부당행위계산 부인제도의 본질과 ‘이익 분여’에 관한 고찰 ―대법원 2010. 11. 11. 선고 2008두8994 판결을 중심으로―

The Supreme Court held in the case of 2008Du8994(hereinafter “the Case”) on November 11, 2010 that even if a shareholder subscribes newly issued stocks at the higher price than their market price in increase of capital, Section 88(1)－8(나) of the Execution Decree of the Corporate Tax Act regarding the ‘the denial of unreasonable transaction and calculation’ does not apply to such subscription because of lack of profit distribution to the related shareholder who forfeits stock if the stock price continues to be below zero both before and after the increase of capital. However, the essence of ‘the denial of the unreasonable transaction and calculation’ is to deny such transaction and calculation resulting in the unfair tax reduction through the transaction with a related party and to recalculate income, which is a measure against tax avoidance. It is not an issue under the law of ‘the denial of the unreasonable transaction and calculation’ whether the related party receives profit or not. Therefore, there is a problem with the Case from the perspective of the essence of ‘the denial of the unreasonable trans- action and calculation’. Also, there is another problem with the Case because the approach taken by the Case may favor those who avoid more tax over those who avoid less tax. In order to overcome such problems, it is necessary to interpret the meaning of “profit distribution”in such a way of conforming to the essence of ‘the denial of the unreasonable transaction and calculation’ and to interpret the meaning of “distribution” in such a way as to include not only the calculable profit but also the abstract, uncalculable profit. However there is some limit to such interpretations under the principle of “no taxation without law”. Such limit needs to be resolved through legislation.