2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s change in the income amount of KRW 71,00,000 for the Plaintiff on October 19, 2016 to the Plaintiff on October 19, 2016

The disposition shall be revoked.

A. Plaintiff’s accounting of issues and report of corporate tax

1) On September 28, 2010, the Plaintiff loaned a loan of KRW 18 million from a new bank Co., Ltd. (hereinafter “the name of the stock company”) with a loan of KRW 18 million. However, on October 25, 2010, repayment of the principal amount of KRW 37 million to a new bank was made on October 25, 201, and the remaining loans as of the time were KRW 71 million (hereinafter “existing loans”).

2) On September 25, 2015, the Plaintiff handled the loan account (new bank*) from the loan account (new bank*) to KRW 71 million and opened a new loan account (new bank / / her new bank) on the same day, and was treated as a loan of KRW 71 million (hereinafter “new loan”) to the said new loan account.

3) 한편, 원고는 2015. 9. 25. 아래 표의 기재와 같이 대표이사 이##에 대한 가지급금 7,000만 원(이하 '이 사건 가지급금'이라 한다)을 회수하여 이 사건 신규 차입금 7,100만 원을 상환하는 내용으로 회계처리를 하였고, 2016. 3. 29. 위와 같은 내용으로 원고의 2015 사업연도 법인세 신고를 하였다.

B. Details of the notice of the change in the income amount of this case

1) After conducting a consolidated investigation of corporate tax in 2015, the Defendant sent to the Plaintiff a notice on August 8, 2016 on the submission of materials, such as financial evidence related to the collection of the provisional payment of this case, to the Plaintiff.

2) On August 19, 2016, the Plaintiff issued a revised advance sheet on January 1, 2016, stating that the Plaintiff created KRW 71 million for provisional payments and short-term loans and KRW 71 million. However, on August 23, 2016, the Plaintiff responded that the Defendant’s request for submission of materials was “the existing loan obligation was repaid with the representative director’s funds.”

3) On October 7, 2016, the Defendant demanded the Plaintiff to submit a revised return or additional explanatory data on the instant provisional payment by no later than October 14, 2016, but the Plaintiff failed to comply therewith.

4) 이에 피고는 원고가 대표이사의 가지급금을 회수하여 이 사건 기존 차입금을 상환한 것으로 처리한 7,100만 원(이하 '이 사건 쟁점금액'이라 한다)을 사외유출된 것으로 보고 이를 원고의 대표이사 이##에 대한 상여로 소득처분한 다음, 2016. 10. 19. 원천징수의무자인 원고에게 2015년 귀속 인정상여액 7,100만 원의 소득금액변동통지(이하 '이 사건 소득금액변동통지'라 한다)를 하였다.

(c) Procedures of the previous trial;

On November 29, 2016, the Plaintiff filed a tax appeal seeking revocation of the notice of change in the amount of income in this case with the Tax Tribunal on April 3, 2017, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on June 19, 2017.

[Ground for recognition] Unsatisfy, Gap evidence 1 to 6 (including paper numbers; hereinafter the same shall apply), Gap

8 Evidence 8, each entry of evidence Nos. 1 through 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The portion of the Plaintiff’s account of the instant provisional payment, which accounts as the repayment of the instant existing loan, is merely a simple error in the accounting of the employee in charge. The instant provisional payment and the instant existing loan were simultaneously omitted, and there was no actual cash transaction being corrected as of January 1, 2016, and there was no actual cash transaction accompanied. Therefore, in light of the substance over form principle, the key issue amount of the instant case cannot be deemed to have been discharged from the company. Therefore, the notice of the change of the income amount of the instant case that the instant provisional payment was deemed to have been discharged from the company is unlawful, and it is reasonable to include only the recognized interest and the portion of the instant provisional payment, which were omitted by reducing the instant provisional payment without any justifiable reason, in the calculation of the bonus.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Cash, which is the counterpart account of off-the-counter debt, shall be deemed as corporation's profit. If cash, which is the counterpart account of off-the-counter debt, which is the company's profit, is not entered in the company's account, it shall be deemed as if it was leaked out of the company, barring any special circumstance. If it is unclear, it shall be deemed as a bonus for representative pursuant to Article 67 of the Corporate Tax Act and the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 26981, Feb. 12, 2016; hereinafter "former Enforcement Decree of the Corporate Tax Act"). Further, if it is not clear that the corporation's income tax liability is established with respect to the amount attributed to the representative, etc. of the corporation, it shall not affect the corporation's tax liability even if it was returned later (see Supreme Court Decision 91Nu5303, Dec. 10, 191; 200Du75016, Dec. 16, 1999).

In other words, in principle, disposal of income shall be carried out again (see Supreme Court Decision 2009Du9307, Nov. 10, 201).

2) 앞서 인정한 사실 및 변론 전체의 취지에 의하여 알 수 있는 아래와 같은 사정들에 의하면, 이 사건 쟁점금액은 사외로 유출되었다고 봄이 타당하고, 피고가 이 사건 쟁점금액을 익금 산입하는 한편 이를 이##에 대한 상여로 소득처분하여 이 사건 처분을 한 것은 적법하다.

가) 원고가 대표이사에 대한 이 사건 가지급금을 회수하고 이를 토대로 이 사건 기존 차입금을 변제한 것처럼 회계처리함으로써, 이 사건 신규 차입금 채무가 부외 부채로 존재하게 되는 한편 대표이사 이##가 원고에 대하여 부담하던 가지급금 채무가 소멸하는 결과가 발생하였다. 앞서 본 법리에 덧붙여 원고의 위와 같은 회계처리로 인하여 부외부채에 대응하는 이 사건 쟁점금액 부분이 장부에서 누락되었고, 이로써 이##는 채무를 면제받는 이익을 얻음과 동시에 이 사건 쟁점금액을 임의로 사용할 수 있었던 점을 보태어 보면, 이 사건 쟁점금액 전액이 사외유출된 것으로 추정되고 이를 대표이사에 대한 상여로 소득처분함이 상당하다.

B) In addition, in cases where the creditor and the debtor erroneously offset the advance payment and the provisional payment different from each other, the additional payment does not occur separately, while in this case, the Busan High Court Decision 2013Nu10185 cited by the plaintiff is not invoked in this case in that the additional payment occurred due to the plaintiff's accounting settlement. Rather, in light of the situation that the representative director of the plaintiff could have arbitrarily used it by omitting the key amount in the books as seen earlier, it is reasonable to view that the total amount of the issue amount in this case was out of the company, and it is not deemed that the provisional payment in this case is limited to the person who recognized the provisional payment in this case.

C) Furthermore, the Plaintiff issued a revised advance sheet for the instant borrowings and provisional payments and included them in gross income. However, the point of time is August 19, 2016, which was the 10th day from August 8, 2016 when the Defendant demanded the Plaintiff to submit taxation explanatory materials. This constitutes “where the head of the district tax office having jurisdiction over the place of tax payment is notified of explanation of taxation data” under the proviso of Article 106(4)4 of the former Enforcement Decree of the Corporate Tax Act or “where he was aware of correction in advance due to cases similar to those under subparagraphs 1 through 5” or “where he was informed of correction in accordance with subparagraphs 1 through 5, the key amount in this case shall not be deemed as the internal reserve money, and shall be deemed as the full

D) The Plaintiff asserts that it is merely an accounting error that occurred by recognizing the repayment of the loan in the course of changing the loan account. However, in light of the fact that the Plaintiff continued to pay interest on the instant loan even after September 25, 2015 when the previous loan account was terminated, it is difficult to deem that the Plaintiff was erroneous to have repaid the instant loan, and there is no other evidence to deem that the key issue amount was not leaked.

E) The principle of substantial taxation is a practical principle for realizing the principle of equality, which is the basic ideology of the Constitution, in a tax legal relationship. In a case where any unreasonable form or appearance that differs from the substance of the taxation requirement is taken for the purpose of evading the tax burden, the main purpose of this principle is to regulate unfair tax avoidance acts and enhance the equity in taxation by imposing tax on a place where the tax source exists, regardless of the form or appearance, and thereby to realize the tax justice by enhancing the equity in taxation. As seen earlier, as seen earlier, the Plaintiff got the representative director to gain profit equivalent to the key amount by extinguishing the provisional payment obligation of the representative director. As such, the Defendant’s disposal as a bonus to the representative director of the Plaintiff, who is the actual benefit, is in accord with the principle of substantial taxation. Accordingly, it accords with the principle of substantial taxation.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

m. Corporate Tax Act

Article 67 (Disposition of Income)

When filing a report on the corporate tax base on the income for each business year pursuant to Article 60 or determining or revising the corporate tax base pursuant to Article 66 or 69, the amount included in the calculation of earnings shall be disposed of to the person to whom it belongs, as prescribed by Presidential Decree, such as bonus, dividend, other outflow and internal reservation.

(1) The former Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No. 26922, Feb. 12, 2016)

§ 106. Disposal of income

(1) The amount included in the calculation of earnings under Article 67 of the Act shall be disposed of in accordance with the provisions of the following subparagraphs. The same shall also apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, it shall be disposed of as dividends, bonuses from the disposition of profits, other income, or other outflow from the company under the following items according to the person to whom it reverts: Provided, That it is unclear to whom it reverts: Provided, That it shall be deemed as accrual to the representative (where an executive who is not a minority shareholder, etc. and persons with a special relationship under Article 43 (8) holds at least 30/100 of the total number of outstanding stocks or total investment amount of the relevant corporation and actually controls the operation of the corporation, he/she shall be deemed the representative, and where there are at least two representatives, de facto representative shall be the representative

2. Where the amount included in gross income has not leaked out of the company, it shall be deemed internal reserves;

(4) Where a domestic corporation recovers the amount illegally flown out of Korea, such as omission of sales and processing expenses, within the period for report of modification under Article 45 of the Framework Act on National Taxes, and files a report by including it in gross income as tax adjustment, the disposition of income shall be deemed internal reserve: Provided, That this shall not apply to any of the following cases in which it

4. Where he receives a notice of explanation of taxation data from the head of tax office having jurisdiction over tax payment.

6. Other cases similar to those referred to in subparagraphs 1 through 5, where it is deemed that the correction has become known in advance.