업무무관 가지급금의 손금불산입과 실질과세의 원칙에 대한 연구 ―대법원 2009.4.23. 선고 2006두19037 판결에 대한 비교법적인 분석을 중심으로―

As a general rule, interest on borrowing by corporation shall be allowed as deduction. But, some itemized interests which have no relation with corpora- tion's business are not deductible. The deduction of interest on debt incurred by corporation to loan non-business provisional payment or something like that to the related person is not allowed. But, when corporation uses indirect funding to related person, e. g. when corporation puts fixed time deposit to the bank, and bank uses that deposit as a collateral and loans to the related person, instead of using direct lending, the deductibility of that funding can be controversial. Recently, the Supreme Court has decided that in the indirect funding to the related person case like the above, such funding cannot be considered as a direct loan to the related person, even if the related person enjoyed the benefits by the indirect funding, therefore, tax code which disallows the deduction of interest incurred by non-business provisional payment should not be applied to this case. With regard to this decision, I discuss the Korean theory about the principle of substantial taxation, and explain the American theory about why interest should be deductible as a cost, and deal with various opinions and judicial decisions about the principle of substantial taxation in the area of tax avoidances, and examine the economic substance doctrines discussed in U.S. Finally, I discuss the limitation of principle of taxation by statutory law and deliver my own opinion that court should apply the principle of substantial taxation to the tax avoidance cases, because I think this kind of positive approach in the interpretation of tax law will help the achievement of the equity of taxation.