2017년 소득세법 판례회고

This article presents Supreme Court’s decisions during the year of 2017 concerning the Income Tax Act, focusing on those with significant meaning, and further introduces certain selected lower courts’ cases worth paying attention to together in terms of legal principles, in order to review the trend in court precedents and the meaning of each case. The Supreme Court cases subject to the review hereof are as follows：(ⅰ) a case which held that even litigation costs relating to a land compensation increase expended before an express provision is enacted fall under necessary expenses, by construing a new enforcement decree as a confirming regulation (Supreme Court 2017.4.7. Pronouncement 2016Du1059 Judgment)；(ⅱ) a case which ruled that even though an individual owning multiple houses falsely divorced and reunited again after transferring a house as a person owning one house, that transfer of the house is construed as a one-household-owning- one-house transfer not subject to tax under the Income Tax Act (Supreme Court 2017.9.7. Pronouncement 2016Du35083 Judgment)；(ⅲ) a case which held that even though a housing-project member’s right to residency is deemed as one household owning one house, the scope of the gain on transfer subject to the long-term holding special deduction is limited to the gain on transfer prior to the approval on the management and disposal plan in accordance with the law provision (Supreme Court 2017.10.26. Pronouncement 2017Du52504 Judgment)；(ⅳ) cases which established detailed standards for distinguishing between honorarium and consideration of personal service, where the legal nature of (x) the incentive received by an alcohol sales promotion event agency “key man” (Supreme Court 2017.2.9. Pronouncement 2016Du55247 Judgment) and (y) the amount received in consideration of prisoner support and supply (Supreme Court 2017.4.26. Pronouncement 2017Du30214 Judgment), respectively, is at issue；(ⅴ) a case which held that the success fee, received by a subsidiary’s employee from the parent company (with which the employee has no direct employment relationship) after the employee’s work of company sale, is also included in wages income (Supreme Court 2017.9.12. Pronouncement 2014Du7992 Judgment)；and (ⅵ) a case which viewed that an amount received by a dismissed worker from the labor union merely was not of the nature of mutual aid but was paid as honorarium for union activities (Supreme Court 2017.11.9. Pronouncement 2017Du44244 Judgment). Further, the following cases at lower courts (including cases dismissed without review) are selected for the review hereof：(ⅰ) a case which held that even an employee working at an overseas local company falls under residents within the meaning of the domestic Income Tax Act because the employee, when all situations of living relationship being taken into consideration, does not fall into the “case of having a job which generally needs continuous overseas residency for one or more years,” a criterion for being deemed as having no address in Korea (Supreme Court 2017.7.11. Pronouncement 2017Du39112 Judgment)；(ⅱ) a case which, after declaring the meaning of the “permanent home” under Article 4.2.(a) of the tax treaty between Korea and China as the tie-breaker rule for determining the state of residence of a dual resident, held that an individual who went back and forth between Korea and China is subject to income tax as a domestic resident (Supreme Court 2017.12. 13. Pronouncement 2017Du57929 Judgment)；(ⅲ) a case which ruled that in case where a guarantor’s real property is sold at auction and the ownership thereof is transferred due to the primary obligor’s failure to perform, the gain on the transfer is attributed to the guarantor even if the guarantor’s exercise of the subrogation right against the primary obligor is de facto impossible (Supreme Court 2017.6.2. Pronouncement 2017Du35516 Judgment)；and (ⅳ) a ase which ruled that the amount, paid in support for acquisition and registration taxes to unit owners by a construction company for the purpose of promoting unit sales, does not fall under “other income” by viewing it as having the meaning of reducing the payment for units in substance (Supreme Court 2017.4.28. Pronouncement 2016Da278791 Judgment). Commentaries on each of the above cases are structured in a way, as consistent as possible, that facts of a case are summarized first, and then the court’s decision is introduced, followed by detailed explanations thereon. Where necessary, cases are compared with the flow of the Supreme Court previous cases on similar issues, and finally their reasonableness is analyzed and verified in light of tax law theories