Whether the cost of processing expenses is recognized

It is reasonable to see that the processing expenses are the processing expenses because there is no record of the book on the processing expenses and documentary evidence on the actual expenses.

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

1. Of the instant lawsuit, the suit against the Plaintiff on June 16, 1992 shall be dismissed in the attached Form 2, 1988, 1988, 1989, and 190 business year A, and part of the claim for cancellation of the disposition. 2. The Defendant’s corporate tax, defense detailed and disposition in attached Form 1, 1989, as shown in attached Table 1, and corporate tax, defense detailed and disposition in 1990, as well as corporate tax, defense detailed and disposition in 1990, respectively. 3. 4. The remaining claim of the Plaintiff is dismissed on March 4, 190, and the lawsuit cost shall be borne by the Plaintiff and the remainder by the Defendant respectively.

1. Details of the imposition;

The following facts are not disputed between the parties, or each of the statements in Gap evidence 1-1-3, Gap evidence 2-1 through 3, Eul evidence 1-1-3, Eul evidence 1-3, and Eul evidence 8, respectively, can be acknowledged by integrating the whole purport of the pleading, and no other counter-proof is otherwise asserted.

가. 원고(원고의 상호는 ㅇㅇ개발주식회사에서 ㅇㅇ토건주식회사로, 다시 ㅇㅇ토건주식회사로 변경되었다가 1993. 11. 8. 현재의 상호로 변경 등기됨)는 토공사업 등을 목적으로 하는 회사로서 매년 1. 1.부터 12. 31.까지를 사업연도로 하고 있다.

(b) In filing a return of corporate tax, etc. from the year 198 to the year 190, the Plaintiff: (a) calculated the tax base amount by 1,006,690,836 won as stated in the settlement of accounts for the business year 198; (b) calculated the tax base amount as KRW 73,88,666 by appropriating it to the construction cost as stated in the settlement of accounts for the business year 198; and (c) voluntarily filing a return of KRW 17,16,59 of corporate tax for the business year 1988; and (b) calculated the tax base amount as KRW 4,243,319 of the defense tax for the business year 1989 to 1991; and (d) calculated the tax base amount as KRW 9,538,00,000 for the business year 1989 to the construction cost; and (e) calculated the tax base amount as KRW 158,695,9495,9497,9495,9495,945,949494,94,97

다. 이에 대하여 피고(이 사건 관할이 ㅇㅇ세무서에서 ㅇㅇ세무서로 변경됨으로써 피고가 ㅇㅇ세무서장으로 경정되었다)는, ① 원고가 1988사업연도에 ㅇㅇ 등 5개 공사현장에서 토목공사를 하고 지급하였다고 결산서에 기재한 위 장비임차료 금 1,006,690,836원 중 금 61,778,731원은 별지(2) 1988사업연도 현장별 가공(架空)경비내역표 기재와 같이 공사비대장에 기재되지 않아 증빙서류가 없거나 장부와 일치하지 않는 가공의 경비라는 이유로 이를 손금불산입하는 등으로 1988사업연도 법인세 과세표준액을 금 152,851,306원으로 경정한 다음, 가산세 등을 부가하여 법인세액을 금 56,851,327원으로, 방위세액을 금 9,928,629원으로 각 경정하고, ② 원고가 1989사업연도 내지 1991사업연도에 ㅇㅇ오피스텔 등 14개 공사현장에서 덤프트럭을 임차하고 그 차량임차료로 지급하였다는 금 9,538,000,000원 중 1989사업연도의 금 5,373,250원과 1990사업연도의 금 1,191,866,919원은 세금계산서의 내용이 사실과 다른 가공의 경비라는 이유로 역시 이를 손금불산입하는 등으로 1989사업연도 법인세 과세표준액을 금 182,107,348원으로 경정한 다음, 가산세 등을 부가하여 법인세액을 금 50,612,538원으로, 방위세액을 금 12,239,878원으로 각 경정하고, 1990사업연도 법인세 과세표준액을 금 1,762,991,542원으로 경정한 다음, 가산세 등을 부가하여 법인세액을 금 651,327,591원으로, 방위세액을 금 153,795,148원으로 각 경정하였다. 그리고, 이에 따라 원고가 이미 납부한 위 각 법인세 및 방위세액을 공제하여 1992. 4. 1.자로 원고에게 별지(1) 과세내역표 순번 1 기재와 같이 1988사업연도 내지 1990사업연도의 법인세 및 방위세를 부과하는 처분(이하 이 사건 법인세부과처분이라 한다)을 하였다.

D. In addition, in revising each of the above tax base amounts of corporate tax, the defendant sent the above amount to the plaintiff 80,517,971, 199, 25, 250 won, and 94-2 (1) 1 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994), considering that the above processing expenses, etc., which were included in the gross income, were all out of the company and were reverted to the non-party Kim - who is the representative director of the plaintiff company, the above amount was recognized as bonus to the above Kim - and paid the above amount to the plaintiff 9-1, 1988, including the above amount of 80,517, 971, 250 won, 25, 2500 won, 5,04, 194, 1975, and 196, 196, and 196,000.

2. The plaintiff's assertion

A. The plaintiff asserts that the corporate tax imposition disposition of this case is unlawful on the following grounds.

(1) Claim on the part of the equipment rent for the business year 1988 of the instant case

The plaintiff asserts that the defendant calculated the difference between the rent payment on the settlement of accounts for the business year 198 and the amount on the settlement of accounts for each field as a processing equipment rental fee, the above amount is actually paid as the construction cost as follows: Provided, That it is not the processing cost because it was corrected and adjusted later or that it was corrected at the time of the settlement of accounts.

① ㅇㅇ 현장의 금 2,037,800원

위 금원중 금 1,650,000원은 원고가 1988. 1. 16. 홍ㅇㅇ에게 지급한 선급금 3,000,000원의 일부로서, 실제로 공사비로 지급되었던 것이나 그 즉시 공사원가로 장부에 기재하지 아니하였다가 같은 해 12. 31. 선급금에서 공사원가로 수정하여 장부에 기재된 것이다. 그리고 나머지 금 387,800원은 이미 무성기업에 공사비로 지급된 것인데 장부에 기재를 누락하였다가 같은 해 12. 31. 그 기재가 누락된 사실을 발견하고 이를 추가로 장부에 기재한 것이다.

② ㅇㅇ 현장의 금 5,000,000원

On September 198, the plaintiff paid 5,00,000 won to the non-party Kim - of the dump truck working group, and thereafter deducted the above 5,00,000 won at the time of settlement, but it was found at the time of settlement of accounts by deducting the above 5,00,000 won at the time of payment, which was wrong in the book as the provisional payment for the time of settlement of accounts, and the construction cost was replaced by the book and entered the book at the time of settlement.

③ ㅇㅇ아파트 현장의 금 5,193,780원 및 ④ ㅇㅇ동 현장의 금 12,253,391원

Each of the above amounts is the non-deductible amount of value-added tax on apartment on a national housing scale, which is appropriated as a substitute account for the construction cost in the value-added tax account at the time of settlement.

⑤ ㅇㅇ대학교부속병원 현장의 금 37,293,760원

위 금원 중 금 33,293,760원은 1987사업연도 선급비용 총액 금 63,973,898원 중 ㅇㅇ대학교부속병원 현장에 해당하는 금액으로서 나중에 공사비 계정에 대체 기장한 것이다. 나머지 금 4,000,000원은 ㅇㅇ중기 및 ㅇㅇ중기 등 덤프트럭 작업반의 김ㅇ순에게 선급금으로 지급된 뒤 기성고 지급시 공제하여 정산되었음에도 공사원가로 대체 처리되지 않았기 때문에 연말 정산시 공사비계정에 대체 기장된 것이다.

(2) The allegation on the part of the equipment rent for the business year 1989 and 90 of this case

As seen in the list of the payment details of equipment rental fees for the 1989, 90 business year of the Plaintiff’s assertion regarding the amount claimed by the Defendant as the instant processing equipment rental fees, the amount of KRW 4,200,08 among KRW 5,373,250 in the business year of 1989, and KRW 745,840,018 in the amount of KRW 1,191,86,919 in the business year of 1990 is actually paid as dump truck rental fees. However, the Plaintiff asserts that it is merely a receipt of tax invoice from a truck operator who is not a business operator who has provided actual services in accordance with the trade practice in the heavy equipment industry.

In other words, in the tax invoice of this case concerning dump truck equipment rent for the business year from 1989 to 190 of the plaintiff, the defendant received tax invoice from the business operator of a truck (5 to 11 ton of dump truck) other than dump truck for dump truck in the business year of 1989 to 190 from the plaintiff and the amount corresponding thereto is calculated as the processing equipment rent. The plaintiff company like the plaintiff has received the tax invoice from the plaintiff, and when it uses dump truck and pays rent from the dump truck from the dump owner, it is paid the equipment rent to the representative of the dump owner in a lump sum. In addition to the tax invoice corresponding to the actual transaction, the representative of the dump truck has received the tax invoice in the name of the above dump truck operator, and since the work cost of the dump truck owner and the part that the dump owner's representative requires to procure expenses, such as pure freight charges, the plaintiff actually raised from another business operator's.

B. As to the disposition imposing the income tax of this case, since Article 32(5) of the Corporate Tax Act, which is a law based on which the defendant disposed of the amount included in the above gross income as a bonus to the representative director, is unconstitutional by the Constitutional Court, and the above provision and Article 94-2 of the Enforcement Decree of the Corporate Tax Act, which provide for the basis of delegation, are null and void, the disposition imposing the income tax

3. Relevant statutes;

A. Article 32(1) of the Corporate Tax Act provides that where a domestic corporation fails to report pursuant to Article 26, the Government shall determine the tax base and amount of corporate tax on income for each business year of the relevant corporation. Paragraph (2) of the same Article provides that where a domestic corporation which has reported pursuant to Article 26 falls under any of the following subparagraphs, the Government shall correct the tax base and amount of corporate tax on income for each business year of the relevant corporation and correct them, and the details of return under subparagraph 1

In addition, Article 26 of the Corporate Tax Act provides that the disposal of the amount to be included in gross income shall be made under the conditions as prescribed by the Presidential Decree in filing a report on the corporate tax base under Article 26 of the Corporate Tax Act, or determining or revising the corporate tax base under

(b) In addition, Article 17 (1) of the Corporate Tax Act provides that the fiscal year of accrual of earnings and losses of a domestic corporation for each fiscal year shall be the fiscal year which includes the date on which the concerned earnings and losses are fixed (Provided, That Article 17 (1) of the Corporate Tax Act provides that where a domestic corporation enters into a long-term contract for the construction or manufacture of the relevant assets (referring to the continuous period of two business years or more), the profits and losses for each fiscal year from the fiscal year which includes the date on which the construction or manufacture of the assets commences to the fiscal year which includes the date on which it is delivered to the contractor shall be included in the calculation of earnings and losses for the relevant fiscal year under the conditions as prescribed by the Presidential Decree. Article 37 (1) of the Enforcement Decree of the Corporate Tax Act provides that the standards for the degree of accrual of earnings and losses of the domestic corporation for each fiscal year shall be calculated by multiplying the total construction period by the rate of work progress in cases where the domestic corporation continues to exist for two or more fiscal years under Article 17 (8) of the Corporate Tax Act.

4. Determination as to whether a lawsuit seeking revocation of the disposition imposing income tax of this case is legitimate

A. First, we examine whether the Plaintiff underwent a legitimate pre-trial procedure on the disposition imposing income tax in this case.

B. Article 18(1) of the Administrative Litigation Act (amended by Act No. 4770 of Jul. 27, 1994) provides that a suit for revocation may not be filed without going through an adjudication in cases where a suit for revocation can be filed pursuant to the provisions of Acts and subordinate statutes. Article 55(1) of the Framework Act on National Taxes (amended by Act No. 5193 of Dec. 30, 1996) provides that a person whose right or interest has been infringed upon by being issued a disposition under tax-related Acts may file a request for revocation of the disposition. Paragraph (2) provides that where a person who filed a request for examination pursuant to the provisions of paragraph (1) has an objection to a decision on the request, the request for examination shall be filed within 60 days from the date of receipt of notice of the disposition. Article 68 provides that a request for adjudication shall be filed within 60 days from the date of receipt of notice of the decision on the request for examination, and therefore, Article 55(1) of the Framework Act on National Taxes provide that the plaintiff must first request for the cancellation of the Act.

C. However, on April 3, 1992, the plaintiff received the tax payment notice of the corporate tax of this case (including the defense tax) on June 1, 1992 and received the tax payment notice of this case (including the defense tax) on June 16, 1992. On July 3 of the same year, when the request for the examination of the above corporate tax imposition was rejected, the plaintiff filed a request for the trial on August 31 of the same year, and on the other hand, without filing a request for the examination as to the tax imposition disposition of this case, the plaintiff filed a request for the trial on December 11 of the same year and received the decision of dismissal on March 8, 1993.

According to the above facts, the plaintiff must make a request for examination of the disposition imposing the income tax of this case from June 16, 1992 to August 15, 199, when he received a notice of tax payment of the income tax of this case, and without making such request, filed a request for examination with the National Tax Tribunal on December 11, 1992. Thus, the plaintiff did not go through legitimate pre-trial procedure as to the disposition imposing the income tax of this case.

D. On this issue, the Plaintiff asserted that the disposition of imposing the corporate tax in this case and the disposition of imposing the income tax in this case are somewhat different from the tax items and the time of taxation, and that the disposition of imposing the income tax in this case is recognized as a bonus belonging to the representative, and thus, it is identical to the causes of taxable income in substance subject to taxation, year of occurrence, taxation data, and illegal grounds are identical. In this case, since the preceding disposition are imposed on the same person by the same taxing authority, the tax authorities were given a sufficient opportunity for inventory and correction of basic facts and legal issues, and it is harsh that the taxpayer should go through the preceding trial procedure, and therefore, the request for review as to the disposition of imposing the income tax in this case is effective as a matter of course, which is the subsequent disposition, and there is no need for separate request for review as to the disposition of imposing the

In this case, even if the effective date of the disposition of imposing the income tax of this case after the request for examination on the disposition of imposing the income tax of this case does not include the plaintiff's expectation of the disposition of imposing the income tax of this case and the purport that the disposition of imposing the income tax of this case is based on the same corporate income of this case, the effect of the request for examination on only the disposition of imposing the income tax of this case cannot naturally affect the disposition of imposing the income tax of this case (see Supreme Court Decisions 96Nu1627 delivered on April 26, 1996, 85Nu139 delivered on November 12, 1985, 89Nu8026 delivered on October 11, 191). Although the request for examination on the disposition of imposing the income tax of this case does not affect the disposition of imposing the income tax of this case, the request for examination on the disposition of imposing the income tax of this case shall not affect the disposition of imposing the income tax of this case, and it shall not be corrected even if the request for examination was not corrected.

Therefore, the part seeking revocation of the income tax imposition disposition among the lawsuit of this case is unlawful.

5. Determination on the lawfulness of the disposition imposing corporate tax of this case

A. For the portion of 1988 business year:

(1) Facts of recognition

아래 사실은 을제3호증의 1, 3의 기재(원고는, 을제3호증의 1은 강박에 의하여 작성된 것이라고 주장하나, 이를 인정할 만한 증거가 없다)와 증인 강ㅇㅇ의 증언 및 감정인 박ㅇ신의 감정(감정보완 포함, 이하 같다) 결과에 변론의 전취지를 종합하면 인정되고, 이에 어긋나는 갑제18호증의 2, 갑제20호증의 1 내지 3, 갑제21호증의 1 내지 4, 갑제22호증의 3의 각 기재와 증인 김ㅇ순, 홍ㅇㅇ, 강ㅇㅇ의 각 증언은 이를 각 믿지 아니하며, 달리 반증이 없다.

① 원고는 1988사업연도에 박ㅇ신도 ㅇㅇ와 ㅇㅇ 및 ㅇㅇ아파트의 공사현장과 ㅇㅇ ㅇㅇ구 ㅇㅇ동 및 ㅇㅇ대학교 부속병원의 공사현장(이하 5개 공사현장이라 한다)에서 터파기작업과 잔토운반등 토공사를 하도급받아 시행함에 있어, 각 공사현장별로 장비를 임차하여 임차료를 지급한 후 그 명세를 기재한 공사대장(을제3호증의 3)을 작성하였다.

However, in the above construction ledger, the above five construction sites in the year 1988 stated that the sum of KRW 94,912,105 is paid as stated in the actual payment column of the processing expense list by field of the business year 1988 as the equipment rental fee for the above five construction sites. However, in the report of corporate tax, etc. for the business year 1988, the plaintiff stated the rental fee as KRW 1,006,690,836 in the statement of the construction cost (Evidence 3-2) on the settlement of accounts.

② However, the construction cost statement in the above statement of accounts is prepared on the basis of the construction cost ledger prepared by the Plaintiff by paying equipment rental fees, etc. for each construction site.

③ In arranging the accounting books of the Plaintiff Company, it is customary to immediately correct and record the omission in entry when paying the balance, excluding advance payment, if the entry was omitted in the construction cost ledger.

④ 원고는 위 공사현장별로 장비임차료잔금을 지급하면서, ㅇㅇ현장과 ㅇㅇ현장 및 ㅇㅇ대학교부속병원 현장에서 임차료선급금 해당부분에 대한 매입세금계산서를 수취한 사실이 없고(을제3호증의 1), 위 공사현장별 임차료명세서(을제3호증의 3)에 위와 같은 선급금의 지출사실이 전혀 기재되어 있지 않다. 또 ㅇㅇ아파트현장과 ㅇㅇ동현장에서 부가가치세 매입세액 불공제분을 부가가치세계정에서 공사원가계정으로 대체계상하였음을 인정할 만한 증빙자료가 없다.

(2) Determination

On the other hand, if the plaintiff actually disbursed the construction cost in the form of advance payment, but it was found that it was omitted and omitted at the time of paying the remainder, and then replaced the purchase tax invoice for the total rent amount including advance payment, and accordingly, it is natural that the plaintiff will receive the purchase tax invoice for the total rent amount including advance payment at the time of paying the remainder and then enter it in the construction cost ledger for each construction site.

However, as seen in the above facts, in light of the fact that the rent statement for each construction site does not include all the portion paid in advance, and that the plaintiff did not receive a tax invoice for the portion paid in advance, and that the plaintiff did not submit evidentiary data that can be recognized as being replaced by the plaintiff's assertion, etc., it is reasonable to deem that the amount reported by the plaintiff as the processed expenses is 61,778,731 won (=606,690,836 won - 94,912,105 won) which is the difference between the rent fee and the rent actually paid in the attached Form, such as the fee on the settlement of accounts as stated in the rent statement for each construction site in the attached Table (2) for the business year 1988.

Therefore, it is legitimate that the defendant imposed corporate tax for the business year 1988 after the defendant excluded the above difference from deductible expenses and imposed the defense detailed and disposition for the business year 1988 on this premise, and there is no other error of law in the above disposition. Thus, the plaintiff's assertion on this point is without merit.

B. As to the portion of 1989 and 1990

(1) Facts of recognition

아래 사실은 갑제9, 11, 13, 14, 15, 16, 23, 25, 26, 27, 35, 37, 40 내지 53, 59 내지 74호증(호증에 가지번호가 있는 경우에는 가지번호 각 포함), 갑제58호증의 6, 을제8호증, 을제19호증의 각 기재와 증인 진ㅇㅇ, 최ㅇㅇ, 최ㅇ국, 이ㅇ운, 진ㅇ운의 각 증언 및 감정인 박ㅇ신의 감정 결과에 변론의 전취지를 종합하면 인정된다.

① During the period from 1988 to 1992, the Plaintiff Company entered into a subcontract for construction works with the same content as the attached Form 5 in the 14 construction site (excluding the 14 construction site from among the 1988 to 1992 because the 2nd construction site is not at issue).

그런데, 이 사건에서 문제가 된 별지(5) 기재의 13개 공사현장 중 단기공사에 해당하는 ㅇㅇ 현장과 ㅇㅇ동 빌딩공사현장을 제외한 나머지 11개의 공사현장은 2개 사업연도 이상 공사가 계속되는 장기도급계약을 체결한 경우인데, 장기도급계약을 체결한 11개의 공사현장 중에서도 ㅇㅇ 현장과 ㅇㅇ오피스텔현장은 당기에 공사를 완료하였고, ㅇㅇ동 현장은 당기의 공사원가가 총공사예정비를 초과하였다.

② In carrying out the work of transporting soil and sand at each of the above construction sites, the Plaintiff Company used dump trucks owned by dump trucks from the representatives of dump trucks. Upon the completion of work daily work, the Plaintiff Company: (a) issued to the driver of dump trucks on the day a transport certificate stating the frequency of transport on the day or the number of work hours; (b) prepared a mid-term season, a day-to-day schedule, and a day-day schedule for transport; and (c) drafted equipment and a day-to-day table and a day-to-day table, on the basis of each dump truck on the basis of the aforementioned various day-to-day table.

(3) In addition, at each construction site of the Plaintiff Company, a payment plan and a detailed statement of deduction for the amount to be paid for the amount of work performed by each branch owner on the basis of the balance sheet, etc. for each month were prepared and sent to the head office. At each construction site of the Plaintiff Company, the head office verified the coefficient on the balance sheet of equipment and the coefficient on the payment plan on the basis of the same period for each construction site, the date of transportation, and the work day report prepared and sent for each construction site, and received a tax invoice by paying usage fees to the representative of the branch owner on the basis of the amount to be paid (including the amount to be deducted from the already high amount and the additional tax) stated in the payment plan. The amount to be paid is included in the construction cost ledger, evidence No. 35-1 through 13, and evidence No. 40-1 through No. 40-13) on the basis of this, and based on this, the entire specifications of construction cost (Evidence No. 19) is compiled.

④ As such, when the Plaintiff Company leases dump trucks from op trucks and uses them for dump trucks and pays rent to dump trucks, it received a tax invoice for the relevant rent from the dump owner’s representatives in a lump sum, and from the dump owner’s representatives, the Plaintiff Company received a tax invoice for the relevant rent. However, since the dump owner’s concerns over the imposition of excessive taxes, it does not issue a tax invoice in excess of 500,000 won for each ordinary month as well as the dump owner’s employees who worked for a short period of time within the fixed period of time per month do not contact. In such a case, the dump owner’s representatives issued the tax invoice in the name of another, which is not the actual service supplier, and in particular, delivered the tax invoice for a general truck

⑤ 1989사업연도 ㅇㅇ랜드 공사현장의 지불계획서(갑제15호증의 1, 2)와 현장별 공사비대장(갑제37호증의 1 내지 4)을 대조하면, 공사비대장의 협진산업 거래분 5,373,250원이 지불계획서상에는 ㅇㅇ덤프 거래분 5,373,250원으로 기재되어 있는 것을 제외하고는, 위 공사현장의 지불계획서상의 지불금액과 위 공사비대장상의 지급임차료 계정이 일치한다.

6. However, if the amount of expenditure on the statement of cost of construction for each site, which is a type of Annex to the settlement of accounts for the 1990 business year and on the statement of cost of construction for each site, is replaced by the amount of rent on the statement of cost of construction for each site and on the ledger of cost of construction on the ledger of cost of construction for each site, as shown in attached Form 4, but if comparison is made with the amount of payment on the ledger of cost of construction for each site, the amount of rent on the statement of cost of construction for each site and on the ledger of cost of construction for each site was excessively appropriated as more than

(2) Determination

① According to the above facts, the Plaintiff prepared a plan for the settlement of the cost of equipment and the payment for each construction site, and received a tax invoice based on the above payment plan, and appropriated it as the construction cost. Thus, the Plaintiff’s fee on the construction cost specification (tax invoice received and the rent on the construction cost ledger) must coincide with the amount of expenditure on the payment plan. In other words, the Plaintiff’s company is recognized as having received a tax invoice under the name other than the tax invoice issued by the person who supplied the actual services. As seen above, it is natural that three factors such as the amount of the tax invoice for the total cost of the actual work including such a case, the amount of the tax invoice received, the amount of the payment on the payment plan, and the fee on the construction cost specification (the rent on the spot construction cost ledger) should coincide with each other. Therefore, if the Plaintiff exceeds the amount of the tax invoice appropriated as the construction cost than the amount paid on the above payment plan, it is clear that the amount is an open cost.

② 그러므로, 먼저 1989사업연도의 법인세부과처분 및 이에 근거한 방위세부과처분에 대하여 보건대, 1989사업연도의 경우 ㅇㅇ랜드 공사현장의 지불계획서상의 지불금액과 공사비대장상의 지급임차료 계정은 일치하므로, 원고가 원가로 계상한 금액은 모두 실제로 지급한 임차료로 보아야 함에도 불구하고, 피고는 위 금 5,373,250원만큼 이를 가공경비로 보아 위 금액을 손금불산입한 후 과세한 것이므로 1989사업연도분의 법인세부과처분 및 이에 근거한 방위세부과처분은 각 위법하다고 할 것이다.

③ Next, regarding the imposition disposition of corporate tax for the 1990 business year and the defense detailed and disposition based thereon, as seen above, although only KRW 1,140,854,436 out of the equipment rent reported by the Plaintiff at the time of settlement of accounts falls under processing expenses, the Defendant considered a larger amount of KRW 1,191,86,919 as processing expenses and imposed the above taxation based on the non-deductible expense, and accordingly, based on the non-deductible expense, the above tax disposition was deemed as unlawful, and based on the non-deductible expense exceeding KRW 1,140,854,436, the part of the corporate tax for the 1990 business year and the defense detailed and disposition were unlawful.

더구나, 위 인정사실에서 보는 바와 같이 별지(5) 기재의 13개 공사현장 중 ㅇㅇ동 빌딩, ㅇㅇ아파트, ㅇㅇ지역, ㅇㅇ랜드, ㅇㅇ동 재개발, ㅇㅇ오피스텔, ㅇㅇ공업단지, ㅇㅇ제철 등 8개 공사현장에 관한 공사도급계약은 2 사업연도이상 계속되는 건설(토공사)에 관한 장기도급계약으로서 위 법인세법 제17조 제8항, 같은법 시행령 제37조 제1항 및 같은법 시행규칙 제15조 제1항의 규정에 따라 위 공사를 완료한 정도를 기준으로 하여 수익과 비용을 계상하여 1990사업연도의 익금과 손금에 각각 산입하여야 할 것임에도(다만, ㅇㅇ 현장과 ㅇㅇ오피스텔현장 및 ㅇㅇ동 현장은 장기도급계약을 체결한 경우이지만, 앞서 본 바와 같이 당기에 공사를 완료하였거나, 당기의 공사원가가 총공사예정비를 초과한 경우로서 위 법인세법 제17조 제8항 등의 계산방법이 적용될 여지가 없다), 피고는 위 법규정에 의하지 아니하고 원고가 신고한 장비임차료 중 금 1,191,866,919원을 손금불산입하는 방법으로 이 사건 법인세액을 산출하였으므로, 이 점에서도 피고의 1990사업연도 법인세부과처분은 위법함을 면할 수 없다.

(3) As to the legitimate corporate tax amount of the 1990 business year

Therefore, this paper examines the legitimate corporate tax amount of 190 business years under Article 17(8) of the Corporate Tax Act, Article 37(1) of the Enforcement Decree of the same Act, and Article 15(1) of the Enforcement Rule of the same Act.

(A) First of all, comprehensively taking account of the health class, Gap evidence 57-9, Eul evidence 58-6, Eul evidence 58-8-3, Eul evidence 1-3, and appraiser Park - with respect to the adjustment of the revenue amount, the plaintiff reported the revenue amount to 14,614,682,014 in the report of corporate tax, etc. for 190 business year of this case, and the defendant also made disposition of imposing corporate tax, etc. for 190 business year (see Eul evidence 1-3-1 of the above revenue amount), ② The above revenue amount is KRW 14,614,682,014 in the attached Form 6) and KRW 190 in the report of the settlement of revenue amount at work rate of 190 in the attached Form 190,831,89,675 (the attached Form 1990) and the appraisal result of appraiser Park - the above amount are included in the calculation of revenue amount of 1990 business year

According to the above facts, the plaintiff's revenue amount of 190 business year should be reduced to KRW 1,851,254,605 when the original disposition was made in accordance with the calculation method under the above Acts and subordinate statutes.

(B) Next, with respect to the adjustment of the income amount resulting from the change of the above revenue amount, the amount that the defendant included in deductible expenses and excluded from gross income at the time of initial disposition is KRW 329,442,168 (the number of pages 1-3-2 and 8 of the evidence No. 1-3). Moreover, the part that included the above excessive revenue amount in the calculation of 1,851,254,605 won should be included in gross income as the corporate players' profit, and thus, the items included in deductible expenses and exclusion from gross income shall be KRW 2,180,696,773 as shown in the corresponding column of the list of total income adjustment.

Meanwhile, at the time of the initial disposition, the Defendant calculated the tax amount of KRW 1,310,793,262, including the above processing expenses, on the premise that the amount of KRW 1,191,86,919,91, out of the equipment rent reported by the Plaintiff was processed expenses, by adding the above processing expenses to the gross income and non-deductible expenses (section 1,310,793,262), but only KRW 1,140,854,436 of the above processing expenses as seen earlier, among KRW 1,191,86,919,919, the above processing expenses were processed expenses, and the amount of the processed expenses was calculated by adding the above processing expenses to the gross income and non-deductible expenses (section 1,263,483,290,90, as stated in the corresponding column of the income amount adjustment table). As seen earlier, the above processing expenses amount was reduced in 3,702,511, as so.

(C) Finally, when calculating the reasonable amount of corporate tax for the 1990 business year based on the above adjustment of the income amount, the Plaintiff’s income amount for the 1990 business year shall be calculated as follows: (i) gold 95,073,035 won (=gold 822,140,448 won + gold 1,263,483,290 won + Gold 2,180,696,773 won). Accordingly, the defense tax amount for the 1990 business year based on the above corporate tax shall also be zero (0).

(4) The theory of lawsuit

Therefore, corporate tax of this case and defense detailed and disposition of the 1989 business year and 190 business year are illegal, and each cancellation must be made.

6. Conclusion

Therefore, the part of the lawsuit of this case seeking revocation of the income tax imposition disposition of this case is unlawful, and thus, it is unlawful as corporate tax of 1989 business year, defense detailed disposition, and corporate tax of 1990 business year, defense detailed disposition, and defense detailed disposition are unlawful. Thus, the plaintiff's claim seeking revocation is justified, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

July 16, 1999