조세법상 가장행위와 고유목적사업준비금 전출행위 - 대법원 2013. 3. 28. 선고 2012두690 판결을 중심으로 -

Abstract

On Supreme Court 2012Du690 decision of March 28, 2013, the court quashed and remanded the decision of the appellate court that included to deductible expenses the plaintiff’s transference of the reserve fund for essential business. However due to the Supreme Court’s ambiguous decision criteria, there has been increased level of confusion among tax offices and lower courts. The Supreme Court decision may be considered as an illegal decision attributed to the misunderstanding of the substance over form doctrine. This study first scrutinizes the statutes on educational trusts and their reserve funds for essential business. Then it would decide on the establishment of sham transaction in civil law and application of the substance over form doctrine. The study focuses on the limitation of the substance over form doctrine, and then confirms that the doctrine cannot be applied to this case. In addition, it examines legal interpretation and legislative solutions in regard to essential business of educational trusts. In consideration of the intents of the statutes, the regulations of the administrative offices, and the interpretations of foreign legislation, the scope of fixed assets “directly” used by educational trusts shall be expanded. Furthermore, the discussion on the interpretation of the Supreme Court decision and legislative solutions is necessary for the article 29, paragraph 4 of Corporate Tax Act not to be overly expanded in its interpretation.