early 2012west 3344

Even if the expenses are paid by a corporation, if the nature of the expenses is the expenses to be borne by the representative, it shall not be included in the expenses.

Even if a corporation paid the cost of securing management rights, etc. to the existing shareholders as a business-related fee in order to distribute profits generated from remodeling projects to shareholders, if the representative director, who is the shareholder whose nature of the fee remains as a sole shareholder, is not included in the corporation's deductible expenses, and the bonus disposition is legitimate.

Article 19 (Scope of Deductible Expenses)

Article 19 of the Enforcement Decree of the Corporate Tax Act

2014Guhap72590 Revocation of Disposition of Imposing corporate tax, etc.

주식회사 ㅁㅁㅁㅁㅁ

ㅇㅇ세무서장

September 18, 2015

October 16, 2015

1. On May 2, 2012, the head of the Defendant 00 tax office revoked the imposition disposition of KRW 000,000,000 (including additional taxes) in excess of the amount of KRW 1,000,000 of the corporate tax for the business year 2008 against the Plaintiff, and the imposition disposition of KRW 00,000,000 of the corporate tax for the business year 2010.

2. The plaintiff's claim against the director of regional tax office 00 and the remaining claim against the director of regional tax office 00 are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Commissioner of the Regional Tax Office of 00 shall be borne by the Plaintiff; 4/5 of the part arising between the Plaintiff and the Defendant 00, while the remaining 1/5 shall be borne by the Plaintiff, respectively.

On May 2, 2012, Defendant 00 of the tax office’s imposition of corporate tax of KRW 10,000,000 (including additional tax) against the Plaintiff for the business year 2008, and the imposition of KRW 10,000,000 (including additional tax) for the business year 2008, and the imposition of corporate tax of KRW 00,000,000 (including additional tax) for the business year 2010, and the notification of changes in the amount of income as stated in the separate sheet against the Plaintiff by the director of the regional tax office

1. Details of the disposition;

A. Payment of the instant fees

1) Joint implementation of L/C Doz. Matri 00, S00, and 00 Savings Banks

부동산매매업과 부동산임대업을 주로 영위하는 그린00××주식회사(이하'그린00'이라 한다), 방ㅁㅁ가 실질적 경영권을 행사하는 주식회사 에스××××(이하 '에스00'라 한다) 및 주식회사 00××저축은행(이하 '00저축은행'이라 한다)은 2004. 12. 00. 주식회사 뉴△△(이하 '뉴△△'라 한다) 및 주식회사 △△유통(이하 '△△유통'이라 한다)이 △△△△신탁 주식회사(이하 '△△△△신탁'이라 한다)에 신탁하여 보유하고 있던 성남시 00구 △△동 소재 토지 및 그 지상 건물(이하 '이 사건 부동산'이라 한다)을 취득하여 리모델링한 후 매각하는 내용의 사업(이하 '□□□사업'이라 한다)을 공동으로 진행하기로 하였다.

"그린00과 00저축은행, 에스00은 2005. 1.경 원고를 지정매수인으로 하여 뉴△△ 및 △△유통으로부터 이 사건 부동산을 매수하기로 합의하였고, 이에 따라 그린00, 에스00 및 00저축은행이 원고의 발행주식을 같은 비율(1/3씩)로 인수하였다(다만, 에스00은 원고의 발행주식을 신○○, 임○○의 명의를 차용하여 인수하였다). 그 후'방ㅁㅁ가 실질적으로 지배 및 운영하던 주식회사 △△K○○(이하 'K○○'라 한다)는 2005. 5. 0. 위와 같은 에스00의 계약상 지위를 이전받았고 그린00과 00저축은행은 이를 승낙하였다.",2) 원고의 그린00 및 00저축은행에 대한 수수료의 지급

The Plaintiff acquired the ownership of the instant real estate on August 0, 2005, and subsequently remodeled the instant real estate on or around May 2008, and subsequently became entitled to transfer margin of KRW 000 billion by selling the instant real estate.

원고의 주주들은 2008. 7. 0. 위 양도차익에서 법인세 등 관련비용 ×00억 원을 차감한 8××억 원의 수익을 분배하기 위하여 '수익배분에 관한 합의서'를 작성하였고, 위 합의에 따라 원고는 2008. 9. 0. 그린00 및 00저축은행이 보유하고 있던 주식(전체 발행주식의 2/3)대하여 유상감자를 실시하고(이하 '이 사건 유상감자'라 한다) 그린00과 00저축은행에게 수익금 8××억원의 1/3인 ××0억 원씩을 지급하였다(이에 따라 방ㅁㅁ가 원고의 발행주식 100%를 실질적으로 보유하게 되었다). 또한 원고는 같은 날 그린00에 ××억 원 (부가가치세 포함), 부가가치세 면세사업자인 00저축은행에 ××억 원을 각 지급하였다(이하 위 ××억 원을 '이 사건 수수료'라 한다).

B. Payment of each of the funds of this case

1) The stock company 】 】 】 】 】 】 (hereinafter 】 】 】 】 'AB7' (hereinafter referred to as 'AB7') and the AB7 Lart (hereinafter referred to as 'existing Lart') invested respectively in the company 】 00 Lart (hereinafter referred to as '0 Lart') established for the purpose of the relevant business (hereinafter referred to as 'the primary Lart business') such as remodeling of the '0 Lart' and Lart (hereinafter referred to as 'the existing Lart') located in 00,000,000 won 】 (40.9% of the equity ratio) and 00 billion won (4.5% of the equity ratio).

On September 0, 2008, the Plaintiff lent KRW 0 billion, which is a part of the above investment fund 】 】 (hereinafter referred to as “instant 0 billion”) on September 0, 2009, and entered into an investment agreement with the purport that the above loan was converted to the amount of investment on condition that all the rights to 00 interest tanks held 】 (hereinafter referred to as “the first investment agreement”).

2) On November 2009, the Plaintiff: (a) jointly implemented “AB7 cooking project” to build additional cooking facilities, such as golf courses, skiing grounds, accommodation facilities, etc. (hereinafter “second cooking project”) at KRW 00,00,00, and (b) the Plaintiff made an investment in the initial project cost to enable AB7 to conduct an ecological survey, geological survey, and environmental impact assessment for the second cooking project; (c) AB7 takes all measures to ensure that the Plaintiff and the Plaintiff are designated as a development promotion district business entity from 00,000; and (d) 60,000,000,000,000 from the first cooking project, were distributed to the Plaintiff and 200,000,000,000,000 won, and the Plaintiff made an agreement to make an investment through 200,000,000 won, in proportion to the roles and importance performed by the Plaintiff and the AB7,000,000 won (hereinafter “the instant investment”).

C. Payment of the instant benefits

“The Plaintiff reported the tax base and tax amount of corporate tax of 2008-2010 from 2008 to 2010 to 2010 to 200,000 won in total and from 2009 to 2010 to 2010 to 200,000 in total (hereinafter collectively referred to as “the instant benefits”). The Plaintiff reported and paid corporate tax of 2008-2010 to 2010 to 2010.”

1) The Plaintiff included the instant commission and the instant benefits in deductible expenses, and reported and paid corporate tax for the business year 2008 to 2010 (However, the Plaintiff reported that each deficit occurred in the business year 2009 to 2010).

2) 피고 00지방국세청장은 원고에 대하여 세무조사를 실시한 다음, ① 이 사건 수수료는 원고의 사실상 대표자이던 방ㅁㅁ가 그린00과 00저축은행으로부터 원고의 경영권을 이전받는 대가로 지급된 것으로서 원고의 사업과 관련하여 지출된 비용이 아니고, ② 이 사건 각 금원은 원고가 특수관계자인 에프×××× 및 AB7에게 업무와 관련 없이 지급한 가지급금(이하 '업무무관 가지급금'이라 한다)에 해당하며, ③이 사건 급여는 원고와 관련 없는 업무를 수행한 직원들에 대한 인건비로서 원고의 사업과 관련하여 지출된 것이 아니라는 내용의 과세자료를 피고 00세무서장에게 통보하였다.

3) On May 0, 2012, the head of the tax office did not include the fee of this case 0 billion won in the deductible expenses for the pertinent business year for the business year 2008. ② Considering each of the instant money as a provisional payment to a person with a special relationship, he did not include the interest of 00,000,300 won for the business year 2008 (including the interest of 00,000,400 won for the loan corresponding to the instant amount) in the deductible expenses, but did not include the amount of 0,000,000 won for the business year 209-200,000,000 won for the pertinent business year (including the interest of 0,000,000,000,600 won for each of the instant money) as the amount of corporate tax of 00,000,000 won for each business year and 200,000,000 won for the pertinent business year.

4) 피고 00지방국세청장은 2012. 5. 0. 원고의 소득금액 계산상 손금에 산입하지 아니한 이 사건 수수료와 2008 사업연도 인건비를 합한 0,000,000,000원[= 이 사건 수수료 00억 원 + 인건비 0,001만 원(= 이 사건 급여 중 김길동에 대한 2008 사업연도 급여 0,002만 원 + 방길동에 대한 2008 사업연도 급여 000만 원 + 정길동에 대한 2008 사업연도 급여 0,000만 원)], 2009 사업연도 인건비 00,000,000원(= 이 사건 급여 중 김길동에 대한 2009 사업연도 급여 0,000만 원 + 이 사건 급여 중 이길동에 대한 2009 사업연도 급여 0,000만 원 + 정길동에 대한 2009 사업연도 급여 0,000만 원), 2010 사업연도 인건비 00백만 원(= 이 사건 급여 중 김길동에 대한 2010 사업연도 급여 00,000,000원 + 이 사건 급여 중 이길동에 대한 2010 사업연도 급여 00,000,000원 + 김길동에 대한 퇴직금 0,000,000원)을 대표자 방ㅁㅁ에 대한 상여로 소득처분하여 원고에 대하여 별지 목록 기재와 같이 소득금액변동통지를 하였다(이하 '이 사건 각 소득금액변동통지처분'이라 하고, 이 사건 각 법인세 부과처분과 통칭하여 '이 사건 각 처분'이라 한다).

E. Implementation of the pre-trial procedure

On July 0, 2012, the Plaintiff rejected the Plaintiff’s appeal on September 0, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 18, 22 through 30, Eul evidence 1, 5, and 8 (including relevant numbers), the purport of the whole pleadings

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

A. The plaintiff's assertion

1) As to the instant fee

A) The instant fee is related to the Plaintiff’s business, since it continued to perform the pertinent business since 2002, and it was paid in return for providing financial consulting services, such as contributing to the formation of market price related to real estate sales, etc. by the 00 Savings Bank, and thus, should be included in deductible expenses.

나) 설령 이 사건 수수료가 손실보상금과 원고의 경영권 확보를 위하여 지급된 것으로 인정되어 손금에 산입되지 않는다 하더라도, 이 사건 수수료의 귀속자는 이득을 지배・관리한 그린00과 00저축은행이므로 '기타 사외유출'로 처분하여야 하고, 방ㅁㅁ에 대하여 상여처분을 하는 것은 그린00과 00저축은행이 이미 관련 소득에 대하여 법인세를 납부하였으므로 이중과세에 해당한다.

2) As to each of the instant funds

A) The Plaintiff tried to invest in the primary resort business on April 2008. However, in the absence of the termination of the ○○ Project, it is unlawful that the Defendant excluded the interest paid on the loan amounting to KRW 0 billion from deductible expenses in the business year 2008, since it is related to the Plaintiff’s objective business and it does not constitute a provisional payment in relation to the specially related person, and thus, the Defendant’s exclusion of deductible expenses in the business year 2008.

B) When the progress of the primary resort project, which was scheduled to be terminated on December 2, 2008 due to the financial shortage of 00 construction companies, which were the primary resort project, was faced with a difficult port, the Plaintiff decided to directly participate in the primary resort project 】 (f) 】 concluding the primary investment agreement with the instant 】 】 x (f) 】 】 】 00 interest rate 】 all of the shareholders' rights to the instant 0 billion interest rate 】. In light of these circumstances, the nature of the instant 0 billion interest is not a loan, but an investment amount. Therefore, it is unlawful that the Defendant’s inclusion in the calculation of the amount of KRW 0 billion in the calculation of earnings.

C) In light of the need for funds to provide services, such as ecological and geological surveys, which are to be performed as a preliminary business entity by being designated as a prospective business entity by the Minister of Land, Transport and Maritime Affairs around December 2008, the Plaintiff entered into a secondary investment agreement with AB7 and paid KRW △△ billion on the condition that profits generated from such investment are distributed, the nature of the instant △△ billion is not a loan, but an investment loan. Therefore, the Plaintiff’s investment in the instant △△ billion in AB7 is not subject to the avoidance of wrongful calculation, and thus, the Defendant’s inclusion of the interest recognized as the instant △△ billion in the calculation of the income is unlawful.

3) As to the instant benefits, etc.

A) The Plaintiff, a participant in the primary resort project, who was a special purpose company, was unable to have an officer or employee, paid personnel expenses to the representative Kim-dong of 00 Ri, who was managing the site of the primary resort project. Since the Plaintiff’s employee, dispatched Lee Dong-dong, who was an employee of the Plaintiff, to the site and paid personnel expenses to Lee Dong-dong, the instant salary is subject to inclusion as expenses related to the instant work, and is not subject to disposition of income.

나) 설령 이 사건 급여를 업무와 관련 없는 비용으로 보아 손금불산입하더라도, 이 사건 급여와 방길동, 정길동에 대한 인건비, 김길동에 대한 퇴직금(이하 이를 통틀어 '이 사건 급여 등'이라 한다)은 실제로 이들에게 지급되었으므로 그 소득의 귀속자는 김길동, 이길동, 방길동, 정길동이다. 따라서 위 금액 전체를 대표자 방ㅁㅁ에 대한 상여로 소득처분한 이 사건 각 소득금액변동통지는 위법하다.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to the instant fee

A) Whether the instant fee is subject to inclusion in deductible expenses

(1) According to Article 19(1) and (2) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same), deductible expenses shall be the amount of deductible expenses incurred from transactions that reduce the net assets of the relevant corporation, excluding refund of capital, appropriation of surplus funds, etc., and such deductible expenses shall be generally accepted as losses or expenses incurred in connection with the corporation’s business or directly related to profit.

(2) Facts of recognition

In the event that an employee of the AAB limited company (the trade name was changed to AB limited liability company on November 24, 2009), which had been 100% shareholder of the 00 savings bank, receives dividends from 00% of the total dividend amount in the 00 savings bank to ○○○○ Savings Bank (the 00 savings bank left her office on September 1, 2008 and worked as vice president until March 2012) as of June 18, 2008, 2000, 30% of the total dividend amount in the case of receiving dividends from ○○○ Savings Bank (the acquisition value of dividends-stocks) x 30% in the case of capital reduction x 70% in the form of the Plaintiff’s e-mails Savings Bank and ○○ Savings Bank’s 00 billion won in the form of capital reduction (the same shall apply to 00 billion won in the case of capital reduction) and the Plaintiff’s 200 billion won in the total savings.

[A] Green 00; / [B] K○, Dao, Ma○, Ma○, / [J] 00 Savings Bank

A, B, and C are entitled to benefit from the purchase and remodeling of the instant real estate as a beneficiary of the instant real estate, and have the right to receive each one-third of the remaining balance after the Plaintiff paid all the amount of debts from the proceeds from the sale of the instant real estate. Accordingly, “A, B, and C” agree to determine agreed matters concerning the profit distribution as follows:

Article I Agreed Terms and Conditions

A, B, and C agree as follows:

1. From among the total number of shares 00,000 shares issued by Company A and C, both 0,000 and 0,000 shares owned by Company A, excluding 0,000 shares of New △△△,00 shares, and △△△△,00 shares owned by Company A, or on the date agreed upon by Company A, KR○, and B (hereinafter referred to as “scheduled date for capital reduction”), A, K○, and C, share profits accrued from △ (hereinafter referred to as “the scheduled date for capital reduction”), and B shall share profits accrued from △△ Project as agreed upon by Company A, K○, and B from the date agreed upon by Company B (hereinafter referred to as “the principal capital reduction”) among the total number of shares issued by Company B, and Company B shall share profits accrued from △△ Project after the capital reduction for consideration.

2. Notwithstanding paragraph 1, Eul should have the company pay to Gap (or its designated persons) and Byung for each of the total of KRW 000,000,000,000 (hereinafter referred to as "amount adjusted separately from value-added tax") which has been paid for losses incurred to Gap and Byung by receiving profits from the method of reduction of capital for the reasons of illness by Gap and Byung. This is the method of directly paying the company's assets existing after the reduction of capital for the purpose of this case to Gap and Byung with the financial resources, and the specific timing and method of payment shall be agreed separately by the parties.

3. Payment of the settlement amount is a reflection of all the circumstances, such as future corporate tax rate fluctuations, and the settlement amount is not adjusted unless the method of profit sharing is changed by agreement between the parties, and the loss caused by denial of taxation on the settlement amount that can arise by the company exercising the right of management due to the payment of the settlement amount shall be borne by K○ and the company.

6. When the corporate tax and resident tax to be finally borne by the company due to changes in the tax rate after the distribution of profits from this case are reduced, KOO must pay to Gap and Byung the amount equivalent to 1/3 of the reduced amount (in case of calculating corporate tax, etc. for the period from January 1, 2008 to the execution date of capital reduction, referring to the amount of corporate tax and resident tax to be reduced due to tax rate fluctuations). The specific payment period is the date of corporate tax refund for the fiscal period of 2008, but if the corporate tax is additionally paid due to the increase in the plaintiff's profits from its own business after KOO acquired the management right of the company, it shall be paid to the corporate tax payment deadline of 2008 ( March 31, 2009). In order to guarantee payment, KOO and Byung shall implement all measures required by Gap and Byung.

8. K○○ shall not perform an act that can receive a refund of the amount of interim prepayment tax paid semi-annual after securing the management right of the company until December 31, 2008 by executing non-ordinary expenses, etc. in the account of the company and settling accounts for the same semi-annual period.

(C) In the course of the tax investigation on October 0, 2012, the president of the 00 savings bank’s representative director, on September 0, 2008, submitted a written confirmation to the effect that the reduction of capital could not be paid in excess of the net asset value of each shareholder due to the reduction of capital, etc., and that the said loss subsidy’s total amount of KRW 00 billion and the cost of securing the management right to KRW 00 million are not paid in capital reduction, but received in a separate agreement.

(D) On October 0, 2012 in the course of the tax investigation, the Nowon-dong, the representative director of Green00 agreed to receive KRW 000 million for the additional corporate tax burden incurred by the profit-sharing method, and KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 18, 35, 36, Eul evidence Nos. 2 and 3 (including relevant numbers), the purport of the whole pleadings

(3) 위 인정사실 및 앞서 든 증거와 을 제4호증의 기재에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정을 종합하면, 방ㅁㅁ는 자신이 K○○를 통하여 실질적으로 원고의 1인 주주가 되면서 원고의 다른 주주들인 그린00과 00저축은행의 추가적인 법인세 부담 보전 및 경영권 확보의 대가로 지급하기로 한 돈을 원고로 하여금 그린00과 00저축은행에게 지급하도록 한 것으로 보아야 하므로, 이 사건 수수료는 원고의 사업과는 관련이 없는 것으로서 손금산입의 대상이 되지 않는다고 할 것이다.

(A) According to the agreement on the allocation of profits on July 0, 2008, the agreement entered into between the Plaintiff and its Green Cross is merely to determine the timing and method of paying the instant fee, and it does not change the nature of the instant fee on the ground that such agreement has the nature of the instant fee, as it does not change. The agreement entered into between the Plaintiff and its Green Cross and the Savings Bank on the allocation of profits on July 0, 2008 is merely to determine the timing and method of paying the instant fee, and there is no change in the nature of the instant fee.

(B) In light of the fact that, after the agreement on the allocation of profits as of July 0, 2008 between BBcomn and the Plaintiff during the tax investigation process, the representative director Nowon-dong stated that the Plaintiff was paid the instant fee from the Plaintiff for the purpose of surrendering expenses. The Plaintiff appears to have already paid the fee to the Green 00 before the instant reduction of paid amount, as the initial project cost, name service cost, and resettlement expenses, etc., it is difficult to believe the content of the civil petition treatment-related service contract (Evidence 20) consistent with the Plaintiff’s argument.

(C) In light of the fact that the representative director of the 00 savings bank prepared a written financial advisory service agreement in accordance with the agreement on profit-sharing on July 0, 2008, which was submitted by the doctor’s president in the course of the tax investigation, and delivered a statement of KRW 0 billion on September 0, 2008 as a financial advisory fee, and that the date of preparation is October 0, 2007, and that the Plaintiff already paid the fee to the 00 savings bank prior to the reduction of the paid-in capital in this case, it is difficult to believe the contents of the financial advisory service agreement (Evidence 21) consistent with the Plaintiff’s assertion.

(D) If the instant fee, as alleged by the Plaintiff, is KRW 00 and KRW 00 Savings Bank for expenses incurred in relation to the Doging business and for the provision of services, it would have to have additionally deducted KRW 0 billion of the instant fee when calculating the profit distribution purpose. Unlike the Plaintiff’s assertion, the agreement on the profit distribution of July 0, 2008, stating that “the method in which the Plaintiff directly pays 00 and KRW 00 of the instant fee to the Doging Bank with the financial resources of the company’s assets existing after the reduction of the capital for consideration,” is not considered when calculating the profit.

(E) Although there are differences in expenses incurred or services provided by 00 and 00 savings banks, the Plaintiff paid the same KRW 00 and 00 billion to 00 savings banks (excluding value-added tax).

나) 이 사건 수수료가 대표자 방ㅁㅁ에 대한 상여처분의 대상인지 여부

(1) Article 67 of the former Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010; hereinafter the same) provides that when the corporate tax base on the income for each business year is reported under Article 60, or when the corporate tax is determined or revised under Article 66 or 69, the amount included in the calculation of the corporate tax shall be disposed of as bonus, dividend, other outflow from the company, or internal reserve as prescribed by Presidential Decree to the person to whom the income accrue. Article 106 (1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010; hereinafter the same shall apply) provides that "the amount included in the calculation of the income shall be disposed of as prescribed in each of the following subparagraphs, and where it is clear that the amount included in the calculation of the income has been leaked from the company, it shall be deemed that the bonus, other income, and where it is unclear to the person to whom the income belongs.

Such disposal of income is a bonus, etc. according to the person to whom the property is attributed if the property is leaked out of the company, and the property remains in the company, and it is determined whether such outflow of income and the retained earnings ultimately belong to a person other than the corporation. As such, the economic aspect that the income has accrued refers to the control and management of the profit in reality from the economic aspect.

(2) 이 사건 수수료는 앞서 본 바와 같이 원고의 대표자인 방ㅁㅁ가 원고에 대한 경영권 확보 등에 대한 대가로 그린00과 00저축은행에게 지급하였어야 할 것인데, 이를 원고로 하여금 지급하도록 함으로써 방ㅁㅁ는 이 사건 수수료 상당의 채무를 면하는 이득을 향수하게 되었다. 따라서 이 사건 수수료 상당의 소득이 사외에 유출되어 방ㅁㅁ에게 귀속되었다고 보아야 하고, 이러한 방ㅁㅁ의 소득과 그린00, AA공영의 이 사건 수수료 소득은 별개의 소득이라 할 것이어서 이중과세의 문제가 발생하지 않으므로, 피고 00지방국세청장이 이 사건 수수료 상당액을 원고의 대표자 방ㅁㅁ에 대한 상여로 소득처분한 것은 적법하다.

2) As to each of the instant funds

A) As to the instant KRW 0 billion

(1) Facts of recognition

(A) Around August 2005, the Plaintiff added real estate development, lease, and sales business to the purpose of business in the corporate register, and there has been no changes up to now.

(B) K○○ and Do○ Asset Management Co., Ltd. (hereinafter referred to as “△△ Asset”), Emp 】 】 】 】 AB7 concluded an agreement with a special purpose corporation on April 0, 2008 and agreed to jointly carry out the primary resort business (hereinafter referred to as “instant joint project agreement”). They concluded an agreement between Do○ Bank, a trustee company of Do○ Asset Private Real Estate Investment Trust (hereinafter referred to as “△△△△ Bank”), a trustee company of △△△△ Bank, which is established to take over new stocks and corporate bonds, etc. issued by Do○○ on April 008, 2008, on April 0, 2008, and established ○○○ Life Co.,, Ltd. (hereinafter referred to as “△△△△”) with each shareholder on the scope of its duties and responsibilities.

(C) On April 00, 2008, △△ Bank added the parties to the instant joint agreement, and entered into a contract with the AB7 on April 1, 2008, which establishes a pledge on the instant joint agreement with △△ Bank on the same day 】 (hereinafter referred to as the “instant pledge contract”). The △△ Bank entered into a contract with the AB7 on the creation of a pledge on the instant joint agreement with △△ Bank on the instant joint agreement and its accessory agreement 】 (i) the liability for damages arising from the nonperformance of all obligations to △△ Bank in relation to the AB7 】 (ii) the maximum amount of debt x (i.e., 00 billion won) 】 (i., the maximum amount of debt x (ii) the liability for damages arising from the nonperformance of all obligations to △△ Bank in relation to

(D) On September 00, 2008, the Plaintiff lent KRW 0 billion to the Plaintiff x (f) 】 】 the maturity of the loan to the Plaintiff 】 9% per annum on September 00, 2013, 9% per annum on the interest rate, and 15% per annum on the overdue interest rate.

(E) The Plaintiff and Ep x 】 The main contents of the instant primary investment agreement concluded on September 00, 2009 are as follows.

This Arrangement shall be prepared with the purpose of converting the number of major equity investors of a special purpose corporation (SPC) which carries out the existing 00 Ri remodeling project (hereinafter referred to as the "existing 00 Ri remodeling project") located in Gyeonggi-do 00 Gun x (hereinafter referred to as the "existing Ri remodeling project") x 0 billion won which the plaintiff has leased to the existing x the plaintiff's investment, and converting the number x x x the plaintiff's number x 00 billion won which the plaintiff has leased to the existing x x 00 Do 00 Do 00 Do 00 - in cooperation with x 00 Do - 00 Do - 00 Do hereinafter referred to as the "additional Ri

Article 1 (Matters Agreed upon)

1. The plaintiff shall, upon the conclusion of this agreement, take all measures so that the plaintiff may be designated as the implementer of the development promotion district in addition to 00 Gun in the future, after the completion of this agreement 】 (f) 】 the amount of KRW 0 billion lent to the investment district 】 (f) 】 】 】 】 The number of members of the development promotion district held by the major investors of the SPC who are the implementer of the existing resort remodeling project (stage 1) 】 (stage 1).

2. He/she shall transfer all rights, such as voting rights, to a plaintiff at a general meeting of shareholders held by SPC as a shareholder of an existing remodeling project (stage 1), simultaneously with the conclusion of this agreement, to transfer his/her shares to a plaintiff immediately after the cancellation of a pledge of stock transfer established in △ Asset Management.

3. In the event that the Plaintiff’s consent or cooperation is necessary for the consent or cooperation of other shareholders of the SPC in the course of carrying out the additional cooking development project in the future, the Plaintiff will cooperate by arbitration and negotiation with other shareholders so that the transaction may become final and conclusive. In addition, where the Plaintiff wishes to purchase shares held by other shareholders of the SPC, the Plaintiff will assist in purchasing shares held by other shareholders of the SPC 】 (f) 】 (f) 】 】 】 】

(F) On September 00, 2008, the Plaintiff accounting of the instant KRW 0 billion as a long-term loan, but replaced the instant KRW 0 billion with other investment asset accounts on September 00, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 24 through 28, 39, 42 (including the relevant number), Eul evidence No. 5, the purport of the whole pleadings

(2) Whether the instant KRW 0 billion constitutes a provisional payment irrelevant to business affairs

(A) Article 28(1)4 (b) of the former Corporate Tax Act and Article 53(1) of the Enforcement Decree of the same Act provide that interest on loans equivalent to the amount of loans that are not related to the business of the relevant corporation shall not be included in deductible expenses, regardless of the title, such as provisional payments, etc. for related persons held by the relevant corporation. In addition, “provisional payments, which are not related to the business of the relevant corporation,” includes not only purely meaningful loans, but also those corresponding to the loan due to the nature of the relevant bonds, but also those where the provisional payments are provided upon receiving interest at a reasonable interest rate, and whether the provisional payments are related to the business of the relevant corporation shall be objectively determined based on the purpose or business contents of the relevant corporation (see Supreme Court Decision 2006Du15530, Sept. 25, 2008).

(나) 원고로부터 이 사건 00억 원을 지급받은 에프××××가 방ㅁㅁ가 사실상 경영하는 회사라는 사실은 당사자 사이에 다툼이 없으므로, 에프××××는 구법인세법 제52조 제1항, 구 법인세법 시행령 제87조 제1항 제4호, 제1호에 따라 원고의 특수관계자에 해당한다. 그런데 앞서 본 사실관계와 증거들에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정, 즉 ① 원고는 부동산개발업 등을 목적 사업으로 영위하고 있는 회사인데, 원고가 특수관계자인 에프××××에게 00리조트 출자자금과 관련하여 이 사건 00억 원을 대여함으로써 부동산개발업인 1차 리조트사업에 간접적으로 참여한 것으로 볼 여지가 있는 점, ② 에프××××는 00리조트에 출자한 00억 원 중 일부를 차용하였고 이 사건 00억 원이 위 차용금 변제에 사용된 것으로 보이며, 에프××××나 방ㅁㅁ가 이 사건 00억 원을 1차 리조트사업과 무관한 다른 용도로 사용하였다고 볼 만한 증거는 없는 점 등에 비추어 보면, 이 사건 00억 원이 업무무관 가지급금에 해당한다고 단정할 수 없다.

(C) Therefore, Defendant 00 Tax Office’s failure to include the interest paid on the loan amounting to KRW 0 billion in deductible expenses for the business year of 2008 is unlawful.

(3) Whether the act of converting the investment amount of KRW 0 billion in the instant case is subject to the avoidance of wrongful calculation

(A) Article 52(1) of the former Corporate Tax Act, and Articles 88(1)6 and 89(3) of the former Enforcement Decree of the Corporate Tax Act provide that where a corporation is deemed to have unjustly reduced its tax burden on its income by lending money without compensation to a specially related person, the tax authority shall regard the act as a wrongful calculation and may include the case in its gross income by calculating the recognition interest rate. Such wrongful calculation denial shall apply only to cases where it is deemed that the economic rationality was neglected due to the wrongful calculation of an unfavorable and unreasonable act from the standpoint of the economic person. Determination of whether the transaction was economic rationality is abnormal in light of sound social norms or commercial practices, taking into account the various circumstances of the transaction, the determination shall be made based on whether the transaction was conducted in question, based on whether the transaction was conducted in question, in light of sound social norms or commercial practices, and also on the basis of special circumstances at the time of the transaction (see, e.g., Supreme Court Decision 2008Du1541, Oct. 28, 2010).

(B) In light of the following circumstances, the Plaintiff’s act of converting the instant KRW 0 billion to the investment amount is difficult to be deemed to constitute a wrongful calculation.

① As a taxpayer may choose one of the several legal relations in order to achieve the same economic purpose while engaging in economic activities, the tax authority should respect the legal relationship chosen by the taxpayer, barring any special circumstance to deem that it constitutes a disguised act (see, e.g., Supreme Court Decision 2010Du5004, May 13, 201) x (f) x (i) 】 the Plaintiff’s specially related person x (i.e., the Plaintiff’s accounting of the instant KRW 0 billion as a long-term loan in the business year 2009 to 2010), it is insufficient to recognize that the instant first investment agreement is the most unfair act, and there is no other

② Since financial institutions, such as △△ Bank and private real estate investment trust, including ○○○○○○, participated in the primary resort business, it is difficult to deem that there was no entity of the primary resort business as at September 0, 2009, in which the instant KRW 0 billion was converted into investment funds, or that there was no profitability for the primary resort business. In addition, the secured obligation of the instant resort pledge 】 】 】 (f) the secured obligation of the instant resort pledge 】 (or the future obligation that may arise in the event that the instant resort business was not performed without a problem 】 (f) 】 】 】 the ownership 】 】 the ownership x the pledge right of the shares held in the ownership 】00 Ritra, and thus, it is difficult to readily conclude that the Plaintiff’s act of converting the instant KRW 0 billion into investment funds 】00 x00 000 000 000 000 00 000 000 000.

③ The Plaintiff converted the instant KRW 0 billion to the investment amount, and accounted for it as other invested assets in the business year from 2009 to 2010.

(C) Therefore, it is unlawful that the director of the tax office of 00 billion won included the interest rate for the instant KRW 0 billion in the gross income for the business year from 2009 to 2010 by deeming the conversion of the investment amount of KRW 0 billion in the instant case as the calculation of wrongful calculation.

B) Whether the payment of the instant △△ billion is subject to the avoidance of wrongful calculation

(1) Facts of recognition

(A) On April 0, 2010, the head of Gyeonggi-do 00 head of the Gun designated and publicly announced the Plaintiff, AB7, and 000 wave with respect to the instant development project pursuant to Article 16 of the former Balanced Regional Development and Support for Local Small and Medium Enterprises Act (amended by Act No. 10762, May 30, 201).

(B) On May 00, 2010, the Plaintiff and AB7 entered into a technical service contract between the Plaintiff and AB7, with a company of 000 engineering, for the purpose of supporting environmental impact assessment and impact assessment, for the purpose of supporting environmental impact assessment and implementation plan, and for the Plaintiff to pay KRW 0 billion as service cost.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 31 and 32 (including each number), the purport of the whole pleadings

(2) 원고로부터 이 사건 △△억 원을 지급받은 AB7이 방ㅁㅁ가 사실상 경영하는 회사라는 사실은 당사자 사이에 다툼이 없으므로, AB7은 구 법인세법 제52조 제1항, 구 법인세법 시행령 제87조 제1항 제4호, 제1호에 따라 원고의 특수관계자에 해당한다. 그런데 앞서 본 사실관계에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정에 비추어 보면, 원고가 AB7에게 이 사건 △△억 원을 투자금으로 지급한 행위를 부당행위계산 부인의 대상이 된다고 보기 어렵다.

(A) After the conclusion of the instant secondary investment agreement, the Plaintiff was designated by the head of 00 Gun as the regional development project implementer of the development promotion district along with AB7, and was used as the initial project cost to conduct environmental impact assessment, etc., the second resort project was carried out in line with the content of the instant secondary investment agreement. Therefore, the circumstance that AB7 was the Plaintiff’s specially related person and accounting of the instant △△△△ billion in the year 2009-2010 as the Plaintiff’s long-term loan is insufficient to recognize that the instant secondary investment agreement was the largest act, and there is no other evidence to acknowledge otherwise.

(B) The Plaintiff, while paying the instant △△ billion to AB7 as the investment money, was expected to receive part of the profit accrued from the primary resort business and the secondary resort business. Since there is no evidence to deem that there was no profit from the instant △△△ billion at the time of the payment of the said KRW 1 and secondary resort business, it cannot be readily concluded that the Plaintiff invested the instant △△△ billion in the investment without the investment cost. Therefore, it is difficult to readily conclude that the Plaintiff’s act of paying the instant △△ billion as the investment money was a transaction with no economic rationality in light of sound social norms and commercial practices.

(C) In the year from 2009 to 2010, the Plaintiff accounted for the instant △△ billion as other invested assets.

(3) Therefore, Defendant 00 Head of the tax office’s inclusion of the interest rate recognized as the instant △△ billion in the gross income for the business year from 2009 to 2010 in deeming the payment of the investment funds of the instant △△ billion as a wrongful calculation is unlawful.

3) As to the instant benefits, etc.

A) Whether the instant benefits are subject to inclusion in deductible expenses

(1) In full view of the following circumstances, the instant benefits ought to be deemed as the processed personnel expenses, and the entry of the evidence No. 33 is difficult to believe, and the entries of the evidence No. 34-1 through 5, No. 40, and No. 41 are insufficient to reverse the recognition, and there is no other counter-proof.

(A) In the course of a tax investigation, the tax authority prepared and submitted a written confirmation to the effect that if the person liable to pay taxes receives a certain tax-related fact from the person liable to pay taxes, such written confirmation cannot easily deny the value of evidence of the written confirmation unless there are special circumstances, such as that the written confirmation was duly signed and sealed against the intent of the person who prepared the document, or that it is difficult to take it as supporting material for the specific facts due to the lack of its content (see, e.g., Supreme Court Decision 2006Du8068, Sept. 25, 2008). In the Plaintiff’s form, the former president, who was the representative director, paid the money equivalent to the benefits of this case to the Kim Dong-dong and Lee Dong-dong who did not work

(B) The Plaintiff did not submit the Plaintiff’s certificate of tax withholding on earned income or the data on the payment of wage and salary income tax on the income claimed by the Plaintiff to the Lee Dong-dong.

(C) The Plaintiff did not submit the details of transfer from September 2008 to November 2009 on the benefits that the Plaintiff claimed to have paid to Kim-dong.

(라) 원고 주장에 의하더라도 이 사건 급여가 지출될 당시 김길동은 원고의 임직원이 아니었다(피고는 김길동의 처 정△△가 방ㅁㅁ의 처 정길동의 친동생이라고 주장하고 있는데, 원고는 김길동과 방ㅁㅁ가 동서 관계라는 사실에 대하여 명백히 다투지 않고 있다). 또한 원고는 1차 리조트사업과 관련하여 00리조트의 주주인 에프××××에게 이 사건 00억 원을 대여하였을 뿐인데, 원고가 이러한 지위에서 00리조트의 대표이사이던 김길동에게 급여를 지급하여야 했던 사정이 있었다고 볼만한 자료가 부족하다.

(3) Therefore, the instant benefits are not subject to inclusion in deductible expenses as processing personnel expenses.

나) 이 사건 급여 등이 대표자 방ㅁㅁ에 대한 상여처분의 대상인지 여부

갑 제40, 41호증의 각 기재만으로는 이 사건 급여 등이 김길동, 이길동, 정길동, 방길동에게 실제로 지급되었다는 점을 인정하기 부족하고, 달리 이를 인정할 만한 증거가 없다. 또한 원고는 세무조사 과정에서 이 사건 급여 등이 지출되었다가 원고에게 반납되었다고 주장하며 원고의 우리은행 및 신한은행 통장 사본(을 제7호증의 2)을 제출하였으나, 원고의 신한은행 계좌에 2011. 7. 0. 000,000,000원이 입금되고 원고의 우리은행 계좌에 2011. 10. 00. 000,530,000원이 입금되었다는 사정만으로 원고에게 이사건 급여 등이 반납되었다고 보기 어렵고 달리 이를 인정할 만한 증거도 없다. 그렇다면 이 사건 급여 등은 귀속이 불분명하므로 구 법인세법 제67조, 구법인세법 시행령 제106조 제1항 제1호 단서에 따라 대표자에게 귀속된 것으로 보아야한다. 따라서 이 사건 급여 등을 원고의 대표자 방ㅁㅁ에 대한 상여로 소득처분한 이 사건 각 소득금액변동통지처분은 적법하다.

(iv)the amount of legitimate tax;

A) In a lawsuit seeking the revocation of a taxation disposition, the subject matter of adjudication is whether the tax base and tax amount notified by the tax authority exist objectively. In a case where the tax base and tax amount recognized by the disposition are excessive compared to the legitimate tax base and tax amount, the disposition of imposition is unlawful only to the extent exceeding the lawful tax base and tax amount (see, e.g., Supreme Court Decision 88Nu6504, Mar. 28, 198

B) As seen earlier, among the disposition imposing corporate tax for the business year of 2008, the interest on the loan amounting to KRW 0 billion in the calculation of losses in the business year of 2008 and the part in which the respective recognized interest on KRW 0 billion in the business year of this case and KRW 2009-2010 in the calculation of earnings in the business year of 2009-2010 should be denied. Considering the above, the calculation of legitimate tax amount is 010,000 in the case of corporate tax for the business year of 2008 as shown in the separate sheet of tax calculation, and there is no corporate tax to be notified due to the occurrence of losses in the case of the business year of 2010. Therefore, the portion in excess of the above KRW 010,00,000 in the disposition imposing corporate tax for the business year of 208

The disposition of imposition should be revoked as it is unlawful.

3. Conclusion

Therefore, the part of the plaintiff's claim related to corporate tax for the business year 2008, and the plaintiff's claim related to corporate tax for the business year 2010, are justified. Thus, the plaintiff's claim against the defendant 00 director of regional tax office and the remaining claim against the defendant 00 director of tax office are dismissed. It is so decided as per Disposition.

Relevant statutes

▣ 구 법인세법(2010. 12. 30. 법률 제10423호로 개정되기 전의 것)

Article 19 (Scope of Losses)

(1) Deductible expenses shall be the amount of losses incurred by transactions which reduce the net assets of a corporation, excluding return of capital or financing, disposition of surplus funds, and what is provided for in this Act.

(2) The losses under the provisions of paragraph (1) shall be losses or expenses generated or spent in connection with the business of a corporation which are generally accepted as normal or directly related to profit, except as otherwise prescribed by this Act and other Acts and subordinate statutes.

(3) Losses distributed under Article 100-18 (1) of the Restriction of Special Taxation Act shall be deemed deductible expenses referred to in paragraph (1).

(4) Matters necessary for the scope and types of losses under the provisions of paragraphs (1) through (3) shall be prescribed by Presidential Decree.

Article 27 (Non-Inclusion of Expenses not Related to Business in Calculation of Losses)

The following amounts of expenses paid by a domestic corporation in each fiscal year shall not be included in the calculation of losses in the calculation of the income amount for the concerned fiscal year:

1. The amount prescribed by Presidential Decree, such as expenses, etc. incurred by acquiring and managing assets prescribed by Presidential Decree, which are deemed not directly related to the business of the relevant corporation

2. The amount of expenditure that is deemed not directly related to the business of the corporation as prescribed by the Presidential Decree other than subparagraph 1.

Article 28 (Non-Inclusion of Interest Paid in Calculation of Losses)

(1) The interest on loans falling under any of the following subparagraphs shall not be included in deductible expenses in calculating the income amount of a domestic corporation for each business year:

4. Of interest on loans paid during each business year by a domestic corporation which acquires or holds assets falling under one of the following items, the amount calculated under the conditions as prescribed by the Presidential Decree (limited to interest on loans equivalent to the value of the concerned assets):

(a) Assets falling under subparagraph 1 of Article 27:

(b) Provisional payments, etc. prescribed by the Presidential Decree to a person with a special relationship under Article 52 (1) without connection with the business of the relevant corporation; and

Article 52 (Disliability of Evaluation of Wrongful Acts)

(1) Where the head of the district tax office having jurisdiction over the place of tax payment or the Commissioner of the competent Regional Tax Office deems that the tax burden of a domestic corporation has been unjustly reduced through transactions with a person with a special relationship as prescribed by the Presidential Decree (hereinafter referred to as a "specially related person"), he may calculate the income amount for each business year of the corporation regardless of the act or calculation of the income amount of the corporation (hereinafter referred

(2) In the application of the provisions of paragraph (1), the standard for determination shall be the prices (including rates, interest rates, rents, exchange rates and other equivalent rates, and market prices; hereafter in this Article, referred to as "market prices") applied or to be applied in sound and commercial practices and normal transactions between persons without a special relationship.

(3) A domestic corporation shall submit a detailed statement describing transactions with a specially related person for each business year as prescribed by the Presidential Decree.

(4) In applying the provisions of paragraphs (1) through (3), matters necessary for the types of wrongful calculation and the assessment of market price shall be prescribed by the Presidential Decree.

Article 67 (Disposition of Income)

In filing a report on the corporate tax base on the income for each business year under the provisions of Article 60, or in determining or revising the corporate tax base under the provisions of Article 66 or 69, the amount included in the calculation of earnings shall be disposed of to the person to whom it belongs as bonus, dividends, other outflow from the company and internal reserve, etc.

▣ 구 법인세법 시행령(2010. 12. 30. 대통령령 제22577호로 개정되기 전의 것)

Article 19 (Scope of Losses)

Losses under Article 19 (1) of the Act shall be those provided for in the following subparagraphs, except as otherwise provided for in the Act and this Decree:

3. Personnel expenses;

20. Other losses which accrue or will accrue to the corporation.

Article 53 (Non-Inclusion of Interest Paid on Non-Business Assets, etc. in Calculation of Losses)

(1) The term "those prescribed by Presidential Decree" in Article 28 (1) 4 (b) of the Act means the lending amount (including the lending amount of funds which cannot be deemed the principal profit-making business in the case of financial companies, etc. falling under any subparagraph of Article 61 (2)) of funds which are not related to the business of the relevant corporation, regardless of their names: Provided, That any

Article 87 (Scope of Person with Special Relationship)

(1) "Person in a special relationship prescribed by Presidential Decree" in Article 52 (1) of the Act means a person in a relationship falling under any of the following subparagraphs with a corporation (hereinafter referred to as a "specially related person"):

1. Persons recognized as exercising real influence over the operations of the concerned corporation, such as exercising the right to appoint officers or determining the course of business (including persons to be treated as directors under Article 401-2 (1) of the Commercial Act) and their relatives;

2. Stockholders (not including minority shareholders, etc.; hereafter in this Sub-section the same shall apply) and their relatives;

3. Officers and employees of a corporation, or employees of a stockholder (referring to the officers in case of a profit-making corporation, and the director and founder in case of a non-profit corporations) or other persons whose livelihood depends on the cash and other assets of the corporation or stockholder, and their relatives who depend upon them for their livelihood;

4. Other corporation which invests 30% or more of the total number of stocks issued or total amount of money invested by a person falling under subparagraphs 1 through 3;

5. Other corporation which invests 50/100 or more of the total number of stocks issued or total amount of money invested by a corporation falling under subparagraph 4 or 8;

6. A corporation or individual which invests 50/100 or more in a corporation which invests 50/100 or more in the relevant corporation;

7. Where the relevant corporation is included in a business group under the Monopoly Regulation and Fair Trade Act, other affiliates and executives of such affiliates in the business group;

8. Non-profit corporations in which the founder is a person falling under subparagraphs 1 through 3 and the relevant corporation who either forms the majority of the directors or contributes 50/100 or more of the contributions (limited to contributions for its establishment).

Article 88 (Calculation Type of Wrongful Acts)

(1) Where it is deemed that the tax burden has been unjustly reduced pursuant to Article 52 (1) of the Act means any of the following cases:

6. Where money and other assets or services are lent or provided without compensation or at an interest rate, tariff, or rental rate lower than the market price: Provided, That this shall not apply to any of the following cases:

(a) Where money is provided following the exercise or payment of stock options, etc. under the part other than the items of Article 20 (1) 3;

(b) Where company housing (including rental house as provided by Ordinance of the Ministry of Strategy and Finance) is provided to officers who are not stockholders or investors (including officers who are minority stockholders, etc.) and employees; and

(2) The provisions of paragraph (1) shall apply to transactions (including transactions conducted through persons other than specially related persons) between the relevant corporation and the specially related persons as of the time of such acts.

(3) Paragraph (1) 1, 3, 6, 7, and 9 (limited to acts or accounts similar to those under paragraph (1) 1, 3, 6, and 7) shall apply only where the difference between the market price and the trading price is at least 300 million won, or where the difference between the market price and the trading price is at least 5/100 of the market price.

Article 89 (Scope of Market Price, etc.)

(1) In applying Article 52 (2) of the Act, where there is a price generally traded between many and unspecified persons other than a person with a special relationship or between a third party who is not a person with a special relationship in a similar situation to the relevant transaction, the price (where stocks issued by a stock-listed corporation are traded at the Korea Exchange, the market price of the relevant stocks shall

(2) In the application of Article 52 (2) of the Act, if the market price is unclear, the amount calculated by applying in sequence the following subparagraphs:

1. Where there is a value appraised by the appraisal evaluation corporation under the Public Notice of Values and Appraisal of Real Estate Act, the value thereof (in case there are not less than two appraised values, the average amount of the appraised values): Provided, That this shall not include stocks, etc.;

2. The amount appraised by the mutatis mutandis application of the provisions of Articles 38 through 39-2, and 61 through 64 of the Inheritance Tax and Gift Tax Act. In applying mutatis mutandis the provisions of Articles 63 (2) 1 of the Inheritance Tax and Gift Tax Act and Article 57 (1) and (2) of the Enforcement Decree of the same Act, the immediately preceding six months (three months for stocks, etc. upon which gift tax is levied) shall be deemed the immediately preceding six months, respectively.

(3) In cases of lending or borrowing money under Article 88 (1) 6 and 7, notwithstanding paragraphs (1) and (2), the rate (referring to the rate under subparagraph 1 where no choice is made) of the following rates which the relevant corporation selects, as prescribed by Ordinance of the Ministry of Strategy and Finance, along with a report under Article 60 of the Act, shall be the market price, and the selected rate shall be applied to all the corresponding transactions, and shall be continuously applied in the business years thereafter: Provided, That where the rate under subparagraph 2 is selected but it is impossible to apply the rate under subparagraph 2 in the business year thereafter and there are any grounds prescribed by Ordinance of the Ministry of Strategy and Finance, the rate under subparagraph 1 may

1. Interest rate on overdrafts prescribed by Ordinance of the Ministry of Strategy and Finance;

2. The weighted average loan interest rate prescribed by Ordinance of the Ministry of Strategy and Finance;

(5) In cases falling under wrongful calculation under the provisions of Article 88, the market price and the margin under the provisions of paragraphs (1) through (4) of this Article shall be included in gross income under the provisions of Article 52 (1) of the Act and the income amount of the concerned corporation for each business year shall be calculated: Provided, That this shall not apply to lending of money

§ 106. Disposal of income

(1) The amount included in the calculation of earnings under Article 67 of the Act shall be disposed of in accordance with the provisions of the following subparagraphs. The same shall also apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed that it has been reverted to the representative (where an executive who is not a minority shareholder, etc. and persons with a special relationship under Article 43 (8) holds at least 30/100 of the total number of stocks issued or total amount invested in the relevant corporation and actually controls the operation of the corporation, he/she shall be deemed the representative, and where there are at least two representatives, de facto representative shall be the representative;

(a) Where the person of accrual is a stockholder (not including stockholders who are officers or employees), the dividends of the person of accrual;

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

(c) Where the person to whom it belongs is a corporation or an individual operating the business, other outflow from the company: Provided, That it shall be limited to where the distributed profit constitutes the income for each business year of a domestic corporation or a domestic business place of a foreign corporation under the provisions of Article 94 of the Act or the business income of a resident or a non-resident under

(d) In case where the person to whom it belongs is the person other than those under items (a) through (c), other income for such person

▣ 구 지역균형개발 및 지방중소기업 육성에 관한 법률(2011. 5. 30. 법률 제10762호로 개정되기 전의 것)

Article 16 (Executors)

(1) Notwithstanding the provisions of other Acts, the regional development project executed within the development promotion district (hereinafter referred to as the “regional development project”) may be executed by the following persons:

1. The State or local governments;

2. Government-invested institutions prescribed by Presidential Decree;

3. Local public corporations under the Local Public Enterprises Act (hereinafter referred to as the "local public corporations"); and

4. The person, other than those referred to in subparagraphs 1 through 3, designated to carry out the district development project.

(2) With respect to a district development project (excluding a case where the State or a local government directly executes the district development project), the head of the competent Si/Gun/Gu shall designate an executor under the conditions as prescribed by the Presidential Decree by taking into account the following matters. In this case, where it is deemed necessary to secure financial resources required for the district development project or to utilize the development technology, he/she may designate two or more joint executor, and where the district development project extends over two or more Sis/Guns/Gus and the head of the competent Si/Gun/Gu does not reach an

1. Details and scale of the project under the development plan;

2. Capability to raise necessary financial resources;

3. The ability and experience to implement the regional development project;

4. Connection with other regional development projects.

(4) When a Metropolitan City Mayor, Do Governor or the head of a Si/Gun/Gu (hereinafter referred to as "person entitled to designate") designates an implementer under paragraph (2), he/she shall publicly announce the details thereof as prescribed by Presidential Decree