법인세법 제67조의 개정 필요성 관련 검토 -대법원 2021. 7. 29. 선고 2020두39655 판결을 중심으로-

초록

The Corporate Tax Act stipulates “In filing a report on the corporate tax base on income for each business year under Article 60 or determining or correcting the tax base of corporate tax under Article 66 or 69, the amount included in the calculation of gross income shall be disposed of as a bonus, dividends, or other outflows from or reserves held by the relevant company to the persons to whom it reverts, as prescribed by Presidential Decree.” (Article 67). According to the phrase “the amount included in the calculation of gross income shall be disposed of as...”, the disposition of income requires “the inclusion in the calculation of gross income”. Legal basis is required for such gross income inclusion. However, as shown in the following examples, it is sometimes questionable whether there is a legal basis. 1) Where the CEO embezzles the collected accounts receivable and leaves it in the ledger as if the accounts receivable have not been recovered, gross revenue shall be included(ikgeum sanip) in order to dispose of income to the representative. 2) When a corporation purchases assets from the CEO at a high price, gross revenue shall be included(ikgeum sanip) at the time of purchases in order to dispose of income to the CEO. 3) The amount of suspense payment for the specially related persons shall be included(ikgeum sanip) gross revenue at the time of termination of special relation in order to dispose of income to the specially related persons. Each of the above cases is a matter that creates gross revenue inclusion due to the need to dispose of income. Regarding case 3), the Supreme Court is taking the position that the enforcement ordinance for case 3) is legal, but there is a few criticisms for such position. The other two cases have no legal basis or have ambiguous basis for gross revenue inclusion. As a way to solve the above problem, it is appropriate 1) to prepare a legal grounds that supports the separation of i) the timing of corporate tax imposition and ii) the timing of dispose of income, and 2) to stipulate CEO and or specially related persons will be taxed at the time of receiving valuable assets from the company.

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