Whether a corporation can be deemed the amount of income of the corporation when it received a third-party corporation without receiving a sales incentive directly from the seller.

Even if a corporation is in a position to receive sales incentives from its seller but the representative director of the corporation received them through a third-party corporation representing the corporation, it can be deemed the amount of the rebates revenue of the corporation.

Article 57 of the Corporate Tax Act

2017Guhap72799 Revocation of Disposition of Imposing corporate tax

○○ Incorporated Company

○ Head of tax office

on January 23, 2018

on January 13, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's corporate tax for the business year of 2011 against the plaintiff on October 19, 2016 ***,***,***, corporate tax for the business year of 2012***,**,**,**,**, corporate tax for the business year of 2013**,***,***,***, corporate tax for the business year of 2014**** each disposition of imposition (including additional tax) of the won.

1. Details of the disposition;

가. 원고는 2000. 4. 19. 설립되어 서울 @@@구에서 자동차 대여업을 영위하는 법인으로, 2017년 기준 자동차 18,000여대를 보유하고 있다.

나. 피고는 2016. 8. 26.부터 2016. 9. 30.까지 원고의 2010~2014 사업연도에 대한 세무조사를 실시한 결과, 원고가 10여 개의 자동차 판매대리점들(이하 '판매대리점들'이라 한다)로부터 원고의 자동차 구입에 대한 대가로 지급받아야 할 판매장려금4,509,303,370원(2010년***,***,***원, 2011년 *,***,***,***원, 2012년 *, ***,***,***원, 2013년***,***,***원, 2014년***,***,***원의 합계, 이하 '쟁점금액'이라 한다)을 원고의 특수관계인인 주식회사 AA(이하 'AA'라고 한다)에게 대신 지급받도록 하였고, 다만 쟁점금액 중 *,***,***,***원('쟁점지급금'이라 한다)은 원고의 임직원인 ###, $$$ 등에게 급여로 지급되었다고 보았다.

C. Accordingly, on October 19, 2016, the Defendant corrected and notified the Plaintiff as follows 2010 to 2014 corporate tax (including additional tax) *, *****,************************’s correction and notification of the amount of issue in accordance with Article 15 of the Corporate Tax Act on the ground that the amount of issue was paid to the Plaintiff following the Plaintiff’s purchase of the Plaintiff’s automobile, and the amount of issue payment was paid to the Plaintiff’s employees and employees. However, on the ground that the above act constitutes a case where the Plaintiff was evaded tax by fraud or other unlawful means.

D. On the other hand, with respect to A on October 6, 2016, the Defendant notified the following: (a) on the other hand, on the part of the Plaintiff, that the key amount reported by AA to the Plaintiff’s own sales is the Plaintiff’s profit; (b) excluded the Plaintiff from deductible expenses; and (c) included the key amount reported by AA as the Plaintiff’s business income in deductible expenses for AA; and (b) included the difference between the key amount and the key amount paid; (c)*********** under Article 67 of the Corporate Tax Act and Article 106(1)1(c) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 26981, Feb. 12, 2016; hereinafter the same) in deductible expenses; and (d) included AA’s gross income in the corporate tax.

E. The Plaintiff dissatisfied with the disposition of the above paragraph (c) and filed an appeal with the Tax Tribunal. The Tax Tribunal did not err in the light of the substance over form principle by deeming the subject of the key amount to be attributed to the Plaintiff, but the Plaintiff’s act of receiving sales incentives bypassing or indirectly through AA appears to be to legally receive sales incentives from sales agencies, and the Plaintiff’s act of receiving sales incentives bypassing or indirectly seems to be intended to legally receive sales incentives from sales agencies. The Plaintiff’s act cannot be seen as fraudulent or other unlawful act, and thus, is subject to the exclusion period of imposition and the general underreporting tax (including additional tax) ********** cancellation of the disposition of imposition of the KRW 2011-2014, the corporate tax for the business year is corrected by applying the underreported general penalty tax, and the remaining appeal is dismissed. The remaining details of the disposition are as follows (hereinafter referred to as “instant disposition”).

F. During the proceeding of this case, even if there is appearance such as providing information about the Plaintiff’s purchase of automobiles to the sales agencies, the Defendant added the reason for preliminary disposition that “A” provided information about the Plaintiff’s purchase of automobiles to the sales agencies, and the key amount should be attributed to the Plaintiff according to the substance over form principle under Article 14 of the Framework Act on National Taxes, and even if A recognizes the substance of the service provided to the sales agencies, this is premised on the Plaintiff’s free provision of automobile purchase information (service) to AA to a related party. Therefore, the key amount equivalent to the market price of the said information should be included in the Plaintiff’

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 5 through 7, Eul evidence 1 to 3, 10 to 13 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

가) 판매대리점들은 자동차 제조사들의 단속으로 인하여 원고에게 직접 판매장려금을 지급할 수 없는 상황에서 원고의 대표이사 BB에게 판매수당을 비공식적으로 제공하고자 하였으나, BB는 개인적으로 판매수당을 수령하고 신고하지 않으면 세법적으로 문제가 될 수 있다는 생각이 들어, 세법에 맞게 판매수당을 수령하고 적법한 납세의무를 이행하기 위하여 AA를 설립하였다. 그리고 BB는 원고의 대표이사로서가 아니라 AA의 감사 지위에서, ###, $$$ 등도 원고의 임직원 지위와 무관하게 BB를 돕는 사업자의 지위에서 판매대리점들에 원고의 차량구매정보를 제공하였기 때문에, 그와 같은 용역제공의 대가로 BB가 쟁점금액을 지급받은 것이다. 따라서 쟁점금액이 원고의 순자산을 증가시키는 거래로 발생한 수익이라거나, 당연히 원고에게 귀속되어야 할 금원이라고 볼 수 없으므로, BB의 위와 같은 역할을 무시하고 차량구매정보의 제공 및 쟁점금액의 수령 주체를 원고로 보아 이루어진 이 사건 처분의 당초 처분사유는 위법하다. 또한 BB가 이미 쟁점금액에 관한 법인세를 모두 납부한 이상, 쟁점금액에 관하여 원고에게 재차 과세하는 것은 이중과세에 해당한다는 점에서도 이 사건 처분은 위법하다.

B) The grounds for the Plaintiff’s conjunctive disposition are not allowed to add, and even if the addition is allowed, AA is an independent corporation separate from the Plaintiff for the purpose of receiving the outstanding amount of damages caused by the automatic manufacturer’s checks, not the purpose of tax avoidance, and even if the addition is allowed, in light of the fact that the remainder of the outstanding amount, excluding the outstanding amount, belongs to AA, and the corporate tax was paid by AA, and the entity of AA exists, and that AA actually provided the services called “the provision of vehicle purchase information to sales agencies”, the key amount cannot be deemed as the Plaintiff, and thus, the principle of substantial taxation cannot be the basis for the instant disposition. Moreover, AA’s provision of the Plaintiff’s vehicle purchase planning information to sales agencies constitutes the supply of the services, but it cannot be deemed as the supply of services with the Plaintiff’s notification of its vehicle purchase plan to A, and it cannot be deemed that the Plaintiff’s provision of services is unlawful on the premise that the tax amount reduced by attributable to A, not the Plaintiff, based on the difference in the annual rate of tax rate decreased between the Plaintiff and the Defendant’s related parties.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff, while running a car rental business, purchased a number of automobiles each year, and received money as sales incentives from sales agencies. Of these, the Plaintiff’s representative director BB, on June 11, 2010, established AA with the intent to receive sales incentives that the Plaintiff received by the Plaintiff, as a shareholder holding 50% shares for each of the 50% shares, and thereafter, had sales agencies pay AA sales incentives to the Plaintiff for the automobile purchased by the Plaintiff from around that time to 2014. The location of the AA’s business is the same as the Plaintiff, AA’s capital is KRW 10 million, and there is no employee. In addition, AA’s representative was changed to CC, and BB continued to be in the status of *C’s auditor.

2) Sales agencies paid to A the key amount of sales incentives for automobiles sold to the Plaintiff by 2014, and AA received the key amount from sales agencies, on the premise that the said amount constitutes the price for providing AA with the service called 'vehicle purchase information' to the sales agencies, the supplier, 'A', 'sales agencies', 'goods', and 'business allowances' were issued and paid value-added tax was paid. However, on October 6, 2016, the Defendant notified the results of the tax investigation to A in relation to the instant disposition, and notified the Plaintiff of the decision of refund of value-added tax returned and paid on the said tax invoice by the Plaintiff on the grounds that the amount of issue was only the sales incentives received by the Plaintiff, but not included in the sales amount of AA.

3) BB, prior to the instant disposition, made with the tax official on July 1, 2016, and on the background leading up to the establishment and operating status of BB during the process of questioning of the suspected criminal facts on August 10, 2016, as follows.

○ The answer letter dated 1, 2016

AA was established in order to legally deal with rebates which he had been legally entitled to receive non-official rebates from sales agencies. The representativeCC of AA is a student as his own child, the immediately preceding representative EE did not perform his duties as his wife and did not work as two or more AA, and the principal performed his duties. AA may be regarded as a corporation established to formally deal with sales allowances, and the actual representative shall be the principal.

The key issue amount was determined to have no reason to belong to the Plaintiff by receiving rebates from a sales agency as an individual qualification. There is no contract or agreement related to rebates, and it is reasonable to apply the same type of loan to the Plaintiff only because it is different from the head office. However, even among businesses with a business structure similar to the Plaintiff, the amount of rebates is the only fact of the Plaintiff.

If it is confirmed that rebates has been paid to a consumer who has made a direct transaction by a sales agency, it is problematic, but since the sales allowance paid to the intermediate business is not a problem, AA has been received as a transfer to the intermediate business. During the investigation period, the allowances received from the sales agency are almost 100% of the AA revenue, and the major expenses of AA are not larger than the amount of personnel expenses, entertainment expenses, handphones, etc.

From the end of 2014, the Act on Fair Transactions in Agency Transactions, which was passed at the end of 2015, has been discussed since the end of 2014, so it would not be an issue from that time.

두***카가 사업소득을 지급한 $$$, ***, *** 중 ***, ***은 $$$의 가족이고, ###,***, *** 중 ***, ***은 ###의 친인척이으로서, $$$, ###의 소득금액을 분산하여 처리한 것이다. FF는 본인의 누나이고, GG은 본인이 개인적으로 지급할 금전이 있어 사업소득 형태로 지급했다.

$$$은 원고의 총무팀장, ###은 원고의 영업팀장으로서, AA의 주주나 직원은 아니지만 차량구매와 수당을 지급받는 데 있어 상당부분 핵심적인 역할을 하므로 지급한 것이다. 사업내용적으로 원고와 연결되어 생긴 수입금액으로 원고에서 상당 역할을 하고 있는 사람에게 일정 부분 나눈 것이다.

At present, AA shall have revenue related to insurance agency.

4) AA is a motor vehicle information provision business and insurance agency business, and from around 2015, the Plaintiff started to receive sales incentives again, the main business is insurance agency business. From 2010 to 2014, sales revenue in the business year 2014 reported to the Defendant by AA is a major issue amount. Of the key amount received by AA as seen earlier, the remainder excluding the amount paid to the Plaintiff’s officers and employees is not returned to the Plaintiff, but still remains the assets of AA.

5) On August 16, 2016, the Defendant was examined by an agency (OO) and an OOO agency (OOO) on the fact of transactions, and the content thereof are as follows.

OOOOO agency (OO)

In accordance with corporate policy, the BB representative was paid to AA as an auditor while he/she was not able to pay fees to the plaintiff (a level sales violation).

AA Auditor B has continued to be introduced from the time of OOA's employment to the old-level relationship. As the president continued to introduce OO's agency, there has been no evidence, etc. that has been separate from each other in terms of mutual trust.

OOOOO agency (OO)

At the time of the sale of the vehicle to the plaintiff, the B B auditor of the A was acting as a broker.

At the time of the sale of the vehicle to the plaintiff, there is no relevant documentary evidence about how AA plays a role in the sale of the vehicle, and it made a verbal promise to each other with BB audit.

[Reasons for Recognition] Unsatisfy, Gap evidence 4, 8 to 13, Eul evidence 3

Each entry of evidence 13 (including each number), the purport of the whole pleadings

D. Determination

1) In full view of the facts acknowledged earlier, the Plaintiff cannot be deemed to play any role in the process of purchasing a motor vehicle from a sales agency, or to form a legal relationship as a party to a motor vehicle purchase contract. If so, even if the key amount was directly transferred from a sales agency to B, the substance of the legal relationship regarding the payment of the key amount is to designate a sales incentive as AA, which was scheduled to be paid under a motor vehicle purchase contract directly concluded by the Plaintiff with the sales agency, and the sales agency transfers the key amount to the account of A according to such designation. As such, with regard to the key amount reverted to A among the key amount, the payment of the sales incentive to the Plaintiff and the payment of the amount reverted to A shall be deemed to have been made at the same time in the form of reduction. As such, AA cannot be deemed to have received the key amount in consideration of the provision of the purchase information to the sales agency during the Plaintiff’s automobile purchase process. *

① 원고 및 원고의 대표이사 BB는 이 사건 처분 이전의 세무조사 과정에서부터 이 사건 소송과정에 이르기까지도 AA를 설립한 목적은 원고의 자동차 구매에 따라 원고 또는 BB가 판매대리점들로부터 지급받게 되는 판매장려금을 귀속시키기 위한 목적이었음을 분명히 하고 있고, AA가 원고의 자동차 구매계약 과정에서 어떠한 실질적인 역할을 하기 위하여 설립되었다고 볼 만한 사정이 없다. 원고와 AA 모두 그 실질적인 의사결정의 주체는 BB였고, BB의 자동차 구매 의사표시에 따른 후속절차인 계약의 체결과 이행 역시 원고의 직원인 ###, $$$ 등이 수행하였을 뿐 AA는 그와 같은 업무를 수행하기 위한 직원도 두고 있지 않았다.

② Since B provided the Plaintiff’s automobile purchase information not as the Plaintiff’s representative director, but as an auditor of AA, the above consideration for the provision of the above service should belong to AA rather than the Plaintiff. However, considering that BB becomes aware of the Plaintiff’s representative director’s information on automobile purchase, it is natural to deem BB’s act of expressing the Plaintiff’s automobile purchase intent to a sales agency as the Plaintiff’s representative director. On the contrary, the Defendant’s auditor’s assertion that BB obtained information on the Plaintiff’s automobile purchase from BB, the representative director of the Plaintiff’s company, and provided the sales agency with the information is deemed to have reconvened the transactional act in a subjective and exceptional manner by dividing the Plaintiff’s personality chain into two.

③ With respect to what is the sales brokerage activity performed by the Plaintiff, if the auditor BB provided the Plaintiff’s vehicle purchase information to the sales agencies by telephone or text, the sales agencies in receipt of such contact shall consult with the Plaintiff’s vehicle purchase manager, and eventually, the act performed by BB is limited to informing the sales agencies of the vehicle purchase intent by telephone or text. There is no reason for the Plaintiff to engage in the act of telephone or text indicating the Plaintiff’s intent to purchase the vehicle even when paying a large amount of issue to AA. If it was the main purpose of avoiding the control of the automobile manufacturer’s inspection, it is possible for the Plaintiff to return the sales incentive account to the Plaintiff’s account under the name of a third party, such as AA, and to report the Plaintiff’s corporate tax under the Plaintiff’s name, and the key amount should not be attributed to the third party.

④ On the premise that a person provides services as sales intermediary activities through the provision of vehicle information, AA issued a tax invoice with the price at issue to sales agencies in the name of AA, but the Defendant: (a) deemed that there was no provision of such services by AA; and (b) rendered a decision to refund value-added tax returned and paid by the Plaintiff on the said tax invoice by deeming that BB did not provide such services; and (c) insofar as BB expressed its intent to purchase vehicles by telephone or text as it is deemed the act of the Plaintiff’s representative director, not a party to the said contract, the said AA cannot be deemed as a party to the said contract; and therefore, the issuance of the tax invoice alone does not result in the substance or appearance of the legal act of

2) If the above issue amount once reverted to the Plaintiff and the remaining amount after deducting the key amount from the key amount is paid to AA again, the disposition of this case is legitimate where the corporate tax was imposed on the Plaintiff by including the key amount paid to the Plaintiff’s officers and employees in deductible expenses, as the amount of profit arising from the transaction that increases the Plaintiff’s net assets.

In addition, the defendant's payment to AA out of the controversial amount *,*****,****,* won (c) is deemed to have been released from the plaintiff and reverted to AA, and the corporate tax under Article 67 of the Corporate Tax Act and Article 106 (1) 1 (c) of the Enforcement Decree of the Corporate Tax Act shall be imposed on AA with respect to the profit accruing from the receipt of the above assets, and the initial amount of the tax return and payment of corporate tax shall be included in the gross income and excluded from the deductible income. The disposition of this case was made on the issue amount received by the plaintiff from the sales agency, and the above corporate tax imposed on AA was separated from the plaintiff and reverted to *********,*,**,*****, and the two are related to the

3) Meanwhile, the substance over form principle applies to cases where the ownership of income, profit, property, act, or transaction is merely nominal, and there is another person to whom it actually belongs. As seen earlier, unless there is any external appearance that can be seen as a party to a motor vehicle purchase contract concluded and implemented between the Plaintiff and the sales agency, there is no circumstance to deem that there was a disparity between the name and substance in the above legal relationship. Furthermore, as alleged by the Plaintiff, considering that BB as the Plaintiff’s representative director is informed of the vehicle purchase information to the sales agency by telephone or text, and considering that there is a appearance of a legal act that can be deemed that AA provided a sales agency with a service as a sales agent, the source of the vehicle purchase information is the Plaintiff as seen earlier, and the intention of the sales agency is also to pay the amount at issue to the Plaintiff. From the standpoint of the Plaintiff, there is no reasonable reason to inform the sales agency of the automobile purchase information through AA and to receive the purchase price from the sales agent for the purpose of avoiding the purchase price of the Plaintiff * in the name of the sales agent, but to receive the purchase price from the Plaintiff.

3. Conclusion

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