Cho Jae-2013west-4141

The officer's defined contribution plan shall be included in excess of the limit for the business year that retires after the date of payment in deductible expenses.

A defined contribution plan for an officer shall not include the excess amount in excess of the limit for the business year during which the date of payment falls after the inclusion in deductible expenses even if the payment is not legitimate, and it is difficult to readily conclude that the amount of retirement pension paid in a specific business year constitutes an unfair reduction of tax burden, and it is difficult to apply

2014Guhap71481 Revocation of Disposition of Imposing Corporate Tax, etc.

AAA Corporation

△△세무서장, ▲▲지방국세청장

August 28, 2015

1. 피고 △△세무서장이 2013. 8. 1. 원고에 대하여 한 2010 사업년도 법인세 000원(가산세 000원 포함)의 부과처분 중 000원을 초과하는 부분 및 피고 ▲▲지방국세청장이 2013. 8. 1. 원고에 대하여 한 2010 사업년도 귀속 소득자 BBB, 소득금액 0,000원의 소득금액변동통지 중 000원을 초과하는 부분을 각 취소한다.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. Stocks held by the Plaintiff, established on December 12, 199 and engaged in business such as system integration, industrial control equipment, development and manufacturing of automatic control systems, automation systems, and development and manufacturing of smoke production systems.

G. is G.

B. On December 15, 2010, the Plaintiff revised its articles of incorporation by a resolution of the special shareholders’ meeting, thereby paying retirement allowances to executives.

on December 30, 2010 following the establishment of a quasi- provision, the fixed contribution retirement pension plan against the executives and employees of the plaintiff.

The introduction is determined and the report is completed to the head of the D branch office of the Seoul Regional Labor Office.

C. On December 30, 2010, the Plaintiff paid KRW 0,000 of the retirement pension charges for BB to the Industrial Bank of Korea, a retirement pension trustee, calculated according to the standards for payment of retirement allowances for officers under the articles of incorporation, and reported and paid corporate tax for the business year 2010 by including this in deductible expenses.

D. Defendant Seoul Regional Tax Office: (a) paid by the Plaintiff as retirement pension charges against BB (hereinafter “instant retirement pension charges”) in excess of KRW 000,00,000 (hereinafter “instant retirement pension charges”) for the representative director among the executives, without justifiable grounds, should be treated as non-deductible losses or bonus; (b) on April 22, 2013, the Plaintiff notified the Plaintiff of the results of the tax investigation that included non-in-amount of the instant amount of investigation. The Plaintiff filed a request for pre-assessment review with the Commissioner of the National Tax Service on May 21, 2013, but was decided not to adopt the instant amount on July 16, 2013; and (e) on August 1, 2013, the head of the tax office having jurisdiction over the instant amount and other portions relating to the amount of investigation.

"을 손금불산입하여 원고에게 2010 사업연도 법인세 000원(가산세 포함)을 경정.고지하였고(이하 '이 사건 법인세 부과처분'이라 한다), 피고 ▲▲지방국세청장은 같은 날 원고에 대하여 2010 사업연도 귀속 소득자 BBB, 소득금액 0,000원 (이 사건 금액 외에도 가공인건비 000원, 가공퇴직급여 000원 포함)을 상여로 소득처분하는 소득금액변동통지를 하였다(이하이 사건 소득금액변동통지처분'이라 하고, 이 사건 법인세 부과처분과 이 사건 소득금액변동통지처분을 통틀어 '이 사건 각 처분'이라 한다).",바. 원고는 이에 불복하여 2013. 8. 30. 심판청구를 하였으나 조세심판원은 2014. 8. 11.

The plaintiff's appeal was dismissed.

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 5, 16 (including relevant branch numbers), Eul Nos. 1 and 3

each entry of evidence, the testimony of the witness, and the purport of the whole pleadings;

2. Whether each of the dispositions of this case is legitimate

A. Grounds for each of the dispositions of this case asserted by the defendant

1) If a person intends to be recognized as a corporation’s deductible expense for the payment of retirement benefits to an executive officer, the retirement benefits of the executive officer shall be the retirement benefits paid in accordance with the articles of incorporation or the articles of incorporation delegated pursuant to Article 44(4) and (5) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 201; hereinafter the same). The criteria for the payment of retirement benefits to executive officers under the amended articles of incorporation (hereinafter “instant standards for the payment of retirement benefits to executive officers”) were voluntarily established without holding a temporary general meeting of shareholders; and (2) the former Corporate Tax Act enters into force on the ground that only the representative director is subject to the application and no provision that generally applies to all the

The instant retirement pension contributions cannot be deemed legitimate retirement benefits, since they cannot be deemed the legitimate retirement benefits payment criteria under Article 44(4) of the Decree. Therefore, the proviso to Article 44-2(3) of the former Enforcement Decree of the Corporate Tax Act does not apply.

2) The Plaintiff’s act of paying the instant retirement pension contributions to a retirement pension trustee constitutes a case where the Plaintiff unfairly reduced the tax burden by allocating the Plaintiff’s profit to the representative director BB, who is a related party, and thus, it is subject to the avoidance of wrongful calculation pursuant to Article 52(1) and (2) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010); and Article 88(1)9 of the former Enforcement Decree of the Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; “market price, which is the standard for determining the scope of non-deductible in deductible expenses, is 00 won, which is the interim settlement amount of retirement benefits against BB as of December 30, 2010 (where there is no provision on the payment of executives, 229,087,100 won, which is the retirement benefit limit under Article 44(4)2 of the former Enforcement Decree of the Corporate Tax Act).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Regarding the time of inclusion of the instant retirement pension charges in deductible expenses

A) According to Article 44-2(2) and (3) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22035, Feb. 18, 2010), a domestic corporation’s retirement of an officer or employee was subject to the payment of insurance money, trust money, or pension, and paid insurance money, etc. to an officer or employee as the insured, beneficiary, or beneficiary, which is the amount of insurance premium, etc. of insurance, trust, pension, etc. of which the officer or employee is the insured, beneficiary, or beneficiary, the amount of the determined contribution of retirement pension can be included in the total loss in calculating

Article 44-2 (3) of the former Enforcement Decree of the Corporate Tax Act amended on February 18, 2010 provides that "the total amount of insurance premiums, etc. for defined contribution type retirement pension (referring to defined contribution type retirement pension under Article 13 of the Guarantee of Workers' Retirement Benefits Act, personal retirement account under Article 26 of the same Act, and retirement pension under the Korea Science and Technology Mutual Aid Association Act; hereinafter the same shall apply) out of the amount disbursed under paragraph (2) shall be included in deductible expenses: Provided, That insurance premiums, etc. for executive officers shall be deemed retirement benefits and subject to Article 44 (4) as the total amount of insurance premiums, etc. borne by the corporation until retirement, but where there is an excess in deductible expenses, an amount exceeding the limit in deductible expenses out of the insurance premiums, etc. for the business year to which the date of retirement belongs shall be included in deductible expenses, but the excess amount shall be included in gross income for the business year to which the date

B) As above, the provision on inclusion of the final and conclusive contribution to retirement pension for an executive officer was amended to apply the limit of inclusion in deductible expenses for executive retirement benefits under Article 44(4) and (5) of the former Corporate Tax Act to the retirement pension for the final and conclusive contribution to an executive officer. Considering the purport and text of the amendment, in principle, Article 44-2(3) of the former Enforcement Decree of the Corporate Tax Act is construed as including the total amount of the contribution in deductible expenses in the business year in which the date of payment of retirement pension for the executive officer is determined as the retirement benefits for the executive officer, but the "total amount of the contribution paid until the retirement date is determined as the retirement benefits for the executive officer" as the "business year in which the beneficiary's retirement date belongs" and where there is an excess of the limit of deductible expenses, it shall be construed as including the excess amount of deductible expenses in deductible expenses from among the final and conclusive contribution

C) Furthermore, where a corporation opens a defined contribution retirement pension for the payment of retirement benefits to its executives and disburses the contributions, even if the standards for the payment of retirement benefits by delegation of the articles of incorporation or the articles of incorporation concerning the contributions are not legitimate, the amount of contributions shall be determined based on the amount calculated pursuant to Article 44(4)2 of the former Enforcement Decree of the Corporate Tax Act in the business year to which the date of actual retirement belongs, based on the amount calculated pursuant to Article 44(4)2 of the former Enforcement Decree of the Corporate Tax Act for the business year to which the date of actual retirement belongs, and judged whether the total amount of the finalized contribution retirement pension paid by the corporation during the business year to which the date of actual retirement belongs exceeds the limit for inclusion in deductible expenses, which means that part of the total amount of the contribution

Therefore, it is unlawful that the instant amount was not included in the deductible expenses for the business year 2010, which belongs to December 30, 2010, on the ground that the instant payment standard for retirement allowances for officers, does not correspond to the articles of incorporation under Article 44(4)1 of the former Enforcement Decree of the Corporate Tax Act, is unreasonable.

2) Whether the act constitutes wrongful calculation

A) Article 52 (1) of the former Corporate Tax Act provides that "where the head of a district tax office having jurisdiction over the place of tax payment or the head of a district tax office having jurisdiction over the place of tax payment deems that the tax burden of a domestic corporation has been unjustly reduced due to an act of a domestic corporation or a transaction with a person with a special relationship prescribed by the Presidential Decree (hereinafter referred to as "specially related person"), the income amount of the corporation for each business year of the corporation may be calculated regardless of the act or calculation of the income amount of the corporation (hereinafter referred to as "Calculation by wrongful calculation")," and Paragraph (2) of the same Article provides that "in applying the provisions of paragraph (1), the rate, interest rate, rent, exchange rate, and other equivalent rate, and the price applied or to be applied in normal transactions between a person with a special relationship (including the rate, interest rate, exchange rate, and other equivalent rate; hereafter referred to as "market price" in this Article)" shall be determined according to Article 88 of the former Enforcement Decree of the Corporate Tax Act, "type of wrongful calculation avoidance" in Article 89.

On the other hand, the burden of assertion and certification on the market price, which is the standard for applying the denial of wrongful calculation, is on the tax authority (see, e.g., Supreme Court Decision 2013Du10335, Sept. 27, 2013).

B) In light of the above statutory provisions and legal principles, it is difficult to view the Plaintiff’s payment of the retirement pension of this case as a wrongful calculation on the following grounds.

(1) ① A defined contribution plan is paid in the form of a pension or lump-sum payment to a beneficiary when the company has paid a certain amount of contributions determined in advance to a retirement pension trustee until the retirement of the beneficiary, taking into account the operating profit and the fees to be received by the retirement pension trustee, etc. The amount of payment may vary depending on the company’s circumstances. ② The amount of a defined contribution plan can be accumulated before the retirement of the beneficiary, and ② the amount of a retirement pension is actually paid to the retirement pension trustee until the retirement of the beneficiary. ③ In light of the legislative intent of the proviso of Article 44-2(3) of the former Enforcement Decree of the Corporate Tax Act, it is difficult to readily conclude that the amount of the contributions paid to the retirement pension trustee during a specific business year constitutes a case where the tax burden is unjustly reduced. The illegality of the corporate contributions paid by the beneficiary

Therefore, it cannot be determined whether the Plaintiff’s first payment after changing the form of payment of retirement benefits to a defined retirement pension plan constitutes “if the tax burden has been unjustly reduced” in the amount of the instant retirement pension contribution that was paid by the Plaintiff.

(2) In the situation similar to the pertinent transaction, the Plaintiff’s interim settlement amount of retirement benefits BB by the Plaintiff’s representative director as of December 30, 2010 and the retirement benefit limit calculated pursuant to Article 44(4)2 of the former Enforcement Decree of the Corporate Tax Act, which is the date of the payment of the instant retirement pension shall not fall under “the prices continuously traded with many and unspecified persons other than BB, which are related parties, or the prices generally traded between third parties who are not related parties (Article 44(4)2 of the former Enforcement Decree of the Corporate Tax Act). (Article 44(4)2 of the former Enforcement Decree of the Corporate Tax Act only provides for calculation of the limits of retirement benefits to be included in deductible expenses where there is no provision on payment of retirement benefits delegated by the articles of

In addition, in addition to the above two criteria, the defendant did not additionally assert and prove the specific and objective criteria that can be seen as "market price necessary to recognize the amount of the appropriate retirement pension to be paid by the plaintiff as BB in 2010."

3) Scope of revocation

Among each disposition of this case, the part concerning the amount of this case in the disposition of this case shall be revoked as the grounds for disposition exist.

If the tax amount calculated by deducting KRW 000, which is the amount of this case, from the tax base of the disposition imposing corporate tax of this case, is to be calculated again, the amount of legitimate tax is to be KRW 000, as shown in the separate sheet of tax base, and the portion exceeding the above KRW 00, out of the disposition imposing corporate tax of this case is unlawful. However, the Plaintiff seeks revocation only for the portion exceeding KRW 000,000, out of the corporate tax of 2010, and thus,

If the portion related to the instant amount among the notice of change in the amount of income is excluded, the object of the representative’s bonus disposition is 000 won (=processing personnel cost of 000 won + processing retirement benefit of 000 won). Therefore, the portion exceeding 000 won out of the notice of change in the amount of income in this case should be revoked illegally.

Therefore, each of the dispositions of this case must be revoked within the scope sought by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is ordered to accept all of them.

The decision shall be rendered as above.