Whether retirement benefits of this case were excluded from deductible expenses under the payment provision of retirement benefits, and the validity of the notice of change in income amount

If a provision on retirement benefits has been prepared as a temporary measure to distribute the corporation's funds to a specific executive officer by lending the form of retirement benefits, it does not fall under the provision on retirement benefits for executive officers under the law, and even if the representative director has paid the corporate funds out of the company again to the corporation by the above method, if the representative director pays the corporate funds to the corporation, it cannot be deemed

Article 67 of the Corporate Tax Act

Suwon District Court 2016Guhap66811 Notice of Change in Income Amount

Since it cannot be deemed that there was a state of exercising a claim equivalent to the provisional payment, this cannot be deemed that there was a state of exercising a claim.

It is reasonable to deem that the provisional payment was reverted to AA as it was out of the company.

C) The instant advance payment

Facts without dispute, Gap evidence 3, Eul evidence 1, Eul evidence 5-2, and 3 before oral pleadings

According to the purport of the body, the Plaintiff’s purchase price of KRW 1.5 billion between W Partners on December 29, 2009 and W Partners on December 29, 2009

A contract to enter into a contract to acquire the business rights of a consulting business, partnership business, or partnership business

70 million won of the down payment shall be appropriated in the advance payment account for the Plaintiff’s Wpartnership.

fact, the balance of the advance account on the balance sheet as of December 31, 2009 shall be 0

facts described as the source, AA’s amount equivalent to the advance payment of this case from W Partners

을 지급받아 2009. 12. 31. 위 돈을 QQ에너지, RRRR의 AAA에 대한 가지급

The plaintiff was used in paying part of the money, and the plaintiff was after the defendant's tax audit was completed.

on January 9, 2015, recognizing the fact that the advance payment of this case was reclassifiedd as provisional payment to AA on January 9, 2015

section 1.

According to the above facts, the advance payment of this case was not paid to W Partners, but paid to AA

에게 지급된 것이고, AAA은 이를 자신이 QQ에너지, RRRR에 부담하고 있

in order to repay the debt, the plaintiff is deemed to be useful to repay the debt, and the plaintiff is against the business partnership.

As such, it cannot be deemed that there was a state of exercising a claim equivalent to advance payment.

It is reasonable to view that the advance payment was out of the company.

D) Determination on the Plaintiff’s assertion

(1) 원고는 QQ에너지와 RRRR의 AAA에 대한 가지급금이 실제로는 원고가 위

AAA’s provisional payment of this case, since it is a debt to be borne by the Company; and

선급금을 QQ에너지와 RRRR에 지급한 것은 원고의 채무를 변제한 것이어서

사외유출에 해당하지 않는다는 취지로 주장하나 QQ에너지와 RRRR의 AAA

there is no evidence that the provisional payment account for the Corporation has been made by including its obligations against the Plaintiff.

The plaintiff's assertion on this part is without merit.

(2) Next, the Plaintiff shall sell real estate owned by AA in Jeju-do to the Plaintiff.

At the same time, the purchase price of KRW 730,000 is not actually collected, and on the Plaintiff’s account books, AA, U.U.

(AAA's wife) offsets against advance payment claims or short-term loans;

by way of deposit to the Plaintiff, and by reason of the lease to the Plaintiff of the Seocho-dong, Seocho-dong, U.U.S.

the lease deposit amount of KRW 1.5 billion was included in the Plaintiff’s account book, and the amount equivalent to KRW 400 million owned by AA.

Private golf memberships shall be counted as company assets, and on June 30, 2010, cash KRW 400 million and retirement allowances KRW 2 billion;

The money that was released from the company was recovered due to deposit of KRW 50 million with the Plaintiff, while the Plaintiff was against AA.

Short-term loans of KRW 1,578,559,000 shall be appropriated for short-term loans, and as a result, in addition to private funds as of December 31, 2010.

It asserts that there is no leaked money.

However, most of the shares of the plaintiff are owned by the family members of AA and actually represented by the representative.

The intent of AA, the largest shareholder, shall be reflected in the general meeting of shareholders or the board of directors.

As seen earlier, AA appears to be entitled to advance the provisional payment and advance payment of this case.

To the extent that it has been used in the repayment of its obligation by useful means, it constitutes an outflow of company, and AAA

Under the premise of recovery, special circumstances can be recognized to recognize the use of the above funds.

There is no evidence.

In addition, according to the statements in Gap evidence 24-1, 2, and Gap evidence 25, the plaintiff's account books itself

the balance of the provisional payment account for AA as of December 31, 2010, even if applicable, shall be:

1,987,182,111 won and the balance of the accounts for short-term and long-term claims in AA;

-1,894,802,745 won, if each of the above accounts is offset upon the plaintiff's assertion, whether it is against AA.

The balance of the gold Account remains 92,379,366 won. However, the provisional payment account for AA remains.

As seen earlier, the Plaintiff’s actual loan claims against AA reflects the Plaintiff’s actual loan claims.

As of December 31, 2010, at least 0 balance of the provisional payment account for AA as of December 31, 2010.

AAA’s payment of cash or contribution of assets to the Plaintiff, even if that payment or contribution was made by the Plaintiff.

It is not only a repayment without charge, but also a collection of all the money released from AA by the plaintiff.

shall not be deemed to have been dismissed.

Therefore, the plaintiff's assertion on this part is without merit.

(3) In addition, the Plaintiff organized the account books on June 30, 2010 with the instant provisional payment and advance payment.

The plaintiff asserted to the effect that it is not an outflow since it was properly included in the books.

Understanding the provisional payment and advance payment of this case on January 9, 2015, which was after the completion of the Defendant’s tax investigation

Inasmuch as the fact that reclassification was conducted as the provisional payment for us is as seen earlier, this part of this part of the Plaintiff’s note

There is no reason for the funeral.

5) Whether the disposition of income on the part other than the part on the instant dispute is lawful

A) In the case of the part of the disposition of this case excluding the part of the dispute of this case, the plaintiff suffered non-performing loans.

(2) If there is a false asset account or if there is a false accounting staff

The amount paid for expenses and expenses is not equipped with proper evidence, and is actually not provided.

The assertion that it was not an outflow from the company, but the entry and pleading of Gap evidence 3, Eul evidence 1, each of subparagraph 1

According to the purport of the whole, the Plaintiff asserted as to the instant dispute at the time of filing a tax appeal.

In fact, the defendant's tax investigation results of the defendant's tax investigation on the plaintiff "attached Form 1. Table" is as shown in each corresponding entry.

Since it can be recognized that the outflow from the company has been revealed, the dispute part of the disposition of this case in this case

Except for the portion, it is also legitimate.

B) The Plaintiff collected all the amount of money out of the company to AA, and the part of the instant dispute.

It is alleged to the effect that the disposition of income in other portion is unlawful, but December 31, 2010.

this subsection shall not be deemed to have been all withdrawn from the company on the basis of the foregoing paragraph 4)(d)(2).

As such, there is no evidence to prove that the money released from the company in 2011 was recovered, and there is no evidence to prove that it was recovered;

The plaintiff's assertion on this part is without merit.

C) Also, as seen earlier, the fact that the Plaintiff actually paid the amount equivalent to the provisional payment to AA.

Therefore, since money in the provisional payment account is not actually paid to AA, the recognized interest shall not be paid.

The plaintiff's assertion that it should not be recognized is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.

Relevant statutes

/ former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010)

Article 26 (Non-Inclusion of Excessive Expenses in Calculation of Losses)

The amount of losses which is deemed excessive or unjust under the conditions as prescribed by the Presidential Decree from among those under the following subparagraphs:

No national corporation shall be included in the calculation of losses in the calculation of the income amount for each business year.

1. Personnel expenses;

Article 67 (Disposition of Income)

A report on the tax base of corporate tax on income for each business year under the provisions of Article 60 or Article 66;

In determining or revising the corporate tax base under Article 69, it shall be included in the calculation of earnings.

The amount shall be bonus, dividend, and other outflow from the company and internal reserve to the person to whom it belongs as prescribed by Presidential Decree.

disposition.

(1) The former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22812, Mar. 31, 2011)

Article 44 (Non-Inclusion of Retirement Benefits in Calculation of Losses)

(1) Retirement benefits paid by a corporation to its executives or employees (the Guarantee of Workers' Retirement Benefits Act);

The salary pursuant to the provisions of this Article; hereinafter the same shall apply) shall have an executive or employee actually retired (hereafter the same shall apply in this Article)

(2) In the event of actual retirement, only the amount paid shall be included in the loss.

(2) Actual retirement shall fall under any of the following subparagraphs where a corporation has actually paid retirement benefits:

shall include any such cases as the case may be.

1. Where an employee of the corporation takes office as an officer of the corporation;

2. Retirement of an executive or employee of a corporation through the restructuring, merger, division, or transfer of business of the corporation;

at the time of

3. When the retirement benefits are paid after interim settlement under Article 8 (2) of the Guarantee of Workers' Retirement Benefits Act (Interimly paid);

(limited to where retirement benefits are newly calculated by counting the years of service from the settlement of accounts)

4. Where benefits of executives of a corporation are converted to the annual salary system, subsequent retirement benefits shall not be paid;

If the retirement benefits have been settled and paid at that time

5. Long-term care, etc. prescribed by Ordinance of the Ministry of Strategy and Finance pursuant to the articles of incorporation or articles of incorporation;

payment to the officer by interim settlement of the retirement benefits from the time of such interim settlement (new from the time of interim settlement);

- 19-

for the purpose of calculating retirement benefits, counting the period of service;

(4) The retirement benefits paid by a corporation to its executives in excess of any of the following amounts:

The amount shall not be included in the calculation of losses.

1. Where the articles of incorporation stipulate the amount payable as retirement benefits (including retirement consolation benefits) in the articles of incorporation;

Fixed amount

2. Payment to the relevant executive for one year retroactively from the date of his/her retirement, in cases other than those under subparagraph 1.

Han Gross pay [The amount under Article 20 (1) 1 (a) and (b) of the Income Tax Act (the amount under Article 12 of the same Act)

Non-taxable income shall be excluded from deductible expenses pursuant to Article 43, excluding the amount not included in deductible expenses.

(c) The number of years of service calculated by the method prescribed by Ordinance of the Ministry of Strategy and Finance as equivalent to 1/10 of the amount

(b) Amount calculated by multiplying the amount by the number of employees. In such cases, where the relevant executive becomes an executive officer from an employee, no retirement allowance

In this case, the period of service as an employee may be added to the number of years of service.

(5) Paragraph (4) 1 shall include cases where the articles of incorporation stipulate the criteria for calculation of retirement benefits of executives.

Where the articles of incorporation provide for the payment of retirement benefits delegated, such provisions shall prevail.

§ 106. Disposal of income

(1) The amount included in gross income pursuant to Article 67 of the Act shall be disposed of pursuant to the following subparagraphs:

The same shall also apply to national corporations and non-profit foreign corporations.

1. Where it is obvious that the amount included in the calculation of earnings has leaked out of the company, according to the person to whom it reverts:

The dividends, bonuses from the disposal of profits, other income, and other outflow from the company under the item shall be the dividends, the disposal of profits: Provided, That they shall not belong to

When ordering the representative (the officer who is not a minority stockholder, etc. and the special officer under Article 43 (8) with him/her);

1. 10 percent of the total number of outstanding stocks or the total amount of investment of the corporation concerned by aggregating the stocks, etc. owned by a person

30 or more shares and the executive has de facto control over the management of the corporation,

The representative shall be the representative, and if there are two or more representatives, the de facto representative shall be the de facto representative; hereafter the same shall apply in this Article.

(u) shall be deemed to have been reverted to the State.

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

dividends made under this section

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

(c) Other outflow from the company, if the person to whom it belongs is a corporation or an individual operating the business; and

for each business year of a domestic corporation or a domestic place of business of a foreign corporation under the provisions of Article 94 of the Act

Business places of a domestic business of a resident or a nonresident under Article 135 of the Income Tax Act; and

- 20 -

(1) shall be deemed to constitute a

(d) Other income of the person to whom it reverts, in case where the person to whom it reverts is the person.

2. Where the amount included in gross income has not leaked out of the company, it shall be deemed internal reserves;

3. The amounts under the following items shall be the other outflow from the company, notwithstanding subparagraph 1:

(b) The amount included in gross income under Article 24 of the Act;

(c) The amount included in gross income under Article 25 of the Act and Article 136 of the Restriction of Special Taxation Act;

(d) Interest, discount amount, or chassis included in gross income pursuant to Article 28 (1) 1 and 2 of the Act;

Amount equivalent to the withholding tax amount of the following profits:

(e) The amount included in gross income under Article 28 (1) 4 of the Act;

(g) The amount included in gross income under Article 138 of the Restriction of Special Taxation Act;

(h) The amount included in gross income pursuant to the proviso to the part other than the items of subparagraph 1 and paragraph (2) shall revert to the representative;

In case of disposal by deeming that such disposal has been made, the corporation shall pay income tax, etc. on the disposition on behalf of the corporation and shall constitute losses.

inclusion in gross income as it does not collect until the special relationship with the representative is terminated.

Amount

(i) Acts falling under Article 88 (1) 8, 8-2 and 9 (referring to acts falling under subparagraphs 8 and 8-2 of the same paragraph); or

Only for calculation) the amount included in the gross income under the Inheritance Tax and Gift Tax Act to the person to whom such amount belongs;

amount subject to gift tax;

(j) Division of corporate tax on income for each business year of a domestic place of business of a foreign corporation under Article 94 of the Act;

In filing a report on, determining, or correcting the tax standards, the amount included in the gross income shall return to the foreign corporation, etc.

Income belonging to the income and as a result of tax adjustment under Article 4 or 6-2 of the Adjustment of International Taxes Act;

Income whose amount included in the calculation is not returned from a foreign related party;

(2) The delivery of net income on the balance sheet of tax base and corporation determined pursuant to Article 104 (2).

The difference (referring to the amount not deducted as corporate tax amount) shall be the bonus from the disposition of profits to the representative.

shall be the case: Provided, That in the case falling under the proviso of Article 68 of the Act, it shall be the other outflow from the company.

(3) In cases falling under paragraph (2), when any corporation reports a loss, such loss shall be deemed nonexistent.

(4) A domestic corporation¡¯s omission in sales, processing expenses, etc. within the period for report of revision under Article 45 of the Framework

Where the amount of outflow from the company is recovered and reported to be included in gross income due to tax adjustment, the disposition of income is inside company.

reserve: Provided, That in any of the following cases, prior knowledge that a correction is made shall be made:

Where the amount of outflow from the company is included in the calculation, this shall not apply.

- 21 -

1. Where it has received a notice of tax investigation;

2. Where it becomes aware of the commencement of the tax investigation;

3. On-site business trips or confirmation business in order for tax officials to collect taxation data or handle civil petitions.

the State of Home Affairs

4. Where he receives a notice of explanation of taxation data from the chief of tax office having jurisdiction over tax payment.

5. Where the fact of outflow from the company is confirmed in the investigation or trial by an investigative agency;

6. Other cases similar to those referred to in subparagraphs 1 through 5, for which correction is made.

the corporation is deemed to have not been in advance. The end

AAAAA Corporation

Even if such deposit was made to the Company, as described in subsection (b)(3), this shall be made by AA.

It constitutes a payment out of the company because it constitutes a payment of debt to the company.

Therefore, the plaintiff's assertion that exclusion of directors' retirement allowances from deductible expenses and disposal of income is unlawful.

KK National Tax Service

2017.9.19

oly 24, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Details of the disposition;

A. The Plaintiff is a company established on December 10, 1991 and engaged in the LPG wholesale business.

나. 원고는 2009 사업연도 장부에 주식회사 QQ에너지(이하 'QQ에너지'라고 한다)에 대하여 6억 원(이하 '이 사건 가지급금'이라고 한다)을 대여한 것으로 가지급금 계정에 계상하는 한편, 주식회사 WW파트너스(이하 'WW파트너스'라고 한다)에 대하여 선급금 7억 원(이하 '이 사건 선급금'이라고 한다)을 지급한 것으로 선급금 계정에 계상하였다.

C. On June 30, 2010, the Plaintiff paid the retirement benefits of KRW 2.31 billion to A, KRW 2.2 million to the managing director, KRW 2.88 billion to the PP of Executive Director, KRW 2.364 billion to the PP of Executive Director, and each of the above retirement benefits was included in the amount of losses upon filing a corporate tax return for the business year 2010, and withheld and paid the retirement income tax.

D. From June 13, 201 to September 30, 201, the Defendant conducted an integrated investigation into the Plaintiff’s corporate tax for the period from June 13, 201 to September 30, 201. As a result, the Defendant deemed the advance payment and provisional payment in the instant case to be used in deductible expenses and included them in deductible expenses. On the other hand, AA’s calculation of the amount of KRW 1,857,402,00 (hereinafter “AA’s retirement pay”) out of the retirement pay received from the Plaintiff, the Defendant’s calculation of the wrongful calculation of the amount of KRW 1,857,40,00 (hereinafter “AA retirement pay”) shall be deemed to have been used by AA, and the amount of KRW 221,867,490 (hereinafter “executive”) out of the retirement pay paid to OO or PP was identified to have been included in deductible expenses, and the total amount of KRW 1,451,531,3714,297,25A,297

E. Accordingly, on January 2, 2015, the Defendant notified the Plaintiff of the change in the amount of income disposed of as bonus by deeming the amount of each income earner stated in the above paragraph (d) to AA (hereinafter “instant disposition”).

d. d.

F. On October 19, 2015, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on May 26, 2016.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) 원고는 2008년 이전에 EE 가스 등 거래업체로부터 거래대금으로 합계 약 52억 원 상당의 어음을 수령하였으나, 위 어음이 부도가 나는 바람에 손실을 입게 되었다. 그러나 당시 부채비율이 높았던 원고가 위 어음 상당의 매출채권을 대손처리한다면 부채비율이 더 악화되어 금융기관으로부터 대출을 받을 수 없게 되고, 대출금 상환의 압박을 받을 수 있었기에 원고는 위와 같은 부실채권을 원고의 대표이사인 AAA 개인에 대한 가지급금이나 관계회사인 QQ에너지 등에 대한 가지급금 또는 선급금 형태의 허위자산으로 은닉하여 두었다.

2) In addition, around 2009, the Plaintiff sold land owned by the Plaintiff and obtained 12.9 billion won for asset sale, and accordingly, 10.7 billion won for the net income during 2009 business year. Around 2009, the Plaintiff was audited by an accounting firm for the business year 2009 and was refused to conduct an accounting audit due to the above non-performing loans, and was paid an increase in the amount of wages for executive officers by using the proceeds from the sale of the assets as financial resources, and the Plaintiff was to resolve the non-performing loans by paying retirement allowances to the maximum extent possible and then

3) Accordingly, the Plaintiff paid retirement allowances to AA and its officers, and the Plaintiff re-deposited the retirement allowances to the Plaintiff, and then appropriated them from the principal, appointment and short-term loan account to the provisional payment of AA and resolved non-performing loans in the manner of offsetting the Plaintiff’s provisional payment to the AA. Thus, the AA retirement allowances and the retirement allowances of officers are not released from the company, and thus, it cannot be disposed of as a bonus for AA.

4) 또한 이 사건 가지급금 및 선급금이 QQ에너지, 주식회사 RRRR(이하 'RRRR'라고 한다)의 AAA에 대한 가지급금 변제에 사용되었으나, 이는 실질적으로는 원고의 위 회사들에 대한 채무를 변제한 것이므로, 위 가지급금 및 선급금이 사외유출되었다고 볼 수 없다. 설령 2009년, 2010년에 사외유출이 발생하였다고 하더라도 AAA은 2010년에 원고에게 부동산 매각대금 7억 3,000만 원, 현금 4억 원, 골프장 개인회원권 4억 원을 법인 자산으로 계상하는 등 합계 15억 3,000만 원을 출연하였고, AAA 퇴직금, 임원 퇴직금 중 합계 20억 5,000만 원이 다시 원고에게 입금되었으며, 원고는 2010. 6.경 장부정리를 하면서 AAA에 대한 단기대여금 계정으로 1,578,559,000원을 계상하였는바, 위 각 금액의 합계액이 2009년 사외유출 금액 1,451,531,742원과 2010년 사외유출금액 2,350,633,875원을 초과하므로 사외유출된 돈은 모두 회수되었다.

5) Of the instant disposition, in the case of provisional payment, cash, entertainment expenses, amount of road usage fees, insurance money, entertainment expenses, etc. related to the payment of Telecommunication tourist hotel pay, which is the part other than the part concerning AA retirement allowance, officers’ retirement allowance, this case’s provisional payment and advance payment (hereinafter “instant dispute portion”), it is merely a part made out of the Plaintiff’s false asset account to conceal the said non-performing loan, and thus, it is not actually paid to AA which is the representative director, or it is not sufficient evidence. The above amount is not deemed to have been out of the company since all of the instant disposition was deposited into the Plaintiff’s account before June 30, 2010, and was properly appropriated in the repayment process or account book. In addition, as long as the amount paid by the representative director is not actually paid to AA, it shall not be deemed as a bonus for AA as a disposition of income.

B. Relevant statutes

Attached Form 2. The entry is as shown in Annex 2.

C. Determination

1) According to the purport of Gap evidence Nos. 18, Eul evidence Nos. 24-1, Eul evidence Nos. 1, 1, and 6 as to whether the plaintiff concealed the bad debts in the accounts of AA, and the purport of the whole arguments and arguments, the plaintiff's account balance of the accounts, such as provisional payments, for the period of settlement of accounts for the business year 2009, is zero grounds. The plaintiff and the defendant investigated the details of the deposit and withdrawal of the accounts of AA in the business year 2009, and confirmed that the amount paid by the plaintiff to AA in the business year 2009 was 867 million won, and the plaintiff prepared a president of the provisional payment account of AA in the business year 2010, and appropriated KRW 15,489,919 as of Jan. 1, 2010 for -15, 2060, 360, 460, 206, 360, 360, 460.

According to the above facts, the plaintiff's provisional payment account for AA appears to have been actually appropriated from the business year 2010, and even if it was previously appropriated in the provisional payment account for AA, even if it was appropriated in the amount in the provisional payment account for AA, the balance in the provisional payment account is deemed to have been zero won in the course of the settlement of accounts at the time of the settlement of accounts. The plaintiff's assertion that the plaintiff used the provisional payment account for AA to conceal non-performing claims related to the non-performing bills is difficult to believe.

2) Whether the disposition of income against AA retirement pay is legitimate

A) Legal principles

Article 26 subparagraph 1 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010) provides that personnel expenses shall not be included in deductible expenses in calculating the amount of income of a domestic corporation for each business year, as prescribed by Presidential Decree. Article 44 (4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22812, Mar. 31, 201; hereinafter referred to as the "former Enforcement Decree of the Corporate Tax Act") provides that "the amount exceeding any of the following amounts shall not be included in deductible expenses." Article 26 subparagraph 1 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30; hereinafter referred to as "the former Enforcement Decree of the Corporate Tax Act") provides that "where the amount to be paid as retirement benefits (including retirement benefits, etc.) is determined by articles of incorporation, the amount prescribed in the articles of incorporation shall be included in deductible expenses; where subparagraph 2 of subparagraph 1 provides that "the retirement benefits shall be paid separately."

In light of the language and text of the aforementioned provisions or the legislative intent to prevent an unfair reduction of corporate income, etc., the retirement benefits paid to an officer pursuant to the amount of retirement benefits to be paid to an officer or the articles of incorporation or the rules on payment of retirement benefits delegated to him/her (hereinafter collectively referred to as “retirement benefits regulations”) should be included in the calculation of losses. However, if the provisions on retirement benefits do not intend to pay retirement benefits for the purpose of providing labor to a specific officer, but have been established temporarily as a means of allocating the corporation’s funds to a specific officer, such provision does not constitute retirement benefits under Article 44(4)1 or (5) of the former Enforcement Decree of the Corporate Tax Act. Therefore, the provision on retirement benefits does not constitute retirement benefits under Article 14(4)1 or (5) of the former Enforcement Decree of the Corporate Tax Act. Therefore, if an officer’s provision on retirement benefits is established or amended with a position that may affect the enactment or revision thereof, or with a close relationship therewith, and if the retirement benefits payment to an officer is obviously more difficult than the amount of retirement benefits under Article 25(2).

(1) Facts of recognition

According to the facts without dispute, Gap evidence 3, 6 through 8, 18, 9-1, 24-2, Eul evidence 1, 3, 6-1, and 6-1, witness witness evidence and the purport of the whole testimony and pleading of HH, the following facts may be acknowledged:

① A certified public accountant of Y accounting corporation, HH, for the Plaintiff to undergo an accounting audit for the business year 2010, raised the Plaintiff’s wages to the Plaintiff’s officers retroactively from January 2010, and demanded the Plaintiff to settle the non-performing loans by way of making interim settlement of retirement allowances and depositing them into the company again.

② On April 1, 2010, the Plaintiff held a temporary general meeting of shareholders to change the scope of remuneration for directors and auditors, retirement allowances, and business years of the Plaintiff’s articles of incorporation to “the limit of remuneration for directors and auditors” to “the payment of retirement allowances for directors and auditors shall be determined by a resolution of the general meeting of shareholders, and the payment of retirement allowances for directors and auditors shall be made in accordance with the payment rules of retirement allowances for directors and auditors.” Meanwhile, the Plaintiff

③ On June 24, 2010, the Plaintiff increased the benefits of 2030,000 won from January 24, 2010 to May 2010, to KRW 70,089,220,00,000,000,000,000 (the Plaintiff’s previous benefits, which was re-calculated by the Defendant, shall be KRW 8,014,00 per month), and paid the amount of retirement pay to A on June 30, 2010, pursuant to the above provision on the payment of retirement allowances for officers, on the ground of the conversion of the annual salary system.

④ On June 30, 2010, AA deposited total of KRW 2.45 billion into the Plaintiff’s bank account. On the same day, the Plaintiff deposited the said money into the Plaintiff’s bank account. The Plaintiff accounts for the principal, forest and paper short-term bond account for AA as representative’s income.

(2) Whether the AA retirement pay should be excluded from deductible expenses

The following circumstances revealed by the above facts, i.e., the Plaintiff: (a) held a temporary general meeting of shareholders to pay AA retirement allowances to the representative director and directors; (b) most of the Plaintiff’s shares were held by the family members of AA, and thus, the intent of AAA, a representative director and the largest shareholder, appears to have been reflected in the general meeting of shareholders or the board of directors’ intent; (c) the payment rate of retirement allowances to the representative director under the above provision on the payment of retirement allowances for the officers was increased rapidly more than twice; and (d) the fact that the payment rate of retirement allowances to the representative director was set as six times as much as the retirement allowances was set as much as possible; (e) the above provision on the payment of retirement allowances for the officers was merely a temporary measure to distribute the corporation’s funds to the officers by lending the type of retirement benefits, not for the payment of retirement allowances for the work of the retirement allowances, and thus, the above provision on the payment of retirement allowances for the officers was merely a part of the amount calculated under Article 44(4)2 of the former Corporate Tax Act.

(3) Whether the AA retirement pay was released from the company

As seen earlier, the Plaintiff’s provisional payment account for AA reflects the amount of the provisional payment actually paid to the Plaintiff, not to conceal the Plaintiff’s bad debts, and even according to the Plaintiff’s assertion, the Plaintiff deposited retirement allowances received by AA into the company and disposed of them by offsetting with the provisional payment account for AA while accounts as provisional payment. Thus, this constitutes the repayment of the Plaintiff’s debt equivalent to the provisional payment amount actually borne by the Plaintiff (the Plaintiff’s assertion that the provisional payment account for AA was appropriated to dispose of the existing non-performing assets, such as claims for recovery, etc. on August 6, 2017, on the premise that the provisional payment account for AA was actually paid from the preparatory document for the Plaintiff on June 6, 2017, it is difficult to accept the remainder of the non-performing assets under the premise that the previous assertion is inconsistent with its purport and that it is “Appropriation for resolution of non-performing assets” as seen earlier, and it is difficult to accept the remainder of the provisional payment amount exceeding 260 million won.

Therefore, it is reasonable to view that AA retirement pay was out of the company.

(4) The theory of lawsuit

Therefore, the plaintiff's assertion that the inclusion of the AA retirement allowance in deductible expenses and the disposition of income is unlawful is without merit.

3) Whether the disposition of income to an officer retirement allowance is legitimate

According to the facts without dispute, Gap evidence Nos. 9 and Eul evidence Nos. 4 and the purport of the whole pleadings, the plaintiff paid 201,590,190, and 221,867,490 won, total of 20,277,300 won to PP, and 221,867,490 won to PP, with retirement pay after deducting the plaintiff's income tax on June 30, 2016. The above money was deposited into the accounts of AA on the same day, and the AA deposited the above money into the plaintiff's account with his own retirement pay (2.45,00 million won was deposited into the plaintiff's account. The sum of AAA's retirement pay and the retirement pay paid to the non-party A and executive officers. Thus, it appears that the balance of AA's retirement pay remains in the account of the plaintiff's own retirement pay (2,515,790,190 won was paid to the non-party A and executive officers).

According to the above facts, the retirement allowances for executive officers are not retirement allowances paid to the OO or PP, an executive officer, but the money paid to AA, and thus should be excluded from deductible expenses, and there is no such money.

4) Whether the disposal of the instant provisional payments and advance payments is legitimate

A) Legal principles

Unless there are special circumstances, the act of the representative director, etc., who is the actual manager of a corporation uses the corporation's funds on the premise of recovery at the beginning, and thus, it constitutes an outflow from the company as an expenditure itself. Here, special circumstances, which cannot be viewed as not premised on recovery from the utilization time, should be determined individually and specifically by comprehensively taking into account all the circumstances, such as where the intent of the representative director, etc. is identical to the intent of the corporation or where it is difficult to see that the economic interests of the corporation with the representative director, etc. are in fact identical through the actual status of the corporation, such as the representative director, etc., who is the principal manager of the embezzlement, and the degree of control

The circumstances should be proved by the legal entity asserting such circumstances (Supreme Court Decision 2007Du23323 Decided November 13, 2008).

B) In the case of the instant provisional payment

다툼 없는 사실, 갑 제3호증, 을 제1호증, 을 제5호증의 1의 각 기재 및 변론 전체의 취지에 의하면, 원고는 2009. 1. 14. QQ에너지에 대한 가지급금 계정에 6억 원을 계상하면서 실제로는 AAA에게 6억 원을 지급한 사실, AAA은 2009. 12. 31. 위 돈을 QQ에너지의 AAA에 대한 가지급금 1,123,148,238원과 RRRR의 AAA에 대한 가지급금 1,190,282,574원 중 일부를 변제하는 데 사용한 사실, QQ에너지의 장부에는 원고에 대한 6억 원의 채무가 계상되어 있지 않은 사실, 원고는 피고의 세무조사가 종결된 이후인 2015. 1. 9. 이 사건 가지급금을 AAA에 대한 가지급금으로 재분류한 사실을 인정할 수 있다.

위 인정사실에 의하면, 이 사건 가지급금은 QQ에너지에게 지급된 것이 아니라 이해용에게 지급된 것이고, AAA은 이를 자신이 QQ에너지, RRRR에 부담하고 있는 채무를 변제하기 위하여 유용한 것으로 보이며, 원고가 QQ에너지에 대하여 이