Under the system levying corporate tax on educational foundations, income from proper purpose business is not taxed, and only income from profit-making business is taxed.
Corporate tax is not imposed on income earned from educational business, on t...
Under the system levying corporate tax on educational foundations, income from proper purpose business is not taxed, and only income from profit-making business is taxed.
Corporate tax is not imposed on income earned from educational business, on the condition that profits are not distributed, hence levying corporate tax would be just, if an educational foundation does distribute profits. While general non-profit corporations are small in size and the scale of income from proper purpose business besides government subsidies and donations is not big, educational foundations have a high proportion of the income from proper purpose business itself and the amount of the income is significantly huge.
Income from profit-making business is taxable, so that a fair competition relationship to profit corporations can be maintained. General non-profit corporations operate profit-making business in small scale and the vast majority of the relevant income is composed of interest income, but educational foundations run profit-making business in a wide variety as in affiliated hospital management, manufacture industry, merchandise sales, service, etc.
It can be said that the bigger the proper purpose business income is in size, the more likely it is that profit distribution can be done under the pretense of reasonable expenses, and that the more various in kinds profit-making business is operated, the more intense the competition with profit corporations turns. Therefore, with regard to system levying corporate tax on educational foundations, issues of imposing tax on private inurement of income earned from proper purpose business and issues of levying tax regarding income from profit-making business need to be reviewed.
Prohibiting private inurement means members of educational foundationhall not profit from any part of income or assets of the educational foundation directly or indirectly in an unjust manner. In other words, prohibiting private inurement refers to prohibiting profit distribution, and the term ‘profit distribution’ can be substituted by ‘private inurement’.
If private inurement takes place in the course of conducting profit-making business, corporate tax can be imposed by applying non-inclusion of expenses in excess in calculation of deductible expenses as in Article 43 of 「Enforcement Decree of the Corporate Tax Act」 and by applying Repudiation of Wrongful Calculations as in Article 52 of 「Corporate Tax Act」to the case, but transactions which do not fall into the category of profit-making business of the educational foundation, i.e. transactions classified as proper purpose business activities, cannot be applied the provision, Repudiation of Wrongful Calculations, and there is no regulation regarding labor costs, so the problem arises that corporate tax can be imposed. In order to solve such an issue, legal grounds shall be provided, so that corporate tax can be imposed on cases where the income of educational foundations inures to the private benefit of founder and his/her relatives of the educational foundations. As for private inurement through payment of labor costs, Article 56 Paragraph 11 of 「Enforcement Decree of the Corporate Tax Act」regulating labor costs of encouragement of learning foundations and social welfare foundations shall be amended in such a way that the scope of labor cost regulations can include educational foundations. Regarding private inurement through payment of construction costs for facilities, Paragraph 3 of Article 2 of the「Enforcement Decree of the Corporate Tax Act」shall be amended, so that the amount of profit distribution which took place through an excessive payment of construction costs will not fall into the category of educational institutions’ services excepted from the scope of profit-making business.
Issues of levying corporate tax regarding profit-making business conducted by educational foundations could be studied in three aspects. First, an educational foundation shall produce profits amounting to more than 3.5% of the total amount of properties for profit-making businesses, where the greater part of the properties for profit-making businesses owned by educational foundations is land with a significantly low rate of return. Therefore, there is a need to discuss the issue of levying corporate tax arising in the process of the disposal of the land and acquisition of property with a rather high rate of return. Secondly, industry-academic cooperation foundation run as departments within universities are now run as separate corporations established according to a relevant act legislated in 2003, so the issue of imposing tax on transactions between universities and industry-academic cooperation foundations needs to be examined, along with the issue of levying tax on industry-academic cooperation foundation’s profits from research activities. Thirdly, income from profit-making business of educational foundations has an effect of being exempt from corporate tax, by being acknowledged to be included in calculation of losses through setting proper purpose business reserves. This leads to the problem of impeding fair competition with profit corporation by violating neutrality of price, and therefore, it is necessary to review ways to treat for the problem while making sure that education as business for public benefit is not negatively influenced.
In the case where an educational foundation makes disposition of land for profit-making business with a low rate of return and replaces it by acquiring buildings for profit-making business with a high rate of return, corporate tax for 「Income for each business year」and 「Capital gains on transfer of land, etc.」 is imposed on profits accruing from the disposal of land. Here the problem arises that one cannot invest the amount of corporate tax in real estate acquired as a replacement of the previous land, so it would be appropriate to amend Paragraph 16 of Article 104 of the 「Restriction of Special Taxation Act」 in such a way that corporate tax on each business year’s income accruing in the process of acquiring real estate for profit-making business as a replacement, can be imposed at the point of disposal of newly acquired real estate. Also, in the case where a disposition of land for profit-making business is made and new real estate for profit-making business is acquired in a certain period of time, Subparagraph 2 of Paragraph 2 of Article 55 of the「Corporate Tax Act」shall be amended, so that corporate tax is not imposed on capital gains on transfer of land, etc., by excepting the pertinent land from the scope of non-business purpose land.
Business providing research and development service is operated by having its management transferred to a separate corporation, namely, industry-academic cooperation foundation, and accordingly, in a case where paid research service is provided under a contract, etc., it gets included in profit-making business, where corporate tax is imposed. 「Corporate Tax Act」 does not clearly define the concept of ‘compensation’ and rather provides it in comprehensive term, which leaves the job for tax authorities to determine whether the outcome of research service was for compensation, hence wide open to dispute. Profits which industry-academic cooperation foundations earn from research and development mostly go to direct expenses such as labor costs, costs for research activities, etc., and therefore, profits do accrue, but without ones to actually constitute profits for each business year. This leaves no room for establishing competition relationships with profit corporations, so Subparagraph 2 of Paragraph 1 of Article 2 of the 「Enforcement Decree of the Corporate Tax Act」shall be amended in such a way that research service provided by Industry-Academic Cooperation Foundation within the scope of profit-making business regarding research and development work gets excepted. Furthermore, there is a problem of levying tax on educational foundations regarding free leasehold of the school buildings or business incubators which an Industry-Academic Cooperation Foundation is using, and research equipments of the university with a low usage fee, by applying Repudiation of Wrongful Calculations provision as in Article 52 of the 「Corporate Tax Act」. Therefore, Paragraph 1 of Article 87 of 「Enforcement Decree of the Corporate Tax Act」shall be amended in such a way that Industry-Academic Cooperation Foundations and educational foundations are excluded from the scope of person with special relationship.
Income from profit-making business of educational foundations is taxable in corporate tax, but by being acknowledged as inclusion in calculation of losses through setting proper purpose business reserves, the income can have an effect of being exempt from corporate tax, in the end. Pursuant to the provision in Article 74 of the 「Restriction of Special Taxation Act」, if an educational foundation sets proper purpose business reserves, the total amount of profits accruing from profit-making business are acknowledged a status of deductible expenditures, on the premise that they will be used for proper purpose business within 5 years, which makes them practically exempt from corporate tax. This creates an issue of unfair competition between profit corporations and educational foundations in conducting profit-making businesses, and follow-up control poses another issue whether expenses were spent within 5 years from setting proper purpose business reserves. In order to solve such issues, it would be valid to abolish proper purpose reserves system pursuant to the current 「Corporate Tax Act」.
If the total amount of profits accruing from profit-making businesses by educational foundations gets taxed in order to resolve the issue of unfair competitions between profit corporations and non-profit corporations, it could risk constricting education as a service for public benefit. Therefore, it would be valid to introduce deeded contributions as in the case of Japan, where profits from profit-making businesses spent on proper purpose business are deemed contributions, so that deduction of contributions is granted. deemed contributions is related to a calculation of taxable income of profit-making businesses. Non-profit corporations’ spending assets such as cash, etc. on proper purpose business is an internal transaction, and does not fall into the category of deductible expenses, and therefore, is not included in the calculation of dedutible expenses for taxable income regarding profit-making businesses. However, deemed contributions is to include such spending in the calculation of dedutible expenses within the scope of limited amount, by deeming it to be a donation.
Abolishing proper purpose business reserves system and switching to deemed contributions can allow profit corporations to donate by choice of the corporations themselves, and to enjoy the same benefit of deduction of contributions as non-profit corporations do. Therefore, rather than proper purpose business reserves system which cannot be applied to profit corporations, deduction of deemed contributions would be more capable of resolving unfair competition issues. Also, in terms of follow-up control, proper purpose business reserves lasts 5 years from the moment of its setting, but deemed contributions are subject to follow-up control for the pertinent year of spending, so timewise, a-year-period, rather than five-year-period would better reduce difficulties attached to follow-up control.
【Key words】Educational Foundation, Income from Proper Purpose Business, Income from Profit-making Business, Corporate Tax, Private Inurement, Industry-Academic Cooperation Foundation, Proper Purpose Business Reserves, Deemed Contributions