2013west091 (2013.09.02)

The bonus and allowances for the issue are legitimate as long as the total resolution is valid.

The payment rate for retirement benefits of this case is not excessive, and since the plaintiff is a family company and some of them are not opposed to the written resolution of the total amount of retirement, the shareholders' meeting of this case is legitimate, and as long as the payment provision of retirement benefits of this case decided by the legitimate shareholders' meeting is valid, the retirement benefits of this case are subject to inclusion in deductible expenses.

Article 19 of the Corporate Tax Act

Seoul Administrative Court-2014-Gu Partnership-6715 ( November 14, 2014)

000 Management Corporation

00.Tax Secretary

2014.26

November 14, 2014

1. The corporate tax for the business year of 2011 against the plaintiff by the director of the tax office 201**.

* Of the disposition of imposition of*******,790 won (including additional tax)*,****,150 won in excess of the tax amount and avoid

The amount of income listed in the attached Table 1 as against the plaintiff by the director of the High Regional Tax Office 201**.*

All notifications of change shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On September 200* around September 200, 2000, 100, 100 children, her husband and her husband, 200.

Company directors and auditors respectively after taking over all the Plaintiff’s shares, such as the statement in the list.

The Plaintiff is a corporation that engages in real estate sales and lease business.

Table Omission of the Table

B. The plaintiff completed the registration of ownership transfer in its name with respect to the plaintiff's name as to* 31.31.**Gu** Dong*******,****-1 land and its ground buildings (hereinafter collectively referred to as "real estate in this case").

approximately KRW 10,000,000, Co., Ltd., approximately KRW 00,000,000,000*

*5. The registration of transfer of ownership was completed in the name of 00 U.S. corporation.

C. The Plaintiff holds a temporary general meeting on 17.201* Ad hoc shareholders meeting on 17.201 and pays or retires officers.

Article 33 of the Plaintiff’s Articles of Incorporation, which provides that retirement pay shall be determined by a resolution of the general meeting of shareholders.

The retirement allowance of retired officers shall be determined by the resolution of the general meeting of shareholders (paragraph 1). The rules on the payment of retirement allowances for officers (paragraph 2) are amended to "the payment of retirement allowances for officers which have gone through the resolution of the general meeting of shareholders (paragraph 2)", and the following contents are newly established, and the remuneration to be paid to 00,000 executives (hereinafter referred to as "the retirement allowance rules of this case") shall be set as KRW 120,000,000 on the ground that the 00,000 won has successfully sold the real estate of this case, and the 100,000 * before the 00th day of the 20th day of the 200th day of the 10th day of the 201th day of the 2012.

D. Accordingly, the plaintiff is ranked as follows to 201*. *. Ma00 and Ma00.

in addition to the payment of bonuses and retirement allowances (hereinafter referred to as "retirement benefits of this case") and such payment shall be made to deductible expenses.

The corporate tax was reported in 2011.

Table Omission of the Table

E. The director of the Seoul Regional Tax Office conducted a corporate tax investigation against the plaintiff, and the plaintiff was wrong;

Disposition of the real estate of this case where payment of bonuses and retirement allowances to Kim 00 and inclusion of them in deductible expenses

Considering that it is intended to distribute profits to officers, the director of the tax office 00,000

retirement pay of *,**,**,090, and Kim00 out of the total bonus and retirement pay of ***,090.

*,***,***,418 won in non-deductible deduction of losses and disposal of them as bonus to 00,00

The notice was given to impose such corporate tax.

(f) Accordingly, the director of the tax office of defendant 00 has a legal entity against the plaintiff on February 2, 2011.

C.*********,**,930 won was corrected and notified, and Defendant 000 Commissioner of the National Tax Service received the above bonus*,***,**,000 won and retirement allowance**,***,**,371 won was paid,****,***,**,**,**,**,00 won and retirement allowance**********,***,**,418 won was disposed of as bonus for each business year of 2011 and notified the changes in the above amount of income to the Plaintiff on September 201.

G. The plaintiff is dissatisfied with this and filed an appeal with the Tax Tribunal on January 11, 200*. The Tax Tribunal.

the retirement allowance was legitimate as non-deductible of part of the retirement allowance, but the bonus was non-deductible of the non-deductible of the non-deductible of the bonus.

The decision that "the assessment of the tax base and the notice of change in the amount of income in the business year of 2011 against the plaintiff was unlawful and decided as follows: ***,**,930 won as bonus payment****,00,000 won as it is to be included in the calculation of losses and correction of the tax base and amount of tax."

(h) Accordingly, Defendant 00 Head of the tax office's total bonus*,**,**,00 won.

(=*,***,**,00 won +****,00 won +******,00 won) in deductible expenses, and corporate tax for the business year 2011.

*.*******,80 won (including additional tax) has been reduced or corrected, and such bonus has been included in deductible expenses.

In addition, the amount of retirement benefits is increased due to the increase of the total amount of pay which serves as the basis for calculating retirement benefits.

Retirement pay***,**,00, and Kim00 retirement pay***,**,*,00, on account of the fact that it was the retirement pay***,*,00 aggregate of these amounts.

*******,00 won in the calculation of losses and 201 corporate tax*,***,**,790 won (including additional tax)

(2) The notice of the change in income amount was given to the Commissioner of the National Tax Service. In addition, the defendant 000 et al.

********,*,000 won as bonus*,***,**,**,000 won as bonus*****,**,00 won as a result of Kim0)

The amount of notice of the change in the amount of income after reduction or correction *****,000 won (the retirement allowance of 00

*******,00, retirement allowance***,**,**,00) reduced or corrected as above.

Head of the tax office of the defendant 00, who has been re-reductioned and revised, *,**,**,790 won, for the business year 201

Sector**,***,*,150 won in excess of retirement pay*,***,**,640 won in relation to retirement pay, recipient, etc.

retirement pay of 00 O0 as shown in the separate sheet No. 1 of the notification of change in income amount by the Commissioner of the National Tax Service

********,**,090 won***,**,**,**,090 won -***********,00 won) and Kim0 retirement******,**,418

Won*****,**,418 won ****,**,***,00 won).

[Ground of recognition] Unsatisfy, Gap evidence 1 to 8, 13 (including paper numbers; hereinafter the same shall apply), Eul

5. Each entry of evidence 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

Since the retirement benefits of this case were paid according to the retirement benefits provisions of this case legally enacted by delegation of the articles of incorporation, the entire amount should be included in deductible expenses pursuant to Article 26 subparagraph 1 of the Corporate Tax Act and Article 44 of the Enforcement Decree of the Corporate Tax

2) The defendants' assertion

The reason why the plaintiff newly established the retirement benefits provision of this case is that it is difficult to establish the profit margin of this case*** 00 billion won of the plaintiff's corporate tax burden, and it was not for the proper distribution of personnel expenses. The retirement benefits provision of this case merely provides that the retirement benefits should be paid differently according to the status on the registry (in-house directors and auditors), and there is no reasonable criteria such as performance evaluation, and it is merely that 00,000 which is the recipient of the retirement benefits set the retirement benefits as voluntary payment rate. The provision of this case provides that the retirement benefits calculation standard of the retirement benefits is 30 days of the average wage of the three months before the retirement day and 1.0 days of the latest year since it is difficult to view that 0 days of the above retirement benefits are more than ***** * * 000,000 won of the retirement benefits paid to the plaintiff's general meeting of shareholders as * * *648, That is, * 00,00's retirement benefits paid to the plaintiff's general meeting of this case.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

C. Determination

1) Article 19(1) of the Corporate Tax Act provides that "deductible expenses shall be refunded by the refund of the capital or investment, disposal of the surplus, and this."

transactions which reduce the net assets of a corporation, except as otherwise provided in this Act

subsection (2) of the same section provides that "the amount of losses shall be the amount of losses under subsection (1)."

, except as otherwise provided by this Act and other Acts, with respect to the business of the corporation

generally accepted as losses or expenses incurred or incurred by the Corporation.

B. Paragraph 4 of the same Article provides that it shall be directly related to profit, and Paragraph 1 of the same Article

Matters necessary for the scope and classification of losses under the provisions of paragraphs (3) and (3) shall be the President.

Article 19 (3) of the Enforcement Decree of the Corporate Tax Act provides that "the labor cost" as one of the losses.

Meanwhile, Article 26 of the Corporate Tax Act provides that "the amount recognized as excessive or unjust as prescribed by Presidential Decree among the following losses shall not be included in deductible expenses when calculating the income amount of a domestic corporation for each business year," and provides that "labor expenses" shall be included in deductible expenses only when a corporation provides that "the retirement benefits paid to an executive officer" shall be included in deductible expenses if the executive officer actually retires". Article 44 (1) and (2) 4 of the Enforcement Decree of the Corporate Tax Act provides that "when the retirement benefits paid to the executive officer are calculated and paid on the condition that the retirement benefits will not be paid in the future as a result of converting the benefits to the annual salary system," and Paragraph (4) of the same Article provides that "the amount determined as retirement benefits by the articles of incorporation" shall be included in deductible expenses.

The amount calculated by multiplying the number of years of service by each deductible expense shall be included, and the excess shall be excluded from deductible expenses.

subsection (5) of the same section provides for the payment of retirement benefits delegated by the articles of incorporation as in this case.

If there is a separate provision, the amount under such provision shall be included in the loss, and the amount in excess shall be included.

The exclusion of loss is stipulated in the exclusion of loss.

2) According to the above provisions, as long as the retirement allowance provision of this case is effective, the retirement benefit of this case is concerned.

The retirement benefits of this case are subject to inclusion in deductible expenses, and in light of the following circumstances that can be seen by comprehensively considering the facts mentioned above, the evidence mentioned above, Gap evidence No. 14, and Eul evidence No. 7 with the overall purport of the pleadings, the retirement benefits of this case are subject to inclusion in deductible expenses, since the evidence or assertion submitted by the defendants alone cannot be deemed valid merely because they are presented by the defendants. Accordingly, the disposition of this case made on different premise is unlawful.

① As seen earlier, the instant retirement allowance provision was enacted at the Plaintiff’s temporary shareholders’ meeting**. The Defendants asserted that the instant retirement allowance provision was not effective, in light of the following: (a) the Defendants had been established at the Plaintiff’s temporary shareholders’ meeting * 20*.00 as an outline * *.00, and (b) it is difficult to deem that they had been present at the shareholders’ meeting at 10:0 am.00 am.

However, in the case of Y0, which is the childbirth and doctor of the Gangseo 000 Hospital, it seems that the adjustment of working hours is relatively free due to the occupational characteristics of the occupation, and since the treatment is performed as a pre-contract, it would be possible to attend a general meeting of shareholders unless there is a pre-patient. Since Y00 and Y00 are asserting that the above general meeting of shareholders was present at the general meeting of shareholders as the legal representative of Kim ○○ and Kim Jong-ri, a minor at the time, it is difficult to readily conclude

In addition, the former Commercial Act (amended by Act No. 12591, May 20, 2014); hereinafter the same shall apply.

Section 363 of the Commercial Act('the Commercial Act'), in case of convening a general meeting of shareholders, two weeks of the general meeting of shareholders.

notice in writing to each shareholder or with the consent of each shareholder;

of the shareholders on the register of shareholders, provided that such notice has been served for a period of three consecutive years;

corporation may choose not to notify the shareholders of the convocation of a general meeting.

**** The consent of all shareholders is given to the company whose total capital amount is less than KRW 5 billion.

(2) If any, a meeting of shareholders may be held without a convocation procedure, and by a written resolution;

The resolution of the general meeting of shareholders may be substituted by the resolution of the general meeting of shareholders, which is the small amount of capital.

Small-scale companies whose composition is closed as family members, etc.

in the case of a corporation, even if it takes the form of the corporation, it is actually the same as the personal company.

in all cases, such a case shall be subject to strict procedures.

that would result in unnecessary costs and would rather prejudice the safety of transaction.

The purport of this Act is to be interpreted. However, as seen earlier by the Plaintiff, the Plaintiff is 00,000 and its intent.

The family company consisting of children, and the plaintiff's shareholder, the plaintiff's 00, Kim00 operate the plaintiff.

An officer is an officer, and the rest of the shareholder is a minor child at the time Kim ○, Kim Jong-chul, who is a minor.

part of the resolution is without reason to oppose the written resolution, and the plaintiff is not entitled to the total amount of capital *0 million.

In light of the above, it is reasonable to view the general meeting of shareholders of this case as a legitimate general meeting of shareholders.

(2) The Tax Tribunal shall determine the rate of payment for each continuous service period prescribed by the retirement allowance provision of this case.

The comparison is not excessive when compared to the determination that it is reasonable.

③ The Plaintiff purchased the instant real property in approximately KRW **** billion and received a loan from the bank.

At this time, the doctor has jointly and severally guaranteed the above loan obligation of 00, which is of a high credit rating as a doctor.

In light of the above, the Kim 00, as alleged by the Defendants, is more than O00.

Even if the retirement allowance rules of this case were to perform a lot of duties, there are more retirement allowances rules of this case to 00

It is difficult to conclude that the provision on retirement pay is unreasonable.

④ The Defendants are calculated in accordance with the retirement allowance provision of the instant case against the Plaintiff 00,000

Since the retirement benefits of this case were paid without paying the retirement benefits, the retirement benefits of this case are voluntarily paid.

The defendant asserts to the effect that the retirement benefits paid to him should be excluded from deductible expenses.

In accordance with their arguments, the plaintiff shall pay retirement allowances calculated in accordance with the retirement allowance provision of this case.

on the other hand, the payment of less retirement benefits in consideration of its financial status shall be made.

In case of exclusion from deductible expenses, it is unreasonable to do so.

(5) The retirement allowance provision of this case shall determine the payment criteria rate for the number of years of service divided by officer.

Inasmuch as there are only those executives and does not exclude certain officers, in the future another person will become an internal director.

(2) In the event of a special resolution of the general meeting of shareholders, the provisions of this case shall not be amended

the retirement allowance calculated in accordance with the provisions of this case (see Article 8 of the retirement allowance rules of this case)

The payment will be made.

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition by admitting it.

shall be ruled.