2012년 법인세법 및 소득세법 판례회고

This paper deals with the Supreme Court decisions rendered in 2012, which have precedent meaning or show current trend of the Supreme Court cases, about corporate tax and income tax. Three areas of corporate tax and one area of income tax were selected, reviewed in order of legal principles by issuesand their meanings after introducing main issues, factual grounds, thrust of judgment. In the area of corporate tax, this paper mentions the Supreme Court Decision 20009Du14439(January 26, 2012) which deals with method of appeal to thenotice of underreported income. This is the first case clarifying that any fault of the notice of underreported incomecould be challenged only through an appeal to the notice of underreported income itself after the Supreme Court en banc Decision 2002Du1878 (April 20, 2006) acknowledged that a notice of under- reported income is an administrative measure. The Supreme Court Decision 2010Du11948 (April 26, 2012) was about whether Korea-Belgium tax treaty could be applied to a Belgium company which received capital gain from the disposition of shares of a Korean company. This decision clarified that the principle of substance over formcan be used as criteria when interpreting tax treaties. The Supreme Court Decision 2010Du14329 (September 27, 2012) which deals with criteria of recognizing entertainment expenses, mentions, for the first time, about concerning profit relation as a criterionof deciding entertainment expenses. This decision reinforced previous criteria and it seems that it made a legal ground for recent tendency of the Supreme Court decisions. With regard to the field of income tax, the Supreme Court Decision 2010 Du5950 (January 27, 2012) made itsposition clear and brought controversy to an end that under the CorporateTax Act, whether a foreign organization falls into a category of foreign corporation should be decided upon the legal character of organization. This position was reflected in the revisedCorporateTax Act and it is significant in the sense that a legislative measure was made about the controversy. Overall, these Supreme Court decisions were made based on the position of existing decisions of the Supreme Court and clarified its opinion for the first time about matters in controversy.