supplier and provided private loan for the discount of KRW 25 won per liter. Therefore, the Plaintiff cannot be deemed as a loan unrelated to its business. Therefore, the disposition of imposition of corporate tax of each of the instant dispositions is unlawful.

3) As to the inclusion of leased income in gross income

원고가 이 사건 부동산을 EE운수 등에게 임대하기 이전에 특수관계가 없는 QQ교통 주식회사에 임대차보증금 1억, 월세 720만원에 임대한 바 있고, 위 임대료가 이 사건 부동산의 임대료 시가에 부합하는 것임에도, 이 사건 각 처분은 이와 달리 이 사건 부동산 임대료의 시가를 알 수 없다는 전제에서 2007, 2008 사업연도 법인세 부과처분은 법인세법 시행령 제89조 제4항 제1호에 의하여, 각 부가가치세 부과처분은 부가가치세법 시행령(2012.2.2.대통령령 제23595호로 개정되기 전의 것, 이하 같다) 제50조 제1항 제2호, 법인세법 시행령 제89조 제4항 제1호에 의하여 임대료 시가를 산정한 잘못이 있다. 따라서 피고 양천세무서장의 2007. 2008 사업연도 법인세 부과처분 및 각 부가가치세 부과처분은 위법하다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination by issue

1) As to the recognized interest and inclusion in gross income

A) Article 52(1) of the Corporate Tax Act provides that "one wrongful calculation method that unfairly reduces the tax burden on corporation's income as a transaction with a person with a special relationship" and Article 52(2) provides that "market price" shall be based on sound social norms and commercial practice as well as the price determined as applicable to normal transactions between persons without a special relationship. Article 88(1)6 of the Enforcement Decree of the Corporate Tax Act provides that specific types of wrongful calculation shall be delegated to the Enforcement Decree of the Corporate Tax Act. Article 88(1)6 of the Enforcement Decree of the Corporate Tax Act provides that "a case where an asset is leased at a rate lower than the market price" among the types of wrongful calculation, and Article 89(3) of the Enforcement Decree of the Corporate Tax Act provides that "the interest rate on loans to a person with a special relationship as provided by the Ordinance of the Ministry of Finance and Economy shall be defined as the market price and the specific number of such loans shall be delegated to the Ministry of Finance and Economy, which is contrary to the purpose of Article 143(1) of the Corporate Tax Act.

B) In full view of the following circumstances recognized by the legislative intent of relevant statutes, the process of changing the notice given by the relevant National Tax Service, and the overall purport of pleadings, it cannot be deemed that the Enforcement Decree and the Enforcement Rule of the Corporate Tax Act were in violation of superior laws, or that the notice by the National Tax Service deviates from the bounds of delegation stipulated by the superior laws and regulations, and thus, the Plaintiff’s assertion on this part of this part of the grounds is without merit (Ab) (i.e., the Enforcement Rule and the Enforcement Rule of the Corporate Tax Act, which provide for the interest rate of overdraft as 9% by the Commissioner of the National Tax Service, are merely the legitimacy and means to achieve the legislative purpose

(1) The changes in the interest rate on overdrafts publicly notified by the Commissioner of the National Tax Service pursuant to the superior Acts and subordinate statutes shall be as follows:

(The following table omitted):

② After the rate of return on the distribution of corporate bonds falls rapidly from 14-15% in 1997 to 7-8% in 2001, the Commissioner of the National Tax Service made the instant public announcement to the effect that the rate of return on the distribution of corporate bonds continues to be lower than 20% after the public announcement was made on December 31, 1997 by December 31, 1997, according to the trend of the change in the distribution rate.

③ The rate of return on distribution after the decline has been gradually, but the rate of return on distribution has not been significantly changed every year, and if the rate of interest on the overdraft has been reduced additionally due to the decline of the rate of interest on the overdraft up to 9%, there was a concern about undermining the purport of the upper law that attempts to restrain reckless loans between related parties, and thus, it seems that the rate of interest on the overdraft has not been lowered.

④ Furthermore, Article 43(1) of the Enforcement Rule of the Corporate Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 356, Mar. 14, 2006) (amended by the Ordinance of the Ministry of Finance and Economy), which is deemed the market price, has been amended to be determined by the Commissioner of the National Tax Service in consideration of the current loan interest rate of financial institutions which are not the distribution profit rate. After the amendment of the above Enforcement Rule, the current loan interest rate of financial institutions has been gradually lowered, but there is no difference between the current loan interest rate

⑤ Even thereafter, Article 43(3) of the Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 66, Mar. 30, 2009) directly provides that the interest rate on the overdraft was 9% publicly notified by the Commissioner of the National Tax Service to 0.5% which was 0.5% lower than that of the previous 0.5%, and no change exists thereafter.

6) The Commissioner of the National Tax Service ought to consider the distribution rate or the interest rate on the overdraft of a financial institution in determining the interest rate on the overdraft pursuant to the superior Acts and subordinate statutes, but in addition, it may be deemed that there was a need to make important policy and technical decisions in order to induce the construction of financial structure and the transparency of corporate management and to achieve the purport of the regulations for regulating unfair practices among the related parties. For this reason, since the legislators can be deemed to have delegated the authority to determine the overdraft interest rate to the Commissioner of the National Tax Service, the legislators was at discretion to determine the overdraft interest rate, and the Commissioner of the National Tax Service, considering the above circumstances, it is difficult to deem that the discretion was exceeded and abused when considering the aforementioned

7) When a tax authority imposes individual taxation, it is difficult to deem that the system that the Commissioner of the National Tax Service uniformly announces the reasonable interest rate in accordance with the economic situation at that time is unreasonable, as it causes excessive administrative costs and may cause arbitrary measures by the tax authority.

2) As to the provisional payment of office-general

A) Article 28(1)4(b) of the Corporate Tax Act provides that where a corporation acquires and holds assets as prescribed by the Presidential Decree, such as provisional payments, etc. paid to a person with a special relationship without connection with its business, an amount calculated as prescribed by the Presidential Decree out of the interest on loans paid by the corporation shall not be included in the calculation of losses in calculating the income amount for each business year. Article 53(1) of the Enforcement Decree of the Corporate Tax Act provides that "a loan of funds unrelated to the business of the corporation is defined as "a loan of funds unrelated to the business of the corporation" regardless of the title concerning the above assets as prescribed by the Presidential Decree. The legislative purpose of the above provision is to provide that where a corporation holding loans has paid loans to a person with a special relationship without relation to its business, it shall be granted tax disadvantage to exclude the interest on loans from the amount of loans paid to the person with a special relationship such as an affiliate, etc. without using them in a productive part and to encourage sound economic activities of the corporation (see, e.g., Supreme Court Decision 2005Du107525.

B) Examining the instant case in light of the following: (a) it is difficult to view that the Plaintiff’s sales approval agreement between theCC and the Plaintiff and the loans to theCC are in a quid pro quo relationship; (b) the said sales approval agreement is irrelevant to the remaining specially related framework (including Plaintiff’s representative director) other than theCC; and (c) the Plaintiff’s purpose of business and business contents, etc., which are taxi carriers, it is difficult to deem that the instant loans are directly related to the Plaintiff’s business. Accordingly, the Plaintiff’s assertion on this part is without merit.

3) As to the inclusion of rental earnings in gross income

A) According to Article 88(1)6 of the Enforcement Decree of the Corporate Tax Act, where assets or services are leased at a rent lower than the market price, it is defined as a type of wrongful calculation. Article 89(1) of the Enforcement Decree of the Corporate Tax Act defines “market price” as “the price continuously traded with many and unspecified persons other than persons with a special relationship,” and Article 89(4)1 of the Enforcement Decree of the Corporate Tax Act provides that where the above paragraph is not applicable, the amount calculated by multiplying the amount equivalent to 50/100 of the market price of the relevant assets by the amount calculated by subtracting the deposits received in relation to the provision of the assets from the amount calculated by subtracting the deposits received in relation to the provision of the assets, shall be deemed to be the market price. Meanwhile, according to Article 13(1)3-2 of the Value-Added Tax Act, the market price of the services supplied shall be deemed to be the market price where the price of the services supplied is unfairly lower than the market price, and Article 50(1)1 of the Enforcement Decree shall be deemed to be the market price.

나) 피고 양천세무서장은 이 사건 부동산의 임대료 시가를 산정할 수 없다는 전제에서 법인세법 시행령 제89조 제4항 제1호를 적용하여 계산한 간주임대료를 기준으로 원고의 2007, 2008 사업연도의 법인세 및 2007년 1기 내지 2008년 2기까지의 부가가치세를 산출한 반면, 원고는 원고가 EE운수 등에 임대한 이 사건 부동산의 적정 임대료는 과거 원고가 QQ교통 주식회사(이하 'QQ교통')에 임대한 임대료로 볼 수 있다고 주장한다.

다) 갑 제10, 15호증, 을 제21호증의 각 기재에 변론 전체의 취지에 의하면, 원고 는 2002. 10. 1.부터 2007. 4. 30.까지 서울 양천구 OO동 000-0, 000-0 지상 각 건물 중 건물 2층 56.7㎡ 사무실외), 1층 20.3㎡(배차실 외 휴게실), 수리접 1층 128㎡외 주 차장 및 지하대피소 중 일부를 QQ교통에 임대차보증금 1억원, 월세 720만원에 임대 하였고, 위 QQ교통이 퇴거한 이후에는 GG운수, DD교통에 통일한 임대목적물의 각 1/2씩2)을 2007. 5. 13.부터 2008. 6. 30까지는 보증금 각 1억원에, 2008. 7. 1.부터 2008. 12. 31 까지는 보증금 각 1억 5,000만원에 임대한 사실을 인정할 수 있다. QQ 교통과 원고 사이에 아무런 특수관계가 없고, GG운수 등과 QQ교통이 각 임차한 목적물이 통일하다는 사정을 인정할 수 있는 이상, 원고가 QQ교통에게 적용한 임대료 는 법인세법 시행령 제89조 제1항 혹은 부가가치세법 시행령 제50조 제1항 제1호 소 정의 '특수관계자 외의 자와 계속적으로 거래한 가격'으로서 시가로 봄이 상당하다. 따라서 피고 양천세무서장은 이 사건 부동산의 임대료 시가 산정을 그르친 잘못이 있다.

4) Sub-committee

A) Of each disposition of this case, the part that is not related to the real estate rent (law of the enemy)

The disposition of imposition of corporate tax for the business year from 2004 to 2006 by the director of the Yangcheon Tax Office and the notice of change in the income amount of the defendant Seoul Regional Tax Service is related only to the inclusion of recognized interest in the calculation of earnings and the inclusion of interest in the calculation of earnings, and there is no relation to

B) The remainder (part revocation)

The disposition of imposition of corporate tax in 2008 and the disposition of imposition of each value-added tax in 2008 are related to the calculation of the rent of the real estate of this case, and so long as the above disposition is deemed to be erroneous in the calculation of the market price of the rent of the real estate of this case, all of the above disposition is unlawful. However, as seen earlier, in the above disposition of imposition, the part related to the assertion that was not accepted by the Plaintiff, or the part newly calculated according to the reasonable rent determined by the court of this court still remains legitimate. If the taxpayer wants to choose the total amount of the subject matter of the lawsuit for revocation, even if the taxpayer only objects to a certain reason and only objects to the substantial part, the determination of the whole amount of the tax subject to the disposition can be made, and the substantial amount of the tax shall be subject to the adjudication. Accordingly, in principle, the court examines and determines the tax amount based on the objective tax base and the tax amount submitted by the

C) the calculation of a reasonable amount of tax

As shown in the Attachment (However, insofar as the Plaintiff is a juristic person holding excessive loans under Article 128 of the Act on Special Cases concerning Taxation and does not engage in real estate rental business as its main business, deposit 100 million won is not included in the deemed gross income in calculating the corporate tax base, and only KRW 7.2 million per month shall be regarded as rental income. On the other hand, Article 49-2 of the Enforcement Decree of the Value-Added Tax Act provides that money calculated in a certain formula for rental deposit shall be included in the tax base. Therefore, in calculating

3. Conclusion

Therefore, the part on the imposition of corporate tax and the imposition of value-added tax for the business year 2007 and 2008 among the claims against the head of Yangcheon Tax Office is justified within the scope of the above recognition. Accordingly, the remaining claims against the head of Yangcheon Tax Office and the claims against the head of the Seoul Regional Tax Office are dismissed as it is without merit. It is so decided as per Disposition.