특수관계자에 대한 미회수 가지급금 이자의 상여처분에 관한 연구 ― 법인세법 시행령 제11조 제9호 나목을 중심으로 ―

Recently, based on the fact that the corporation has not recovered the accrued interest within one year from the end of the year in which the interest generated, the Korean tax authority disposed of accrued interest of non-business provisional payment as a bonus to the corporation's related person. The taxpayer challenged; Seoul High Court, regarding this case, ruled that the Article 11(9)(b) of the Enforcement Decree of the Corporate Income Tax Act, which is the legal basis for the tax authority's disposition, falls outside of the limit of delegation, and therefore null and void. The case is now pending in Supreme Court of Korea. In addition to this case, such taxation has been frequently carried out recently, and friction between taxpayers and tax agencies is generated frequently. However, there are few papers on this topic. This paper examines the validity of the bonus disposition of the accrued interest, and concludes that such bonus disposition is unfair. The reasons are: ① It is unfair to include accrued interest in profits without judging the timing of the recognition of profits. ② Accrued interest receivables actually arise under interest payment arrangements. These actual gains are different from the aggregation gains that are calculated only by taxation purpose without interest contracts. ③ In order to dispose of the bonus as a result of giving up the accrued interest, the receivables to be abandoned must exist at the time of abandonment. However, at the time of one year from the end of the interest earning year, there is no accrued interest since the time of the acquisition of the gain has not yet arrived or has elapsed. Disposition of taxation based on premise that can not be established is unreasonable. ④ In terms of cash outflows, it does not distinguish between accrued interest and non-business provisional payment that are fundamentally different. ⑤ It is contrary to the principle of substantial taxation that all interest is taxed as income because the payment of interest is delayed even if the interest is actually paid. ⑥ The ability to pay back depends on the economic power such as income. Therefore it is unfair to exclude from the bonus disposition only a limited cases such as setting up collateral. In order to remedy such problems, ① Article 11(9)(b) of the Enforcement Decree of the Corporation Tax Act shall be deleted. ② Individuals who are not entrepreneurs must be exempt from withholding obligation when they pay interest income to corporations. ③ Tax should be imposed only to the actual economic benefits of delayed interest. This paper is expected to contribute to the elimination of the tax dispute caused by the bonus dispositions due to the delay in payment of accrued interest and the prevention of unjust taxation.