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

The following facts may be acknowledged if there is no dispute between the parties, or if the purport of the whole pleadings is added to each entry in Gap evidence of 1 to 12 and Eul evidence of 1 to 3 (including each serial number):

A. The relationship between the Plaintiff and the PPP

The plaintiff is a company that runs the manufacture and sales business of Aluminium products, and the PPP (hereinafter referred to as "PP") is a company that is engaged in the manufacture and sales business of Aluminium products as an affiliate in a special relationship with the plaintiff (in fact, the plaintiff has full control over the company).

(b) Conclusion, etc. of a contract for acquisition of assets;

(1) On December 1, 2011, the Plaintiff entered into an asset acquisition agreement (hereinafter referred to as the “instant agreement”) with the PP on an asset acquisition agreement with the content that the Plaintiff sells an Aluminium shotum and painting equipment in the second factory (hereinafter referred to as “instant equipment”) to the OOO (excluding value-added tax), and its main contents are as follows.

Article 3 (Basic Date of Transfer)

(1) The base date for the transfer of assets shall be December 30, 201.

2. The Plaintiff shall enter into a contract with the PP in connection with the implementation of this contract and transfer assets to the PP, and shall prepare and deliver such name change, consent, and other relevant documents as may be necessary for the implementation of the contract or the consent or consent of a third party, if necessary.

Article 4 (Determination of Transfer Price and Terms and Conditions of Payment)

③ The payment of the price shall be made by the PPP to the Plaintiff in cash by December 30, 201 after the conclusion of this Agreement, and the balance by 50% (OOO) shall be paid in cash on February 28, 2012. < Amended by Act No. 11303, Dec. 30, 2011>

Article 5 (Transfer of Ownership of Assets)

① As of December 30, 201, upon receipt of 50% of the transfer price under Article 4, the Plaintiff agreed to transfer the ownership of the transferred asset to the transferee as of December 30, 201, and the transferee shall continue to perform the duties related to the prevention and painting from December 16, 201, and claim the Plaintiff for the fee for the processing.

(2) The various contract contracts between the Plaintiff and the PPP with respect to the production of seals and seals shall be conducted in accordance with a separate contract document.

Article 6 (Liability for Expenses and Taxes) Each Party shall bear each other the costs incurred in connection with the conclusion and implementation of this Agreement, and all taxes imposed in connection with the implementation of this Agreement shall be borne by the Party liable to pay the same taxes as those under the relevant Acts and subordinate statutes.

(2) The instant agreement is basically necessary to transfer the possession of the instant facilities subject to the instant sales contract to the PPP to transfer the ownership of corporeal movables as a sale and purchase of corporeal movables. In relation thereto, the Plaintiff and the PPP intended to complete the implementation of the instant agreement only with the transfer of conceptually or legally possessed possession without the transfer of physical possession. In other words, PPP, as stipulated in Article 5 of the instant agreement, concluded a contract for the same processing as deeming the instant facilities in the Plaintiff’s second factory, and concluded a contract for the same as deeming in the Plaintiff’s Section 5(c) below, and began to manufacture (processing) products using the instant equipment from December 15, 201 to December 15, 201.

(3) On the other hand, on December 29, 201, which is the day immediately before the date of the payment stipulated in the instant agreement, PP transferred to the Plaintiff an amount equivalent to 50% of the sales price of the instant facilities as stipulated in the agreement (i.e., OO., the said agreement price + value-added OOO won).

However, as of December 30, 201, the Plaintiff issued a tax invoice with the value of supply to PP as the purchase price for the instant facilities as of December 30, 201 (the full purchase price under the agreement of this case, which does not include value added tax) and accounts for the difference between the above purchase price OOO and the book value of OOOO as the profits from the disposal of tangible assets.

(4) Since then, PPP is as of February 29, 2012 on the day following the balance payment date stipulated in the instant agreement.

The plaintiff remitted the amount equivalent to the remaining 50% of the amount to the OOO, and the head of one's business partner office entered the amount above the OOO under the name of the payment for goods.

(c) Conclusion of a contract for the processing of rent;

(1) On December 10, 201, pursuant to Article 5(2) of the instant Arrangement, the Plaintiff entered into a contract with the PPP to manufacture and supply aluminium products requested by the Plaintiff using the instant equipment from December 15, 201 to December 14, 2012, and the key contents thereof are as follows.

Article 1 (Contract Goods) In accordance with the Plaintiff’s order, PPP will use the instant equipment of the PP to process contract goods from the Plaintiff and deliver them to the Plaintiff.

Article 2 (Unit Price for Discretionary Processing)

(2) Where any change in the unit price for processing in the future occurs, the unit price may be adjusted by mutual agreement.

Article 4 (Acceptance and Keeping of Raw Materials) (2) PPP shall faithfully keep, manage, and use raw and secondary materials supplied by the plaintiff and kept or processed by the plaintiff, with the due care of a good manager, and PPP shall not engage in any conduct that infringes on the plaintiff's rights, such as transfer, disposal, provision of security, or conversion of raw and secondary materials for other purposes, since the PP is owned by the plaintiff.

VIII.(Terms and Conditions of Payment of Processing Fees and Payment of Incidental Materials)

(2) Gas costs, electricity, self-wastewater, industrial water, protective tapes and parts, and expendable materials (including paints) shall be borne by the plaintiff and other costs shall be borne by the PP.

Article 9 (Facilities Management)

(1) Where a need to repair the equipment of the PPP arises and the processing is suspended, the PP shall be immediately remunerated at the cost of the PP so that the manufacture of the product required by the Plaintiff can be achieved, and the Plaintiff shall be separately claimed.

(2) PPP shall always maintain, check, and repair the instant facilities and shall have a record card for the facilities.

Article 18 (Liability for Safety Accidents) PPP is fully responsible for civil and criminal liability for personal and physical accidents that occur within the Plaintiff’s workplace in connection with the processing of sewage, and at this time the Plaintiff is not liable for civil and criminal liability.

(2) PP pursuant to the instant contract, using the instant equipment on December 201, 201, produced and supplied to the Plaintiff a seal processed product equivalent to the OOO won. From January 2012 to August 2012, 2012, the PP manufactured and supplied the Plaintiff with a total of seal and the processed waste products equivalent to the OOO won.

라. QQ회계법인의 회계감사 실시

(1) QQ회계법인은 2012. 2.경 원고의 2011 사업연도 재무제표에 대한 회계감사를 실시하였는데, 이 사건 약정과 관련하여 '이 사건 설비의 매각에 따른 경제적 효익과 위험이 원고로부터 PPP에 이전되지 않았다'고 판단하고, 원고에게 이 사건 설비의 양도에 따른 처분이익 OOOO원을 원고가 얻은 이익으로 계상하여서는 안 된다는 의견을 제시하였는데, QQ회계법인이 위와 같이 판단한 근거는 다음과 같다.

① There is no basis for calculating the purchase price of the instant facilities. If the PP is purchased at a higher price than the reasonable price, the amount exceeding the reasonable price shall be subject to the avoidance of wrongful calculation.

(2) The equipment of this case is included in a factory foundation offered as security and it appears that the consent of the secured party is necessary at the time of sale, but no consent is required.

③ Under the instant contract, the depreciation costs of the instant facilities and financial costs borne by the PPP are included in the unit cost of processing under the instant contract, and the unit cost of processing is changed depending on the cost generated each month, and there is no risk that the PP actually bears following the conclusion of the instant contract of acquisition of assets.

④ The instant asset acquisition agreement does not change in economic substance after the conclusion of the contract with a specially related party, and it is difficult to view that the sales price of the instant facilities was recovered due to the Plaintiff’s rapid increase in claims against the PP due to the Plaintiff’s transactions with a specially related party, and there is no measure related to

(2) The Plaintiff accepted the foregoing opinion and excluded OOO members from the annual income for 2011 (this was based on the fact that the instant arrangement was cancelled) and revised the financial statements for the business year 2011.

E. Notice, etc. of cancellation of the instant agreement

(1) On March 5, 2012 and March 20, 2012, and April 19, 2012, the Plaintiff sent to PP a written request to urge the remainder of OOOO under the instant agreement. On June 26, 2012, the Plaintiff sent to PP a written notification stating that the instant agreement will be rescinded on the grounds of the remainder of payment.

(2) On July 16, 2012, the Plaintiff returned the sales price of the instant facilities, which was paid to PP, to the Plaintiff, and issued (-) revised tax invoices with the value of supply as the cancellation of the contract on July 10, 2012.

F. Imposition of corporate tax by the defendant

(1) As a result of the consolidated investigation of the corporate tax against the Plaintiff in the second half of 2012, the Director of the Daejeon Regional Tax Office determined that the above disposal profits from the transfer of the instant facilities should be included in the Plaintiff’s gross income for the business year 2011, and notified the Defendant thereof.

(2) Accordingly, on March 11, 2013, the Defendant included the sales price of the instant facilities, including value-added tax, in the gross income, included the cost of the instant facilities in the calculation of deductible expenses, and notified the Plaintiff of the payment notice (hereinafter “instant disposition”).

(3) The Plaintiff dissatisfied with the instant disposition and requested an inquiry to the Tax Tribunal on June 10, 2013, but was dismissed on August 12, 2013.

2. The assertion and judgment

A. The plaintiff's assertion

(1) Notwithstanding the instant agreement, in light of the fact that the risks and benefits arising from the ownership of the instant facilities were not transferred to the PP and the right to control the instant facilities remains in the Plaintiff, the instant agreement is in form the content of the transfer of assets, but the substance of the transaction is not the transfer of assets. Accordingly, the instant disposition based on the premise that the instant facilities were transferred is unlawful.

(2) 원고는 이 사건 약정에 문제가 있다는 QQ회계법인의 지적에 따라, PPP과 이 사건 약정을 해제하기로 구두 합의한 후 PPP의 잔금 미지급을 이유로 이 사건 자산양수도계약을 해제하는 절차를 거쳤으므로, 이 사건 약정은 법정해제 되었다거나 적어도 부득이한 사유로 합의해제 되었다고 할 것이다. 따라서 이 사건 설비의 양도이익은 후발적 사유의 발생으로 소급하여 존재하지 않는 것으로 확정되었다고 할 것이므로, 위 양도이익을 2011 사업연도 소득금액에 산입하여 법인세를 부과한 이 사건 처분은 위법하다.

B. Relevant statutes

It is as shown in the attached Form.

C. The judgment of this Court

(1) As to the assertion that the transfer of assets is not a real transfer

The above facts are as follows. ① The agreement of this case stipulates that the Plaintiff shall transfer the ownership of the instant facilities to the PP as of December 30, 201, when the Plaintiff receives 50% of the purchase price, and the PP pays OO (50% of the purchase price) to the Plaintiff on December 29, 201, ② PP was transferred the authority to use and profit from the instant facilities under the contract of this case as stipulated in the agreement of this case and the contract of this case, and the actual PP was acquired from December 15, 201 using the instant facilities exclusively; ③ PP is liable for the Plaintiff’s transfer of the ownership of the instant facilities in the process of using the instant facilities; ④ The Plaintiff’s transfer of the ownership of the instant facilities under the agreement of this case or the contract of this case without any authority to dispose of the instant facilities under the premise that the transfer of the ownership of the instant PP facilities is not subject to any restriction or authority to dispose of the instant facilities under the agreement.

(2) As to the assertion that the benefit from the transfer of assets was retroactively extinguished

(A) Article 40(1) of the Corporate Tax Act provides that “The business year to which a domestic corporation’s earnings and losses accrue shall be the business year which includes the date on which the concerned earnings and losses are settled.”

In reality, if the right which caused the income has not been actually income, the income is realized and the so-called "right confirmation principle is adopted to calculate the taxable income."

Such a principle of confirmation of right refers to a method of calculating income for the pertinent business year based on the time when a right that is the cause of income is realized, in a case where there is an interval of time between the time when a right that is the cause of income and the time when income is realized, which is the time when a right that is not the time when income is realized, and thus, a prior taxation is granted on the premise that it will be realized in the future with respect to an uncertain income. Therefore, even if a right that is the cause of income becomes final and conclusive and the tax liability is established once it is determined that income is not realized due to the occurrence of a certain later cause, the initial tax liability shall lose the premise and thus it shall not be imposed in principle. Such interpretation accords with the legislative intent of Article 45-2(2) of the Framework Act on National Taxes that provides for the system of filing a request for correction based on the adoption of the principle of confirmation of right and also accords with the legislative intent of Article 25-2(2) of the Enforcement Decree of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 2013Du161421.

(나) 위 법리를 기반으로 이 사건에 관하여 살피건대, 위 인정사실에 변론 전체의 취지를 보태어 인정할 수 있는 다음과 같은 사정 즉, 원고는 이 사건 약정의 문제를 지적하는 QQ회계법인의 위 감사지적에 따라 PPP과 이 사건 약정을 해제하기로 합의하고서 PPP에 잔금을 독촉하는 내용의 요청서와 잔금 미지급을 이유로 이 사건 약정을 해제한다는 내용의 통고서를 보낸 것으로 보이는 점, 원고는 2011. 12. 29. PPP으로부터 이 사건 설비의 매매대금으로 지급받은 OOOO원을 2012. 7. 16. PPP에 반환하였고, 2012. 2. 29. PPP으로부터 지급받은 OOOO원은 이 사건 설비의 매매대금이 아닌 PPP의 원고에 대한 별도의 채무에 충당하기로 약정하고 이에 따라 세금계산서 등을 작성한 점, PPP이 2012. 8.경 이후부터 이 사건 설비를 사용하지 않은 점 등에 비추어 보면, 이 사건 약정은 원고와 PPP 사이의 합의에 따라 해제되었다고 봄이 상당하다.

나아가 원고가 이 사건 약정이 부당행위계산부인의 대상이 될 수 있다는 등의 QQ회계법인의 위 감사지적에 따라 PPP과 이 사건 약정을 해제하기로 합의한 점, 원고는 현금 유동성의 부족을 해결하고자 계열사인 PPP에 장부상 가액의 2.5배를 초과하는 금액으로 이 사건 설비를 양도하였는데, 위 매매대금 산정이 적정한지를 뒷받침할 만한 객관적인 자료가 없는 상황이어서 만약 이 사건 약정을 유지할 경우 부당행위계산부인의 대상이 되어 PPP의 법인세 부담이 증가될 가능성이 있는 상황이었던 점, 원고가 회계감사 과정에서 감사인인 QQ회계법인으로부터 이 사건 약정에 대하여 지적을 받은 이상 이를 시정하지 않으면 한정의견 또는 의견거절 등의 감사의견을 받을 수도 있는 점 등에 비추어 보면, 원고와 PPP이 이 사건 약정을 합의해제한 것은 부당행위계산부인 등으로 인한 불이익을 피하기 위한 것으로서 사업상 정당한 사유가 있었다고 봄이 상당하므로, 원고와 PPP 사이의 이 사건 약정의 합의해제는 국세기본법 시행령 제25조의2 제2호에서 정한 '부득이한 사유로 인한 계약의 해제'에 해당한다고 할 것이다.

Therefore, inasmuch as benefits from the transfer of the instant facility are determined to be not realized due to the occurrence of a subsequent cause, i.e., “cancellation of a contract due to unavoidable reasons,” the Plaintiff’s income from the transfer of the instant facility may not be subject to corporate tax including the Plaintiff’s income amount for the business year 2011. Therefore, the instant disposition based on the premise that the income from the transfer of the instant facility is included in the income amount for the business year 201

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.