Article 52 of the Corporate Tax Act: Denial of Wrongful Calculation

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

Cheong-gu Office

The part that exceeds 12,390,349 won among the disposition imposing corporate tax of KRW 15,182,350 on the Plaintiff on June 2, 2014; the part that exceeds 119,639,447 won among the disposition imposing corporate tax of KRW 145,232,180 for the business year 201; the part that exceeds 77,789,304 won among the disposition imposing corporate tax of KRW 108,653,680 for the business year 2012; the part that exceeds 3,07,69,304 won among the disposition imposing corporate tax of KRW 108,65, and the income amount of KRW 32,796,723 won for the business year 201, and the income amount of KRW 4,394,278 for each income amount for the business year 2012 shall be revoked.

가. 원고는 ◆◆ ◆◆구 ◆◆로◆◆번길 ◆◆ (◆◆동)에서 비철금속제조 및 판매업 등을 영위하는 법인으로, 2010년부터 2012년까지 그 대표이사인 김AA에 대한 가지급금의 발생과 반제에 관하여 별지1 가지급금 장부 표 기재와 같이 기장하였다.

B. From March 11, 2014 to April 18, 2014, the Defendant conducted a consolidated corporate tax investigation with respect to the Plaintiff. From 2010 to 2012, the Defendant: (a) determined that the Plaintiff was false as if it were collected in cash for the business year 14,50,000 + KRW 700,000 in 200 in 2011 + KRW 14,500,000 in 200 in 2011 + KRW 14,500,000 in 200 in 2012; and (b) determined that the Defendant did not receive any changes in the amount of income by disposing of the income as a bonus to the KimA; and (c) calculated the amount omitted in the return of income (waste sales) as the amount of income as a correction of corporate tax as stated in attached Table 613,367,377, June 22, 2014.

다. 원고는 이에 불복하여 2014. 9. 3. ◆◆지방국세청장에게 이의신청을 하였고, ◆◆지방국세청장은 2014. 10. 2. '이 사건 가지급금의 미회수분에 대한 상여처분액 994,500,000원에 관한 상여처분결정을 취소하고, 매출신고누락액 과세처분은 폐기물의 판매가액을 재조사하여 법인세 과세표준과 세액을 경정한다'는 등의 결정을 하면서 그 이유에서 '가지급금 회수액 994,500,000원이 원고의 예금계좌 등으로 입금되지 않았다고 하여 대표자에게 상여로 처분한 것은 잘못이다. 다만 이를 회수되지 않은 가지급금으로 하여 가지급금 적수계산을 다시 하고 지급이자 손금불산입액의 재계산 여부 등은 별론으로 한다'고 기재하였다.

D. Accordingly, from October 20 to November 7, 2014, the Defendant conducted an investigation into the portion of corporate tax on the Plaintiff from October 20 to November 7, 2014, and determined the amount omitted in filing a return on the provisional payment of this case as KRW 133,393,385, and added the recognized interest on the provisional payment of this case as indicated in the following table, while disposing of it as bonus to KimA and in calculating the amount of the previous corporate tax as stated in the remaining tax notice column in the attached Table 2, the Defendant reduced the amount of the corporate tax imposed as stated in the attached Table 2, and the income amount of the income accrued in the year 201 by the income earner Kim Jong-A was corrected to KRW 32,796,723, and the amount of income attributed in the year 2012 as KRW 44,394,278 as corporate tax and the amount of income subject to disposition on June 2, 2014.

E. Accordingly, the Plaintiff filed an appeal on the grounds that the notice of the imposition of corporate tax related to the instant provisional payment and the change in the amount of income was unreasonable (the omission in the amount of the sales declaration is not contested). However, the Tax Tribunal dismissed the appeal on April 22, 2016.

[Grounds for Recognition] Unsatisfy, Gap evidence Nos. 1-5, 8, Eul evidence Nos. 1-3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

It is true that the Plaintiff entered the amount of the provisional payment as if it were recovered even though the amount was not recovered. However, in most cases, where the balance of the cash account is excessive due to the existence of time interval between the date of actual transaction involving cash transfer and the date of transaction on the account book, the occurrence of the provisional payment amount and the amount of the provisional payment recorded in the Plaintiff’s account is merely a reduction in the difference between the amount of the provisional payment and the amount on the account book by stating the items on the provisional payment in the case where the balance of the cash account is reduced to less than a certain amount or the transaction date comes due to the occurrence of the actual expenditure, the items on the provisional payment amount and the amount on the account. Therefore, although KimA received the provisional payment in this case or was out of the account, the Defendant did not receive the provisional payment in this case, while calculating the interest recognized as a bonus to KimA while disposing of the relevant interest in this case, the part

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

In light of the following circumstances recognized by the Defendant based on the aforementioned evidence, partial descriptions of evidence Nos. 6 and 7, witness KimB’s testimony and the overall purport of oral argument, it is legitimate for the Defendant to include the interest rate recognized as the provisional payment in the calculation of earnings, and to dispose of it as a bonus to KimA and to exclude related interest from the calculation of losses. Accordingly, the Plaintiff’s assertion is rejected.

(1) The amount of the provisional payment for the representative director recorded in the Plaintiff’s account book is KRW 2,820,00,000 (i.e., KRW 695,00,000 in 2010 + KRW 1,115,00,000 in 201 + KRW 1,012 in 2012 + KRW 1,010,000 in 200 in 1,825,500 in 200 in 2010 + KRW 545,000 in 2010 + KRW 415,000 in 200 in 201 + KRW 865,500 in 205,00 in 200 in 200 in 201). Even if there is a difference between the cash amount entered in the account book and other reasons, it is difficult to say that there is a large gap between the Plaintiff’s actual transaction partner’s payment date and the actual transaction date.

(2) In the event of a difference between the balance of the cash account and the cash account amount on the account book, it is a normal accounting method to enter the balance in a provisional account, such as cash shortage, and to process it to a suitable account in the future. However, the Plaintiff’s adjustment of the amount recorded in the cash account and the book by using the items of the provisional payment, such as the Plaintiff, is not only out of the general accounting standards, but also may be abused by means of concealing the actual payment

(3) The Plaintiff asserts that a transaction involving cash movement, such as payment of wages, card payments, small amount of public charges, or settlement of goods, has caused a difference between the cash price and the book amount by processing it from the cash account. However, even if a transaction involving cash movement was carried out as a cash account, it is difficult to bring about a significant difference between the cash price and the book amount, as in this case, if it was entered as an item corresponding to the change of cash and the cash decrease in accordance with the ordinary method of accounting. Nevertheless, if such difference occurred, it can be said that the relevant amount was leaked out of the company.

(4) As such, the Plaintiff was unable to provide an explanation on the grounds that a significant difference has occurred between the cash account amount and the book amount and the reasons that the account was dealt with as an item against the occurrence of the provisional payment (in this regard, the Plaintiff asserted that, at the time of a request for a trial, the account program was carried out repeatedly by having the balance of the cash account to be maintained at KRW 5 million-20 million-20 million-20 million-20 million-20 million-20, but it is confirmed that the balance of the cash account book was about KRW 1 million-90 million-90 million-20 million-200, and is contrary to various circumstances, such as the Plaintiff’s statement that the KimB, an employee of the Plaintiff, did not automatically process the provisional payment on the account book (see, e.g., the preparatory brief dated 9, 2016). In light of the fact that the Plaintiff’s representative director’s payment on the account book, it is difficult to prove that the Plaintiff’s payment on the account book is a false payment (see, etc.).

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit. It is so decided as per Disposition.