The costs of appeal are assessed against the defendant.

[Seoul High Court 2007Nu346 (Law No. 14, 2007)]

2. The costs of appeal shall be borne by the Defendant.

The Defendant’s imposition of wage and salary income tax of KRW 69,906,233, additional tax of KRW 3,472,811 against the Plaintiff on October 1, 2005 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The reasoning for this Court's explanation concerning this case is to delete "after the fourth fifth of the judgment of the court of first instance", and to dismiss "application for temporary injunction against construction work" in the fifth 10,11 as "application for temporary injunction against construction work", and the next 2. The reasoning for this Court's explanation is the same as that for the reasons for the judgment of the court of first instance, and therefore, it is to accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination on the additional argument

In light of the fact that the construction cost items included a purchase tax invoice equivalent to KRW 227,00,000,000, which the representative director of the plaintiff Kim○○, a separate company that is an oligopolistic shareholder and is working as the representative director, among the details appropriated as the acquisition cost of the building of this case, Kim○ shall be deemed to have settled all the rights related to the building of this case to the plaintiff, and the debts to the plaintiff ○○○ and Lee○○, which the plaintiff acquired from Kim○, while settling all the expenses incurred for the construction of the building of this case, while settling all the rights related to the building of this case. Thus, the plaintiff asserted that the total amount of KRW 135,00,000 paid to Yang○ and Lee○○ was not directly related to the construction of the building of this case. Accordingly, the defendant's assertion that the plaintiff did not accept the defendant's assertion since it did not have any evidence to acknowledge that the plaintiff had settled the expenses incurred for the construction of the building of this case between Kim○○ and Kim○○.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2005Guhap38604, Nov. 29, 2006]

2. The costs of the lawsuit are assessed against the defendant.

A. On June 5, 2003, the Plaintiff, a corporation running real estate sale and lease business, constructed ○○○○○○-dong, ○○○○○○-dong, and 287.8 square meters (hereinafter “instant land”) for the purpose of selling the instant land, but it is difficult to sell the instant building due to the erosion of real estate games, etc., but it converted the instant building into the purpose of housing lease, and filed a return and payment of the value-added tax for the exclusive use of the goods subject to the imposition of the value-added tax on February 2003.

B. The Defendant: (a) conducted a written investigation and on-site verification on the instant building exclusively exempt from corporate tax; (b) deemed that the sum of the agreed amounts between 1,153,000,693 won and 135,000 won (Yan○○○65,000,000,000 won, and 70,000 won) was unrelated to the construction of the instant building as non-business expenses; and (c) deemed that the daily labor expenses of 105,583,138 won were calculated without evidence to be added to the total expenses, and instead disposed of as the representative in deductible expenses in calculating the income amount for the Plaintiff’s business year 2003,00,693, which was derived from the asset value of the instant building; and (d) notified the Plaintiff of the amount of income accrued to the Plaintiff in January 10, 205, 203, 20385, 3085.

C. On October 1, 2005, the Defendant notified the Plaintiff of the amount of bonus disposal at which the Plaintiff withheld and paid the labor income tax, and notified the Plaintiff of the withholding tax amount of KRW 72,929,040 (including additional tax of KRW 3,472,81, but excluding KRW 450,000).

[Basis] Evidence No. 1-2, Evidence No. 2, Evidence No. 2, Evidence No. 3-2, Evidence No. 1-6

2. Whether a disposition is lawful

A. The plaintiff's assertion

(1) 135,00,000 won paid by the Plaintiff to Lee ○○ and Yang ○○○, not to be the personal debt of the representative director unrelated to the Plaintiff’s business, but to acquire the status of the owner of the instant building and the basic construction work from ○○○, and accordingly, the Plaintiff paid the Plaintiff to ○○ and Yang ○○○ in lieu of the debt that the Plaintiff should pay to ○○ and Yang ○○. Therefore, it is unlawful to deny the nature of the assets for KRW 135,00,000 paid to ○○ and Yang ○○, and to dispose of it as

(2) Since daily labor costs were paid by the Plaintiff to daily workers and the head of the working group through the lecture, which is the head of the field office, in cash or without passbook, it is unlawful to deny the asset nature of the daily labor costs and to dispose of them as bonus of the representative director.

(3) Therefore, the instant disposition that notified the Plaintiff of the withholding tax on Kim Dong-dong, the representative director of the Plaintiff, based on the illegal recognition of contributions and the notification of change in income tax, should be revoked as it is unlawful.

(b) Related statutes;

The entry in the attached Form shall be as follows.

(c) Fact of recognition;

(1) New construction of an officetel ○○

around 194, ○○○ started construction with a building permit to build 82 households (hereinafter referred to as “first officetel”) on the ground of three lots, including ○○○○○-dong 1686-20, 1686-24, 1686-25, 168-25, ○○○○-si, ○○○-si, ○○○○-si, ○○○○-dong, 1994. The construction was suspended due to the occurrence of problems, such as interfering with the progress of construction by all owners of the instant land adjacent to the said land.

○○ purchased the instant land and agreed to extend it to the ○○ Office Officetel, and the first office officetel was engaged in the sales negotiations with all owners of the instant land. On June 23, 1997, the instant land was acquired on September 20, 1997 by entering into a sales contract for the instant land, and the first officetel was completed on September 10, 1997 and completed the preservation registration even after the completion of the first officetel.

The construction cost was insufficient when ○○○ performs the construction of a building. around June 25, 1997, ○○ and ○○○ loaned KRW 70,000,000 to ○○○○○ with each of the loans from ○○○ Bank, and ○○ was unable to repay the said money, ○○ paid the said money on behalf of ○○○, and both ○○ and ○ were converted to the apartment mortgage loan.

Around January 198, 1998, ○○ prepared an officetel building on the instant land by expanding a primary officetel and continued construction of an officetel construction (49 households). Around January 1998, part of the site of the primary officetel and the elevator, corridor, etc. of the officetel were included in the conditions of permission.

(2) The process leading to the involvement of the Plaintiff’s representative director Kim○○

Around July 198, 1998, when the foundation construction of the building of this case was being carried out, including the ground-breaking and file construction following the new construction of the building of this case, the head office of the first head office of the Seoul District Court (Seoul District Court 98tagi51757) was awarded a successful bid on April 25, 200. The land of this case was awarded a successful bid on October 17, 200 on the ground of ○○○○○○ on the ground of ○○○○. Around November 2000, ○○○○ accepted a proposal for the operation of the new building of this case and registered his ownership on November 28, 200 to Kim○○○○ on the instant land under his name.

Within 15 days after the registration of the preservation of the building of this case, ○○○ and ○○○ confirmed that ○○ transferred cash 2.3 billion won and 3 officetels to ○○○○, and that, in the event of failure to implement the said promise, the ownership of the building belongs automatically to ○○○○, and all obligations are attributed to ○○○○○○. At that time, ○○ and ○○○○ confirmed that 90,000,000 won and 110,000,000 won for ○○○, and 150,000,000 won for ○○○, and 150,000 won for ○○○, for 150,000 for ○○○, and for 150,000 for ○○’s representative

While ○○ and ○○○ tried to continue the construction of the instant building, the tenants and bidders who moved in the first officetel filed a civil petition due to dust, noise, etc. with the competent Gwanak-gu Office, and 10 persons, such as Kim○, etc., who are the successful bidders of neighboring officetels, connected the instant building to the neighboring officetels. The Seoul Central District Court (2001Kahap2159) filed an application for the provisional disposal of construction money with the Seoul Central District Court (2001Kahap2159) and Kim○ could not proceed with the construction with ○○○.

(3)The process of taking over the plaintiff

The Kim Dong-dong decided to independently carry out new construction of the building of this case, and agreed to take over the land of this case, instead of taking over KRW 90,000,00, and KRW 110,000,00, from among the debts owed by ○○○ while carrying out the ground-breaking and file construction of the building of this case, the debts owed to ○○○○○ with respect to ○○○○, and the debts owed to ○○○○, 110,000,000.

On June 29, 2001, ○○ Kim transferred the ownership of the instant land under its own name, and on November 13, 2002, the name of the owner was changed from ○○ to ○○○○○, and on January 19, 1998, the Plaintiff corporation, which was incorporated on January 19, 200, transferred the ownership of the instant land to ○○○○○○○○, and registered its business after being appointed as the representative director.

Park○-○ transferred KRW 20,000,000 to Lee○ on September 18, 2002, and repaid part of the loans to Lee○-○ bank on behalf of the Plaintiff. The Kim○-○ became the Plaintiff’s director after acquiring the Plaintiff.

On December 30, 2002, Kim○-○ transferred all the powers relating to the instant building to the Plaintiff and the Plaintiff, and Kim○-○ succeeded to all the obligations, such as the obligations, etc. taken over by Kim○-○○ from leap○○ and the obligations, and the Plaintiff agreed to transfer the building permit right to the Plaintiff.

On January 5, 2003, the Plaintiff agreed to pay KRW 132,00,000, among the tenants of the first officetel (the representative of 35 households), the representative of 35 households from among the tenants of the first officetel, as compensation for mental and material damage. On January 15, 2003, the Plaintiff resumed the construction after having agreed to pay KRW 150,00,000 with the Ga○○, the representative of the Local Autonomy Management Committee (the representative of the local residents). On January 15, 2003, the Plaintiff resumed the construction (after that, the Plaintiff paid all the above money to tenants of the neighboring officetels through Do○ and Do○○ on September 28, 2003).

Around April 2003, 2003, ○○○, Kim○, and the Plaintiff agreed to promptly resolve the obligations of ○○○○ (30,000,000) and ○○ (110,000,000) among the details of the obligations of the bank loans in the event that ○○ does not have any sex of the bank loans, and that both ○○ and ○○ (0,000,000) participated in the said agreement.

The plaintiff resumed the new construction of the building of this case and completed the registration of ownership transfer on March 26, 2003 from Kim Dong-dong, and completed the registration of ownership transfer on May 1, 2003, after obtaining approval for use under the name of the plaintiff on May 1, 2003, and completed the registration of ownership preservation on June 5, 2003.

(4) Details of payment related to the instant case

On February 9, 2004, the Plaintiff and Kim ○○ agree with both ○○○ by subrogated payment of KRW 110,000,000 out of KRW 70,000,000 to a debt owed to ○○○○○’s ○○, and thus, being exempted from the remainder of the debt;

On May 11, 2004, 000, 65,000 won out of 90,000,000 won, subrogated payment, and agreed with ○○○○ to exempt the remainder of the debt.

On May 12, 2004, 200 won was remitted to ○○○○ on cash, 25,000,000 won, and on September 18, 2002, the sum of KRW 20,000,000,000,000, which was paid to ○○○○○○’s subrogated payment on September 18, 2002. The Plaintiff paid KRW 20,000,000 to ○○○ on December 12, 2003, and the Plaintiff paid KRW 50,000,000 to ○○○ on February 9, 2004.

The Plaintiff transferred KRW 106,100,000 to the daily labor cost for the lecture capacity, etc. that undertaken the instant building construction as follows.

Labor cost

door-○

(the head of the Do team)

November 12, 2003

4,000,000

November 21, 2003

3,000,000

November 25, 2003

1,000,000

Sub-committees

8,000,000

○ ○

(the Head of the American Head Office)

December 1, 2003

2,000,000

December 31, 2003

2,300,000

Sub-committees

4,300,000

○ ○

(The head of the wooden Team)

December 31, 2003

10,000,000

January 19, 2004

5,000,000

August 23, 2004

5,000,000

Sub-committees

20,000,000

Gangwon ○

(Field Director)

October 6, 2003

50,000,000

December 31, 2003

10,000,000

January 19, 2004

5,000,000

March 31, 2004

8,000,000

may 3, 2004

800,000

Sub-committees

73,800,000

Total

106,100,000

일용근로자들은 목공, 미장, 도장, 조적(팀장 서○○) 등의 각 팀장들에게 소속되어 있었고, 둰고는 현장소장 강○○을 통해 각 팀장들과 도급형식으로 계약을 맺었다.

The actual relationship between the Plaintiff and the team leader of each part was not labor relations but labor relations, but it was inevitable for each part of the contractor to handle it as labor costs due to the relationship in which the contractor does not issue a tax invoice, and since the raw materials were substantially conducted in the form of contract, the contractor directly borne or procured and paid by the site manager.

The Plaintiff paid the contract amount with the initial contractor (officetel) but the contractor demanded the contractor to pay the amount in cash instead of the substitute, as the contractor did not accurately match the price of the officetel to be paid to each contractor after completion of the construction work (the office price is not fixed at the time of the contract) or the amount to be paid by the contractor after completion of the construction, and the contractor demanded the contractor to pay the amount to the Plaintiff in cash. The Plaintiff also paid the labor cost after one year because it did not sell the instant building and leased it.

(5) Conversion of duty-free projects;

Although the Plaintiff intended to sell the instant building, the Plaintiff continued to convert the use of the instant building for residential use into a housing lease for residential use, and paid the value-added tax on the exclusive use of the building at the time of filing the return of the final value-added tax on February 2003.

The difference between KRW 105,583,138 and KRW 106,10,00 paid for the actual daily labor cost as alleged by the Plaintiff arises. The circumstances are as follows: (a) the building of this case was reported as a concurrent business of taxable business (a general building lease and sales, 25.64 square meters) and tax-free business (a house lease business, 255.76 square meters) and the building amount to be refunded; (b) the input tax amount related to the taxable business was divided according to the taxable area and the ratio of the tax-free business area; and (c) the input tax amount related to the tax-free business was included in the building value; (d) the final tax return was filed as a taxable business; (e) the Plaintiff voluntarily pays KRW 516,862, which was already paid to the Plaintiff; and (e) the Plaintiff had been paid KRW 1,153,00,000 at the time of receiving the tax investigation by the Defendant’s investigator to prevent double labor amount from being paid to KRW 1,1,1,1500,500,2860.

[Based on recognition] Each description of Gap evidence Nos. 4-38 (including each number), witness leap ○, Song-○'s testimony, and the purport of the whole pleadings

D. Determination

(1) According to the above facts, it is a debt actually existing in 00,000 in leap○○’s loan money for an officetel construction on debt compliance with ○○ and Yang○○○, and Kim○○ was acquired from leap○○○ in return for acquiring the owner’s status as to the instant land and building from leap○○○○. In other words, the Plaintiff acquired the instant land, etc. from kap○○○○, and performed all obligations to ○○ and Yang○○○, and thus, it is erroneous to deny 135,00,000 won paid to ○○ and Yang○○○ from the value of the instant building and dispose of it as the bonus of the representative director.

(2)And since the plaintiff paid 106,100,000 won as daily labor cost, it is also erroneous that the daily labor cost was denied from the value of the building in this case and disposed of as a bonus of the representative director.

(3) Among the details entered in the Plaintiff’s account book, the Defendant asserted that the Plaintiff’s input tax amount should be deducted from the acquisition cost of the instant building because the Plaintiff’s input tax amount cannot be viewed as the Plaintiff’s expense under the Corporate Tax Act because the Plaintiff’s input tax amount cannot be seen as the Plaintiff’s expense, and thus, the Plaintiff’s input tax amount should be deducted from the acquisition cost of the instant building. Therefore, the Plaintiff’s input tax amount should be included in the cost, since the Plaintiff’s input tax is the tax to be borne by the final consumer in the status of consumers under the Value-Added Tax Act, and the Plaintiff’s input tax amount should not be deducted from the acquisition cost of the instant building. According to each of the evidence Nos. 11 and 36-2 to 4, the Plaintiff’s initial taxable business (lease and sales of the general building) and the tax-free business (lease business) were reported as a concurrent business and the ratio of the taxable business area and the tax-free business area. However, the Plaintiff’s assertion that the Plaintiff already paid the input tax amount cannot be accepted.

3. Conclusion

If so, the defendant's disposition of this case is unlawful, so the plaintiff's claim seeking its revocation is accepted as reasonable.