early 2010west2803 ( December 27, 2010)

It is difficult to see that the advisory fee stated as a non-public penalty has been out of the company.

Although the advisory fee received is not included in sales, it has been appropriated in the provisional deposit account, while the content thereof has not been entered in the loan transaction from the representative who is a debt to be avoided to the representative in the future. Therefore, it is difficult to deem that the advisory fee was leaked solely on the evidence submitted by the defendant.

Article 106(4) of the former Enforcement Decree of the Corporate Tax Act

2011Guhap10485 Notice of Change in Income Amount

Law Firm XX

O Head of tax office

June 17, 2011

July 8, 2011

1. On July 1, 2010, the Defendant’s notice of change in the income amount of 110,000,000 won as bonus income in the business year 2006, the income earner of the Plaintiff as KimA, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be recognized in full view of the purport of the entire pleadings in each entry in Gap evidence No. 1-6 and Eul evidence No. 1 (including each number), respectively.

A. Article XX is a law firm established on November 7, 1994. On January 28, 2009, a law firm merged with OO of a law firm. As of January 28, 2009, O of a law firm changed the Plaintiff’s name to Ox.

B. The law firm XX received advice fees of KRW 110,000,000 (including value-added tax; hereinafter referred to as “the dispute amount”) from △△ Haak Co., Ltd. on June 19, 2006.

C. P Law firms dealt with the key amount as "other provisional payment on the account book" and omitted from sales, and received a corporate tax return in 2006 from the Defendant on August 29, 2008, and received a "tax data explanation guidance" from the Defendant on September 17, 2008, made a revised return of value-added tax in 2006 and a revised return of corporate tax in 2006 on September 17, 2008, and disposed of it as a reservation.

D. On July 1, 2010, the Defendant issued a notice of change in the amount of bonus income of KRW 110,000,000 to the Plaintiff as an income earner in the business year 2006, wherein the issue amount was entered in the transaction with the representative KimA, and the Defendant denied the said reservation and disposed of as bonus to the representative.

E. The Plaintiff filed a tax appeal on August 26, 2010, but the said claim was dismissed on December 27, 2010.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The key issue amount was deposited into the corporate account of law firm XX and there is no outflow from the company. The key issue amount is merely the error of the employee’s duty when it was entered as a provisional payment without being entered as a sale in the account book. Although the key issue amount is expressed as a provisional payment, it is on the pretext of not scheduled to reflect, and thus, the instant disposition made on a different premise is unlawful.

2) As long as the Plaintiff included the issues omitted in sales in its gross income as a reservation and made a revised return of corporate tax, the key amount pursuant to the main sentence of Article 106(4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21025, Sep. 22, 2008) should be retained in company. Therefore, the instant disposition is unlawful in violation of the above Enforcement Decree.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

If a juristic person fails to enter its sales on the account book despite the fact of sales, it shall be deemed that the total amount omitted from sales was leaked out of the company, unless there are other special circumstances. However, if the above amount was deposited in the provisional deposit account, it shall not be presumed that the above amount was leaked out of the company solely on the fact that it was not included in the income statement for each pertinent business year. In this case, the company's loss that was leaked out of the company shall be proved by the tax authority (see Supreme Court Decision 86Nu732, Jun. 9, 1987). If the contents of the provisional deposit account account were to enter the short-term loan transactions from the representative director, and it is proved that it was an obligation against the representative director, such transactions may result in a change or increase in the net assets of the juristic person, and thus, it shall be deemed that it was unrelated to profits or expenses of the juristic person, and thus, it shall be deemed that the above amount was leaked to the representative director 200,200,000 won under the name of the other company.

In full view of the purport of the arguments in Gap evidence 2-1, 2, 3-1, 4-1, and 2, the key issue amount was recorded in the private room of June 19, 2006 that was actually deposited in the deposit account under the name of law firm XX, the ledger of general deposit account of law firm 2006 that was entered in the ledger of the general deposit account of law firm 2006. Unlike the other provisional deposit account of law firm 2006, the key issue amount was entered as "the temporary deposit of the representative" or "the temporary deposit of the representative" as "the other provisional deposit of the other provisional deposit account of law firm 2006.0.00.0.0.0.0.0.0.0.0.0.0.0.0.0..0.0..00..0..00...00..

Comprehensively taking account of the above legal principles and the facts acknowledged, the key issue amount was not included in sales, but was appropriated in the provisional deposit account, while the content was not recorded in the loan transaction from the representative who has become an obligation against the representative in the future, so the key issue amount is difficult to be deemed to have been leaked out of the company in 2006 only by the evidence submitted by the defendant. Accordingly, the disposition of this case is unlawful without any need to further examine the remainder of the plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.