발생일이 속하는 사업연도 종료일로부터 1년 이내 미회수한 가지급금 이자의 소득처분에 관한 연구 ―대법원 2021.8.12. 선고 2018두34305 판결과 관련하여―

Recently, the Supreme Court ruled that a regulation under the old Enforcement of Corporation Income Tax Act, Article 11－9－2－b, (herein referred to as the “controversial article”) that interest on provisional payments to a specially related party with no connection to the business of the relevant corporation that was not collected by the first anniversary of the last day of the fiscal year in which the interest accrual date falls, should be added to the corporation’s income, is valid(herein referred to as the “subject judgement”). Before the above subject judgment ruling by the Supreme Court, there was a preceding judgment (herein referred to as the “preceding judgement”) under the old Enforcement of Corporation Income Tax Act, Article 11－9－2－a which stated that if the above referred provisional payments were not collected until the termination date of the special relationship, the provisional payments should be added to the corporation’s income. This does not pose a problem to the corporation because the corporation’s tax burden is the same. There is just a timing difference. The corporation just needs to determine when to recognize income under the controversial article. However, this is big issue to the controlling stockholders when uncollected interest income on provisional payment is added to the corporation’s income and that income is paid to the controlling stockholders as bonus. Then the controlling stockholders have to pay more income tax. According to the tax law interpretation, the controlling stockholder cannot get a refund of previous tax payment of this income of disposition, even if he amends his return after payment of interest on provisional payment later to the corporation. This is not a fair tax regulation because the controlling stockholder has no economic gain but is treated as receiving income and thus has a tax burden. In the current business climate, not many issues arise out of interest income that was not collected within one year from when interest on the provisional payments to the specially related corporation or employees was incurred. Issues mostly involve disposition of interest income on provisional payments to the controlling stockholders by the corporation. Thus, the above cases are examples of application of the tax law to all taxpayers without consideration of differences in circumstances. This thesis discusses and reviews the rulings under the tax law and of the subject judgement and preceding judgement, and also examines current business circumstances in connection with this issue. This thesis proposes that provisional payments, when made pursuant to an agreement to pay proper interest for a monetary transaction between the corporation and the related parties, are basically different than the situation where no interest payment agreement was made between the related parties. I propose rejection of this unfair tax regulation. This thesis advocates abandoning provisional payments because if the corporation did not collect the interest on the provisional payments by the due date, then it looks like a pre-condition existed based on malpractice or misappropriation act in violation of duties. So this is not equal application of the tax law to all taxpayers. Accordingly, I suggest Article 11－9 of the Enforcement of Corporation Tax Act should be repealed to ensure adequate tax law application. On the other hand, in order to prevent delay of payment of taxes by the corporation on interest income on the provisional payment by not specifying an interest payment date as a result of the corporation receiving interest income after the fiscal year, I suggest amending the current Enforcement of Corporation Tax Act Article 70－1－1. If this Article of the tax law is amended as per my suggestion, discriminatory additional tax burdens on controlling stockholders, who will have bare economical loss by the payment of interest and principal of provision payments on later date due to the disposition of corporation income to pick up personal income will be eliminated. My suggestion will eliminate arbitrary application and will result in taxation justice.