이익처분에 의하여 지급하는 임원 상여금의 손금불산입 및 민사법적 거래의 세법적 재구성 - 대법원 2017.12.21.자, 2017두59680 판결을 중심으로 -

According to the Corporate Tax Act, the principle is that bonuses paid by a corporation to its executives by disposition of net profits should be excluded from deductible expenses. In regard to “bonus paid by disposition of net profits”, the precedent have stated that in the case of paying a bonus to the controlling shareholder even though the salary payment standards does not exist, or if the bonus is paid in excess of the standard thereof, it should not be included into deductible expenses as it can be interpreted that there is a “substantial disposition of net profits” by taking the form of bonuses to contribute the retained earnings of the corporation to the controlling shareholder with respect to the full or excess of such bonuses. However, denying a bonus to an executive by saying 'substantial disposition of net profits' even though there is explicit salary payment standards, can lead to the conclusion that particular expenses is a substantial disposition of net profits in all cases attributable to the executive, depriving the taxpayer of predictability. In addition, with respect to the bonuses duly paid by the company in accordance with the payment standards of bonuses established in accordance with the decision-making structure under the Company Act, if Article 43 (2) of the Enforcement Decree of the Corporate Tax Act is applied because the tax office cannot actually see it as bonuses, it will be interpreted as beyond the possible meaning of the Enforcement Decree of the Corporate Tax Act. This case was taxable by re-characterizing the transaction of ‘Contractor--乙(을)(Personal A Publisher)--Plaintiff Company B’ into a transaction of ‘Contractor—Company B’. In other words, the tax office disregarded the civil transaction structure signed by the parties and re-characterized it from the tax perspective by applying the substance over form prescribed in Article 14 of the National Tax Basic Act. After the 2012 supreme court decision that it is possible to reconstruct civil transactions if there is a purpose of tax avoidance, in cases where the purpose of tax avoidance recognized, it is difficult to find a precedent that applies the substance over form. Nevertheless, it is hard to understand that the first trial of the subject case recognized the intention of tax avoidance only by stating that 乙(을) carried out business registration of the personal A publisher to create a sources of funds and build publishing performance in preparation for doing business or acquisition of real estate. Rather, I think the above instructions suggests that there is a business purpose in this transaction.