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

Cheong-gu Office

On December 1, 2016, the Defendant’s notification of change in the amount of income made to the Plaintiff to KimA shall be revoked in 2013 as bonus, year to which it belongs, income amount of 537,745,520, and income income amount of 537,745,520.

A. The Plaintiff is a company established for the purpose of a sales agency business.

B. XX Construction Co., Ltd. (hereinafter referred to as " XX Construction") performed YY Construction Co., Ltd. from around 2012 to around 2014 (hereinafter referred to as "YY Construction"),**** City Building Project, and the Plaintiff was selected as a sales agent of the said project.

C. On September 30, 2013, the Plaintiff transferred total of KRW 537,745,520 (hereinafter “the instant money”) to the account of 13 accounts, including KimB, etc. on the same day, and the said money was transferred to the account in the name of KimA (on June 10, 2014), which is the actual operator of the Plaintiff, and thereafter, the said money was re-transfered to the account in the name of KimB.

D. On April 1, 2014, the Plaintiff reported corporate tax for the business year 2013 by including the instant money in deductible expenses (other sales expenses and management expenses) as expenses.

E. around May 2014, the Plaintiff received the instant money from XX Construction, and on May 15, 2014, appropriated the instant money as the interest for electrical error revision, and included it in the gross income for the business year 2014.

F. On August 21, 2014, the head of the △△△ Tax Office: (a) filed a revised return or notified the Plaintiff of the submission of additional explanatory materials on the premise that the instant money was disposed of as “in-house reserve” as expenses for which the payment date has not yet arrived; and (b) subsequently, the instant money was corrected as non-deductible income and corporate tax. Accordingly, on October 1, 2014, the Defendant rendered a decision to impose corporate tax on the Plaintiff for the business year 2013.

G. From August 25, 2016 to November 1, 2016, the Defendant: (a) deemed that the instant amount was out of the company and reverted to the Plaintiff’s representative KimA as a result of the tax investigation conducted with respect to the Plaintiff; and (b) on December 1, 2016, the Defendant notified the Plaintiff of the change in the amount of income that the type of income was bonus, year to which the income belongs, year to which the income belongs, amount of income KRW 537,745,520, and the income earner was KimA (hereinafter “instant disposition”).

H. On February 28, 2017, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition. The Tax Tribunal dismissed the appeal on June 16, 2017.

(i) On December 8, 2017, the Plaintiff and KimA were convicted of having evaded corporate tax 8,093,280 won due to fraud or other unlawful acts by filing a corporate tax report with the effect that the Plaintiff was transferred the instant money to the account of KimB, etc. and then transferred it again to the construction account despite the fact that the Plaintiff had not been provided with sales-related services from 13 persons, such as KimB, etc. in relation to the report of corporate tax for the business year 2013, including cases of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax), etc. of Specific Crimes (Tax), the Plaintiff and KimA was convicted of having been found guilty of having evaded corporate tax 8,093,280 won due to fraud or other unlawful acts (* high court 2018*), but the Plaintiff and KimA were also dismissed on May 3, 2018 (** the closing of the appeal of this case).

[Ground of recognition] Facts without dispute, significant facts in this court, Gap evidence 1 to 6 (including paper numbers), Eul evidence 1 to 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the instant money was paid on the premise that it would be immediately recovered from the beginning, it cannot be deemed that it was out of the company and reverted to KimA, even if it was out of the company, the instant disposition is unlawful in light of the fact that it should be treated as internal reservation since it was recovered the amount and reported by including it in gross income before the tax investigation, even if it was out of the company.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Relevant legal principles

According to Article 67 of the Corporate Tax Act and Article 106 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 26981, Feb. 12, 2016; hereinafter the same), where a corporation’s income subject to taxation is omitted by omitting sales or appropriating expenses for processing, etc., the tax authority shall dispose of the income through bonus, dividend, other outflow, etc. according to the person to whom the amount included in the calculation of earnings belongs, where it is obvious that the amount included in the calculation of earnings has been divulged out of the company. However, where it is clear that the person to whom the income belongs belongs, but it is unclear, it shall be deemed that the corporation’s income equivalent to the amount omitted sales or processing expenses has been appropriated in the account book, barring any special circumstance, if the corporation fails to enter the sales in the account book despite the fact of sales or calculates the cost of processing in the account book, and in this case, it is necessary to prove the special circumstance on the side of the corporation claiming this (see, e.g., Supreme Court Decision 2007Du17317.

D. Determination

In full view of the following circumstances acknowledged by comprehensively taking account of the aforementioned evidence, evidence Nos. 7 through 9, and evidence Nos. 7 through 9 and the purport of the entire pleadings, it is reasonable to deem the instant money to have been leaked as the processing cost, so the instant disposition is lawful, and the Plaintiff’s assertion is groundless.

① 13 persons, such as KimB, to whom the instant money was transferred, did not provide the Plaintiff with the service related to the sales agency, and there is no other cause to receive the instant money, and thus, the Plaintiff’s inclusion of the instant money in the deductible expenses is deemed to constitute a case where the cost was calculated in the account book.

② After the instant money was paid to 13 persons, including KimB, etc., a considerable period of time has elapsed since the amount equivalent to the instant money was re-paid to the Plaintiff via KimA and XX construction, and there was no use in the process for the Plaintiff’s work, such as operational funds.

③ The Plaintiff, a contractor, was unable to settle the sales price of KRW 10 billion in Y Construction, a contractor, due to low sales performance, and tried to form a appearance, such as paying a maximum amount of sales agency fees to sales agents in order to delay the settlement date through negotiations with Y Construction. Accordingly, the Plaintiff, an affiliated company, as a sales agent, transferred the instant money to 13 accounts such as KimB, etc. on April 2014, asserting that: (a) the Plaintiff, as an affiliated company, transferred the instant money to 13 accounts such as KimB, etc.; (b) however, (c) the construction was likely to suffer financial difficulties by receiving loans from financial institutions around April 201, and thus, (d) the possibility of resolving the payment for construction payments was collected through construction in Rai KimA, and Y construction.

Around 2013, the sale status of a commercial building constructed by the above project was low, and accordingly, the Plaintiff’s related company, had difficulty in paying the construction cost for Y Construction. However, even if the Plaintiff transferred the instant money to Y Construction in order to favorable negotiations with YB, KimA transferred the instant money from 13 persons, such as KimB, etc. on the same day, and the instant money was transferred from KimB, but KimA was transferred to Y construction, but KimA was not only the Plaintiff but also the representative of Y construction, and the relevant construction was managed as repayment of shareholders’ short-term loans on May 2014, it is reasonable to deem that KimA, a representative of the Plaintiff, actually acquired the right to dispose of the instant money in light of the fact that the Plaintiff paid the instant money to the Plaintiff around the same day.

Ultimately, it is difficult to view that the instant money was transferred to 13 persons, such as KimB, etc. on the premise that it would have been recovered to the Plaintiff. There is no special circumstance to deem otherwise that the instant money was not leaked out of the company.

(4) Where the head of the competent tax office determines or revises the tax base and amount of national taxes and makes a report on the amount of outflow from the company, such as omission of sales, processing expenses, etc., to be collected and included in gross income as tax adjustment, the disposition of income shall be treated as retained earnings (the main sentence of Article 106 (4) of the

However, on August 21, 2014, the Plaintiff notified the Plaintiff of a revised return, etc. on the premise that the instant money was disposed of as “in-house reserve” and accordingly, the Plaintiff did not report the revised corporate tax for the business year 2013, until the Defendant rendered a decision to impose corporate tax on October 1, 2014. Therefore, the said provision cannot be applied.

설령 원고가 XX건설로부터 이 사건 금원 상당액을 지급받고 2014. 5. 15. 이 사건 금원을 전기오류수정이익으로 회계처리한 것으로 정정한 것을 사외유출된 금액을 회수하고 신고 내용을 정정한 것으로 보더라도, ▲▲세무서장이 그 이전인 2014. 4. 7. XX건설에 대한 2013 사업연도에 대한 부가가치세 및 법인통합조사를 개시하였고, XX건설은 원고의 대표자인 김AA이 실질적으로 지배하여 운영하는 회사인 점에 비추어, 구 법인세법 시행령 제106조 제4항 단서 제2호의 '세무조사가 착수된 것을 알게 된 경우' 또는 제6호의 '그 밖에 제1호부터 제5호까지의 규정에 따른 사항과 유사한 경우로서 경정이 있을 것을 미리 안 것으로 인정되는 경우'로서 경정이 있을 것을 미리 알고 사외유출된 금액을 익금산입하는 경우에 해당하므로 구 법인세법 시행령 제106조 제4항 본문이 적용될 수 없다.

3. Conclusion

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