법인세법상 수입배당금 익금불산입 금액 산정 시 차입금의 범위에 관한 연구 ― 대법원 2017.7.11.선고 2015두49115 판결을 중심으로 ―

Abstract

In order to regulate double taxation, a certain rate of exclusion from taxable income is accepted with regard to the dividend a domestic corporation receives from another domestic corporation. However, when stocks are purchased with borrowed money, exclusion from taxable income is accepted regarding the amount from which interest for borrowed money is deducted. Therefore, the range of borrowed money exerts a large influence on the size of taxable income. As the taxation authorities, which try to secure the right of taxation, tend to expand the range of borrowed money and taxpayers tend to reduce the range of borrowed money, there is a room for dispute. Recently, the Supreme Court has seen the range of borrowed money more widely and made a ruling that reverses the ruling of the second trial. This study tried to examine whether or not the ruling of the Supreme Court on the range of borrowed money was appropriate. The rate of acknowledging exclusion from taxable income in the United States is higher than that in Korea, and exclusion from taxable income is not accepted only regarding interest of borrowed money related to the acquisition of stocks. Japan also has a higher rate of acknowledging exclusion from taxable income than Korea, acknowledging 100 percent exclusion from taxable income for cases whose rate exceeds one third. Furthermore, though interest of borrowed money is not deducted from the amount for which exclusion from taxable income is acknowledged, the range of interest is thought to be narrower than that defined in the ruling of Korean Supreme Court. Given all this, the ruling of the second trial in which “routine and repetitive” part should be excluded from interest of borrowed money is appropriate, and the range of borrowed money defined in the ruling of the Supreme Court was excessively expanded. In addition, in the United States and Japan, the structure of exclusion from taxable income is simple and the rate of its acknowledgement is higher. Therefore, the current provision for the Corporation Tax Act, in which companies are categorized into holding company, general corporation, listed company and unlisted company and then the rate of acknowledging exclusion from taxable income is defined, should become more simple, and it is necessary to raise the rate of acknowledging exclusion from taxable income.