early 2009west2091 ( October 05, 2009)

The propriety of the disposition imposed on the payment of advisory services by the former representative director in consideration of retirement compensation;

The propriety of the disposition imposed on a venture business by deeming that the representative director of the corporation has paid the amount paid as compensation for consulting services with respect to the investment affairs to the corporation without providing services is a retirement allowance without any provision of services, after retirement of the corporation.

The contents of the decision shall be the same as attached.

○ Stock Company

Samsung Head of Samsung Tax Office

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Each disposition taken by the Defendant against the Plaintiff on February 1, 2009 against the Plaintiff on the tax of KRW 19,00,000 for the corporate tax of KRW 19,00 for the year 205, corporate tax of KRW 65,998,94 for the year 2007, and the notice of change in the amount of income for the bonus of KRW 950,000 for the year 2005 is revoked, respectively.

1. Details of the disposition;

A. The Plaintiff is a corporation established on July 1, 200 and engaged in investment in venture businesses with 154-10 ○○○○-dong 154-10 as its principal office located.

B. On August 24, 2005, the Plaintiff entered into a service agreement with the Mediation Committee on September 5, 2005 after his/her representative director was retired, and paid 950 million won in return for the service payment to the Mediation Committee (hereinafter “instant service payment”), and filed a report of corporate tax for 2005 business years by adding the above amount to deductible expenses.

C. However, as a result of the tax investigation with respect to the Plaintiff, the Defendant deemed the retirement benefits (retirement benefits of a kind) exceeding the payment limit of the instant service amount to be included in deductible expenses. On February 1, 2009, the Defendant imposed corporate tax of KRW 19,00,000 for the business year 2005, corporate tax of KRW 218,961,252 for the business year 2007 (the Defendant discovered that he omitted the amount of corporate tax of KRW 410,059,00 from June 15, 2009, and re-revision the corporate tax of KRW 65,98,994 for the business year 2007 as ChoA, and notified the Plaintiff of the change in the amount of corporate tax of KRW 95,00,00 for the business year 205 for the business year 200 for 205,000 for 205,000 for 205.

D. The plaintiff filed a request for a trial with the Tax Tribunal on April 30, 2009. However, on October 5, 2009, the Tax Tribunal dismissed the request based on the judgment that the defendant was not a employee or employee of the plaintiff at the time of the payment of the service price of this case, but a retirement allowance exceeding the payment limit of the service price of this case and not a bonus disposal for the payment of the service price of this case, and the defendant should have taken the disposition of other income by deeming it as an expense not directly related to the business and not a bonus disposal for the payment of the service price of this case. However, since necessary expenses are not recognized under the Corporate Tax Act, it is identical to

[Ground of recognition] Unsatisfy, Gap evidence 1 to 7, Eul evidence 1 to 3

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고는 기존 부실자산의 정리, 새로운 투자대상 발굴 및 투자자금의 확보 과정에서 조AA의 경험, 실무감각, 투자자와의 관계 등을 활용하고자 이 사건 용역계약을 체결하였는바, 조AA의 도움으로, 원고는 부실 우려가 있는 ♧♧s, 주식회사 ○○지(◇◇콘으로 상호 변경되었다), △△개발 주식회사에 대한 기존 투자자산(일반적으로 포트폴리오라 함은 '금융기관이 보유하는 각종 금융자산의 명세'나 '다양한 투자 대상에 분산하여 자금을 투입하여 운용하는 일'을 말하는바, 이하 원고의 위 ◇◇콘 등에 대한 투자 또는 그 투자자산을 '이 사건 포트폴리오'라 한다)을 정리하고, ♡♡L 1호(투자금액 30억 원)와 ☆☆E 1호(투자금액 35억 원)라는 투자조합을 결성하였으며, 주식회사 ♤♤벨, 주식회사 ▲▲스 등 우량벤처기업을 신규 투자 적격업체로 발굴하였으므로, 원고는 조AA로부터 용역을 제공받고 그 대가로 이 사건 용역대금을 지급한 것이 명백하므로, 이 사건 처분은 부당하다.

B. Relevant statutes

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

1) The main contents of the MOU concluded on January 14, 2005 between BB (the Plaintiff’s joint representative director appointed on March 31, 2005) and ChoA are as follows:

2) On August 29, 2005, the Plaintiff entered into a service contract with the MediationA on September 5, 2005 through a resolution of the board of directors. The main contents are as follows.

3) From August 18, 2005 to September 16, 2005, the Plaintiff disposed of the instant scenario in the amount of KRW 2.3 billion. A summary of the details of the early recovery (disposition) prepared by the Plaintiff is as follows.

4) As seen in the above paragraph 3, ChoA and its wife in the instant scenarios acquired 70% from the Plaintiff, IsD and their wife, and 30% from the Plaintiff, and the FF acquired 30% from the Plaintiff. Examining the financial transaction details of the Plaintiff and the FF related to the said transaction, the following are as follows.

5) Meanwhile, on September 14, 2005, the Plaintiff proposed and implemented the “cases for the payment of fees for management consulting fees and management consulting fees”. According to this, the Plaintiff is required to pay KRW 950 million, including KRW 1,491,824,000,000, which is the difference between the actual sales amount of the instant scenario (total investment principal of KRW 3,354,586,000) and KRW 2.3 billion, which is the difference between KRW 1,491,824,000,000,000 won, which is the difference between KRW 5,000,000 won and KRW 150,000,000 won, every month for three months.

[Ground of recognition] Facts without dispute, Gap 3, 4, 7, 8, Eul 5 through 14, the purport of the whole pleadings

D. Determination

The key issue of this case is whether the nature of the service payment of this case is directly related to the business, that is, whether the MediationA actually performed the service of this case and received the service payment in return.

Therefore, in full view of the facts acknowledged earlier, and the following circumstances inferred therefrom, it is difficult to view the instant service cost as the price for performing services provided by the ChoA.

Most of all, the plaintiff asserted that there was the provision of ChoA's services in the course of the sale of the instant scenario, but ChoA agreed to repurchase the instant scenario at KRW 2.5 billion as part of the contract execution and reduced the amount to KRW 2.3 billion as part of the contract execution, and participated in the purchase of the instant scenario (which is deemed to have been further agreed between the plaintiff and ChoA as KRW 2.3 billion), after examining the transfer relationship between Cho and ChoA, the remittance relationship between the plaintiff's price receipt and its personal relations, it is difficult to view the actual purchaser of the instant scenario as the execution of the instant service. In light of the fact that the sales of the instant scenario and the collection of the instant money appears to be ChoA, it is difficult to view that the actual purchaser of the instant scenario appears to be ChoA.

Next, according to the draft of September 14, 2005, prepared by the plaintiff, the plaintiff sold 200 million won higher than the evaluated amount at the time this BB acquired the plaintiff from Cho, etc., and it is difficult to view the difference as a normal transaction because it is difficult to regard the difference as the normal transaction because it is unclear whether the NA would receive 80 million won higher than the initially assessed amount, and it is hard to accept why it would pay NA all proceeds of the sale to 2.3 billion won (the first physical theory was agreed to sell 2.3 billion won later, and the sales proceeds of the 2.5 billion won later were generated from the first sale of the 2.4 billion won, and it seems evident that the 1.5 billion won of the sales proceeds of this case was to be paid to the 1.5 billion won of the above sales proceeds of the 2.4 billion won of the service contract of this case, even if the 2.5 billion won of the service proceeds of this case was agreed to be paid to the 2.5 billion won of the above sales proceeds of this case.

나아가 이 사건 용역계약은 그 내용도 극히 포괄적이고 추상적일 뿐만 아니라 원고의 인수금액이 46억 원인 점에 비추어 10억 원은 상당히 큰 금액에 해당하는데 불과 3개월의 용역수행의 대가로 10억 원에 가까운 금액을 지급한다고 약정하였는바, 그 금액 산정의 경위도 불명확하고 대금의 지급을 용역업무의 성공 여부와 결부시키지도 않았으며 그 지급시기를 보더라도 이 사건 포트폴리오의 매각대금을 수령하자마자 곧바로 선 지급한 점에 비추어 용역의 대가라고 보기 어렵다(원고가 주장하는 ♡♡L 1호 조합의 결성시기는 2005. 11.경, ☆☆E 1호조합의 결성시기는 2007. 12.경으로 보이고, 주식회사 ♤♤벨에 대한 유상증자 참여는 2005. 9. 28.이다).

Finally, the plaintiff did not present any specific material about how or not the above union's formation and new investment plays a role in the above union, and even if the above union's formation and new investment are in charge of the above union's profit, it does not seem to be related to the receipt of the service payment in this case. In this law, the mediation company testified that the above service contract between the plaintiff and the mediation company is merely a kind of introduction fee which is equivalent to 3-5% of the corresponding amount when it provides services such as finding investment targets or inducing investment in venture investment in venture investment industry. It is difficult to see that the service payment in this case is a kind of introduction fee which is equivalent to 3-5% of the corresponding amount.

Therefore, the plaintiff's assertion is without merit and the disposition of this case is justified.

3. Conclusion

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