The early 2011 High Court 0094

It is reasonable to deem that the sale of an industrial complex constitutes a pre-sale sale with a contract period of at least one year.

It is reasonable to view that an industrial complex sales contract constitutes a pre-sale sale, the contract period of which is not less than one year, considering the following: (a) the construction was commenced on August 8, 2006 and approved for use on March 3, 2008; (b) the sale of down payment and intermediate payment was successively received and the remainder was received after the completion of construction after obtaining approval for the public announcement of sale in an industrial complex on October 208.

2011Guhap30625 Revocation of Disposition of Imposing Corporate Tax and Disposition of Refusal of Request for Correction of Corporate Tax

AAAAA

The Director of the Pacific District Office

January 11, 2012

February 8, 2012

1. Of the instant lawsuit, the part of the Defendant’s claim for the revocation of the disposition imposing KRW 2,382,492,030 on the Plaintiff on February 2, 2009 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The plaintiff answers the costs of lawsuit.

The defendant's disposition rejecting correction of corporate tax of KRW 2,382,492,030 on February 2, 2009 against the plaintiff for the business year of 2007, imposition of corporate tax of KRW 17,68,560,940 on June 1, 2010, and imposition of KRW 4,092,250,750 on corporate tax of June 17, 2010 on June 17, 2010, each disposition revoking correction of KRW 4,092,250 on corporate tax of 2007 (" June 7, 2010," written in the purport of the claim, seems to be a clerical error of " June 17, 2010").

1. Details of the disposition;

가. 원고는 2005. 6. 9. BB산업개발 주식회사와 주식회사 CCCCC공단으로부터 시흥시 OO동 시화공단에 연면적 214,876㎡(철강상가 179,410㎡, 근린상가 35,466㎡)의 철강산업단지(이하 '이 사건 산업단지'라 한다) 신축・분양사업권을 양수하고 2005. 12. 30. QQ중공업 주식회사와 이 사건 산업단지 신축공사계약을 체결하였다.

B. On August 31, 2006, the Plaintiff obtained a construction permit for the industrial complex of this case from the Si interest market and commenced construction work around September 2006 and obtained approval for use on March 11, 2008.

C. On October 13, 2006, the Plaintiff obtained approval for the public announcement of the sale of the instant industrial complex from the Silung market, and sold the said industrial complex from around that time. The sale price was 20% of the down payment (10%, 20%, 15%, 3%, 15%, 4%, and 10%) of the intermediate payment, 60% of the remainder (1), and 20% of the remainder (10%, 20%, 20%, 3%, 4%, 10%), and thus, received the remainder after completion.

D. On October 18, 2006, the Plaintiff concluded a sales agency service contract with FF Steel Sales Cooperatives for 200 clocks among the commercial buildings in the industrial complex of this case, and agreed to pay 300 million won to the sales agency fee after the completion of the deposit of the first down payment for 200 clocks. The remainder of sales agency fee is paid at the time of settlement of accounts.

E. The Plaintiff entered into a sales contract in 2007, but on January 25, 2009, entered into a sales contract in 2008, and received a reduction of the tax base of value-added tax and annual tax revenue amount of 29,058,478,000 won by filing a request for correction of value-added tax to the Defendant on the case of cancellation of the sales contract in 2008.

F. The Plaintiff reported corporate tax 4,092,250,752 in accordance with the corporate tax base calculated by applying Article 69(1) of the Enforcement Decree of the Corporate Tax Act, which applies to a person who runs a construction, manufacturing, or other service business, with the corporate income in the business year of 2007.

G. The director of the Seoul Regional Tax Office, from October 30, 2008 to December 26, 2008, conducted a tax investigation with respect to the Plaintiff, and notified the Defendant of taxation data by omitting interest of KRW 1,909,00,000, which the Plaintiff borrowed to the PP comprehensive building office, and selling 6,084,000,000,000, such as sales agency fee, etc., from 2005 to 2007, underreporting KRW 7,993,00,000,000. The Defendant issued the first disposition against the Plaintiff on February 2, 2009 (hereinafter “the first disposition”).

H. The Defendant conducted a corporate tax survey on the Plaintiff from January 4, 2010 to January 29, 2010 of the same year and carried forward the Plaintiff’s income amount of 7,956,732,624 won for the business year of 2007 to 2008, and 208

The sales revenue of the business year of 2007 underreporting KRW 45,773,296,222 of the income amount for the business year of 2007, such as appropriating KRW 37,816,563,598 in the business year of 2007, and the business year of 2008 confirmed that an excessive amount was reported, and on June 1, 2010, the disposition of imposing corporate tax of KRW 15,306,068,910 for the plaintiff (hereinafter referred to as the "disposition of increased amount of corporate tax", and the disposition of imposing corporate tax of KRW 17,68,560,940, including the amount of the original disposition of increased amount.

I. On March 31, 2010, the Plaintiff asserted that the period of attribution of profit and loss should be recognized to the Defendant in 2008, which belongs to the date of settlement of the price, and that the Plaintiff filed an application for rectification of the corporate tax of KRW 4,092,250,752, which belongs to the business year of 2007 reported and paid by the Plaintiff, but the Defendant rejected it on June 17, 2010.

(j) On September 3, 2010, the Plaintiff requested the Board of Audit and Inspection to impose corporate tax in the instant case and the additional disposition of correction (hereinafter collectively referred to as “each of the instant dispositions”) on June 17, 2010, but was dismissed on June 15, 201.

[Ground for Recognition: The absence of dispute, entry of Gap's evidence Nos. 1 through 5, 7, 9 through 12, 14 through 19, Gap's evidence Nos. 6, 13-1, 2, Eul evidence Nos. 1-2, 2 and 3, and the purport of whole pleadings]

2. Whether the part of the instant lawsuit seeking revocation of the initial disposition is legitimate

With respect to the legitimacy of the original disposition among the lawsuits in this case, where the tax authority re-revisions the tax base and tax amount as increase after a tax disposition was made, the revised disposition does not add only the tax base and tax amount originally determined but also includes the increased portion, as a whole, a single tax base and tax amount as a whole. Thus, the original decision should be deemed to be a loss of independent existence value by treating Hobbbeh, and thus, only the revised disposition shall be subject to appeal litigation (see, e.g., Supreme Court Decision 2008Du17134, May 14, 2009). The health care unit back to this case, and the fact that the defendant issued the original disposition against the plaintiff on February 2, 2009, but made the increased disposition on June 1, 2010, the original disposition on the revised disposition should be deemed to constitute the original disposition on the increase in tax base and tax amount due to its nature. Thus, according to the above recognized facts, the original disposition on the increase in tax amount should be deemed to constitute an unlawful disposition.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The sales contract for the instant industrial complex concluded by the Plaintiff constitutes the transfer of assets other than the corner of goods under Article 68(1)3 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19891, Feb. 28, 2007; hereinafter the same) and the pre-sale sale under Article 69(1) of the Enforcement Decree of the same Act refers only to the pre-sale sale of services related to the public offering of services. Thus, even if the contract period for the sales contract is not less than one year, the time when profits and losses accrue pursuant to Article 68(1)3 of the Enforcement Decree of the same Act should be determined, and if so, there is no amount of income to be appropriated in the business year 2007, each disposition of the instant case

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 40 (1) of the Corporate Tax Act provides that the earnings and losses of a domestic corporation shall accrue for each business year which includes the date on which the earnings and losses are fixed, and the provisions of paragraph (2) of the same Article provide that the earnings and losses shall be included in the calculation of earnings and losses for the business year which includes the date on which the earnings and losses accrue, and the provisions of Article 68 (1) 3 of the Enforcement Decree of the same Act provides that the date of accrual of earnings and losses shall be included in the calculation of losses for the business year which includes the date on which the earnings and losses accrue, and the provisions of Article 40 (1) 9 of the same Act provides that the earnings and losses shall be included in the calculation of earnings and losses for the business year which includes the date on which the earnings and losses accrue before the earnings and losses are settled. The same shall apply to the date of accrual of earnings and losses for the business year which includes the date on which the assets are delivered or disposed of, and that the provisions of Article 69 (1) 2 of the Enforcement Decree of the same Act shall apply to the same Act.

2) On August 31, 2006, the Plaintiff obtained construction permission for the industrial complex of this case on or around September 1, 2006 and obtained approval for use on or around March 11, 2008. The Plaintiff obtained approval for sale announcement for the industrial complex of this case from the Silung market on or around October 13, 2006, sold the industrial complex of this case, and received the down payment and intermediate payment in sequence pursuant to the contents of the sale announcement as above. In full view of the above facts of recognition, it is reasonable to deem that the sales contract of this case concluded by the Plaintiff constitutes a pre-sale sales contract with a contract term of not less than one year. Accordingly, the Defendant’s disposition of this case is legitimate, and the Plaintiff’s above assertion is therefore without merit.

4. Conclusion

Therefore, the part of the lawsuit in this case seeking the revocation of the initial disposition is unlawful and dismissed, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.