Seocho 2016west 1418 ( January 23, 2017)

Bonuses exceeding the limit of remuneration determined at a general meeting of shareholders shall be deemed as losses, and welfare vehicle-related expenses shall not be deemed as earned income.

A bonus exceeding the limit of remuneration determined at a general meeting of shareholders shall be deemed as a loss, and the cost of maintaining welfare vehicles of this case does not constitute wage and salary income according to the operation guidelines and the employee survey, etc., and the incentive paid to a seller is not determined in accordance with supply conditions, and thus does not constitute a discount excluded from the value-added tax base.

Article 19 (Scope of Losses) of the former Corporate Tax Act

2017Guhap62570 Revocation of Disposition of Imposing corporate tax, etc.

KoreaAAAA(State)

BB Director of the Tax Office

March 8, 2018

April 5, 2018

1. On December 15, 2015, the Defendant’s disposition of collecting tax on each of the earned income tax (including additional tax) as stated in the column for tax amount in the attached Table [Attachment] that the Plaintiff attached to the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The defendant's attached Table [Attachment] attached to the plaintiff on each date stated in the "Disposition Date" is revoked both the imposition of corporate tax (including additional tax; hereinafter the same shall apply), the imposition of withholding tax, and the imposition of value-added tax as stated in the "Amount of Tax" column.

1. Details of the disposition;

가. 원고는 〇〇법인인 AAA International, Inc.(이하 'AAA'라 한다)의 관계 회사인 스위스 소재 BBB이 100% 지분을 보유한 내국법인(이하 AAA와 그 자회사 등 관계 회사를 통칭하여 'AAA 그룹'이라 한다)으로 〇〇의 제조 및 판매를 주된 사업으로 영위하고 있다.

나. 〇〇지방국세청은 2015. 7. 29.부터 2015. 11. 28.까지 원고의 2010 사업연도부터 2014 사업연도에 대한 법인세 통합조사를 실시하여, ① 원고가 2010 사업연도부터 2014 사업연도까지 대표이사 등 임원들에게 지급한 보수 합계 12,168,249,040원(기본급여, 상여금 등 포함, 이하 '이 사건 보수'라 한다) 전부를 인건비로 손금에 계상한 것과 관련하여 그 중 원고의 주주총회에서 승인한 임원의 보수한도 연 14억 원을 초과하여 지급된 5,168,249,040원을 손금불산입하고, ② 원고가 2010 사업연도부터 2014 사업연도까지 임직원들에게 제공한 차량(이하 '이 사건 차량'이라 한다)의 리스(렌트)료 및 주유비 합계 984,286,175원(이하 '이 사건 유지관리비'라 한다)을 해당 임직원들의 근로소득으로 보아 2010년부터 2014년 귀속 근로소득세를 재산정하였으며, ③ 원고가 2011년 2기 및 2012년 2기 부가가치세 과세기간 중 매출처인 판매회사(Distributor)들의 판매실적과 시장점유율 등에 따라 미리 정해진 금액(Cash pool) 내에서 상대적인 비율에 따라 결정한 인센티브 합계 498,500,000원(이하 '이 사건 인센티브'라 한다)을 해당 판매회사들에 공급하는 제품 공급가액에서 차감하고, 이를 부가가치세법상 에누리로 보아 과세표준에서 제외한 것을 판매장려금에 해당하는 것으로 보아 부가가치세 과세표준에 산입한 과세자료를 피고에게 통보하였다.

C. Accordingly, the Defendant separately determined and notified each corporate tax (including additional tax; hereinafter the same shall apply), wage and salary tax, and value-added tax on the Plaintiff on each date stated in the [Attachment] Disposition Date. [Attachment] attached Table] to the Plaintiff.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 11, 2016. On January 24, 2017, the Tax Tribunal decided that the basic salary out of the instant remuneration should be included in the deductible expenses regardless of whether it exceeds the limit of remuneration determined at a general meeting of shareholders, as it does not fall under the bonus stipulated not to be included in the deductible expenses under Article 43(2) of the Enforcement Decree of the Corporate Tax Act, and that “the basic salary out of the instant remuneration should be included in the deductible expenses, regardless of whether it exceeds the limit of remuneration determined at a general meeting of shareholders,” among remuneration paid by the Plaintiff to its executives, KRW 539,046,097,00 in the business year 2013, KRW 439,475,475,573 in the business year 2014 in the calculation of the amount of income for each business year.”

E. According to the above decision of the Tax Tribunal, the Defendant refunded the Plaintiff KRW 470,638,170, totaling KRW 204,406,090 of corporate tax for the business year 2011, KRW 152,491,730 of corporate tax for the business year 2013, and KRW 113,740,350 of corporate tax for the business year 2014 (hereinafter the above attached Table [Attachment] shall be subject to the disposition of imposing corporate tax on the Plaintiff as stated in the "tax amount," and [Attachment] shall be subject to the disposition of imposing corporate tax for the amount of corporate tax for the business year 201, KRW 491,730 of corporate tax for the business year 2013, and KRW 470,638,170 of corporate tax for the business year 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 7 through 11, Eul evidence 1 (including each number, hereinafter the same), and the purport of the whole pleadings

2. The plaintiff's assertion

Each of the dispositions of this case shall be revoked as follows.

A. According to Article 26 subparagraph 1 of the Corporate Tax Act and Article 43 (2) of the Enforcement Decree of the Corporate Tax Act, bonuses paid to executive officers exceed the amount paid according to the standards for payment of benefits determined by articles of incorporation, a general meeting of shareholders, or a resolution of the board of directors, and are not included in the calculation of losses only if it is deemed that such bonuses are excessive or unjust. Although bonuses are paid in excess of the amount of remuneration determined at a general meeting of shareholders, the bonuses were paid in accordance with the standards for payment of benefits applicable to all executive officers and employees of the AAA group, and in the process, they cannot be deemed to have been excessive or unduly paid due to the exercise of any influence by the registration directors. Thus, the entire amount should be included in the calculation of losses. Nevertheless, the Defendant’s disposition of imposition of corporate tax of this case, which excluded the bonus

B. According to the Plaintiff’s internal rules, the instant vehicle is used for business purposes in principle, and is actually used for business purposes including withdrawal from office and withdrawal, so the instant maintenance expenses paid by the Plaintiff in relation to the instant vehicle cannot be deemed as the wage and salary income of the relevant executives and employees. Nevertheless, the Defendant’s disposition to collect the wage and salary income tax of this case premised on the above maintenance expenses constitute earned income

C. The Plaintiff deducted the instant incentive calculated according to the method stipulated in the product supply agreement with the selling company from the supply price of the product, and the said incentive amount was directly deducted from the supply price, and thus constitutes a sales discount amount excluded from the value-added tax base. Nevertheless, the Defendant’s imposition of the value-added tax on the premise that the said incentive falls under the sales incentive is illegal.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Determination on the disposition of imposition of corporate tax of this case

1) Facts of recognition

A) Article 17 (Remuneration) of the Plaintiff’s articles of incorporation provides that “the remuneration and bonus of directors and auditors shall be determined by the resolution of the general meeting of shareholders.” Accordingly, the Plaintiff has approved the limit of remuneration of directors (including bonuses) every year. From 2010 to 2014, the Plaintiff resolved the limit of remuneration of directors (including bonuses) to be paid each year at the general meeting of shareholders from 2010 to 2014.

B) According to the "Commons, Benefits and Ainwards (AA 23)" (hereinafter "the instant wage payment criteria"), the officers and employees of the AA group have a duty grade determined by using the duty evaluation method of Hday Group, and the related companies within the group, through on-site market surveys each year, determine the minimum or maximum benefit rate according to the duty grade applicable in the following year, and all the officers and employees need to adjust the benefits (basic pay), including the wage rate according to the performance evaluation.

C) According to the "Glbal Lonlines (AA 19-G2), which is a provision related to the treatment of dispatched executives and employees of the AAA Group, the total benefits Pckage of dispatched executives and employees is determined by taking into account the factors such as taxes between countries and the amount of additional compensation for difference in prices. From the corporation sending the dispatched employees, the superior and the head of the personnel department approve the level of basic benefits, and then deliver it to the personnel department of the corporation receiving the dispatched employees by preparing a total benefits Pckk from overseas dispatch from the Salvice, of the support corporation sending the dispatched employees.

(D) In the case of bonuses, a bonus shall be paid to employees of at least 10 in the class of duties, and bonuses shall consist of incentives and stock compensations. The "Global Vals", which is formulated in accordance with the instant wage payment criteria, shall be calculated in the manner as follows, and where an employee of the AAA group receives the shares of AA, the relevant expenses shall be borne in proportion to the period of work by each corporation, in which the relevant employee had worked."

(0 to 130%)

○ Stock Compensation: [Annual targetx Stock Compensation Business Grade (0-150%) x Individual Performance Rating (0-130%) of each class of basic salary X

E) From 2010 to 2014, the Plaintiff paid the instant remuneration of KRW 12,168,249,040 in total to registered directors, including the representative director, as indicated in the table, and reported and paid corporate tax for each business year by including the total amount in deductible expenses (the amount that the Defendant was not originally included in deductible expenses is the same as the amount indicated in the following table, and the amount that was not finally included in deductible expenses according to the decision of the Tax Tribunal is the same as the amount indicated in the following table, and the amount that is not included in deductible expenses after the decision of the Tax Tribunal is the amount that exceeds the amount that exceeds the amount that exceeds the amount approved by the general meeting

(unit: Won)

Business year

2010

2011

2012

2013

2014

Total

Registry Director

CC

D

EE

F

GG

Basic Benefits

1,397,386,981

2,017,221,737

1,377,745,271

1,939,046,097

1,839,475,573

8,570,875,659

Bonuses (incentive + Stock Compensation, etc.)

465,414,931

593,851,770

810,025,247

869,422,628

858,658,805

3,597,373,381

Total

1,862,801,912

2,611,073,507

2,187,770,518

2,808,468,725

2,698,134,378

12,168,249,040

In excess of the limit of fees approved by a general meeting of shareholders (A)

462,801,912

1,211,073,507

787,770,518

1,408,468,725

1,298,134,378

5,168,249,040

In excess of the limit of remuneration approved by the general meeting of shareholders for the remainder of remuneration except for basic benefits (B)

462,801,912

593,851,770

787,770,518

869,422,628

858,658,805

3,572,505,633

Difference A - B

617,257,737

539,046,097

439,475,573

F) On December 28, 2015, the Plaintiff held a special general meeting of shareholders on December 28, 2015 and resolved to increase the limit of remuneration for registered directors from 2010 to 2014 retroactively to 4 billion won.

[Ground of recognition] Facts without dispute, Gap 2, 3, 5, 7, 11, 12, 14, 19, 21 through 23, Eul 1, 4 and 5, and the purport of the whole pleadings

2) Determination

A) Article 19 of the Corporate Tax Act provides that "deductible expenses shall be the amount of losses incurred from transactions that reduce the net assets of the corporation (Paragraph 1). The above deductible expenses shall be expenses incurred in connection with the business of the corporation except as otherwise provided for in the Corporate Tax Act or other Acts and subordinate statutes, which are related to ordinary or directly to profit (Paragraph 2), and matters necessary for the scope and classification of losses shall be prescribed by Presidential Decree (Paragraph 4). Article 26 of the Corporate Tax Act provides that "the amount deemed excessive or unjust as prescribed by Presidential Decree among the following losses shall not be included in deductible expenses in calculating the income amount of the domestic corporation for each business year," while Article 43 (2) of the Enforcement Decree of the Corporate Tax Act provides that "the amount in excess shall not be included in deductible expenses in calculating the income amount of the domestic corporation for each business year." Article 43 (2) of the Enforcement Decree of the Corporate Tax Act provides that "the amount in excess shall not be included in deductible expenses."

B) On the other hand, Article 26 subparag. 1 of the Corporate Tax Act provides that personnel expenses deemed excessive or unreasonable as above shall be determined by Presidential Decree, and Article 43(2) of the Enforcement Decree of the Corporate Tax Act provides that “the amount paid in excess of the wage payment standard determined by the articles of incorporation, the general meeting of shareholders or the board of directors shall not be included in the expenses.” Thus, the amount paid in excess of the wage limit of a legitimate officer decided at the general meeting of shareholders shall not be included in the expenses as excessive or unfair labor expenses as prescribed in Article 26 subparag. 1 of the Corporate Tax Act. Therefore, from among the instant remuneration paid to the registered directors from 2010 to 2014, the portion exceeding 1.4 billion won of the registered director’s remuneration amount determined at the general meeting of shareholders for the pertinent business year shall not be included in the expenses. From the ex post facto general meeting of shareholders held in 2015 to 2014, it shall not be deemed that the Plaintiff made a resolution to increase the remuneration of each registered director from 2010 billion won.

C) In this regard, the Plaintiff stipulates that no excessive or unreasonable loss shall be included in the deductible expenses under Article 26 of the Corporate Tax Act, which is a superior provision under Article 43(2) of the Enforcement Decree of the Corporate Tax Act, which is a business-related and ordinary expenses. The personnel expenses shall be recognized as deductible expenses as much as possible. Article 43(2) of the Enforcement Decree of the Corporate Tax Act purports to prevent excessive or unfair remuneration from being paid to the executives who have influence on the decision-making of a corporation and to include only the personnel expenses that contributed to the creation of corporation’s income in the deductible expenses. Thus, if bonus paid to the executives is appropriate as the consideration for the provision of labor, and there is no room for involvement of the executives in the decision-making and payment process, and if it is not acknowledged that such bonus is excessive or unreasonable, it shall be included in the deductible expenses even if it has been paid in excess of the limit of

However, as seen above, Article 26 of the Corporate Tax Act provides that "the amount recognized as excessive or unreasonable as prescribed by Presidential Decree" shall not be included in the calculation of losses. Thus, where bonuses paid to executive officers meet the requirements under Article 43 (2) of the Enforcement Decree of the Corporate Tax Act, it shall not be included in the calculation of losses because it constitutes excessive or unfair losses. As so argued by the plaintiff, it is against the language and structure of each of the above Corporate Tax Act and its Enforcement Decree, and it is difficult to accept the resolution of the general meeting of shareholders as to the requirements for non-deductible expenses and the remuneration of executive officers under Article 43 (2) of the Enforcement Decree of the Corporate Tax Act.

Furthermore, even according to the above argument by the plaintiff, the plaintiff must prove that the bonus paid to the executive officers falls under the requirements of Article 43 (2) of the Enforcement Decree of the Corporate Tax Act, so long as the bonus is excessive or unreasonable. The remuneration in this case is determined in accordance with the salary payment criteria and the formula commonly applicable to the company related to AAA group, there is no possibility of undue involvement in the plaintiff's intent or influence of the executive officers who received the instant remuneration in the process of the decision, or the remuneration in this case paid to the executive officers of the plaintiff is similar or smaller to the payment paid to the registration director, and there is no other evidence to prove that the above facts were proved, and there is no other evidence to acknowledge this (In addition, the plaintiff's assertion that the bonus paid in excess of the limit of the executive remuneration determined by the general meeting of shareholders among the remuneration in this case may be included in deductible expenses as illegal expenses not contrary to social order. However, as seen above, the plaintiff's assertion that the above bonus in this case does not explicitly provide for the above inclusion in deductible expenses.

D) Therefore, the Defendant’s disposition of imposing corporate tax of this case is lawful, and the Plaintiff’s assertion on this part is without merit.

B. Determination on the collection disposition of wage and salary income tax in the instant case

1) Facts of recognition

A) The Plaintiff’s qualification for the vehicle of the Plaintiff and the operating policy for the purpose of its use (PMK 302, hereinafter “instant vehicle operation policy”) are classified into the Plaintiff’s vehicle for business use, welfare vehicle, company-use vehicle, etc. as follows, and the Plaintiff bears, in principle, the cost of lease of each of the above vehicles and the cost of maintenance, such as oil supply, etc.

The plaintiff operates a variety of vehicles for business purposes and employees' welfare. This provision sets out the qualification for the company's vehicles and the operational policy for the use thereof.

2.1 Vehicles for business

The vehicle (hereinafter referred to as "vehicle for business") shall be used every day in some on-site affairs of the company. The standards for allocation of office vehicles shall be determined by the head of the relevant department, and approval from the head of the branch office shall be obtained.

￭ 사용자격

Generally, when examining eligibility to use business vehicles, the following shall be considered first and not limited:

- Where the operation of vehicles is needed on a regular and frequent basis due to reasons such as on-site visits for the performance of the functions of the staff, transportation of work-related materials, etc.

-in cases where an employee works for a long time in a remote area, such as an office and warehouse, at a normal working place;

￭ 차량 모델

The manufacturer company, brand, or model of the company's vehicle is provided in the column of "attached documents", and it can be changed according to external factors such as revision of the company's vehicle principle and regulations, business necessity, vehicle price, conditions of supply of the manufacturer, etc.

￭ 업무용 차량의 개인적 사용

Personal use of office cars is limited, such as short distance driving, etc. in the residential area of the user of the vehicle. Personal use for operation (such as leave, family travel, etc.) outside of the residential area shall be subject to prior approval from the immediately preceding manager, and expenses incurred in the operation of the vehicle, such as fuel, parking fees, and tolls incurred during the period of use

2.2 Vehicles for welfare purposes;

Employees with a certain salary grade or higher are entitled to use the company's vehicle (hereinafter referred to as "welfare vehicle") for business purposes as well as employee welfare according to the terms and conditions of employment contract.

￭ 사용자격

At least SG12 executives and employees are entitled to receive welfare vehicles.

A lineal ascendant or descendant (spouse, parent, child) of a vehicle user who has registered his/her driver's license with the General Service Department may drive a welfare vehicle under the premise that the vehicle user is responsible for thoroughly supervising the safe operation of the driver and the observance of the laws and regulations.

A vehicle user shall always recommend the use of welfare vehicles with the top priority in the use of his/her duties.

￭ 예산

The budget for the selection of a model shall be determined on the basis of the official market price. Detailed matters shall be referred to in the attached documents.

￭ 차량 선택

At least 12 employees of the salary grade may choose welfare vehicles within budgetary limits based on the 'PMFK 302 vehicle allocation' of attached documents.

￭ 월정 수당

An employee of a welfare vehicle may choose the preference among the monthly allowances paid through a welfare vehicle or salary. Detailed contents refer to TPP K 130 food and transportation expenses." and 2.3 Company public vehicles.

An employee who is not assigned a welfare vehicle or office vehicle, or who is provided with a company vehicle but temporarily is unable to use the vehicle due to an accident, repair, etc. shall be allowed to use the vehicle owned by the temporary company (hereinafter referred to as the "company public vehicle") only for its business purposes.

￭ 회사공용 차량은 차량 사용자의 관리자와 Manager General Services가 승인한 경우에만 사용이 가능하다.

￭ 일반 원칙으로써 업무상 목적의 회사 공용 차량 사용은 1영업일 이내 사용을 완료하고 반납해야 한다. 1영업일 이상 사용이 필요한 경우, 영업일 내 차량 사용 가능성 및 잠재적인 사용을 고려하여 General Services 부서는 승인하지 않을 수 있다.

￭ 외부 훈련이나 워크숍 등을 위하여 동일한 목적지로 다수 직원이 여행하는 경우에는, 동승을 통하여 비용 절약 등 선의의 의무를 다한다.

￭ 회사공용 차량은 청결하게 사용해야 하며, 사용 일지 및 열쇠는 사용 후 즉시 반납해야 한다.

B) Officers and employees eligible for the provision of the instant vehicle, among the Plaintiff’s vehicles, may choose whether to receive the said vehicle and receive the monthly allowance paid through the salary. In the event that the instant vehicle is paid monthly allowance instead of the instant vehicle, income tax is paid on the wage that includes the said allowance.

C) The Defendant, among the officers and employees who have received the instant vehicle, deemed the lease fees and oil expenses paid by the Plaintiff in connection with the instant vehicle used by the employees of the internal department at a certain class, excluding the employees of the business department and the officers at a certain class (class) or higher, as earned income of the relevant employees. Of the instant vehicle paid by the Plaintiff for each business year, the amount of the instant vehicle’s lease fees and oil expenses paid by the Plaintiff as earned income of the relevant officers and employees is set forth in the table below.

(unit: Won)

Business year

2010

2011

2012

2013

2014

Total

Lease (e.g. rental fees)

268,69,800

305,973,500

346,814,700

365,588,400

404,707,500

1,691,783,900

Gas station fuel expenses

107,968,450

102,079,923

155,806,901

175,045,091

191,748,016

732,648,381

Total

376,668,250

408,053,423

502,621,601

540,633,491

596,455,516

2,424,432,281

Amount deemed to be earned by the Defendant

(The number of eligible persons)

95,588,641

(10) persons

144,279,982

(17) persons

194,011,150

(26) persons

254,861,103

(26) persons

295,545,299

(35) persons

984,286,175

(114 persons)

Notice Tax Amount

30,831,010

45,998,200

65,548,900

82,871,810

102,335,500

327,585,420

D) The Plaintiff conducted a survey to identify the actual use of the instant vehicle for executives and employees using the instant vehicle. The details of the survey and the result of the survey on 26 persons, excluding those who were unable to comply with the survey due to retirement and overseas dispatch among those related to the collection disposition of wage and salary income tax of this case, are as follows.

/ Details of the survey

1. The frequency of use of vehicles of a company where business trips are made?

(1) A 100%-use (2) In most cases, (3) at least 50%-use, and (5) less than 50%-use.

2. The major means of commuting to and from his workplace?

(1) Vehicles and vehicles.

4. Results of the survey

(unit: Name)

Business year

2010

2011

2012

2013

2014

Total

No. 1. Number of persons responding to the above paragraph

5

10

17

18

25

75

100% Use

1

3

4

3

4

15

In most cases

3

3

4

5

6

21

50% or more

2

1

1

4

Less than 50%

1

1

5

6

13

almost in use;

1

2

2

2

5

12

Total

5

9

13

16

22

65

Non-Respondents

1

4

2

3

10

Business year

2010

2011

2012

2013

2014

Total

The number of persons responding to the above 2 questions

5

10

17

18

25

75

Company Vehicles

5

10

15

17

23

70

self-motor vehicles

1

2

3

Public Transportation

Do newsletter

Total

5

10

15

18

25

73

Non-Respondents

2

2

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 8, 16 through 18, Eul evidence Nos. 8 through 10, the purport of the whole pleadings

2) Determination

A) Article 20(1) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same) provides that "labor income refers to the following income generated in the pertinent taxable period." Article 20(1) provides that "the salary, salary, remuneration, annual salary, wage, bonus, allowance, and other similar allowances that are paid by providing labor." Meanwhile, whether the wage is subject to taxation should be determined depending on the nature of the paid amount, not only on the pretext of the paid amount, but also on the premise that the payment of the amount is closely related to labor (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005).

B) According to the instant vehicle operation policy, vehicles operated by the Plaintiff are classified into office vehicles, welfare vehicles, and company-use vehicles. The instant vehicle related to the instant employment income tax collection disposition is classified into welfare vehicles, and the user’s lineal family members of the instant vehicle are allowed to use the said vehicle in the instant vehicle. The instant vehicle operation policy does not prohibit the Plaintiff’s use of the said vehicle for personal purposes on retirement or weekends. The Plaintiff’s officers and employees subject to the instant vehicle, who did not receive the said vehicle, are paid a separate monthly allowance in the case of an officer and employees who did not receive the said vehicle, and the said allowances are paid income tax on the said allowances including the said allowances. The Defendant, except for the Plaintiff’s officers and employees who were provided with the instant vehicle and employees of a business department and employees of a certain class or higher (director) of a certain class, and considering only the lease cost and employment income of employees in a department below a certain class and the instant wage and salary income tax as the instant tax collection disposition as seen earlier.

C) However, in a lawsuit seeking cancellation of a collection disposition of wage and salary income tax, the tax authority bears the burden of proving which amount constitutes wage and salary income. In full view of the following circumstances acknowledged by the above facts and the purport of the entire arguments, the above facts alone are that the instant maintenance and management expenses were paid as remuneration for work, or that they were paid in a regular manner based on the premise that they were closely related thereto, and there is no other evidence to acknowledge it.

① 원고가 업무수행을 위하여 부담한 비용은 근로소득으로 볼 수 없다고 할 것인데, ㉠ 원고의 이 사건 차량운영방침에 '이 사건 차량의 사용자는 항상 업무상 용도를 최우선으로 하여 위 차량을 사용할 것을 권고한다'고 하여, 원칙적으로 업무상 용도로 이 사건 차량을 사용하도록 규정하고 있는 점, ㉡ 원고가 이 사건 근로소득세 징수처분의 대상이 된 임직원들을 상대로 실시한 설문조사에서 위 임직원들의 대다수가 이 사건 차량을 출퇴근 용도 및 출장 등의 업무상 용도로 사용하였다고 응답한 점, ㉢ 업무수행을 목적으로 이루어지는 출・퇴근의 용도로 위 차량을 사용하는 것도 업무용 사용에 해당한다고 봄이 상당한 점, ㉣ 원고는 이 사건 차량을 사용하는 각 임직원들에게 매월 말 운행 거리를 확인하여 보고하도록 하여 위 차량의 운행 거리를 월별로 관리하는 것으로 보이는 점 등을 고려할 때, 이 사건 유지관리비 중 상당 부분은 원고의 업무수행을 위해 부담한 비용에 해당한다고 할 것이다.

② Since the Defendant imposed only the instant maintenance expenses incurred in relation to the instant vehicle supplied to employees mainly in the company on the ground of its business characteristics as earned income, the Defendant asserted that the said maintenance expenses constitute expenses unrelated to the business. However, in order to regard the instant maintenance expenses as earned income, it is difficult to deem that the standards classified the Plaintiff’s executive officers and employees’ class and the employment department are clear, and it cannot be readily concluded that the instant vehicle was provided to the executive officers and employees of the department classified as the employee mainly in the company and used for business purposes.

③ The Plaintiff did not pay the instant maintenance and management expenses on a monthly basis to the users of the instant vehicle, but provided a corporate card to the executives and employees using the instant vehicle, and required them to pay the automobile leasing fee (e.g., receipt when the user of the instant vehicle paid the tolls and parking fees). (On the other hand, the Plaintiff had the Plaintiff submit evidentiary documents, such as receipt, and preserved each of the said expenses. However, the Defendant did not include each of the said expenses in the subject of taxation on earned income tax.)

④ The Defendant asserts that the instant maintenance expenses incurred by the Plaintiff in relation to the instant vehicle constituted earned income inasmuch as the instant vehicle user received the instant vehicle on behalf of the monthly allowance. However, even though there is no evidence to deem that the substance of the instant maintenance expenses is in a relationship with the provision of labor and a quid pro quo, the instant maintenance expenses cannot be deemed as naturally earned income solely on the ground that the aforementioned provision of the Enforcement Decree of the Income Tax Act and the details of the instant vehicle’s provision asserted by the Plaintiff do not constitute earned income.

⑤ Furthermore, whether a vehicle constitutes “motor vehicles not directly used for business” under Article 27 of the Corporate Tax Act and Article 49 subparag. 2 (b) of the Enforcement Decree of the Corporate Tax Act shall be objectively determined by comprehensively taking into account the purpose of business and contents of business of the pertinent juristic person, the developments leading up to the acquisition of the relevant motor vehicle, its use, and the actual use thereof. However, in a lawsuit seeking revocation of a taxation disposition, the tax authority bears the burden of proving the legality of the taxation disposition and the existence of taxation requirements, and thus, the tax authority bears the burden of proving the gross income and deductible expenses for each business year, which serves as the basis of the tax base. However, in a case where the tax authority proves that a taxpayer’s circumstance that the other party to the payment or the amount reported as deductible expenses is false or fails to meet the requirements of deductible expenses, the need to prove that such expenses were actually paid or the amount of deductible expenses was met due to other circumstances, regardless of the concept of fairness, it shall not be deemed that the Plaintiff’s vehicle was reasonably used for business and management of the pertinent motor vehicle.

D) Therefore, the Defendant’s disposition of collecting wage and salary income tax of this case should be revoked as illegal. Therefore, the Plaintiff’s assertion on this part is with merit.

C. Determination on the imposition of value-added tax of this case

1) Facts of recognition

가) 원고는 주식회사 HH인터내셔날, 주식회사 JJ유통, 주식회사 KK상사, 주식회사 L유통(이하 '판매회사들'이라 한다)과 원고가 제조한 〇〇 제품을 독점적으로 판매할 수 있도록 하는 제품공급계약(이하 '이 사건 제품공급계약'이라 한다)을 체결하였는데, 위 계약의 내용 중 이 사건과 관련이 있는 부분은 아래와 같다.

5. Price, shipment, and payment;

5.1 Contracting Parties (Plaintiffs and distributors) agree that the supply price of the product shall be determined by the selling company under the condition that the selling company fulfill its obligations and duties as a seller of the product. The supply price of the product shall be determined by the selling company to ensure that the selling company can ensure that the selling company properly sells the product with respect to its distribution, sales promotion, and marketing activities as a seller of the product under this contract. When the product is delivered to the selling company, the Plaintiff supplies the product to the selling company at the amount calculated by subtracting 19 won per package (or i) fixed margin and ii) equivalent to 19 won per package of the product (or the amount agreed at any time between the parties) from the price imposed by the selling company to the selling company.

5.4 The selling company, together with other selling companies in Korea of the Plaintiff, is entitled to receive additional incentives at a certain ratio of Cash pool in the size that the Plaintiff determines at its sole discretion. This ratio shall be determined by mutual agreement based on the results measured at the end of each year during the contract period, compared with the principal performance indices agreed in writing by the parties.

나) 원고의 제품공급가격은 아래와 같이 판매가격(〇〇소매인에게 판매하는 가격)에서 판매회사들의 〇〇 1갑당 고정마진(Fixed Margin) 및 변동마진(Variable Margin)의 합계액을 차감하여 결정한다.

- Product supply price = Sales Price - Fixed – Changeer

∙ 고정마진 = 〇〇 1갑당 11원 ~ 21원

- Changes = Operational costs (Distributor Nmal Marin) + Advertising marketing costs (Distributor)

다) 원고는 2011년부터 판매회사들에 대한 인센티브 제도를 도입하였는데 이 사건 제품공급계약의 내용에 포함된 인센티브 계획에 의하면, 사업연도 말에 ① 판매량 달성(Volume Achievement, 운영예산 내 목표판매량 대비 당해 연도 실제 판매량), ② 시장점유율 성장률(Share of Market Growth Rate, 전년도 시장점유율 대비 당해 연도 시장점유율), ③ 효율성/효과성(Efficiency/Initiation, 지역 프로그램 운영 효율성), ④ 원가효율성(Cost Efficiency, 전년도 대비 판매촉진 프로그램의 효율성 개선 정도) 항목을 통해 계산되는 점수로 판매회사들의 순위를 정하고, 원고가 사업연도별로 할당한 인센티브 중 순위별로 원고가 정한 비율에 해당하는 금액을 확정한 뒤, 이를 다음 사업연도에 판매회사들에게 〇〇 제품을 공급하고 지급받을 공급가격의 차감 항목인 변동마진을 구성하는 운영비용에 반영하는 방식으로 제품공급가격에서 차감한다.

D) The Plaintiff established each incentive for KRW 250,000,000, and KRW 248,500,000 in 2012, and each of the said incentives was derived from the product supply prices by selling companies in the following year. The Plaintiff reported and paid the value-added tax for two years in 2011 and for two years in 2012 by deeming each of the said incentives as an amount of overcharge that is not included in the value-added tax base as an amount of overcharge that is not included in the value-added tax base.

[Ground of recognition] Facts without dispute, Gap evidence 6, 9, 24 through 28, Eul evidence 1, the purport of the whole pleadings

2) Determination

A) Article 13(2) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that "the following amounts shall not be included in the tax base." Article 52(2) of the former Enforcement Decree of the Value-Added Tax Act provides that "the overcharge amount under Article 13(2)1 of the former Enforcement Decree of the Value-Added Tax Act shall be the amount directly deducted from the ordinary supply price at the time of the supply of the goods or services in accordance with the terms and conditions of the quality, quantity, and payment of the goods or services, and other terms and conditions of the payment for the quality, quantity, delivery, etc. of the goods or services." excluding the overcharge amount from the tax base is the purpose of excluding the amount deducted or deducted from the supply price of the goods or services from the tax base (see Supreme Court Decision 2011Du81781, Apr. 11, 2013).

On the other hand, Article 13(3) of the former Value-Added Tax Act provides that "the bad debts, incentives, and other similar amounts for the value of supply after the supply of goods or services shall not be deducted from the tax base, regardless of the title, if the company pays the incentives, etc. after the transaction is made in cash, it shall not be deducted from the tax base of value-added tax. In other words, the sales unit costs incurred by the company in relation to the sale according to the transaction conditions may constitute a discount, and may be equivalent to such amounts as incentives. In relation to the imposition of value-added tax, only the amount directly deducted from the sales can be excluded from the value-added tax base, but only the amount which is not

나) 살피건대, 위 인정사실 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정들 즉, ① 이 사건 인센티브는 원고가 판매회사들에게 공급하는 〇〇 제품의 품질・수량 및 인도・공급대가의 결제 기타 공급조건에 따라 정하여지는 것이 아니라 전년도의 판매실적, 시장 점유율과 전년대비 판매촉진 프로그램의 효율성 개선정도 등 제품의 판매와 관련한 지표들에 의하여 결정되는 점, ② 이 사건 인센티브의 총액은 사업연도별로 원고의 단독 재량에 의해 결정되고, 그 범위 내에서 판매회사들의 인센티브가 상대적으로 결정되는 점, ③ 판매회사들에게 할당될 인센티브가 제품 공급 당시 특정될 수 없고, 해당 사업연도가 종료하여야 비로소 할당될 인센티브의 산정이 가능하며, 판매회사들은 위와 같이 산정된 인센티브를 다음 해에 지급할 제품공급가격에서 공제받는 방식으로 지급받는 것에 불과한 점 등을 종합하면, 이 사건 인센티브는 장려금 또는 이와 유사한 금액으로서의 성격을 가질 뿐, 에누리액에 해당한다고 할 수 없으므로, 위 인센티브는 부가가치세 과세표준에 포함되어야 한다.

C) Therefore, the Defendant’s imposition of value-added tax is lawful, and the Plaintiff’s assertion on this part is without merit.

5. Conclusion

Therefore, the part of the Plaintiff’s claim seeking revocation of the tax collection disposition of wage and salary income tax of this case is justified, and the part seeking revocation of the tax imposition disposition of this case and value-added tax is dismissed as it is so decided as per Disposition.