부외 경비의 입증책임은 이를 주장하는 납세자에게 있음[국승]
Seoul Administrative Court 2017Guhap61959 ( October 04, 2018)
The burden of proof for extra expense lies on the taxpayer who asserts this.
To constitute an amount that can be included in deductible expenses as entertainment expenses under Article 25 (5) of the former Corporate Tax Act, it shall be proved through objective data to verify how much amount of money was paid to a business party for a certain purpose.
Article 19 of the Corporate Tax Act, Article 25 of the Corporate Tax Act
2018Nu50521 Revocation of Disposition of Corporate Tax Imposition
Law Firm ○○
○ Head of tax office
October 19, 2018
December 14, 2018
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 shall revoke the imposition of corporate tax of 27,054,50 won for the business year 2010 against the plaintiff on October 6, 2014, corporate tax of 39,857,240 won for the business year 2011, and corporate tax of 8,906,780 won for the business year 2012 (including additional tax).
1. Quotation of the reasons for the judgment of the first instance;
The reasons for this judgment are as follows: (a) the reasons for the judgment of the first instance, except for partial dismissal or addition, are as follows. Therefore, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420
○ The court shall add to “the court” of 6 pages 3 to:
“The dispute account is opened by the DoD, in which the Plaintiff’s employee was the DoD, and there is no evidence to deem that BB opened the dispute account without the Plaintiff’s permission by means of ordering DoD to forge documents;
The following shall be added to the effect that the payment was made on the nine pages:
AA’s representative AA filed a criminal charge of occupational embezzlement of KRW 1,292,896,752 with BB from May 8, 2007 to December 27, 2012, as well as a lawsuit against BB for compensation for losses on the ground of embezzlement or deception, but was sentenced to a decision of non-guilty and dismissal of the claim. The Plaintiff asserted BB’s embezzlement when filing a request for pre-assessment review, but did not coincide with the Plaintiff’s assertion that the instant amount was the earned income of BB from the date of filing an objection to the instant disposition.
○ 9, 5, and 6 shall read “it is difficult to see that BB’s income was attributed to the Plaintiff’s income” as “it is difficult to see BB’s income as remuneration for work provided to the Plaintiff.”
○ 10. 10. The following shall be added to each other:
[Supreme Court Decision 2008Du779 Decided June 23, 2009 cited by the plaintiff] The application of Article 9(3) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) which does not explicitly require business-related and ordinaryity as a requirement of deductible expenses by defining deductible expenses as "amount of deductible expenses incurred by transactions which reduce the net assets of a corporation, except as otherwise provided for in this Act, such as refund of capital or equities, disposal of surplus funds, and losses." Thus, Article 19(2) of the former Corporate Tax Act (amended by Act No. 10423 of Dec. 30, 2010) which explicitly requires business-related and ordinaryity as a requirement of deductible expenses cannot be applied differently from the applicable Acts and subordinate statutes."
○ 10 pages 10 up to 13 out of the amount of the withdrawal of this case are as follows.
“The Plaintiff did not submit any objective data to verify the specific amount of BB paid to the customer for any of the following purposes: (a) although BB used 50% of the notarial fees as discount fees to the customer; (b) sales expenses necessary for the customer management (e) sales expenses (e.g., congratulatory investigation expenses, gift expenses, meal expenses, and other expenses); and (c) the amount included in deductible expenses as entertainment expenses under Article 25(5) of the former Corporate Tax Act; (b) the Plaintiff did not submit any objective data to verify the amount of BB paid to the customer for any of the purposes; and (c) the evidence presented by the Plaintiff alone cannot be recognized as entertainment expenses, as
2. Conclusion
If so, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit.