지방자치단체를 통한 우회적인 기부행위의 부인 ―대법원 2018.3.15. 선고 2017두63887 판결―

When a domestic corporation makes a donation to another domestic corporation and does not take the form of a direct donation, but chooses the form of an indirect donation or a bypassing donation by inserting a local government, a statutory donation organization, in the middle to reduce the corporate tax burden, the issue is whether the donation constitutes tax avoidance. In the target judgment, the supreme court sentenced that such donations are not subject to the denial of calculation by wrongful acts under article 52 of the Corporate Tax Act because they cannot be considered to lack economic rationality in light of sound social conventions or common practices, and therefore do not constitute tax avoidance. Article 88(1) of the Enforcement Decree of the Corporate Tax Act lists 12 types of calculation by wrongful acts that meet the requirements for disallowing calculation by wrongful acts, including abnormality of behavior or calculation, transactions between related persons, and unjustified reduction of corporate tax burden. All of them are cases where a company reduces its corporate tax burden by distributing profits to a related party through an unusual transaction with a related party. For example, purchasing assets from a related party at a high price or transferring assets to a related party at a low price or for free, lending money to a related party at a low rate or borrowing money from a related party at a high rate, and distributing profits to a related party through capital transactions to reduce the corporate tax burden. Changing the type of donation from ‘other donations’ to ‘statutory donations’ through bypassing donation behavior is an act of tax avoidance through roundabout transactions. The act of changing the type of donation from ‘other donation’ to ‘statutory donation’ through such a bypassing donation is not a case of ‘reducing one’s corporate tax burden by distributing profits to a related party’. Therefore, the act of tax avoidance through such a roundabout transaction is not subject to the denial of calculation by wrongful acts under article 52 of the Corporate Tax Act. In conclusion, since the donation at issue in the target case was an intentional reduction of corporate tax burden by changing the type of donation from ‘other donation’ to ‘statutory donation’ through a roundabout transaction, it is not possible to apply the denial of calculation by wrongful acts of article 52 of the Corporate Tax Act, and it is appropriate to apply article 14(3) of the Framework Act on National Taxes, which denies roundabout transactions, to examine whether the donation constitutes an act of tax avoidance. Since the plaintiff’s bypassing donation in the target case constitutes a typical roundabout transaction that meets the methodological, purpose, and content requirements of article 14(3) of the Framework Act on National Taxes, it is appropriate to reconstruct the donation as “other donations” and tax it according to the above rules.