도급공사비와 별도로 사업시행이익을 분배하기 위한 별도약정금의 손금 귀속시기는 공사가 준공된 때가 아니라 해당 채무의 이행의무가 확정된 때임[국승]
Suwon District Court-2018-Gu Partnership-60312 (Law No. 12, 2018)
In addition to the contract construction cost, the period of attribution of the deductible expenses for a separate agreement to distribute the project implementation profits shall not be the time the construction is completed, but the obligation to perform the relevant obligation
The separate agreement of this case is an agreement that the plaintiff shall pay to the Corporation for the allocation of project implementation benefits, separate from the construction cost, which is the cost incurred in direct response to the progress of the construction project pursuant to the construction contract. Thus, the separate agreement of this case shall revert to deductible expenses as of the time when the obligation to implement the project becomes final and conclusive
Article 40 of the Corporate Tax Act
2018Nu577 Revocation of Disposition of Rejecting Corporate Tax;
AA Corporation
*The Director of the Tax Office
Suwon District Court Decision 2018Guhap60312 Decided July 12, 2018
December 18, 2018
January 22, 2019
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant's rejection of correction of KRW 459,267,381 for the business year 2013 against the plaintiff on May 23, 2017 shall be revoked.
1. Quotation of judgment of the first instance;
The court's explanation on this case is consistent with the reasoning of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, it shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
○ Up to No. 10 of the first instance judgment No. 7 of the first instance court’s 4, the phrase “No. 10 of the 7th instance judgment” shall read “No. 7, 10
○ In Part 5 of the first instance judgment, the following shall be added to the following:
(2) On December 31, 2013, the Plaintiff anticipated that the instant separate agreement amount will be determined in the future, and then appropriated it as the account subject of “property appropriation liabilities for construction losses” (Evidence A7). Such appropriation liabilities not determined during any fiscal period but should include estimated expenses according to certain standards for future expenses anticipated to be incurred. Furthermore, even in the audit report (Evidence B B) by a certified public accountant who is an external auditor in the business year 2013 against the Plaintiff, the instant separate agreement amount should be paid for the settlement of business profits between the Plaintiff and the instant contractor, and it is indicated that the sales profit settlement amount for such settlement was finalized around January 2014.
○ On the 6th judgment of the first instance court, the following is added:
(A) The Plaintiff asserts that the instant separate agreement amount constitutes construction cost and does not aim at allocating the project benefits, as additional compensation for the risk of impossible recovery of construction cost of the instant construction project. However, the instant separate agreement amount is agreed separately from construction cost based on the project implementation benefits after the settlement of construction cost, and such agreement amount has the nature of compensation for the risk of impossible recovery of construction cost, and it cannot be deemed as a direct construction cost, not as a distribution of project implementation benefits. Therefore, the Plaintiff’s assertion is without merit)
○ On the 6th judgment of the first instance court, the following shall be added to:
Meanwhile, Article 69(1) of the Enforcement Decree of the Corporate Tax Act and Article 34 of the Enforcement Rule of the Corporate Tax Act provide that the profits and expenses calculated based on the rate of work progress shall, in principle, be included in the gross income and deductible expenses for the pertinent business year with respect to the recognition of profits and losses arising from construction works. The amount that cannot be deemed a direct response to the creation of profits, such as the instant separate agreement amount, shall be considered as the directly invested construction cost, and if the amount is reflected in the date and time of a specific business year, the profit
○ Al 7, No. 7 of the first instance court ruling "No. 8, 9, and 11 of the A" is "No. 8, 9, 11 of the A and No. 13 of the A"
○ In Part 7 of the 7th judgment of the first instance court, the following shall be added to:
Meanwhile, the Plaintiff’s assertion to the effect that a revised return on the tax base of corporate tax for the business year 2012 should be deemed as a revised return on the tax base of corporate tax for the business year 2011. However, it cannot be said that a revised return on the tax base of corporate tax for the business year 2011 was made with the Plaintiff’s arbitrary reflection of electric carried-over losses while filing a report on the tax base of corporate tax for the
2. Conclusion
Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit.