Review Corporation 2009-0061 ( December 31, 2009)

Sales incentives falling under the offering of rebates shall not be recognized as losses.

Since rebates funds cannot be executed as non-funds created through window dressing accounts, etc., it is difficult to deem that the offering of rebates is an incidental expense that is normally required, and thus, it is difficult to deem that the offering of rebates is an incidental expense when the tax-related Acts deducts such expenses from taxable income.

2010Guhap15643 Revocation of Disposition of Imposing corporate tax, etc.

AAAA

O Head of tax office

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of KRW 120,40,40, corporate tax for the business year 2004 against the Plaintiff on July 1, 2009, corporate tax for the business year 384,148,250, corporate tax for the business year 2006, imposition of KRW 30,310,690, corporate tax for the business year 2007, and disposition of KRW 1,997,983,688, which was disposed of by the Plaintiff’s representative as income earner on July 6, 2009 (300,139,302, KRW 300,139,302, KRW 414,5156, KRW 416, April 2005, KRW 452,404,103, KRW 450,573, 207, KRW 208, KRW 37838,5879).

1. Details of the disposition;

A. The director of the Seoul Regional Tax Office, from March 24, 2009 to April 20, 2009, conducted an integrated investigation of the corporate tax for the Plaintiff from 2004 to 2008 with respect to the pharmaceutical wholesaler from 2004 to 2008. The director of the Seoul Regional Tax Office included 240,480,938 won as of the end of the business year 2004 and 1,997,983,688 won for sales omitted in report from the business year 2004 to the business year 2008, and notified the Defendant of the result of the tax investigation on the bonus disposal for the representative.

B. In accordance with the above notification, the Defendant imposed the Plaintiff (1) KRW 132,150,220 of corporate tax for the business year 2004, KRW 384,148,250 of corporate tax for the business year 2006, corporate tax for the business year 30,310,690 of corporate tax for the business year 2007, KRW 292,810,210 of corporate tax for the business year 2008, and KRW 37,569,940 of value-added tax for the second period of 204, and on July 6, 2009 (2) KRW 2,238,464,626 of corporate tax for the business year 204, KRW 540,620, KRW 240 of corporate tax for the business year 206, KRW 1416,510 of corporate tax for the business year 2007, KRW 305, KRW 37534,2075

C. On September 29, 2009, the Plaintiff filed a request for review with the Commissioner of the National Tax Service on September 29, 2009. On December 31, 2009, the Commissioner of the National Tax Service rendered a decision to re-examine the payment of KRW 240,480,938 of the converted amount of the stock omitted sales to the Defendant on December 31, 2009 to rectify corporate tax and value-added tax against the Plaintiff on the ground that there is no amount of KRW 240,480,938 of the converted amount of the stock omitted sales. On the other hand, the Plaintiff adjusted the difference between the credit sales sales sales amount sent by a pharmacist in 2008 and the credit sales amount calculated by the Plaintiff, and made a decision to correct the tax base and the amount of tax by re-audit the

D. On March 9, 2010, the director of the Seoul Regional Tax Office conducted a reinvestigation in accordance with the above review and determination. On March 9, 2010, the amount of KRW 895,613,735 compared to the credit purchase amount appropriated by the Plaintiff in the business year of 2008 and the credit account sales amount of the pharmaceutical company shall be included in deductible expenses, and the corporate tax shall be reduced by 332,879,717 shall be corrected by adding the amount of corporate tax to deductible expenses. On the other hand, on the other hand, the Seoul Regional Tax Office rendered a decision that did not recognize the existence of evidentiary documents as to non-performing deductible expenses (i.e., the imposition of corporate tax on the amount stated in the claim and the notice of a small-scale change in the amount of the corporate tax disposition

Facts without any dispute, Gap's 1 through 4, Eul's 1 through 7 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Disposition of imposition of corporate tax of this case

The disposition of imposition of the corporate tax of this case does not recognize the expenses paid by the plaintiff as deductible expenses or excessive appropriation of gross income as follows.

(a)the amount paid on retail;

The Plaintiff agreed to pay in cash a certain ratio of the sales amount while selling drugs to retail stores, such as pharmacies and clinics, and accordingly, paid to retail stores a total of KRW 1,179,36,976,970 in total, including KRW 223,489,714 in 2006, KRW 190,478, 677,688 won in 2005, KRW 176,688 won in fact, 2006, KRW 223,194,463 in 207.

(b) The amount paid to ZZ Co., Ltd.

"원고는 주식회사 ZZZ(이하ZZZ'이라 한다)에게 의약품 공급계약의 유지와 판로 개척 등을 위하여 2004. 6. 30. 17,162,638원, 2005. 1. 5. 50,000,000원, 2006. 9 6. 50,000,000원 등 합계 217,162,638원을 지급하였다 따라서 위 금액은 모두 판매활동을 위한 비용으로 전액 손금으로 인정되어야 한다.",(다) ZZZ의 요청에 따라 주식회사 QQ에 지급한 금액

원고는 ZZZ과의 의약품 공급계약을 유지하기 위하여 ZZZ의 요청에 따라 대형 병원이 우회적으로 설립한 회사인 주식회사 QQ(이하 'QQ'라 한다)에게 2004년 202,564,817원, 2005년 213,198,370원, 2006년 56,834,350원 등 합계 472,597,537원을 지급하였다 따라서 위 금액은 모두 판매활동을 위한 비용으로 전액 손금으로 인정되어야 하고 그렇지 않다고 하더라도 원고는 ZZZ의 요청에 따라 위 금액을 QQ에게 전달한 것뿐이므로 이를 원고의 수입급으로 계상해서는 아니 된다.

(2) Notice of the instant change in income amount

원고가 판매활동을 위하여 위와 같이 의약품 소매상, ZZZ, QQ 등에게 상당한 금액을 지급하였음에도, 위 금액을 귀속이 불분명하다고 하여 원고의 대표자에게 귀속된 것으로 간주하여 대표자 상여로 처분한 이 사건 소득금액변경통지 처분은 위법하다.

(b) Related statutes;

As shown in the attached Form.

C. Determination

(1) As to the disposition of imposition of corporate tax of this case

(A) As to the amount paid on retail

1) When a tax assessment is conducted with respect to omitted income by a field investigation decision, unless there is any evidence that there was a separate expense corresponding to the omitted income, the total amount of the income should be added to the income amount, and the cost corresponding to the omitted income has also been omitted in the return, a taxpayer who seeks a separate deduction shall bear the burden of proof (Supreme Court Decision 200629535 Decided January 31, 2008).

However, the following circumstances are acknowledged by adding the purport of Gap evidence 3 and Eul evidence 10 and 11 to the whole pleadings. ① The plaintiff alleged that the sales incentive paid to retail stores at the time of the request for examination against the Commissioner of the National Tax Service was KRW 1,035,00,000, but the amount of the payment is not consistent in the lawsuit in this case. ② At the time of the investigator’s reexamination, the plaintiff presented a pharmacy list different from the contents asserted in the lawsuit in this case. ② At the time of the investigator’s reexamination, the plaintiff did not state specific date and amount as well as the fact that the plaintiff received sales incentive from the pharmacy’s pharmacist who paid the sales incentive, and most of them were merely 1,035,00,000,000 won, ④ the fact that the plaintiff did not accept the sales incentive from 60 years to 107,000,0000 won, and there was no reason to acknowledge that the plaintiff did not receive the sales incentive from 107,507,0000,000.

2) If the Plaintiff, as alleged by the Plaintiff, paid a sales incentive to retail stores, it cannot be deemed as losses in light of the following circumstances. Therefore, this part of the Plaintiff’s assertion is without merit.

① In principle, Article 19(2) of the former Corporate Tax Act (amended by Act No. 8831, Dec. 31, 2007; hereinafter “former Corporate Tax Act”) provides that “the cost of loss or expenses generated or spent in connection with the business of the corporation is generally accepted as normal or related to profit-making.” Here, “generally accepted cost” refers to the cost that is deemed to have been disbursed under the same situation where other corporations engaged in the same kind of business as the person liable for tax payment are the same, and whether such cost is reduced or not shall be determined objectively by comprehensively taking into account the process, purpose, form, amount, effect, etc. of the expenditure, and barring special circumstances, the cost that was disbursed in violation of social order shall be excluded therefrom (see Supreme Court Decision 2007Du12422, Nov. 12, 2009).

② However, the sales incentive that the Plaintiff paid to retail stores constitutes the so-called so-called so-called “probeat,” which pays a certain percentage of money according to the sales performance. The offer of rebates may be in conflict with the provisions of Articles 95 and 47 of the former Pharmaceutical Affairs Act (amended by Act No. 8558 of July 27, 2007). Moreover, the offering of rebates by a pharmaceutical wholesale company is ultimately serious social harm caused by the offering of rebates to consumers who are not entitled to choose a drug price, and ultimately, the offering of rebates by a pharmaceutical wholesale company is subject to the payment of rebates costs to consumers who do not choose a drug

③ Furthermore, rebates funds are to be executed with funds created through window dressing accounting, etc. (the Plaintiff’s assertion that the Plaintiff had no choice but to pay sales incentives through abnormal accounting methods that reduces the credit purchase amount for a long period of up to five years). Non-funds are premised on embezzlement, window dressing accounting, evasion of taxes, unfair trade practices, etc., and the relevant tax laws excludes such expenses into deductible expenses and allow the unlawful state if the taxable income is deducted from taxable income. Therefore, it is difficult to deem the offer of rebates as sales incidental expenses that are normally required in light of sound social norms.

(b) As to the amount paid to the Z:

In full view of the following circumstances acknowledged by adding the whole purport of each statement in Eul evidence Nos. 12 through 15, i.e., (i) the Plaintiff only sold the drugs to the Plaintiff and did not receive cash from the Plaintiff; (ii) the deposit certificate in the name of the Plaintiff was issued in the process of sales promotion because the deposit certificate was not written; and (iii) the cash receipt and payment book of the ZZ as of the date when the Plaintiff paid sales promotion expenses did not indicate the deposit fact of the amount as alleged by the Plaintiff, the cash receipt and payment book of the ZZ as of the date when the Plaintiff paid the sales promotion expenses. In full view of the following circumstances, the evidence Nos. 14, 15, 28, and 29 and the witness testimony of the ZG alone are insufficient to recognize that the Plaintiff paid to the ZZ total amount of KRW 217,162,638 for the maintenance of the medicine supply contract and development of markets, and there is no other evidence to support this part of the Plaintiff’s assertion.

(다) QQ에 지급한 금액에 관하여

을 제12호증의 기재에 변론 전채의 취지를 더하여 인정되는 다음과 같은 사정 즉 ① ZZZ은 원고가 QQ에게 지급하였다는 주장하는 금액과 아무런 관련이 없다는 내용의 확인서를 제출한 점, ② 원고는 QQ에게 지급하였다는 금액과 관련하여 구체적인 금융자료나 세금계산서 등을 제시하지 못하고 있는 점 등을 종합해 보면, 갑 제16, 21, 22호증의 각 기재와 증인 주GG의 증언만으로는 원고가 ZZZ의 요청에 따라 QQ에게 2004년부터 2006년까지 합계 472,597.537원을 지급하였다고 인정하기에 부족하고 달리 이를 인정할 만한 증거가 없으므로, 원고가 위 금액을 QQ에게 지급하였음을 전제로 하는 원고의 이 부분 주장은 이유 없다.

더구나 원고 주장에 따르면, 원고가 ZZZ의 요청에 따라 의약품 도ㆍ소매업을 직접 할 수 없는 대형병원이 우회적으로 설립한 법인에게 리베이트 비용을 제공하였다는 것이므로, 이러한 리베이트 제공은 궁극적으로는 의약품 가격 상승의 원인이 되어 의약품 선택권이 없는 소비자에게 리베이트 비용을 전가하게 되고, 리베이트 자금은 분식회계 등을 통해 조성된 비자금으로 집행될 수밖에 없는 점 등에 비추어 보면, 설령 원고가 ZZZ의 요청에 따라 QQ에게 일정 금액을 지급하였다고 하더라도 이를 사회적으로 용인되는 통상적인 비용으로 보기는 어렵다.

(2) As to the notice of change in the instant income amount

The purpose of the Corporate Tax Act is not to place the representative on the basis of the fact that such income has accrued, but to have certain facts that can be recognized as such in order to prevent an unfair act under tax law be considered as a bonus to a de facto representative regardless of their substance (Supreme Court Decision 2006Da49789 Decided September 18, 2008). Thus, unless it is clear that the revenue of a de facto company is attributed to it, the tax authority may not dispose of it as a bonus to the representative pursuant to Article 67 of the former Corporate Tax Act and the proviso of Article 106 (1) 1 of the Enforcement Decree of the same Act.

그런데 앞서 본 바와 같이 원고가 의약품 소매상, ZZZ 및 QQ에게 판매장려금 등을 지급하였다고 볼 수 없으므로, 사외유출된 원고 법인의 수입금은 그 귀속이 불분명하다고 할 것이어서, 구 법인세법 제67조 및 같은 법 시행령 제106조 제1항 제1호 단서의 규정에 의하여 원고의 대표자에 대한 상여로 소득처분을 한 이 사건 소득금액 변동통지는 적법하다.

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

3. Conclusion

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