Actual deduction of the own-purpose reserve decides the dividend exclusion

1. 01Question

   May a non-profit domestic corporation that spent income from a listed company's dividends on its own-purpose business, and booked part of that spending as a special reserve for own-purpose business expense under Article 29 of the former Corporate Tax Act, claim the exclusion of dividend income from gross income under Article 18-3(1) for the rest, and may it afterwards withdraw the deduction from its accounts retroactively and seek a revision?

2. 02Holding

   The exclusion applies to a non-profit domestic corporation that did not actually book any amount as a special reserve for own-purpose business expense, because Article 17-3(4) of the Enforcement Decree removes the exclusion only for a corporation that deducts such a reserve under Article 29. If even part of the amounts spent on own-purpose business was actually deducted under Article 29, the exclusion under Article 18-3(1) is unavailable for the whole of the dividend income, including the part not deducted. Once the corporation has chosen the deduction and reflected it in its accounts, it may not withdraw it retroactively to claim the exclusion, and it may not found a revision request under Article 45-2(1) of the former Framework Act on National Taxes on such a withdrawal, unless special circumstances provide otherwise.

   Summary of the holding, verbatim

   반면 비영리내국법인이 각 사업연도에 고유목적사업 등에 지출한 금액에 대하여 일부라도 구 법인세법 제29조에 따라 고유목적사업준비금으로 실제 손금에 산입하였다면, 수입배당금액 가운데 그와 같이 손금산입되지 아니한 부분이 남아 있더라도, 이에 대해서는 구 법인세법 제18조의3 제1항의 수입배당금액 익금불산입 특례를 적용받을 수 없다고 보아야 한다.

   Unofficial English translation

   On the other hand, if a domestic nonprofit corporation has actually deducted, as expenses, any part of the amount it expended on specific purpose business, etc. in each business year as the reserve for specific purpose business under Article 29 of the former Corporate Tax Act, then even if a portion of the amount of dividend income that has not been deducted as expenses in that manner remains, the special rule for exclusion from taxable income of the amount of dividend income under Article 18-3 (1) of the former Corporate Tax Act cannot be regarded as applicable to such remaining portion.

3. 03Disposition

   Partly reversed and remanded Stated in the decision

   원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고의 상고를 기각한다.

   Unofficial English translation

   The judgment of the court below is reversed with respect to the part in which the defendant lost, and the case as to this part is remanded to the Seoul High Court. The plaintiff's final appeal is dismissed.

4. 04Form of the test

   Elements stated Stated in the decision

   고유목적사업준비금을 실제로 손금에 산입하지 않은 비영리내국법인에 해당하는 경우 수입배당금액 익금불산입 특례를 적용받을 수 있다.

   Unofficial English translation

   Where a domestic nonprofit corporation is one that has not actually deducted the reserve for specific purpose business as expenses, it may receive the benefit of the special rule for exclusion from taxable income of the amount of dividend income.

5. 05Factors

   • 구 법인세법 제29조에 따른 손금산입 특례 대상인 비영리내국법인이라 하더라도 고유목적사업 등에 지출된 금액을 실제로 고유목적사업준비금으로 손금계상하지 않았다면
   • 수입배당금액 가운데 그와 같이 손금산입되지 아니한 부분이 남아 있더라도
   • 결산에 반영하여 손금으로 계상하였을 때에는 이를 손금으로 보고, 결산에 반영하지 아니하여 손금으로 계상하지 않은 경우에는 손금으로 보지 않는 이른바 ‘결산조정사항’에 해당한다
   • 법령상 다른 정함이 있다는 등의 특별한 사정이 없는 한 원칙적으로 허용될 수 없다
   • 구 국세기본법(2019. 12. 31. 법률 제16841호로 개정되기 전의 것) 제45조의2 제1항 소정의 경정청구를 하는 것도 다른 특별한 사정이 없는 한 불가능하다고 보아야 한다

   Unofficial English translation

   • even where a domestic nonprofit corporation is subject to the special rule for deduction under Article 29 of the former Corporate Tax Act, if it has not actually accounted for the amount expended on specific purpose business, etc. as the reserve for specific purpose business as expenses,

   • even if a portion of the amount of dividend income that has not been deducted as expenses in that manner remains,

   • it is a so-called 'settlement adjustment item,' under which it is treated as expenses if it was accounted for as expenses upon being reflected in the settlement of accounts, and is not treated as expenses if it was not accounted for as expenses due to non-reflection in the settlement of accounts;

   • in principle, it cannot be allowed unless there are special circumstances, such as a different provision in statutes or subordinate statutes;

   • and, unless there are other special circumstances, filing a claim for rectification as prescribed in Article 45-2 (1) of the former Framework Act on National Taxes (before its amendment by Act No. 16841, December 31, 2019) must also be regarded as impossible.

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2004. 5. 28. 선고 2003두7392 판결

   Unofficial English translation

   Supreme Court Decision 2003Du7392 decided May 28, 2004

   Decisions referred to

   해당 본문 참조

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   What kind of a different provision in the statutes and regulations would amount to the special circumstances that allow a taxpayer to withdraw retroactively a reserve deduction already reflected in its accounts?

   A later decision defining what the special circumstances permitting retroactive withdrawal are would change how this entry reads. Any amendment to Article 29 or Article 18-2 of the Corporate Tax Act, or to Article 45-2(1) of the Framework Act on National Taxes, would also call for a fresh reading.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.