특수관계인에 대한 가지급금 및 관련 이자의 익금 규정에 관한 주요 쟁점―대법원 2021.8.12. 선고 2018두34305 판결과2021.7.29. 선고 2020두39655 판결을 중심으로―

Major issues related to Article 11 Subparagraph 9 of the Enforcement Decree of the Corporate Tax Act, which sees funds lent by corporations to related parties regardless of work and interest generated there as earnings, were examined, focusing on Supreme Court precedents. There were three issues dealt with in this article：the purpose of Article 11 Subparagraph 9 of the Enforcement Decree of the Corporate Tax Act, the issue of determining the timing of attribution of interest, and whether the delegated legislation deviated. The purpose of Article 11 Subparagraph 9 of the Enforcement Decree of the Corporate Tax Act should be understood as taxation on debt exemption profits as a policy purpose for income disposition, as in the Supreme Court precedent. Two matters were considered regarding the original timing of attribution of interest in the provisions of the Enforcement Decree of the Issue. Originally, it was argued that it was contrary to the principle of determining rights and obligations to determine the timing of the attribution of interest by the provisions of the Enforcement Decree of the Issue. It was confirmed that the discussion on whether it is correct in the legal system to determine the timing of attribution of earnings and losses in the provisions of the Enforcement Decree of the Issue was of no practical benefit. Finally, considering that the parent law clearly specifies the scope of delegation, and that the delegation is earnings that leads to an increase in net assets, and that unlike general benefit administrative laws, the requirements and scope of delegation should be more strictly and limited. It is necessary to revise it in a way based on related tax laws in order to have a direct tax legal effect on the parties who earn debt exemption profits through legislative theory. Specifically, new regulations reflecting the purpose of the issue enforcement ordinance can be established in Article 36 of the Inheritance Tax and Gift Tax Act, Article 51 (3) of the Enforcement Decree of the Income Tax Act, and Paragraph 2 of the Corporate Tax Act.