early 209west1296 ( October 24, 2009)

If the bonus disposal amount is appropriated as interest expenses for processing, non-deductible expenses;

The disposition of income of interest expenses not included in deductible expenses due to the payment of interest expenses incurred in the processing from ordinary deposits is the representative.

1. The plaintiff's claim is dismissed.

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

The defendant's non-deductible expenses of KRW 136,785,705,705 against the plaintiff on August 8, 2008 as interest expenses in the year 2006.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) On October 2006, the Plaintiff’s joint executor of the business and received 323,010,000,000,000,000 from the purchase price for the commercial buildings (CC 106,101) around October 2006, but the Plaintiff did not receive part of the price from AAAB, but the Plaintiff was erroneous in accounting by mistake that the Plaintiff received or deposited 161,505,00,000 won (323,010,000 won) corresponding to 1/2 of his/her share in cash (23,010,000 won).

2) The Plaintiff and AAA paid KRW 273,571,410 equivalent to twice the bonus disposal amount of this case on October 25, 2006 to the tax office and the communications company at the cost of value added tax and communication in 271, 2006. As such, ParkB should have managed the bonus disposal amount of this case as the payment of value added tax for the second time in 2006, due to the reduction of the non-value-added tax deposit. However, under the premise that the Plaintiff received the above 161,505,000 won in cash after the disposition trust agreement that was made with DD as the priority beneficiary, the bonus disposal amount of this case, which can be the Plaintiff’s share, was paid in cash as interest expenses.

3) Ultimately, as the Plaintiff did not receive the said KRW 161,505,00 in cash, the Defendant’s disposition of this case, based on the premise that the instant bonus disposal amount was discharged out of the company, is unreasonable, as long as it is clear that the instant bonus disposal amount falls under 1/2 of the amount of value-added tax paid from October 25, 2006.

(b) Related statutes;

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff, while implementing a project jointly with AA, opened a deposit account for the proceeds of sale in the name of D Construction, which is a contractor, and agreed to receive all the proceeds of sale in the above accounts, and managed them jointly by the joint event and the contractor. Meanwhile, the Plaintiff and AAA entered into a deposit contract for the disposal of movable property, which was designated as the first beneficiary of the trust principal and trust proceeds, as the sale of newly constructed apartment units is not smooth.

2) As the buyer of the above 101 commercial building, 00,000 won as down payment to AA, 120,000 won as the intermediate payment on October 16, 2006, and 17th of the same month, 15,000,000 won as the remainder payment, and 23,010,000 won as the value added tax, and 323,010,000 won as the value added tax, received receipts from the Plaintiff, and received tax invoices for the amount equivalent to 1/2 of the above 323,010,000 won from the Plaintiff.

3) On October 17, 2006, ParkBB, the Plaintiff’s tax agent, received in cash the total of KRW 11,505,000,000,000,000,000,000,000,000 from the sales of the building, and KRW 34,950,000,00,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000 won for the second period of 25, 2006, written on the cash book of the Plaintiff’s cash book.

4) On October 24, 2006, the Plaintiff and AAAA requested DD Construction to make each withdrawal of Plaintiff 151,894,360 won, AA 121,075,550 won (total amount of KRW 272,969,910), and on October 25, 2006, the amount of KRW 273,571,410 (the amount of KRW 2 times the bonus disposal amount in this case) was withdrawn from the account for the receipt of the sales price (the amount of KRW 151,894,360 was the account in Seodaemun-gu, Nam-do, and KRW 121,075,50, and KRW 601,50 was the account in the form of telecommunications transfer in the form of a communications company, not the transfer of cash in the form of a transfer of cash (the transfer of cash).

5) On October 25, 2006, the Plaintiff reported that he paid the instant bonus disposition amount in cash as interest at the time of filing a tax return. The Defendant deemed it as processing expenses to be non-deductible expenses and leaked to the country, but deemed it unclear to revert to the Plaintiff’s representative director, the instant disposition was taken in the same manner as the Plaintiff’s representative director.

6) Around December 2008, DD Construction drafted a written confirmation to the Plaintiff that “The sales price of KRW 300 million in the upper price of KRW 101 (excluding value added tax) is not deposited in the sales price receipt account, and the Plaintiff shall not be paid by account transfer or cash payment, etc., and thereafter, shall be offset when the disposal trust is settled after the completion of the disposal trust.”

[Ground of recognition] Facts without dispute, Gap evidence 4 to 7, 9, 11, 12

D. Determination

Where a corporation fails to record its sales in an account book despite the fact of sales or appropriates the cost of processing in an account book, barring any special circumstance, the profit of the corporation equivalent to the amount of the omitted sales or the cost of processing shall be deemed to have been leaked out, and in this case, the special circumstance to deem that the total amount of the cost of processing, etc. is not leaked out, should be proved by the corporation asserting it (see Supreme Court Decisions 201Du434, Apr. 13, 200; 20

As shown in the plaintiff's assertion, Gap evidence Nos. 9, 10, 13, and 14, and ParkB's testimony are hard to believe, and evidence Nos. 4 through 7, Gap evidence Nos. 11, and 12 (including each number) are insufficient to recognize the plaintiff's assertion, and there is no other evidence to acknowledge it.

Rather, the following circumstances, i.e., (1) the sales price of 101 commercial buildings or the sales price of 100,000 won exceeds 100,000 won; (2) the sales price of 100,000 won was collected and prepared by an ordinary tax agent; and (3) the sales price of 151,750,070 won was paid in cash on 206,000,000 won, and it is difficult to view that the sales price of 100,000 won was clearly known to the Plaintiff; (4) the sales price of 10,000,000 won was paid in cash on 30,000,000 won; and (5) the sales price of 10,000 won was paid in cash on 60,000,000 won was not known to the Plaintiff; (3) the sales price of 10,750,070,000 won was not known to the Plaintiff’s account payment of value-added.

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.