In order to distribute profits reserved to a corporation, the form of remuneration has been taken externally 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 and the substance of the profit disposition are the same as the bonus subject to non-deductible expenses, so it cannot be included in the calculation of losses.

2018Guhap60459 Revocation of the imposition of corporate tax

AA

Head of the tax office

July 17, 2018

September 4, 2018

1. The plaintiff's claim is dismissed.

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

The imposition of each corporate tax and additional tax listed in the attached Table 1 that the defendant of the Gu office has made against the plaintiff shall fully revoke the excess of each legitimate tax amount.

1. Details of the disposition;

A. On June 25, 1999, the Plaintiff is a company established for the manufacturing of electronic parts. DP Holdings acquired 100% of the Plaintiff’s shares in around 201, and DP Holdings owned 50% of the Plaintiff’s shares in DP Holdings and YH’s shares were appointed as the Plaintiff’s intra-company director on August 18, 201, and operated the Plaintiff as the Chairperson. (b) The Director of the AAB Regional Tax Office dismissed the Plaintiff’s tax base and the amount of tax against the Plaintiff from May 8, 2015 to June 27, 2015 by deeming that the Plaintiff’s special bonus paid to its officers and employees as indicated in attached Table 2 was subject to the disposition of imposition of additional tax and additional tax on July 1, 2015 to 2015, and accordingly, the Defendant rejected the Plaintiff’s tax base and the amount of tax on the aggregate of KRW 500,715,7500,700,75.7000.

D. On September 5, 2016, the Plaintiff filed an appeal with the Tax Tribunal. On October 23, 2017, the Tax Tribunal recognized the amount equivalent to the special bonus paid to "other executives" and "KS" in the attached Table 2 and "KS" from among the special bonus paid to "president YDS" as deductible expenses, and decided to rectify the tax base and tax amount as deductible expenses, and dismiss the remainder of the application (hereinafter referred to as "the instant disposition of imposition"). [The grounds for recognition] The fact that there is no dispute, Gap, 1, 2, 3, 4 (including the serial number), Eul, 1, 2, 3, and 11 (including the virtual number), and the purport of the entire pleadings, and whether the disposition of disposition is legitimate on February 2, 201.

A. The plaintiff's assertion

1) The primary argument

Special bonuses paid by the Plaintiff to YDS are paid in accordance with the salary payment criteria determined by a resolution of the general meeting of shareholders, and it does not constitute bonuses paid by calculating the disposal of surplus as losses or by disposing of profits as reasonable compensation for the performance of duties of YDS. Therefore, it shall be included in deductible expenses.

설령 위 특별상여금이 이익처분에 해당한다고 보더라도 적어도 2011년 및 2014년 특별상여금 중 70%(별지2 표 YDS의 2012년, 2013년 특별상여금 합계 65억 원 중 손금으로 인정된 대표이사 KCS의 같은 기간 특별상여금 상당액 45억 7,300만 원이 차지하는 비율. 45억 7,300만 원 ÷ 65억 원 ≒ 70.35%)에 해당하는 부분은 손금에 산입되어야 한다.

Nevertheless, the instant disposition that was not included in the calculation of losses is unlawful.

2) Preliminary assertion

In light of the fact that personnel expenses are, in principle, included in deductible expenses; the Plaintiff paid special bonuses within the salary payment criteria prepared in accordance with the resolution of the general meeting of shareholders; and that the Plaintiff was unable to predict the criteria set forth in the Supreme Court Decision 2015Du60884 Decided September 21, 2017 at the time of filing the corporate tax, etc., the Plaintiff’s report on the special bonus that the Plaintiff paid to YDS was made by including the total amount of the special bonus paid to YDS in deductible expenses; thus, the penalty tax cannot be imposed pursuant to Article 48(

B. Relevant statutes

4. The same shall apply to 4

C. Judgment on the main argument

1) Relevant legal principles

former Corporate Tax Act (Amended by Act No. 12850, Dec. 23, 2014; hereinafter the same shall apply) 19

Article 20 (1) and the main sentence of subparagraph 1 of Article 20 shall apply to the principle of the amount calculated as losses from the disposal of profits.

Article 26 subparagraph 1 shall not be included in the calculation of losses, and Article 26 subparagraph 1 shall be prescribed by Presidential Decree among personnel expenses.

amount deemed to be excessive or unjust as such shall be deemed to be the lawsuit of a domestic corporation for each business year.

In calculating the acquisition amount, it shall not be included in deductible expenses, and in accordance with delegation, the former Act;

Enforcement Decree of the Tax-Related Act (Amended by Presidential Decree No. 26068, Feb. 3, 2015; hereinafter the same shall apply) No. 43

subsection (1) of section 1 shall apply to bonuses paid by a corporation to its officers or employees for the disposal of profits.

This is not included in the calculation of losses.

Remuneration paid by a corporation to its officers in consideration of the performance of duties shall be paid by the corporation.

In principle, such expenses shall be included in the calculation of losses. However, the above provisions shall apply.

section 26 of the former Corporate Tax Act to prevent unfair reduction of a corporation’s income

In light of the legislative intent of Article 43 of the former Enforcement Decree of the Corporate Tax Act, even if the corporation paid the remuneration to the executive who is a controlling shareholder (including the executive in a special relationship with the former) of the corporation, the remuneration is the proportion and size of the corporation’s operating income in the business profit, whether there is a significant gap in the remuneration of other executive officers in the relevant corporation or the executive officers in the same business

In relation to trends and the operating profit of the corporation, whether dividends are paid to other shareholders, and the law

Comprehensive consideration of all the circumstances, such as subjective intent to unfairly reduce the income of the person;

of the officer's performance of the officer's duties, such remuneration shall not primarily be the normal price for the officer's performance of his duties.

If it is nothing more than taking the form of remuneration for the purpose of allocating profits, this shall not apply.

Since the bonus subject to non-deductible losses and its substance are identical as the next disposition, the time of the former Corporate Tax Act

Pursuant to Article 43 of the Decree of the Republic of Korea, it shall be deemed that it cannot be included in deductible expenses.

In addition, in light of the difficulty of proof and the concept of fairness, etc., the above circumstances are considerable.

When road is proved, the whole amount of the remuneration shall be regarded as the object of non-deductible expenses, and the above remuneration.

that some of the proceeds of the performance of duties are included in the calculation of losses;

Tax payment shall be easy to submit detailed data on the details of the calculation of the remuneration, the composition thereof, etc.

It is necessary for an unqualified person to prove this (see, e.g., Supreme Court Decision 2015Du60884, Sept. 21, 2017).

§ 6).

2) Determination

Gap evidence 3, Gap evidence 5 through 13 (including paper numbers), the purport of the whole pleadings.

In full view of the following circumstances, 201 and 201 paid to YDS;

Special bonuses in 2014 and special bonuses paid to KS in 2012 and 2013.

In excess of the amount equivalent to the YDS mainly rather than the normal price for the performance of duties.

It is nothing more than taking the form of remuneration to distribute profits reserved to the plaintiff.

Since it is reasonable to see that the case is included in deductible expenses, it shall not be included in deductible expenses.

Therefore, the plaintiff's assertion is without merit.

① According to the Plaintiff’s articles of incorporation, remuneration for directors shall be determined by a resolution of the general meeting of shareholders.

Gohap (Article 35) and the Plaintiff, around September 201, prepared the rules on the remuneration of executive officers through a resolution of the general meeting of shareholders, whichever is applicable.

according to the record, ‘batch' is an amount paid in proportion to sales, etc. during business performance.

subject to three votes and amounts to be paid and to be decided at a general meeting of shareholders on the recommendation of the board of directors.

special bonus paid to YDS is a formal officer (Articles 2 and 10). Special bonus paid to YDS is also a formal officer.

It seems that it was paid in accordance with the remuneration regulations.

2. However, the above regulations on remuneration for executives only stipulate the limits of bonuses and their specific results.

The method of assessment, payment method, financial resources, etc. are not separately provided, and special cases paid to YDS are not provided.

There is no evidence to know which the bonus is calculated in accordance with any standard.

In addition, the special bonus is not the operating profit and sales actually achieved, but the annual trend of the end.

The special bonus in 2014 is paid according to the profit and loss, and the actual operating profit is compared with the target of the profit and loss.

80% or less of the amount, which does not meet the requirements for special bonus payment even if the officer remuneration regulations apply;

Although it was paid, it was paid).

③ Since YDS assumed office as the president around 201, the Plaintiff’s establishment of a new production base in Vietnam

The plaintiff has made a timely business judgment, such as making up and changing strategic products;

From 2011 to 2014, many operating profits are earned compared to other competitors in the same industry.

The growth rate can be achieved, and the public protocol or fact-finding stated the same purport is stated.

Written Evidence (Evidence A, 14, 16, 17, 19, 20, 21) submitted, but this is either unclear or original

The results of the business of YDS prepared by a person who was or was a representative director or employee in 2018

It is difficult to believe that there is no objective evidence for it.

In contrast, the plaintiff shall pay special bonuses not paid to other executives or employees in 2011.

In 2012 and 2013, there is no evidence to support that there was a large amount of special bonus than that the representative director has received in 2012 and 2013, and that there was no evidence that there was a business performance to receive more than half of the total amount of 3.55 billion won of special bonus in 2014 (in addition, special bonus paid by YDS in 201 is the higher amount than 62.8% of the plaintiff's operating income).

④ Of the special bonuses in 2011 and 2014, the Plaintiff is among the special bonuses in 2012 and 2013.

The amount recognized as deductible expenses (the amount equivalent to the special bonus paid to the representative director in 2012 and 2013) shall be recognized as deductible expenses, equivalent to 70%, which is equivalent to the "amount equivalent to the "amount equivalent to the special bonus paid to the representative director in 2013." However, on August 201, 201, YDS was appointed as the Plaintiff's in-house director in office. KS was appointed as the representative director in 2006 and resigned on January 2014 (the evidence No. 3-2, No. 13, No. 14), and YDS was partially included in the above special bonus, such as participating in the Plaintiff's decision-making in 2011 and 2014.

However, there is room for the special bonus of 2011 and 2014 to include some of the consideration for the execution of duties.

In this case, the specific calculation process, composition, etc. of the above special bonus

amount of a reasonable bonus exceeding the basic remuneration due to the absence of such data.

Therefore, in accordance with the legal principles of Supreme Court Decision 2015Du60884 Decided February 201, 201, the special provisions of 2014

It is inevitable to regard the whole bonus as the object of non-deductible expenses.

Meanwhile, in the case of 2011, YDS was appointed as an internal director of the Plaintiff Company on August 2011;

In light of the fact that other executives or employees, including the representative director KCR, received special bonuses of KRW 1.8 billion in YDS only, even though they did not receive bonuses, it can be said that the special bonus of KRW 62.8% in 201 did not include all the cost of performance of duties in the special bonus of 201.

D. Determination on the conjunctive assertion

1) Relevant legal principles

The additional tax under the Corporate Tax Act shall be levied on a taxpayer corporation in order to ensure the propriety of taxation.

The obligation to return the tax base and pay the tax amount in good faith, and to ensure the obligation as such;

It is called a kind of administrative sanctions that may be taken in the event of neglect of implementation. This is the same as this.

of the tax law beyond the scope of simple legal sites or misunderstandings, which is suspected of the interpretation of the tax law.

The taxpayer cannot be aware of his duty due to the conflict of opinion, etc.

(1) if there are circumstances under which it may be deemed that it is not a party, or the obligation thereof; or

When there is a circumstance in which the performance of the duty is deemed significantly not to be expected to the parties.

(1) If there is a justifiable reason not to inquire about the fact that he/she neglected to do so, he/she shall not be subject to it (by representation).

Seoul High Court Decision 2008Du2330 decided Feb. 10, 201

2) Determination

In light of the following circumstances revealed in the argument of this case, the plaintiff shall pay to YDS.

corporation shall be deemed to have a legitimate reason to report corporate tax by including the special bonus in deductible expenses.

Therefore, the plaintiff's conjunctive assertion is without merit.

(1) The Corporate Tax Act and the Enforcement Decree of the Corporate Tax Act, which were enforced at the time, are excessive or unjustifiable.

Bonuses paid for the disposal of profits to personnel expenses or executives, etc. recognized as such shall be included in deductible expenses.

Article 26 of the former Corporate Tax Act, Enforcement Decree of the former Corporate Tax Act

Article 43(1).

Therefore, even though it was paid in the form of bonus to executive officers of a corporation, the actual profit disposal.

In the case of falling under this case, there is no conflict of opinion about the inclusion of deductible expenses.

(2) Supreme Court Decision 2015Du60884 Decided September 21, 2017

In such cases, the criteria for determining whether the performance of duties is normal price or is a disposition of profits;

It can not be seen as a presentation of a new interpretation theory different from that of the existing.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.