법인에 유보된 이익을 분여하기 위하여 대외적으로 보수의 형식을 취한 것으로 손금불산입 대상이 되는 상여금과 실질이 동일함[국승]
Suwon District Court-2018-Gu Partnership-60459 (2018.09.04)
In order to distribute profits reserved to a corporation, the form of remuneration has been externally taken, and the bonus subject to non-deductible expenses is the same as the substance.
If the relevant remuneration is not a normal price for the performance of duties of executive officers, but a form of remuneration is externally taken to allocate profits reserved to the corporation, then the bonus subject to non-deductible expenses as a disposition of profits are the same as the substance of the bonus subject to non-deductible expenses, and thus cannot be included in the loss.
Article 43 (Non-Inclusion of Bonuses in Deductible Expenses)
2018Nu65837 Revocation of Disposition of Corporate Tax Imposition
AAA, Inc.
Head of the tax office
Suwon District Court Decision 2018Guhap60459 Decided September 4, 2018
February 27, 2019
March 20, 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 part of the disposition imposing corporate tax and additional tax on the plaintiff as stated in the attached list of the first instance court that the defendant made against the plaintiff shall be revoked.
1. Quotation, etc. of judgment in the first instance;
The reasoning of this court's judgment is as follows, and it is identical to the reasons for the judgment of the first instance except for the supplement or addition of the judgment as follows 2, and it is stated in the reasons for the judgment of the first instance (excluding the part of "3. conclusion"). Therefore, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Revised parts
“(17.750,000,000 won)” on the right side of the eight (17.750,000,000 won) below the two (2)
○ 3 6 pages "(including paper numbers)" shall be amended to "(including paper numbers, hereinafter the same shall apply, unless otherwise specified)".
3. 7 Sheet "(including paper numbers)"
○ 3 Added Claim 2) Added Claim 7 below
○ 3 by inserting "I am on the left side of the 7th day"
○ 3. Preliminary Claim’s 2.0
○ 4 1 p.m. “Labor cost” added on the left side of “n.m.”
○ 5. Removal of the following 3.
○ 6 7 pages "The amount paid in proportion to the amount of sales, etc. among the management performance shall comply with the standards in attached Table 3" shall be amended to "where the company has achieved the business profit goal set in advance, it shall be paid within the amount set forth in the standards in attached Table 3."
○ 6 12 pages "evaluation method and payment method" shall be amended to "evaluation method (in relation to the performance objective calculation criteria, the duties of executive officers, etc.), payment method (in relation to the duties of executive officers, etc.), payment method (in time and time,
○ 6 12 on the right side of the resolution of the general meeting of shareholders add “no specific content is specified in the resolution of the general meeting of shareholders.”
○ Removal from the 7th day below to the 5th day below
○ 6 below the 4rd below the "construction, .................................
○ 7 1 p.m. “21 p.m. certificate” shall be amended to “21, 23 p.m. certificate”
○○ 7 to 8 7-1 of “Woo* in quantity* in 2011” was amended to “Woo*, even though the Plaintiff was appointed as an intra-company director around August 201, 201, he was paid a special bonus in 2011 among the Plaintiff’s officers and employees, and the amount was corrected to “this amount.”
○ 7. The addition to the “determinations on the Preliminary Claim” below the 8th page.
○ 7 Up to 9 Pursuant to Section 1(d)(1).
○ 7 Amendments to the following on the following grounds:
『아니하다. 또한 원고가 대표이사 김**에게 2012년에 약 13억 3,100만 원의 특별상여금을 지급하였다가 2013년에 약 32억 4,200만 원의 특별상여금을 지급하였던 것은 대표이사 김**가 사임한 시점이 2014. 1. 무렵인 점을 고려할 때 퇴직에 따른 공로 인정 성격이 일부 포함된 것으로 보이는 점, 별지2 표 양**의 2012년 특별상여금 30억 원 중 손금으로 인정된 대표이사 김**의 2012년 특별상여금 약 13억 3,100만 원이 차지하는 비율은 약 44.37%(13억 3,100만 원÷30억 원≒44.37%)인 반면에, 양**의 2013년 특별상여금 35억 원 중 손금으로 인정된 대표이사 김**의 2013년 특별상여금 약 32억 4,200만 원이 차지하는 비율은 약 93.63%(32억 4,200만 원÷35억 원≒93.63%)로 특별상여금 중 직무집행의 대가가 매년 동일한 비율로 산정된다고 볼 수 없는 점 등을 종합적으로 고려하면, 양**의 직무집행의 대가가 적어도 이미 수령한 특별상여금의 약 70% 정도는 된다는 원고의 주장 또한 받아들이기 어렵다.』
"At the right side of the following 7: "At the same time as there is no proof of the plaintiff on the details of the performance of duties subject to inclusion in deductible expenses and the specific amount of the special bonus" shall be added.
○ 8 4 under the following:
In addition, “In addition, the representative director Kim* as the joint representative director on the same day after the resignation on January 1, 2014, *, this* has taken office, the plaintiff paid excessive special bonuses to** without paying special bonuses to the joint representative director in 2014, 2.5 billion won out of the total employees and employees paid in 2014, 3.2 billion won out of the total employees and employees paid in 2014 **, and the ratio and amount of the plaintiff’s special bonus are excessive compared to other executives and employees, it is difficult to deem that the above excessive special bonus is justified *** is insufficient to fill the vacancy of the representative director or it is sufficiently proven that there was a special contribution to the business performance and amount.”
○ 8 5 to 6 males
○ 8 7 pages 8 7
○ Removal 6 below the 8th page
○ Change into “paid” any “paid” of between 5 and 4 below
○ 9 5 pages “B” on the right side of
The Supreme Court Decision 2013Du4842 Decided July 12, 2013 stated that bonuses may be paid according to business performance and that even if the general meeting of shareholders set the limit of compensation for executive officers, it can not be deemed that Article 43(2) of the Enforcement Decree of the Corporate Tax Act provides that the above bonus constitutes bonuses that are actually paid by the disposal of profits, on the grounds that the provision of the rules of employment provides that bonuses may be paid according to business performance in the case of an excessive inclusion of bonuses in deductible expenses.
In addition, "in addition, the part of additional tax is not revoked in the above judgment," on the right side of the 9th page."
○ 11. Added "(100,000 won or less)" below attached Form 21
3. Supplement and addition of judgments;
The plaintiff asserts that since he assumed office as the chairperson of the plaintiff, the plaintiff has been able to achieve the average business profit of the same industry with timely business judgment, and both* special bonus as to these special contributions, it should be included in the calculation of losses.
However, even if the evidence submitted by the plaintiff in the first instance court (Evidence A to 31) is added to the evidence submitted by the plaintiff in this court, it is difficult to see the plaintiff's operating profit as ** individual's business performance *** in detail, ** in quantity*'s business performance, and ** in quantity * there is no other evidence to prove that the plaintiff has made a special contribution to the amount of excessive special bonus compared to other executives and employees. The plaintiff's assertion is without merit.
4. Conclusion
Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.