‘업무무관 가지급금’이 있는 법인에 적용되는 지급이자 손금불산입 규정의 입법목적과 그에 따른 해석론에 관한 비판적 고찰 ―대법원의 판례를 중심으로―

Abstract

This article discusses a provision in the Korean Corporate Income Tax Act (“Provision”), which disallows deduction of a certain portion of the total interest paid by a corporation as business expenses, when this corporation has granted its related party a loan that is “unrelated to its own business.” It is widely agreed that this peculiar Provision does not aim at accurately measuring income, but pursues certain policy goals. In this regard, this article attempts to identify what those policy goals are, and examine whether case law has interpreted the Provision in a manner reconcilable with them. This article enumerates five such policy goals, which are, (ⅰ) discouragement of use of corporate assets for “private purposes,” or (ⅱ) “non-productive purposes,” (ⅲ) provision of an incentive for improvement of its financial structure, or (ⅳ) prevention of unreasonable debt-financed corporate expansion, or (ⅴ) reinforcing the market position of a related party. This article argues that the goals (ⅳ) and (ⅴ) put on the tax authorities a burden that they cannot adequately discharge in that they would be required to, either second-guess the business decisions on “corporate expansion,” or apply tests that are inherently competition-law-based (rather than tax-law-based). It is added that it would only increase the total volume of uncertainty in our corporate income tax system, which is by no means a desirable outcome. The goals (ⅰ) and (ⅱ) do not share the same defects, but one needs foremost to define to a certain extent the exact contours of such expressions as “private” or “non-productive.” This article also stresses, in connection with the goal (ⅲ), that a flexible approach is warranted that takes into account the actual debt-equity ratio of the corporation at issue. As a conclusion, this article argues that the Provision should not be invoked insofar as the loan to the related party at issue is made to a business, and this business pays interest at the market rate. Even when this is not the case, this article submits, the taxpayer corporation should be allowed to substantiate its claim that the loan has also promoted its own benefit, thus “related to its own business.” Ideally, the debt-equity ratio of the corporation at issue may also play a role in determining whether to apply the Provision, but if one finds difficulty, from a semantic perspective, in subsuming this test based on the said ratio into the larger criterion of “relation to the business,” it might alternatively be concluded that this end still should and could be pursued via a new legislation.