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Case Number of the previous trial
The early appellate court 2012 Before 4137
Title
Whether the issue bonuses paid to executives and employees are excluded from deductible expenses as bonuses based on the disposal of profits.
Summary
The issue bonus paid to the executive officers and employees of this case cannot be deemed as bonus by the disposition of profits, so the defendant's disposition of imposition is illegal since it is subject to inclusion in deductible expenses.
Related statutes
Articles 19 and 20 of the former Corporate Tax Act, Articles 20 and 43 of the Enforcement Decree of the same Act
Cases
Daejeon District Court-2013-Gu Partnership-2657 ( August 19, 2015)
The disposition of rectification of corporate tax is illegal without examining the remainder of the plaintiff's remaining arguments.
3. Conclusion
If so, the plaintiff's claim is reasonable, and it is decided as per the disposition.
(c)
Plaintiff
Korea, an incorporated association ○
The bonus was paid to its executives and employees.
(i) An executive bonus;
Date of payment
Payments
Details of payment
Name of bonus
December 3, 2007
96,666,600
200% of the monthly salary
Performance allowances;
December 31, 2007
56,666,650
100% of the monthly salary
Year-end bonus
on October 1, 2008
56,663,650
100% of the monthly salary
Woo-man bonus
November 14, 2008
65,833,330
150% of the monthly salary
Performance allowances;
December 31, 2008
64,249,990
100% of the monthly salary
Year-end bonus
December 31, 2009
18,500,000
300% of the monthly salary
Year-end bonus
on January 16, 2010
64,000,000
100% of the monthly salary
Woo-man bonus
December 31, 2010
109,150,000
150% of the monthly salary
Year-end bonus
on July 26, 2011
14,000,000
50% of the monthly salary
Performance allowances;
on December 2011, 201
67,200,000
100% of the monthly salary
Woo-man bonus
December 30, 2011
253,990,000
200% of the monthly salary
Year-end bonus
Consolidateds
966,920,280
(ii) staff bonuses;
Date of Payment
Payments
Details of payment
Name of bonus
November 13, 2007
1,661,665,410
(Agreement annexed to Wage Convention)
December 31, 2007
72,33,350
100% of the basic pay
Year-end bonus
02.01 01. 2007
542,357,720
Different performance allowances (within the range of 50%)
Annual end-of-age allowances
207 Total sum of 207
2,976,356,480
September 10, 2008
946,947,520
100% of the basic pay
Woo-man bonus
November 14, 2008
1,023,293,370
(Provisional Agreement on Wages)
December 31, 2008
1,497,076,990
Year-end bonus
December 31, 2008
66,227,200
Differential performance allowances (the highest 50%, excellent 20%)
Annual end-of-age allowances
Total amount of 2008
3,533,545,080
on January 29, 2009
1,127,644,360
50% of the basic pay
Woo-man bonus
December 31, 2009
2,317,740,700
200% of the basic pay
Year-end bonus
December 31, 2009
50,770,440
Different performance allowances (50% of the basic salary)
Annual end-of-age allowances
on 16, 2010
1,213,642,310
100% of the basic pay
Woo-man bonus
December 31, 2010
1,912,478,840
150% of the basic pay
Annual end-of-year gold
on July 26, 2011
701,645,130
50% of the basic pay
Performance allowances;
on December 2011, 201
1,413,052,280
100% of the basic pay
Woo-man bonus
December 30, 2011
3,385,644,350
200% of the basic wage + one million won
Year-end Performance Rates
Above 2009 Above 2011 Total
12,622,618,410
C. The Plaintiff’s bonus paid from 2007 to 2011 for each of its officers and employees.
Each corporate tax was paid by self-return by including it in deductible expenses for the business year.
D. Daejeon regional tax office’s corporate tax integration for the Plaintiff from April 3, 2012 to May 10, 2012
Non-investigation and the aggregate of the salaries of officers from 2007 to 2011 as follows:
966,920,220 won (hereinafter referred to as "executive bonus of this case"), employee bonus of 2007 and 2008
Total 6,509,902,210 won (hereinafter referred to as "employee bonus of this case") total 7,476,82,430 won
In fact, corporate tax is a bonus under the disposal of profits under Article 43(1) of the Enforcement Decree of the Corporate Tax Act
Business year
Executives bonus;
Staff bonus;
The annual aggregate
2007
153,33,250
2,976,357,130
3,129,690,380
208
186,746,970
3,533,545,080
3,720,292,050
209
18,500,000
-
18,500,000
2010
173,150,000
-
173,150,000
2011
35,190,000
-
35,190,000
Total Amount
966,920,220
6,509,902,210
7,476,822,430
international activity expenses, event expenses, etc. are not included in deductible expenses under the law, but not included in deductible expenses.
to the defendant, the court shall notify the defendant of the re-assessment of the tax base and amount of each corporate tax.
had been.
E. The Defendant’s bonus of this case and employee bonus of this case (hereinafter “the above”) according to the above investigation result.
'The bonus of officers and employees of this case') in deductible expenses shall be treated as non-deductible and tax base and tax amount.
Next, on June 11, 2012, corporate tax for the business year 2007, which shall be deducted from the tax amount to be collected by the Plaintiff.
1,152,698,652 won, corporate tax belonging to the business year 2008, 1,381,525,356 won, and corporations belonging to the business year 2010.
tax amounting to KRW 44,010,367, and KRW 82,44,755 for the business year belonging to 2011 were corrected and notified, respectively (hereinafter referred to as "the corporate tax").
The corporate tax for the business year 2009 shall be the tax base and the corporate tax for the fiscal year.
As a result of determining the amount of tax, there is no amount of tax to be deducted and the amount of tax to be refunded occurs.
It was excluded from the corporate tax rectification disposition.
F. On September 4, 2012, the Plaintiff filed an appeal with the Tax Tribunal on September 4, 2012, and filed a tax appeal.
The Tribunal's disposition to rectify corporate tax of this case on April 25, 2013 shall be paid to the plaintiff's performance bonus payment.
In accordance with the results of re-examination of the existence of the criteria for such payment, the tax base and amount shall be corrected.
The re-audit decision was made.
G. After re-audit according to the above decision, the Defendant conducted a re-audit, and on June 3, 2013, the corporation of this case to the Plaintiff.
The tax rectification disposition was justified and the plaintiff notified to the Tax Tribunal on June 7, 2013.
Although the re-trial was requested, it was dismissed on October 16, 2013.
[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 and 4 (if any, with a serial number)
(hereinafter the same shall apply), the purport of the whole pleading
2. Whether the disposition is lawful;
A. Summary of the plaintiff's assertion
A disposition to correct the corporate tax of this case, which was made in the exclusion of the bonus of officers and employees
For the same reason, it is illegal.
1) It is not a bonus by the disposal of profits.
Wages shall be paid for bonuses paid continuously and regularly by the Plaintiff at the end of the year.
payment for purposes of conservation, welfare, or wage agreements, etc. with the labor union;
As it is not a bonus by the disposal of profits, but a kind of personnel expenses, it is recognized as loss.
section 3.
(ii) the allocation of performance bonuses under the prior written agreement;
Even if the bonus of the executive officers and employees of this case was based on the disposition of profits, the award of the employee of this case among them
The amount of such bonus shall be paid at least once a year under Article 6 of the Plaintiff’s salary regulations and personnel management guidelines;
between the Plaintiff’s personnel management rules and the Korean Government Research Workers’ Union, an incorporated association and the Plaintiff
section 20(1) of the Corporate Tax Act, the Enforcement Decree of the Corporate Tax Act, based on collective agreements, etc.
20, Paragraph 1, 4 of Article 20
A written agreement for the determination and method of distribution to the worker shall be made in advance and paid accordingly.
As a result-sharing bonus, it should be included in deductible expenses.
3) Violation of the principle of trust protection.
Bonuses paid to executives and employees during the business year shall be established non-taxable practices.
Since the plaintiff was trusted in doing so, the disposition to correct the corporate tax of this case is to protect the trust.
It also goes against the principles.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
1) As to whether the bonus of the instant officers and employees is based on the disposition of profits
A) The principle of no taxation without representation is a requirement for taxation, or a requirement for tax exemption or reduction
The interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, unless there are special circumstances.
It is not permissible to expand or analogically interpret without reasonable grounds (see Supreme Court Decision 201 January 201).
27. See, e.g., Supreme Court Decision 2010Do1191
surplus is the amount obtained by deducting the capital from the net asset value of the corporation in capital transactions;
and earned surplus generated in the course of business activities, only double earned surplus;
Dividends, etc. by the appropriation of retained earnings with approval from the general meeting of stockholders or the board of directors.
common profit disposal means the disposal of such earned surplus.
Disposition of a surplus shall be made to stockholders, etc. pursuant to the provisions of Acts and subordinate statutes and the articles of incorporation of the corporation after the
As such, it shall be treated as losses in order to calculate the profit of the business year concerned again.
shall not be required to do so.
For this reason, Article 19(1) of the Corporate Tax Act provides that "a disposal of surplus earnings" shall be limited to deductible expenses.
Except as otherwise expressly provided, the proviso of Article 20 subparagraph 1, the Corporate Tax Act to promote the welfare of employees;
Article 20 (1) 4 of the Enforcement Decree of the Act provides that a domestic corporation shall be employed (the chairperson, president, vice president, chief director, and director of the corporation);
Executive officers, such as representative director, managing director, executive director, and auditor), performance calculation index and its goals;
A written agreement is made with respect to the method of measuring and allocating the performance of the worker;
The performance-sharing bonus paid to the corporation can be included in deductible expenses, and the implementation of the Corporate Tax Act.
Article 43(1) of the Decree shall also apply to the same purport, such as piece rates under Article 20(1)4 of the Enforcement Decree of the Corporate Tax Act.
(2) Except as otherwise provided for in paragraph (1), a bonus paid to officers or employees in accordance with the disposition of profits shall be included in the loss.
rule that such entry shall not be made.
On the other hand, according to Article 23 subparagraph 3 of the Enforcement Decree of the Labor Standards Act, the period exceeding one month
A bonus calculated on the basis of a reason that it constitutes a wage, which constitutes a bonus, Article 19 of the Enforcement Decree of the Corporate Tax
In principle, it constitutes a loss as a "labor cost under subparagraph 3 of Article 3: Provided, That it shall be paid to an executive officer by a corporation
Allowances determined by the articles of incorporation, the general meeting of shareholders, or the resolution of the board of directors among bonuses;
paid in excess of the amount paid under subsection (1) of the Corporate Tax Act, such excess amount
The deductible expenses shall not be included in deductible expenses pursuant to Article 43 (2) of the Decree.
The meaning of such a "disposition of profits" and the nature of such "regument" and the form, language, and body of the relevant regulations;
In light of the above legal principles, the "disposition of profits" under Article 43 (1) of the Enforcement Decree of the Corporate Tax Act is deemed as follows.
In principle, approval and approval of the appropriation of retained earnings by shareholders' meeting or board of directors
It is reasonable to interpret that only "disposition of retained earnings" means disposal of retained earnings, and such form shall be the same.
Although it was not provided, the "actual profit" pursuant to the substance over form principle under Article 14 (2) of the Framework Act on National Taxes.
At least bonuses shall be deemed as bonuses paid by a disposition to be excluded from the calculation of losses.
corporation under Article 43(7) of the Enforcement Decree of the Corporate Tax Act, the officer or employee who has received such
corporation's actual manager, such as the State, and the amount of the bonus received shall also be the officer or employee of the corporation.
"Disposal of Profits" is substantially paid because it has been paid excessively regardless of the performance of the business affairs of acceptance;
as stated in section 163 of this title.
B) The following facts do not conflict in this case, or Gap evidence Nos. 10, 18, and Eul No. 1, 3;
Each description of evidence 7 to 18, 20 evidence and the whole purport of oral argument can be recognized respectively.
① The Plaintiff’s membership qualification is a maritime transport businessman, shipbuilding and related industrial businessmen, marine insurance businessmen, fishery businessmen, etc.
agencies related to the plaintiff, including shipbuilding technicians, marine technicians, persons with abundant knowledge and experience in maritime relations;
An officer appointed by the winner or representative and an employee of the plaintiff shall be a member by a resolution of the board of directors.
the Board of Governors, the Korea Shipping Association, the Korea non-life-insurance association, and the Korea Shipbuilding, among related organizations.
The representative of the industrial association, the representative of the Korean Shipping Association, and the director in charge of the competent authority shall be ex officio members.
(2) The officers of the plaintiff shall consist of not more than 20 directors and not more than two auditors (Provided, That marine transportation shall be conducted.
Directors appointed from among business operators, shipbuilding and related industrial operators, marine insurance business operators, and fishery operators shall have the total number of directors.
No more than 1/2 of the Act), among them, one chairperson and four executive directors as at 2007 as a full-time executive.
2.3.0
(3) The board of directors consisting of all the officers of the plaintiff, including full-time officers, shall operate the business plan and courtesy
corporation, business reports, settlement of accounts, and other important matters shall be decided, and an officer at the meeting of 207, 2008
When a resolution on remuneration is made, a resolution is made in a state of retirement of full-time officers and Plaintiff employees.
was made.
(4) The business plan, budget, business report and settlement of accounts of the plaintiff shall be decided by the general meeting of members.
shall report to the competent authority upon dissolution of the plaintiff, and the disposal of property upon dissolution of the plaintiff shall be permitted by the competent authority.
of this chapter.
(5) The Plaintiff’s registration of ships, inspection of manufacture, continuous inspection of prepaid ships, inspection of machinery and materials, manufacturing methods, etc.
income through services, such as technical review, government agency inspection, ship safety-related inspection, etc.;
(2) The Plaintiff’s fee for such services is 70% of the fee for the prepaid competition.
The amount of intentional income shall be approximately KRW 67.8 billion in the year 2007, approximately KRW 100.9 billion in the year 2008, KRW 106.8 billion in the year 2009.
Won, approximately KRW 9.9 billion in 2010, KRW 14.9 billion in 201, and KRW 14.9 billion in 201.
6. Articles 3 and 4 of the "Rules on Officers' Remuneration, etc. (amended on February 17, 2006)" for the plaintiff
Remuneration for a part-time officer shall be based on the annual salary system, and the limit of remuneration shall be determined by the general meeting, and remuneration for each officer shall be determined by the general
the board of directors shall determine the limit of the officer’s remuneration in attached Table 1 as KRW 80,00,000.
the Commission.
7) On December 12, 2007, the Plaintiff holds a board of directors meeting on December 12, 2007 to lower the limit of executive remuneration to 1.5 billion won
and the annual salary of an executive officer shall be KRW 130 million and the annual salary of the chairperson shall be KRW 100 million.
60 million won shall be determined as 60 million won, and 200% of the monthly salary in the year 2007 shall be paid;
The decision was made in 2008 that differential payments were made, and 1/3 of the parts that result in subsequent performance.
Investment for the future, 1/3 shall be reverted to the strengthening of customer services, and 1/3 shall be assigned to employees.
It discussed that division plan is a divided plan.
(8) The plaintiff shall hold an extraordinary general meeting on December 26, 2007 and arises from the depression of the shipping industry.
The excess revenue shall be utilized in piece rates to encourage the dismissal of officers and employees and to strengthen the unity between labor and management, and retirement benefits shall be shocked.
The project of 2007, which is utilized by setting a gold, expanding contributions to the intra-company labor welfare fund, etc.
It discussed the revised bill and the revised budget bill on the revised plan, and revised the "Regulation on the Remuneration, etc. of Officers".
(9) Articles 3 and 4 of the amended Regulations on Officers' Remuneration, etc. (amended on January 1, 2008)
shall be paid to full-time officers in consideration of annual salary, performance rates, and other performance of duties, and their remuneration.
The amount of the Do shall be determined by the general meeting, and the annual salary of each officer shall be determined by the board of directors, and bonus and other businesses.
the Board of Directors shall pay such amount as the Board determines within the limit of the officer’s remuneration.
At the same time, the limit of executive remuneration is set at KRW 1.5 billion in attached Table 1.
(10) The plaintiff shall hold a board of directors meeting, and the annual salary of executive officers in 2009 on December 2, 2009 shall be decided jointly, and the chairperson shall be the chairperson.
The performance rate of the executives shall be 300%, and the chairperson shall determine the performance rate of the remaining executives within the limit of 300%.
on December 2, 2010, the annual salary of executive officers of 2010 increased by 5%, and the piece rate shall be the same.
A decision was made to pay 20% of annual salary.
11. Article 6 of the "Allowance Regulations" of the Plaintiff is based on the basic salary for employees based on their work performance.
It provides that bonuses shall be paid at least once a year.
(12) When the plaintiff concludes a wage agreement with the National Public Research Trade Union, on November 2007
8. Bonuses shall be paid monthly in equal shares by 900% of the basic salary, and the piece rates in 2007 shall be the basic salary;
200% shall be paid, and on November 14, 2008, bonuses shall be payable in equal shares by 900% of the basic salary;
The special bonus in 2008 shall be paid 250% of the basic salary, and the bonus in December 31, 2009 shall be of the basic salary.
The special bonus in 2009 shall be paid in equal shares each month, and 200% of the basic salary shall be paid in a lump sum.
on December 28, 201, 50 per cent of the basic salary as the special bonus of 2011; and
Each agreement was reached to provide differential payment of KRW 1 million.
(13) The bonus rate of executives and employees (for employees, the increased annual salary system from 2010) shall be applied.
Until that time, 900% per bonus year was divided by 12 months instead of lowering the amount of basic salary.
In addition to the basic pay, excluding the bonus of 900% per annum.
calculated ratio is 300% of the monthly salary in 2007, 350-450% of the basic salary, and 2008
For the year, 350% of the monthly salary, 320-350% of the basic salary, and for the officers in 2009, the monthly salary.
300% of the basic salary, 300% of the basic salary, 250% of the monthly salary for officers in 2010, and 250% of the basic salary for employees;
In 2011, there was no big difference between 350% of the monthly salary and 250% of the basic salary; and
The annual salary of KRW 190 million between 2007 and 2011 by the Chairperson, and 100 million by a full-time officer;
From 300 to 100 million won to 60 million won, for full-time officers, there were cases where the number of general employees is less than that of the higher general employees.
(14) The level of wages of the Plaintiff employees shall be the position belonging to the prepaid company of another country, such as the United Kingdom or
The level was lower than the level of wages of the class, and in detail, the Plaintiff’s employee in 2007 and
In 208, the level of severance from employment of the employee who had retired from employment due to other advance payment company during the year of such severance and the level of benefits for the year
B. In comparison, most of the salaries received from the Plaintiff before departure from employment, the head of the other pre-employment department after departure from employment.
5 million won, more than 5 million won, more than 30 million won, and more than 3,00 won.
C) The following circumstances revealed from the above fact of recognition, namely, ① the Plaintiff’s competent authority
holding shares as a non-profit corporation subject to supervision, and the position of the plaintiff to whom bonus has been paid.
in the delegation relationship or employment relationship with the Plaintiff, the Board shall have de facto control or special relationship with the Plaintiff
not deemed to be an officer bonus, and the matters concerning the bonus of an officer shall be non-standing in the state of his/her retirement.
Wages between the plaintiff and the trade union have been determined by directors, and matters concerning employees bonuses;
Most of the decisions made by the Convention, and ② The bonus of the executive of this case shall be in accordance with the Plaintiff’s compensation regulations.
(d) the specific amount is upon resolution of the board of directors or upon delegation by the board of directors;
The bonus of the employee of this case seems to have been determined by the Plaintiff’s salary regulations and wage agreements, etc.
(3) from 2007 to 2011, the business office of the Plaintiff appears to be specified in the specific amount.
in light of the record, the bonus of the executive officer and employee of this case is less than the pre-paid agent of competition, even if the commission is received.
is deemed to have been paid as compensation for the work of officers and employees who have contributed to increasing business earnings in the year;
(2) The wage agreement between the plaintiff and the Korean Public Research Workers' Union is concluded in December of each year.
of the board of directors' resolution or payment with respect to the bonus of officers and employees of the case shall be made mainly in December.
(4) The bonus of the executive officer and employee of this case is 250 to 450% of the monthly salary, and its result.
In light of the fact that the amount is not excessive, and there is no particular difference in the rate of payment between officers and employees.
Examining the facts in light of the legal principles as seen earlier, the bonus of officers and employees of this case shall be the company's death in the business
Corporate tax shall be paid as bonus to encourage executives and employees and to compensate for wages with respect to their business performance.
Article 43 of the Enforcement Decree of the Corporate Tax Act is deemed to meet the requirements for losses under Article 19(2) of the Act.
It is difficult to regard it as a bonus paid by the disposal of profits under Paragraph 1.
2) As to whether the corrective disposition of the corporate tax in this case is unlawful
Therefore, this case’s bonus is based on the premise that it is a bonus by the disposal of profits.
Defendant
Daejeon Head of the District Tax Office
Conclusion of Pleadings
2015.07.22
Imposition of Judgment
2015.08.19
1. Details of the disposition;
A. The plaintiff is a non-profit corporation established on August 23, 1960, which is engaged in the registration of the ship, inspection of the ship, etc.
The affairs delegated by the State pursuant to the Ship Safety Act, etc. shall be the target business.
B. From 2007 to 2011, the Plaintiff during each business year as described in the following table: