Suwon District Court 2009Guhap271 (No. 16, 2009)

Early High Court Decision 2008Du1570 ( October 10, 2008)

The propriety of the disposition of exclusion of payment fees from deductible expenses as bonus by disposition of profits.

In view of the fact that the agreement to provide consulting services through a corporation is reached while providing consulting services for the sale of real estate, the portion paid to the person to whom it actually belongs is reasonable to determine the amount of loss.

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

1. Judgment of the first instance shall be modified as follows:

A. The Defendant’s imposition disposition of KRW 81,936,230 for corporate tax of KRW 54,346,672 for the year 2004 against the Plaintiff on April 3, 2008, and the imposition disposition of KRW 69,598,30 for the year 2005, each exceeding KRW 37,274,024 for the corporate tax of KRW 69,598,30 for the year 205 shall be revoked.

B. The plaintiff's appeal is dismissed.

2. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The Defendant revoked each disposition of imposition of KRW 81,936,230 of corporate tax for the year 2004 against the Plaintiff on April 3, 2008 and KRW 69,598,30 of corporate tax for the year 2005.

2. Purport of appeal

The judgment of the first instance shall be revoked. The plaintiff's request shall be dismissed.

1. Circumstances of the disposition;

(1) On July 28, 2001, the Plaintiff formed a contract with BB Korea Co., Ltd. (hereinafter “BB Korea”) on September 1, 2004, under which the Plaintiff entered into a contract with BB Korea to sell real estate (hereinafter “the instant real estate”) including land for factory 12-2 15,990 square meters in Young-gu, Young-gu, Seoul (hereinafter “BB Korea”) as a corporation established for the purpose of civil engineering and construction, real estate management, etc.

(2) On December 2, 2004 and January 6, 2005, the Plaintiff received KRW 200 million from BB Korea in return for sales consulting, and treated the representative director E and director E and director E as paying each KRW 100 million as other income, and thereafter, calculated the tax base and tax amount by appropriating the total amount of KRW 400 million (hereinafter referred to as “the instant money”) in deductible expenses, and filed a return on each corporate tax for 2004 and 2005 with the Defendant.

(3) On April 3, 2008, the Defendant issued a notice to the Plaintiff to additionally pay KRW 81,936,230, and KRW 69,598,300, the corporate tax for the year 2005, which reverts to the Plaintiff, to the Plaintiff (hereinafter “instant disposition”), after making a sales consultation with BB Korea and receiving the fees, to which EE and EF belonged to the Plaintiff.

(4) The Plaintiff was dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on October 10, 208.

[Ground of recognition] No dispute, Gap evidence 1, 3, 9, Gap evidence 10-1, 2, Gap evidence 16, Eul evidence 1, 4, and 10-1, 2, and the purport of the whole pleadings

2. Whether the imposition disposition of the instant case is lawful; and

A. The plaintiff's principal

In fact, the Plaintiff’s representative director EE, directors of EF conducted consulting on the sale of the instant real estate with Kim GG, JeongA, and Kim HH (hereinafter “GG, etc.”), and the Plaintiff paid 362 million won out of the instant money through E and EF, and distributed it among each other. Accordingly, according to the role of each of the instant real estate sales consulting, KRW 340 million out of the said KRW 362 million was entrusted to Kim GGG, and KRW 20 million was reverted to Kim H, and KRW 362 million was reverted to Kim GG, and KRW 20 million was reverted to Kim H. Therefore, the Plaintiff’s loss should be recognized.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

① While the KimG GG retired from NG in around 2004 and operated the N Licensed Real Estate Agent Office, at around August 2004, requested that “BB Korea from KK with the right to manage the property of the BB Korea, known to the general public, sell the instant real estate through the specialized real estate brokerage corporation for sale of the instant real estate.” At the request of 'BB Korea from K with the right to manage the property of the BB Korea, i.e., purchase price calculation, physical color and price negotiations with the buyer, i.e., the representative of the Thai Real Estate Brokerage Co., Ltd., who was well known in the real estate brokerage system, provide the above sales consulting to the JungA.

② Although receiving the above sales consultation from KimG, it was difficult to concentrate on the sales consulting due to health problems, etc., Jung Ho introduced E to the representative director of a corporation that can issue the tax invoice at the same time while providing the above sales consulting, and linked E with KimG by being introduced.

③ On September 1, 2004, the Plaintiff’s representative director EE entered into a contract with BB Korea with BB Korea to provide BB Korea with a sales consulting for the instant real estate amounting to KRW 400 million, and conducted consulting services with the Plaintiff, including on-site answers to the instant real estate, collection of information, preparation of reports, legal review, draft of the contract, and preparation of a draft contract. KimG mainly took charge of the buyer’s physical color and negotiation with the buyer.

④ On December 1, 2004, BB Korea concluded a sales contract to sell the instant real estate at KRW 10.8 billion to the Plaintiff, Kim GGG, and JungA Co., Ltd. (hereinafter “MMR Korea”) in the presence of KimG, by means of their joint sales consultation. On December 1, 2004, BB Korea received each tax invoice from the Plaintiff on December 2, 2004 and January 6, 2005, and paid the Plaintiff KRW 200 million in total with the sales consulting cost.

⑤ On December 3, 2004, the Plaintiff opened a board of directors and decided to pay EE and E-F a KRW 100 million for the reason that the Plaintiff actually performed the consulting on selling real estate of this case, and E-E and E-F to pay KRW 100 million for the reason that it was actually performed by the director, and disposed of the above KRW 200 million for the payment commission and the cost of selling services as deductible expenses from the following money. E- on the same day, the amount of KRW 90 million for the above KRW 30 million for the cashier’s checks and KRW 75 million for the total amount of KRW 45 million for the cashier’s checks and KRW 15 million for cash on the same day. The details of the payment of the above cashier’s checks were as follows.

④ On January 7, 2005, the Plaintiff opened the board of directors, and decided to pay E and E and E and EF KRW 100 million for the same reasons as above, the Plaintiff paid to E and E and EF KRW 100,000,000,000 after subtracting taxes, etc. from the above money, and disposed of the above KRW 200,000,000,000 in the account of payment commission and cost of service sales as deductible expenses on the same day. E and E are KRW 10,000 in cash on the same day, and E and F KRW 82,00,000 in cash, KRW 42,00,000 in total, and KRW 42,000 in cash, respectively. The details of payment of the above cashier’s checks are as follows.

7) On January 10, 2005 and July 10, 2005, the Plaintiff paid to the Defendant the tax amount under the condition that the Plaintiff paid other income to E and E in relation to the instant money as indicated in the following table.

(8) On May 2, 2008, the Plaintiff filed with the Tax Tribunal a petition for trial (1570, 2008, 1570, 2008) on the instant disposition, and submitted to the Tax Tribunal documents proving that GimG received KRW 340,000,000 through Han-ro Accounting Firm on September 11, 2008, as follows, but was dismissed.

[인정 근거] 갑 제2, 3호증, 갑 제4호증의 1, 2, 갑 제5호증, 갑 제6호증의 1, 갑 제11호증, 갑 제13호증의 1, 2, 갑 제14, 15, 16호증, 을 제4, 7호증의 각 1, 2, 을 제8, 9호증의 각 1, 2, 3, 을 제10호증의 1, 2의 각 기재, 갑 제12호증의 일부 기재, 제1심 증인 정AA의 일부 증언(뒤에서 배척하는 부분 제외), 제1심 법원의 QQQQ은행 장안구청출장소장, 주식회사 PP은행 은행장, 주식회사 한국스탠다드차타드제일은행 무교지점장, 주식회사 RR은행 수신서비스센터장, 농업협동조합중앙회 용인시지부장, TT우체국장, 주식회사 SS은행 자금물류지원센터장, TT농업협동조합 신상동지점장에 대한 각 금융정보제공명령결과, 제1심 법원의 MMM에어코리아에 대한 사실조회결과, 변론 전체의 취지

[Evidence Evidence] Evidence No. 6-2, Evidence No. 7, Evidence No. 12, Part of Evidence No. 12, Evidence No. 6-2, Evidence No. 13, and Evidence No. 30, Evidence No. 11

2) Whether KRW 150 million has been paid as to whether KRW 362 million has been delivered to KimG, etc.

In full view of the following circumstances revealed through the above facts, the Plaintiff calculated the sum of KRW 43 million to KimG on December 2004, KRW 20 million, and KRW 63 million ( KRW 20,000,000 paid to JeongA), among the instant monetary amounts, from among the consulting cost for selling the real estate in 2004, KRW 500,000 for KRW 20,000 for KRW 50,000 for KRW 200,000 for KRW 360,000 for tax adjustment from each of the above 200,000 for KRW 50,000 for KRW 20,000 for KRW 95,00 for KRW 200 for tax adjustment from among the consulting cost for selling the real estate in 204, and the corporate tax rate in 2005 exceeds corporate tax rate of KRW 200,000 for KRW 3,500,000 for KRW 360,000 for tax adjustment

B) Whether the remainder of KRW 27 billion was paid

(1) The burden of proving the cost of loss

In a lawsuit seeking revocation on the grounds of illegality of taxation, the tax authority has the burden of proving the legality of disposition and the existence of taxation requirements. Thus, in principle, the tax authority bears the burden of proving the amount of expenses to be included in deductible expenses, which are the basis of determining the amount of corporate tax income. However, in a case where the taxpayer asserts that some of the expenses reported by the taxpayer are false or that the reported amount is false and thus the taxpayer is required for other expenses equivalent to the same amount, the taxpayer needs to prove the existence and amount of such other expenses (see, e.g., Supreme Court Decisions 94Nu5816, Oct. 28, 1994; 96Nu6158, May 8, 1998). If it is proved that the facts in light of the empirical rule in the specific litigation process are presumed to be eligible for the application of the empirical rule, unless the other party proves the relevant facts not meeting the taxation requirements (see, e.g., Supreme Court Decision 200Du4834, Apr. 28, 1997).

(2) Examining the following circumstances revealed by the above facts in light of the above legal principles, it is insufficient to view that the Plaintiff paid KRW 27 billion out of the instant money to E and eF to KimG via E and eF as the consulting cost for the sale of the instant real estate, and there is no other recognized data.

① 원고가 국세심판원에 소명한 김GG의 수령금 사용내역(원고가 소장에서도 동일한 내용을 주장하였다)은 합계가 333,097,420원인데, 아래 ㉠, ㉡ 사정에 비추어 볼 때 위 사용내역에 포함되지 않은 것으로 보이는 자기앞수표 금액 1억 1,300만 원(4,300만 원 + 7,000만 원)을 위 합계에 더한 금액이 446,097,420원으로 이 사건 금원마저 초과한 점에 아래 ㉢, ㉣ 사정을 더하여 보면, 위 사용내역은 믿기 어렵다.

In light of the fact that KimG and its wife were revealed to have been used by the GG and its wife in the L Island of this case, the sum of KRW 43 million 43 million on one’s own front check was presented for payment from December 7, 2004, the day following the date of payment of the purchase price of the apartment of KimG’s apartment, the day after December 6, 2004, the payment date of the purchase price of the apartment of the apartment of KimG, the above cashier’s check was not likely to have been used as the apartment rent, and it is not included in the use usage.

In light of the fact that: (a) the cashier’s checks issued by EE and EF and the cashier’s checks issued and presented to be paid in the early season are not included in the details of the above receipt; (b) the sum of KRW 1 and KRW 70 million,000,000,000,000,000 won are not included in the details of the above receipt; and (c) the details of the above receipt are cash flow, there is no room to be included in the said details of use.

B. The tax invoice (Evidence A No. 15) on the purchase price of vehicles on January 3, 2005, 2005 'the date of preparation', not ‘the date of January 3, 2005 ' March 27, 2001', seems to be irrelevant to the place of use of the money in this case.

㉣ 위 수령금 사용내역에 의하면 2005. 1. 7. 이후 김GG 또는 배KH 계화에 합계 2억 1,500만 원이 입금되었는데, 이EE, 이FF는 2005. 1. 3. 현금으로 합계 1억 4,000만 원을 인출한 점, 김GG이 2004. 12. 3.경 수령한 현금은 2005. 1. 3. 이후에 입금할 만한 특별한 사정이 있었다고 엿보이지 않는 점 등에 비추어 보면, 2005. 1. 7.과 2005. 1. 12. 모두 이 사건 금원의 입금으로 보기 어렵다.

② In light of the fact that, “GG was out of the real estate brokerage or consulting, it is difficult to conduct field inquiries and legal review,” the first instance court’s witness and KimGG’s experience in real estate brokerage in the real estate brokerage field was very short, and that the EE and JungA were not engaged in the real estate brokerage field prior to that time, and that the E and JungA made on-site answers to the real estate of this case, the calculation of sales prices, legal review, and the draft of the contract, etc., it is not deemed that KimG was capable of performing sales consulting under the lead of them.

③ In the first instance trial, the Plaintiff’s legal representative testified that, in carrying out the consulting on the sale of the instant real estate, the Plaintiff’s actual services, such as information collection and feasibility studies, reasonable price calculation, physical color and price negotiations, etc. (record 531 page). Accordingly, the Defendant testified as “for example, whether it was implicitly agreed to have 85% of the service cost,” but it is difficult to believe in light of the fact that, “GGG was unable to carry out any on-site answers or legal review, etc.” in the supplementary question, it is difficult to believe that it was “GGG was difficult to do so because it was out of door to real estate brokerage or consulting.”

④ From January 7, 2005 to January 13, 2005, when EE and EF withdrawn a total of KRW 140,000,000,000,000,000,000 won, from January 7, 2005 to January 13, 2005, it is difficult to view that regular AF paid KRW 90,000,000 to the account of this case on January 14, 2005, Kim H presented a bill of KRW 1,00,000,000,000,000,000,000 won, which was first issued from EE to Kim immediately on the day on which he received money from E; in light of the fact that there is no indication of 'EA' as deposit in the account of Kim GG on January 12, 2005, it is difficult to view that it was related to this case’s cash deposit in the account of this case.

D. Sub-determination

Therefore, the instant disposition, based on the premise that KRW 155 million, among the instant money, was paid at the consulting cost for the sale of the instant real estate to KimG, JungA, and Kim H, is unlawful only on the part regarding KRW 155 million, and the remainder is lawful.

Furthermore, in the event that the amount of corporate tax (including additional tax) that the Plaintiff is obligated to pay is included in the Plaintiff’s deductible expenses, the Plaintiff should additionally pay KRW 550 million as corporate tax for 2004, and KRW 54,346,672 as corporate tax for 204, and KRW 37,274,024 as corporate tax for 205, as stated in the attached calculation statement.

3. Conclusion

Therefore, the part of the disposition imposing corporate tax on KRW 150 million among the plaintiff's claims is justified, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, the defendant's appeal is partially accepted and the judgment of the court of first instance is to be modified, and it is so decided as per Disposition.