Seocho 2013west 1578 ( November 29, 2013)

Even if there are some defects in the case of a single company, the rules on the payment of retirement allowances for executive officers by the majority resolution are valid, and the subsequent payment of retirement allowances is not subject to non-deductible expenses.

In the case of a single-person company, the regulations on the payment of retirement allowances for executive officers by the main resolution shall be valid even if a part of the main resolution is made, and the subsequent payment of retirement allowances shall not be subject to the exclusion of losses and the market price, etc. cannot be known, so the provisions on the wrongful calculation

2014Guhap53223 Disposition of revocation of notice of change in income amount

AAAA Corporation

Head of Central Tax Office

July 17, 2014

October 16, 2014

1. On January 2, 2013, the Defendant’s disposition of notifying the Plaintiff of the change in the amount of ○○○ Won’s bonus disposal amount, which the Defendant made against the Plaintiff, is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff was a juristic person established on October 1, 1955 and engaged in real estate substitution business, and the Nonparty BB’s shares as of December 9, 2009, a second shareholder, became one shareholder of the Plaintiff, after a paid reduction of the shares of Nonparty BB, a representative director of the Plaintiff.

B. On January 26, 2010, the Plaintiff amended the articles of incorporation to ensure that the articles of incorporation stipulate retirement allowances for executives by a resolution of the general meeting of shareholders (Article 35 of the Plaintiff’s articles of incorporation; hereinafter “instant articles of incorporation”). On September 8, 2010, the Plaintiff enacted the criteria for the payment of retirement allowances (hereinafter “instant retirement benefits criteria”).

C. The Plaintiff, on the ground that the Plaintiff’s representative director CCC and directors DD were converted into annual salary system, paid the retirement benefits to CCC as of December 31, 201, and paid ○○○○○○○ (hereinafter “instant retirement benefits”) in total to CCC and DD as of December 31, 201, and included the retirement benefits in deductible expenses for the business year 201.

D. On November 2012, the Seoul regional tax office conducted a tax investigation with respect to the Plaintiff on the ground that “the instant retirement benefit standard was made only for a specific executive, and the instant retirement benefit was paid excessively.” Accordingly, the Seoul regional tax office rendered a notice of change in the amount of the instant retirement benefit to the Plaintiff on January 2, 2013 pursuant to Article 44(4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 23589, Feb. 2, 2012; hereinafter “Enforcement Decree of the Corporate Tax Act”) among the instant retirement benefits, of the amount exceeding the ○○○○○○ won, which is the amount equivalent to the “the maximum amount of the retirement benefits for executive officers,” and notified the representative director CCC of the disposal of the bonus from the ○○○○○○ and DD, and the Defendant, on January 2, 2013, issued the notice to the Plaintiff on January 2, 2013.

E. The Plaintiff dissatisfied with the instant disposition and brought an appeal with the Tax Tribunal on April 2, 2013, but dismissed on November 29, 2013, the Plaintiff filed the instant lawsuit on February 27, 2014.

[Ground for Recognition: Facts without dispute, Gap evidence Nos. 1 through 3, 5, Eul evidence No. 1, the purport of whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

The instant retirement benefit was properly paid according to the instant Articles of Incorporation and the instant retirement benefit standard enacted accordingly. Therefore, the instant disposition that excluded the part of the instant retirement benefit from deductible expenses was unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Grounds for the instant disposition

In rendering the instant disposition, the Defendant cited the following grounds for the disposition.

� 원고는 2010. 1. 26. 주주총회(이하 '이 사건 제1차 주주총회'라 한다)에서 정관을 변경하여 정관에 임원에 대한 퇴직금을 주주총회의 결의로 정할 수 있도록 하였고, 이를 근거로 2010. 9. 8. 임시주주총회(이하 '이 사건 제2차 주주총회'라 하고, 이 사건 제1차 주주총회와 합쳐서 '이 사건 각 주주총회'라 한다)에서 제정한 이 사건 퇴직급여지급기준에 따라서 이 사건 퇴직급여를 지급했다고 주장하고 있다. 그러나 '이 사건 제1차 주주총회 당시에 CCC이 국내에 있지 않았다는 점'과 '이 사건 제2차 주주총회 이후에도 이 사건 퇴직급여기준의 내용과는 다른 방식으로 장부상 퇴직급여충당부채가 설정된 점' 등을 고려해 보면, 이 사건 각 주주총회를 유효한 것이라고 볼 수 없고, 따라서 이 사건 퇴직급여기준의 효력도 인정할 수 없다(한편, 피고가 '실제로는 CCC과 DDD에 대한 연봉제 전환이 이루어지지 않았다'는 취지의 주장도 하고 있는 것인지 여부는 명확하지 않으나, 피고는 이러한 취지의 주장에 부합하는 충분한 증거를 제출한 바 없을 뿐만 아니라, 이 사건 처분은 'CCC과 DDD에 대한 연봉제 전환이 이루어지기는 했으나, 이 사건 퇴직급여기준이 효력이 없거나, 부당행위계산부인규정에 해당한다.'는 이유에서 이 사건 손금불산입액을 손금불산입하여 이루어진 것이므로, 만약에 CCC과 DDD에 대한 연봉제 전환이 실제로는 이루어지지 않았다면 그 자체로 이 사건 처분은 위법하게 되므로 이 점에 대해서는 판단하지 않기로 한다).

� 이 사건 퇴직급여의 지급은 매우 이례적인 것이므로 법인세법 제19조가 손금산입의 요건으로서 정하고 있는 '일반적으로 인정되는 통상적인 것'에 해당한다고 할 수 없다.

� 원고는 CCC이 1인 주주가 된 이후에 서성철에 대한 금여를 3배 이상 인상하면서 이 사건 퇴직급여기준에 따라 다른 임직원과 달리 CCC과 DDD에 대해서만 과도한 퇴직금을 지급하였는데, 이는 법인세법이 정하는 부당행위계산부인 즉 법인과 특수관계자와의 거래로 인하여 조세의 부담을 부당히 감소시킨 경우에 해당한다. 이하에서는 피고가 이 사건 처분의 처분사유로 내세운 위 각 사항들에 대하여 판단하기로 한다.

2) The fact that the effectiveness of the instant retirement benefit scheme cannot be recognized

According to the Defendant’s assertion, evidence Nos. 7, 11, and 12 were submitted as evidence, and according to this, the reason behind the first general meeting of shareholders was that the company left Korea from a foreign country at the time of the first general meeting of shareholders. However, in the case of one company with the total stocks issued by the company as its sole shareholder, the company’s attendance at the general meeting of shareholders shall be constituted as the electric power resource general meeting, and it shall be obvious that the company would have passed the resolution as its shareholder’s intention. Even if the general meeting of shareholders was not held, it is not necessary to separately convene the general meeting’s meeting. Thus, the Plaintiff cannot be argued that there was a resolution of the contents of the general meeting, unless there were any special circumstances, unless the minutes of the general meeting were prepared by the one shareholder, and thus, it cannot be argued that there was no formal reason for the Plaintiff to have passed the general meeting of shareholders (see, e.g., Supreme Court Decision 93Da8702, Jun. 11, 1993).

iii) Cheong 300 the instant retirement benefit does not fall under the requirement of inclusion in deductible expenses under Article 19 of the Corporate Tax Act.

Article 19(1) of the Corporate Tax Act provides that "deductible expenses shall be the amount of losses incurred by transactions which reduce the net assets of the corporation, excluding the refund of capital or financing, appropriation of surplus funds, and those stipulated in this Act," Paragraph (2) provides that "deductible expenses under paragraph (1) shall be generally accepted as losses or expenses incurred in connection with the business of the corporation, or directly related to profits, except as otherwise provided for in this Act and other Acts." Paragraph (4) provides that "the matters necessary for the scope and distinction of losses under paragraphs (1) through (3) shall be prescribed by Presidential Decree." Article 19 subparag. 3 of the Enforcement Decree of the Corporate Tax Act provides that "labor expenses" as one of losses under the above provisions of Article 19 subparag. 4 of the Corporate Tax Act provides that "the retirement benefits under Article 4 of the Enforcement Decree of the Corporate Tax Act shall not be included in deductible expenses as prescribed by Presidential Decree, and 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 deductible expenses under Article 14 of the Corporate Tax Act.

shall not be a legitimate reason for the disposition.

4) The fact that it constitutes a wrongful calculation panel

Article 52 (1) of the Corporate Tax Act provides that "the head of a tax office or the Commissioner of the competent Regional Tax Office having jurisdiction over the place of tax payment may calculate the income amount of a domestic corporation for each business year regardless of the calculation of the income amount of the corporation where it is deemed that the tax burden on the corporation's income has been reduced unfairly through an act or transaction with a related party prescribed by Presidential Decree," and Paragraph (2) of the same Article provides that "in applying paragraph (1), the calculation of the income amount of the corporation shall be based on the prices (including rates, interest rates, rents, exchange rates, and other similar rates; hereafter the same shall apply in this Article) applied or to be applied in sound social norms and commercial practices and normal transactions between a person who is not a related party, and the delegated Enforcement Decree of the Corporate Tax Act provides that "the scope of market price of the wrongful calculation under Article 88 and Article 89". Therefore, in order to exclude losses for reasons that the outcome of a certain transaction between a corporation and a related party constitutes the provisions of the wrongful calculation under the above Article 88 of the Corporate Tax Act."

� 피고는 원고가 CCC과 DDD에게 이 사건 퇴직급여를 지급한 것이 부당행위계산부인에 해당하는 거래행위라고 주장하면서도, 법인세법 시행령 제88조의 어느 유형에 해당하여 이 사건 처분이 이루어진 것인지 밝히지 않고 있지 않다.

� 피고는 이 사건 처분을 함에 있어서 부당행위계산부인의 기준이 되어야 할 '시가'를 초과하는 부분이 아니라 정관에 퇴직급여가 정해지지 않은 경우 손금산입되는 퇴직금에 관한 계산규정인 법인세법 시행령 제44조 제4항 제2호가 정하고 있는 금액을 시가로 보고 이를 초과하는 부분을 손금불산입하였으나 위 규정을 시가를 정하는 규정이라고 볼 수는 없다(즉 피고는 부당행위계산부인의 기준이 되는 시가를 특정하지 못하고 있다).

Therefore, this point cannot be a legitimate ground for the disposition of this case.

D. Sub-committee

Ultimately, all of the matters that the Defendant is in the grounds for the disposition cannot be a legitimate ground for the disposition of this case. Thus, the disposition of this case should be deemed unlawful.

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per Disposition.