2021년 소득세제, 국제조세 판례회고

This article provides an introduction to six judgments rendered by the Supreme Court in 2021 on issues of private income tax, corporate income tax, and international taxation. Supreme Court Decision 2020Du53699 dated April 8, 2021 held that where real estate pledged by a surety is auctioned, but the surety is not able to seek reimbursement from the taxpayer due to the latter’s insolvency, etc., such event does not constitute a cause for an ex post facto request for tax refund under Article 45-2 Paragraph 2 of the National Tax Basic Act and Article 25-2 of the presidential decree to the National Tax Basic Act. Supreme Court Decision 2016Du63439 dated May 7, 2021 concerned the interpretation of Article 52 of the Corporate Income Tax Act, and its inapplicability to the transaction of a corporation where the sales price in a purchase and sale between the corporation and an individual specially-related to the corporation constitutes “fair market value specified under Article 89 of the Presidential Decree to the Corporate Income Tax Act”. The Supreme Court held that the provision prescribes that Article 101 Paragraph 1 of the Personal Income Tax Act on denial of unjust capital gains transactions shall equally not apply to the specially-related individual, but that the provision cannot be interpreted to mean that the fair market value applicable to the corporation and its specially-related individual shall be matched to the fair market value under the Corporate Income Tax Act. Supreme Court Decision 2020Du55954 dated June 10, 2021 held that where a call option is used to purchase newly issued shares, Article 51 Paragraph 5 Item 4 and Paragraph 6 of the former Personal Income Tax Act do not apply to calculation of the profits from the newly issued shares. Supreme Court Decision 2017Du63337 dated July 29, 2021 held that a stock corporation is permitted to purchase treasury stock through loan financing under Article 341 Paragraph 1 of the Commercial Code. Supreme Court Decision 2020Du39655 dated July 29, 2021 held that where a corporation has failed to retrieve payments made to a specially-related party upon dissolution of the special relationship, such payments do not constitute profits under Article 15 Paragraph 1 of the former Corporate Income Tax Act, but that they can be deemed profits for policy reasons, and that doing so does not exceed the scope of delegation ranted by Article 15 Paragraph 3 of the former Corporate Income Tax Act. Supreme Court Decision 2018Du54408 dated July 21, 2021 held that “the accounting period for which the distribution of profits takes place” does not mean the “accounting period in which the decision to distribute dividends was made”, but the “accounting period for which dividends are being distributed”.