법인세법상 실효성이 의문시되는 규정에 대한 소고

This article is to review and analyze the validity of Article 15, Paragraph 2, Item 1, and Article 45 of the Enforcement Decree of the Corporate Tax Law(CTL). Article 45 of the Enforcement Decree stipulates that fringe benefits are, in principle, not recognized as deductible expenses, and only those listed in the subparagraph are permissible as deductible expenses. Fringe benefits are necessary business expenses; so they should be recognized as deductible expenses. Nevertheless, this provision is based on the premise that fringe benefits are not deductible expenses. This is taxing non-exist income, which violates the principle of substantive rule of law. Furthermore, since Article 45 stipulates the contents beyond the power conferred by the agency, it is not effective as it exceeds the limit of delegation by the agency. Article 45(1) itself is also problematic. In other words, there are systemic problems due to the mixture of different expenses of different natures, and it gives the tax administrative agency a wide range of discretionary powers. Combined together, Article 45 of the Enforcement Decree of the CTL is an invalid and ineffective provision. Article 15, Paragraph 2, Item 1 of the CTL provides that when a corporation purchases securities at a price lower than the market price from an individual who is a related party, an amount equivalent to the difference between the market price and the purchase price shall be regarded as gross income. Based on this provision, Tax Authorities impose tax when acquiring securities from a related party at a below-market price. The Estate and Gift Tax Law also imposes taxation on gains to members of corporations acquiring assets at a below-market price. Consequently, the legislative purpose that imposes tax on acquiring at a below-market price from a relative party under the CTL has been achieved under the Estate and Gift Tax Law. Thus, taxation in the CTL to low- priced transactions of securities is now ineffective.