Seoul Administrative Court 2009Guhap2306 ( August 27, 2009)

National High Court Decision 2007west 5164 ( October 22, 2008)

Whether it is a tax invoice received by actually providing corporate restructuring services

Since there is no special circumstance to regard the corporate restructuring service contract as a transaction for processing, it is judged as remuneration paid in accordance with the service contract.

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

1. The part against the plaintiff falling under the following cancellation among the judgment of the court of first instance shall be revoked. The imposition of corporate tax of KRW 250,423,261 against the defendant on January 2, 2007 against the plaintiff and the disposition of notification of change in the amount of income of KRW 484,00,000 on January 3, 2007 against the plaintiff shall be revoked, respectively.

2 The plaintiff's appeal shall be dismissed.

3. The total costs of the lawsuit shall be five minutes, and one of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 250,423,261 on January 2, 2007 against the plaintiff for the business year of 2001, imposition of KRW 96,86,00 on the second half-year value-added tax in the year of 2001, and the disposition of notification of change in the amount of income of KRW 484,00,000 on the bonus income in the business year of 2001 where the income earner of January 3, 2007 is A shall be revoked.

1. Details of the disposition;

The following facts may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1 through 7, Gap evidence 10, 11, and Eul evidence 1 through 7 (including each number):

A. The Plaintiff (the first AABBC was established, and the trade name was successively changed to AACC, AABBBB technology investment, and thereafter the Plaintiff was merged to the Plaintiff; hereinafter “Plaintiff, including the two, before and after the mutual change and merger,” is referred to as “1 Plaintiff”) is a company engaged in the business feasibility assessment and corporate restructuring.

B. On April 6, 2001, the Plaintiff formed a “BB BB 1 Corporate Restructuring Association (BBBB) as a member of the partnership’s non-performance of business affairs. However, the Plaintiff did not pay the contingent remuneration to the Plaintiff and distributed the remaining property to the union members on December 23, 2001. The Plaintiff received the contingent remuneration amounting to KRW 1.8 billion around February 2006, by filing a lawsuit against Park Domin who is the largest right holder of the union.

C. On December 2001, the Plaintiff received a tax invoice of KRW 440,000,000 (hereinafter “the instant tax invoice”) from the FFF of AA company (hereinafter “FF”), and included the same amount as the input tax amount at the time of the return of the value-added tax return for February 2001 after deducting the amount as the input tax amount from the amount at the time of the return of the corporate tax return for the year 2001.

D. The Defendant: (a) deemed that the Plaintiff’s successful fee of KRW 2,967,046,061, the date when the Plaintiff received the service from the BB BB 1 Corporate Restructuring Association in 2001 as the business year of 2001, the date when the service was completed; (b) included the contingent fee of KRW 2,967,046,061 in the taxable year of 201 as the taxable year of 2001 and the taxable year of 2001; (c) deemed the instant tax invoice as a false tax invoice without real transactions and deducted the amount of the processed purchase from deductible expenses and the input tax amount; and (d) deemed that the service price paid by the Plaintiff to the FFF was unfairly released from the taxable year of 2001, the Defendant imposed and notified the Plaintiff of the corporate tax of KRW 1,967,747,850 for the business year of 207, the value-added tax of KRW 750,061,180.

E. On December 5, 2007, the Plaintiff filed an appeal with the Tax Tribunal. On October 22, 2008, the Tax Tribunal rendered a decision of correction accepting part of the Plaintiff’s claim. On November 4, 2008, the Defendant corrected corporate tax of KRW 1,717,324,591 for the Plaintiff on November 4, 2008, and corrected the amount of corporate tax of KRW 653,195,189 for the business year 2001, and corrected the amount of value-added tax of KRW 481,254,545 for the business year 2006, and notified KRW 220,694,815 for the additional amount of corporate tax of KRW 481,254,545 for the business year 2006.

F. The Plaintiff filed the instant lawsuit with respect to the disposition of imposition of corporate tax of KRW 250,423,261 (hereinafter referred to as the “disposition of imposition of corporate tax”) related to the instant tax invoice, which is the remaining tax amount after reduction according to the adjudication decision, and the disposition of imposition of value-added tax of KRW 96,866,00 (hereinafter referred to as the “disposition of imposition of value-added tax”) and the disposition of notification of change in income amount of KRW 484,00,000, which is recognized for the business year 201 (hereinafter referred to as the “disposition of notice of change in income amount,” and the “each disposition of this case” in total).

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

The Plaintiff concluded the instant service contract with the FF for the purpose of soliciting partners and attracting investment funds for the establishment of the instant association, and paid the price for the service and receiving the service normally. As such, the instant service contract is a processed transaction, and the instant tax invoice constitutes a false tax invoice without real transactions, each of the dispositions of this case, premised on the premise that the instant tax invoice constitutes a false tax invoice

(b) Related statutes;

The entries in the attached statutes are as follows.

C. Determination

(1) Facts of recognition

The following facts may be acknowledged by adding up the whole purport of the pleadings to Gap evidence 6, Eul evidence 7-1, Eul evidence 7-2, Eul evidence 8 through 19, Eul evidence 23-5, Eul evidence 23-6, and testimony of Park GG and Sim H of the first instance trial witness Kim Jong-H. The evidence Nos. 2-2, Eul evidence Nos. 8-1 through 3, Eul evidence Nos. 9 through 17, Eul evidence Nos. 18-1 through 19, Eul evidence Nos. 20-1 through 11, Eul evidence Nos. 22-1 through 6, Eul evidence Nos. 23-1 through 4, and Eul evidence Nos. 24-1 through 24-5, each of the above evidences is insufficient to recognize otherwise.

(a)the general investment structure of a company specializing in restructuring;

1) The Plaintiff is a restructuring company for facilitating corporate restructuring as prescribed by the Industrial Development Act (Crd Rate Company, hereinafter referred to as the “JJ”). The Plaintiff is carrying out business activities, such as the number, business normalization, and sale of a company subject to restructuring, the formation and performance of corporate restructuring associations, the mediation of corporate mergers and acquisitions between companies, and the reorganization of companies of the company subject to restructuring.

2) Since it is difficult for the J to raise all of its investments, the JJ is generally established with a person and an association that is not the JJ to make investments in a company subject to attracting investment funds from its members, and specific investments are made through ① selection and analysis of the target company, ② establishment of a trade structure (decision on the increase in the capital, the scale of the issue of corporate bonds, etc.), ③ investment proposals, ④ submission of intent to accept and introduction of the company, ④ verification of the target company, ⑤ selection of the target company and priority negotiation partners, ④ formation of a corporate restructuring association through the invitation of close companies and financial investors, 8 payment of this contract and acquisition price, 9 acquisition company, and 00 repayment procedure through sale.

3) The JJ is an executive member of the Restructuring Association, responsible for establishing an association, operating an association with relevant companies, and M&A; M&A; dump (boutique) is responsible for cooking goods subject to investment, attracting financial investors, and receiving fees from the JJ.

(B) The investment process of the instant association

1) The outlines of the instant association are as follows:

2) The Plaintiff intended to form the instant association with a view to raising an investment fund up to 10.5 billion won. The period of raising funds was in a short period of less than one month, and expected return was high. At the time, it is difficult for an ordinary investor to attract investors by himself/herself through M&A, even after paying fees, since the method of making investments by an ordinary investor by forming the JJ and the association is an imminent way for the general investors. At the same time, it is not easy for the Plaintiff, which is not highly aware of the fact that it is difficult for him/her to attract investors. Therefore, the Plaintiff intended to attract investors through M&A;

(C) Conclusion of the instant service contract

The Plaintiff requested Park GGG to the representative director of KDF, a vice-slock, for the establishment of the instant association, to recruit union members and to attract investment funds for the establishment of the instant association, and Park GG entered into a service agreement to delegate the business of attracting investment with KDF, senior MG to the Plaintiff (at that time, the representative director of the FF was in charge of the said business) around October 2001, the Plaintiff entered into the service agreement to entrust the business of attracting investment with the said services. On October 2001, the Plaintiff entered into such a service agreement with KDF, senior MM (the service of attracting investment funds was personally performed by MF, and the FF is irrelevant to the instant service: Provided, That at the request of DaM, the party to the service agreement and the party to the payment of remuneration, at the request of DaM, became the FFFF, not an individual, DaM).

(d) the attraction of investors and the conduct and payment of remuneration to investors;

1) From October 13, 2001 to November 20, 2001, the Plaintiff raised a total of KRW 10.5 billion investments among them. Of these, 84.10% investments made by 45 general partners (the amount of KRW 200 million was directly invested by KRF, 1.5 billion in the amount of KRW 1.5 billion in the amount of capital), and Park G and GoM played a significant role in the successful procurement of investment funds.

2) Since then, the instant association distributed the total amount of KRW 10.5 billion to investors who invested in the amount of KRW 10.5 billion with a large amount of profit, and distributed the amount of KRW 3.9 billion with the amount of liquidation distribution. The Plaintiff received the management remuneration cost of KRW 680 million with the amount of KRW 3.9 billion with the contingent remuneration, while the Plaintiff received a share of KRW 6.85% with the total amount of worth of KRW 2 billion with the share of KRW 6.85% with the total amount of pride.

3) On January 16, 2002, the Plaintiff paid 374,000,000 won, including investment profits, to KRF, and transferred MF KRW 484,000,000 as remuneration under the instant service contract (amounting to 440,000,000 + value added KRW 44,00,00,000) to the bank account in the name of FF.

(2) Whether the imposition of corporate tax is legitimate

(가) 앞서 채택한 증거 및 갑 제20호증의 1, 2의 각 기재에다가 변론 전체의 취지를 보태어 알 수 있는 다음과 같은 사정 즉, ㉮ JJJ가 JJJ 아닌 자와 조합을 결성하여 조합원들로부터 투자자금을 유치하여 대상기업에 투자하는 경우에, JJJ는 M&A; 부띠끄를 통하여 투자자를 유치하고 수수료를 지급하는 것이 일반적인데, 인맥 등을 활용하여 투자자를 설득하고 투자자를 모집하는 투자유치의 업무 성격상, JJJ가 목표로 하는 투자금을 제때에 유치할 능력만 갖추었다면 전문적인 회사 뿐 아니라 개인도 M&A; 부띠끄 업무를 수행하는 경우도 있는 점, ㉯ 고MM은 나우 I&S;라는 회사의 대표이사로 제직하다가 코스닥 상장기업인 FFFF의 AA 44.84%를 인수하면서 FFFF의 대표이사로 취임한 자로서, 원고는 박GG으로부터 그를 소개받고서 고MM이 코스닥 상장기업의 대표이사로서 인적 네트워크를 동원하여 투자자를 제때에 모집해 줄 것으로 판단하고 용역을 맡긴 점, ㉰ 당시 구조조정대상기업인 AA회사 프로칩스를 인수하는 경우에 높은 투자수익이 예상되는 상태에서 1개 월 여의 단기간 내에 수십 명의 개인투자자로부터 100억 원에 가까운 거액을 유치하여 조합을 결성하여야 하는 원고로서는, 상당한 보수를 지급하고서라도 고MM과 같이 투자를 유치할 수 있는 자로 하여금 투자자를 모집하도록 할 필요가 매우 컸던 점, ㉱ 원고가 조합을 결성하여 투자한 다른 경우에서 투자자 모집업무를 M&A; 부띠끄인 AA회사 이엘코퍼레이션에 위임하고 그 대가로 원고가 투자자로부터 지급받는 용역수수료의 50%를 지급하기로 약정하였고, 원고는 위 약정에 따라 AA회사 이엘코퍼레이션에 3억 2,500만 원을 지급하기도 한 점, ㉲ 앞서 본 바와 같이 원고가 이 사건 용역계약에 따라 고MM으로부터 투자자 모집 용역을 제공받고서 보수를 지급한 이상, 피고의 주장과 같이 용역대금에 대한 FFFF의 회계처리 및 출금 경위가 분명하지 않다거나 FFFF에 대한 외부감사절차에서 FFFF가 이 사건 용역계약에 따라 용역대금을 입금 받은 것이 회사의 목적사업이나 실제 사업의 수행내용에 비추어 볼 때 적절하지 않다고 지적되어 달리 회계처리되었다거나 FFFF의 직원들이 수사기관에서 이 사건 용역의 내용을 알지 뭇하고 이 사건 용역계약이 가공의 거래라고 진술하였다는 사정이 있다고 하여, 이 사건 용역계약 및 이에 따른 보수의 지급에 관하여 달리 볼 수는 없는 점, ㉳ 그 밖에 원고와 고MM 간의 이 사건 용역계약이 가공의 거래라고 볼만한 특별한 사정을 찾을 수 없는 점 등의 사정에 비추어 볼 때, 원고가 고MM과 체결한 이 사건 용역계약에 따라 이 사건 조합의 설립을 위한 조합원 모집 및 투자금유치를 위하여 고MM으로부터 이에 관한 용역을 제공받고서 그 대가로 지급한 보수는 원고의 사업과 관련된 지출에 해당하고, 이 사건 조합의 출자금 규모, 출자자 모집 기간 및 경위, 수익금 및 이익 배당액의 규모, 조합원 모집 및 투자금유치 과정에서의 고MM의 역할 등을 고려하면 그 보수액은 적정하다고 보이므로, 원고가 이 사건 용역계약에 따라 고MM에게 지급한 보수는 법인세법 제19조 제2항이 정하는 손금에 해당한다고 할 것이다.

(B) Therefore, the disposition imposing corporate tax, which the Plaintiff transferred 484,00,000 won to an account in the name of FF on the premise that the instant service contract is a processing transaction, was unlawful.

(3) Whether the notice of change in the amount of income is legal

As seen earlier, insofar as the remuneration that the Plaintiff paid to MF under the instant service agreement constitutes deductible expenses under Article 19(2) of the Corporate Tax Act, the disposition that the Defendant deemed that the service payment that the Plaintiff paid to MF account was unfairly released from the company was unlawful on a different premise is unlawful.

(4) Whether the imposition of value-added tax is legitimate

In this regard, the tax invoice of this case was prepared and delivered to the plaintiff individually, rather than as the representative director of the company, by high-MF, who is the representative director of the FF, by providing union membership recruitment and investment attraction services to the plaintiff. This constitutes a case where the supplier and the de facto supplier under the tax invoice are different, and thus the input tax amount is not deducted pursuant to Articles 16 (1) 1 and 17 (2) 1-2 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006). Thus, this part of the plaintiff's assertion is without merit.

D. Sub-committee

After all, the imposition of corporate tax and notification of income change are illegal, and the imposition of value-added tax is legitimate.

3. Conclusion

Therefore, the plaintiff's claim for the cancellation of the corporate tax imposition and the notice of change in income amount among the claims in this case shall be accepted as well as the remaining parts shall be dismissed as it is without merit. Since the judgment of the court of first instance is in part unfair, the plaintiff's appeal shall be partially accepted, and the decision of the court of first instance shall revoke the part against the plaintiff as to the above cancellation and revoke the disposition of imposition of corporate tax and the notice of change in income amount of each of the dispositions in this case, and the remaining appeal