Cho Jae-2015-west-4850 ( December 21, 2015)

The existence and scope of the claim for construction price has been generated on the date of conclusion of the judgment

Even if the claim for construction price has not been actually paid, the existence and scope of the claim for construction price has been accrued on the date when the judgment in the lawsuit is finalized.

Article 69 (Business Year in which Profits and Losses accrue from Services)

2016Guhap5988 Revocation of Disposition of Imposing Corporate Tax, etc.

An○○ et al.

○ Head of tax office

November 25, 2016

December 23, 2016

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

On November 12, 2015, the Defendant: (a) designated the Plaintiff-○ as the secondary taxpayer of △△ Construction Co., Ltd. on November 12, 2015; and (b) designated the Plaintiff-○ as the secondary taxpayer of △△ Construction Co., Ltd.; and (c) revoked each disposition imposing KRW 82,172,030 on January 2014, 2014; and (b) designated the Plaintiff-○ as the secondary taxpayer of △△ Construction Co., Ltd. on the same day; and (c) revoked each disposition imposing KRW 20,715,630, and KRW 16,18,300 for corporate tax of 2014.

1. Details of the disposition;

A. △△ Construction Co., Ltd. (hereinafter “△△ Construction”) is a company that mainly runs the construction business. The tax authority conducted an investigation by item of value-added tax on △△ Construction around September 2014. As a result, the tax authority confirmed that the construction of △△ was omitted from the sales amount of KRW 275,00,000 and the construction cost of KRW 1,285,900,000 for the toiletl Work in 201 and KRW 528,00,000,000, and received processing tax invoices equivalent to KRW 528,00,00,000. The tax authority notified the △△△ Construction in December 1, 2011 to the second period from February 2012, 201, and the corporate tax was corrected for the business year from March 10, 2015, but the △△△ Construction was both the national tax in arrears around March 1, 2015.

B. On March 10, 2015, the Defendant, with the property of △△ Construction, was unable to meet the above delinquent tax amount, designated the Plaintiffs, the oligopolistic shareholder of △△ Construction, as the secondary taxpayer of △△ Construction, and notified the Plaintiffs of the amount corresponding to the Plaintiffs’ shareholding ratio (including additional dues) out of the delinquent tax amount of △△ Construction (hereinafter “previous disposition”).

C. The Plaintiffs dissatisfied with the previous disposition and filed an objection against the Defendant on May 20, 2015, and the Defendant, on June 19, 2015, notified the Plaintiffs of KRW 1,094,287,920, which was recognized as progress payment in the lawsuit 1,285,000,000, as the amount failed to pay for the second period of sale, as the amount failed to pay for the second period of sale, and determined that the relevant corporate tax and value-added tax base and tax amount should be corrected and the remaining claims shall be dismissed on the ground that the time of supply of the said amount should be deemed as 1, 2014, not 2012 (hereinafter “instant decision”). According to the instant decision, on July 6, 2015, the Defendant corrected the amount of corporate tax in arrears in 2012, and notified the Plaintiff of KRW 1,094, value-added tax in addition to the corporate tax in 2014 and KRW 1,14.

D. On November 12, 2015, the Defendant still was unable to meet the above delinquent tax amount with the property of △△ Construction, and the Plaintiffs were designated as the secondary taxpayer. According to the stock holding ratio of △△ Construction, the Defendant again corrected the delinquent amount of corporate tax in 2012, and notified the Plaintiffs of the amount of corporate tax in 2014, corporate tax in 2014, and value-added tax in 2014 (hereinafter “instant disposition”).

E. Meanwhile, on September 18, 2015, the Plaintiffs were dissatisfied with the instant decision and filed an appeal with the Tax Tribunal, and was dismissed on December 21, 2015. Thereafter, the Plaintiffs filed the instant lawsuit seeking revocation of the previous disposition on March 3, 2016. On September 8, 2016, the Plaintiffs amended the purport of the claim to seek revocation of the disposition imposing corporate tax on November 12, 2015, with the purport of seeking revocation of the disposition of this case on November 24, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 5, 6 evidence, Eul evidence 1 to 10 each (including paper numbers, hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

△△ Construction entered into a contract for interior works, such as interior works, from April 1, 2012 to July 31, 2012 (hereinafter referred to as “instant construction”) with the construction period of △△ Construction and the construction period from April 1, 2012. Since the instant construction works fall under the construction works with the contract period of less than one year, the price for the instant construction works shall be attributed to the business year in which the date of delivery of the object actually falls.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On November 14, 201, 201, △△ Construction entered into a contract for the instant construction project with the construction cost of KRW 275,00,000 with respect to the toiletl work among the new construction of ○○○○○ Tourism Condo-type construction project located in ○○○○○○○○○-2 located in ○○○○○○○○○○○, with the construction cost of KRW 275,00,00,00, among the new construction works, on July 16, 2012, 7th floor teinology construction project among the new construction works in △△ Construction and the said new construction works, the first floor teinology construction project (1,285,90,000, and the construction period from April 1, 2012 to July 31, 2012.

2) After the completion of the toilet Twit Construction, △△ Construction suspended construction due to the completion of the instant construction work. On May 29, 2013, 201, △△ Construction applied for a payment order against the toilet Twit Construction for the payment of the construction cost of KRW 275,00,000 and the construction cost of KRW 1,285,00,00 among the construction cost of the instant case (○○○○ District Court 205,000 and KRW 20,360), and △△ Construction’s lawsuit brought an objection against △ Construction (hereinafter “instant lawsuit”), △△ Construction became final and conclusive from the date following May 30, 2013 to February 7, 2014, △△△ Construction became final and conclusive to 1,369,287,920 and 204% of the total construction cost of the instant case.

3) The instant construction project performed by △△ Construction in the process of the instant lawsuit was rescinded by agreement, and its flag and percentage were recognized to be as follows, and △△ Construction is currently exercising the lien on the instant construction project on the ground that it is not paid for the instant construction project, as at the present time.

[Grounds for recognition] The descriptions of Gap evidence Nos. 1, 3, and 4 and the purport of the whole pleadings

D. Determination

1) The principle of confirmation of a right, which is the principle of determining the time of attribution of income under the Income Tax Act, is based on the time when a right that is a cause of income comes into existence, in the event of time interval between the time when a right that is not the time when income is realized and the time when income is realized, such income shall be deemed as income at the time of the occurrence of a right that is not the time when income is realized and shall be deemed to have its significance in calculating income during the relevant year. It is reasonable to allow a prior taxation of an uncertain income under the premise that it would be realized in the future by the taxpayer's own effort to prevent a taxable year from depending on the taxpayer's income. In order to ensure that such income is realized, even if it is not necessary until the income is realized, even if the income is realized, it shall be considerably mature and finalized in terms of the possibility of realizing the right to income. Accordingly, it shall not be deemed that there is an income generated merely when the right to receive income comes into existence without this degree. The issue of whether it is mature or finalized shall be determined uniformly, taking into account the nature of individual rights and various legal matters (see.

2) The following circumstances revealed in light of the above facts and the above legal principles, i.e., ① △△ Construction filed a lawsuit seeking the payment of the construction cost due to disputes over the construction cost of △ Construction and the construction cost, and the judgment thereof becomes final and conclusive. The existence and scope of the claim for the construction cost against △△ Construction, which must be established on the date when the judgment of the relevant lawsuit becomes final and conclusive; ② △△ Construction, after the date when the judgment of the relevant lawsuit becomes final and conclusive, is able to enforce the above final and conclusive judgment against △△ Construction, thereby making it possible for △△ Construction to enforce the above final and conclusive judgment; ③ △△ Construction exercises a lien on the construction cost claim against △△ Construction, and thus, it is possible to recover the above claim for the construction cost of the instant construction; ④ Article 69(1)1 of the Enforcement Decree of the Corporate Tax Act provides that the above claim can be included in the gross income for the business year to which the date of delivery belongs, even if there is no room to apply the above provision to the contract cancellation of the contract of this case.

3. Conclusion

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