Seocho 2012west 1848 (Law No. 18, 2012)

Where evidence that can be recognized as deductible expenses is insufficient, the original disposition party that denied the deductible expenses;

It is difficult to accept the request because it is not verified whether the sales allowance and the sales agency fee have been actually paid solely by the copy of the passbook in the name of the applicant corporation or the representative director, and whether the payment is directly related to the sales price at issue.

2012Guhap10789 Revocation of Disposition of Corporate Tax Imposition

AAA Development Corporation

Head of Seocho Tax Office

May 3, 2013

June 14, 2013

1. The plaintiff's claim is dismissed.

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

On January 2, 2012, the Defendant revoked the imposition of KRW 000 of the corporate tax of the business year 2005 against the Plaintiff.

1. Details of the disposition;

A. The plaintiff purchased the right of sale from BB Construction Co., Ltd. (hereinafter "B Construction") around February 2003 to 30 households of BBO apartment stores located in Bupyeong-gu, Incheon (hereinafter "the commercial building in this case"), and paid the price in installments from 2003 to 2005 (However, the price of 00 won (i.e., the supply price of 00 won + value-added tax 0000 won) was paid directly by several buyers who purchased the commercial building in this case to BB Construction. (ii) The plaintiff sold the commercial building in this case to GB Construction by means of open competitive bidding around June 2003, and the total amount of the sale price was 00 won (= value-added tax + value-added tax) and the sales price was paid in installments from 2003 to 2005 and the intermediate payment was paid in installments.

C. Upon filing a corporate tax return for the business year 2005, the Plaintiff: (a) purchased the right to sell the instant commercial building in KRW 000; and (b) paid the price around that time; and (c) reported to ParkCC, etc. that it was sold in lots to the Defendant to receive the price (=00 won of supply value + value-added tax 000 won).

D. 1) As a result of the tax offense investigation conducted against the Plaintiff from August 18, 2009 to November 6, 2009, the Defendant confirmed that the Plaintiff omitted 000 won (i.e., the value of supply - KRW 000 - the value of supply 000) by reporting that the Plaintiff purchased the sales right of the instant shopping district and sold it in 000 won to the ParkCC, etc., as described in the above paragraphs (b) and (c).

2) In calculating the amount of the Plaintiff’s corporate tax evasion, the Defendant revised and notified the Plaintiff’s actual sales revenue for each business year in which it received, and the amount that the Plaintiff purchased the sales right for the instant commercial building and paid to BB Construction from 2003 to 2005 as the expense for the business year in 2005. On December 17, 2009, the Defendant corrected and notified the Plaintiff 00 won (200 won for the business year in 200 and 2004 business year in 200: 00 won for the business year in 2005 and 000 won for the business year in 2005 - 000).

E. 1) The Plaintiff, who is dissatisfied with the disposition of imposition of each of the above corporate tax, filed an objection on March 16, 2010 with the Tax Tribunal on May 19, 2010.

"2) In the case of sale before the completion of the commercial building after purchasing the right to sell the commercial building of this case under new construction on December 7, 201, the Tax Tribunal judged that it is reasonable to impose 2003 to 205 corporate tax for the business year including the date of settlement of the price, the date of transfer registration, the date of delivery or use of the commercial building in accordance with Article 68 (1) 3 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19891 of Feb. 28, 2007), and the date of prompt settlement of the price, the date of transfer registration of ownership, the date of delivery, etc. are confirmed to be 205 business year, and it is reasonable to dismiss the plaintiff's request for taxation of 200 to 2000 to 305 to 205 to 200 to 200 to 205 to 200 to 200 to 200 to 205 to 200 to 200 to .

[Reasons for Recognition] The facts without dispute, Gap evidence 1, 5 through 9, and 17 (including each number, hereinafter the same shall apply), Eul evidence 1, 2, and 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) argument that 0 billion won credit relating to the Multilateral Contract is claimed;

Since KimD, the representative director of the plaintiff, around November 2002, came to know of 00 won of the plaintiff KimE, BF had been constructing apartment buildings and commercial buildings within the apartment complex with 1,000 OO in Incheon Bupyeong-gu, and the commercial buildings within the apartment complex was planned to purchase and sell the commercial buildings, and it was in contact with HF, the Vice-Chairperson of BB Construction, known through introduction of G, which was 00 won, at least 00 won of the actual sales price of the commercial building, but at least 00 won of the sales price, 200 won of the sales contract, and 200 won of the sales contract, 200 won of the sales contract, and 200 won of the sales contract, 200 won of the sales contract, 300 won of the sales contract, and 200 won of the sales contract, 300 won of the sales contract, and 200 won of the sales contract, 200 won of the other H.

The plaintiff, while selling the commercial building in this case, paid 000 won in total to the employees as sales allowances, and paid 000 won in total to the sales agents, and the above sales allowances and sales agency fees should be recognized as costs.

3) Claim for deduction of money directly paid by buyers to BB construction

The Plaintiff sold the instant commercial building in 000 won to ParkCC, etc., and had the buyers pay 00 won, which is a part of the price, directly, to BB Construction, and the above amount should be deducted from the Plaintiff’s sales.

4) Claim for deduction of the amount equivalent to the interest on the borrowed money to purchase the sales right of the commercial building of this case

The Plaintiff borrowed KRW 000 from Kim II, a branch of KimD, in order to purchase the sales right of the instant commercial building as described in paragraph 2.a.1 above, and paid KRW 000 as interest on the said loan, and KRW 000 as interest on the said loan in 2003 and KRW 000 in 2004, and the said amount must be recognized as cost.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the assertion of deduction amounting to KRW 000 relating to the Multilateral Contract

A) If a taxpayer finds any revenue, such as sales omitted in filing a return on the tax base of corporate tax, etc., the competent tax office may include the omitted revenue in the gross income. If a taxpayer does not have any omission of the return on the revenue to be included in the gross income in filing a return on the tax base, etc., but there is any omission of the return on the expenses to be included in the deductible expenses, the existence and the amount of such expenses shall be determined by the verification by the person claiming the inclusion of the expenses in deductible expenses (see, e.g., Supreme Court Decision 91Nu10695, Jul. 28, 1992).

"나) 살피건대， 갑 제3， 11， 12호증1 을 제3， 5， 6호증의 각 기재에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정， 즉 ① 원고의 대표이사인 김DD은 2010. 1. 22. 서울중앙지방법원 2010고합64호로 '이 사건 상가의 분양권을 박CC 등에게 분양하고 지급받은 분양대금을 축소하여 신고함으로써 법인세와 부가가치세를 포탈 하였다'라는 특정범죄가중처벌등에관한법률위반(조세)죄， 조세범처벌법위반죄의 범죄사 실로 기소되었는데， 위 사건에서 박FF는최HH은 김DD으로부터 받을 0000원 중 000000원은 나(박FF)에게， 2억 원은 매매계약 체결에 많은 기여를 한 이GG에게 주기로 하였다. 2002. 12. 24. 김DD으로부터 0000원을 교부받은 후 같은 날 오후 서울 강남구 OO 소재 000층 중식당에서 최HH을 만나 0000원을 건네 주었는데， 최HH이 0000원을 돌려주면서 이GG에게 직접 전달해 달라 고 하기에 같은 날 서울 강남구 OOOO 부근에서 이GG을 만나 0000원을 교부하였다'라는 취지로 진술하였고， 이GG은박FF로부터 0000원을 받았다'라 는 취지로 진술하였으나，최HH은 '2002. 12. 24. 오후 위 OOO호텔 0층 중식당에서 박FF를 만나 000원을 교부받았는데， 당시 이GG도 같이 있었다. 다운하기 로 한 매매대금은 0000원이다. 박FF에게 000원， 이JJ에게 000원을 지급하기로 한 사실을 얄지 못한다'라는 취지로 진술하는 등 박FF， 최HH， 이JJ은 실제 매매대금의 액수， 0000원이 전달된 경위 등에 관하여 서로 다소 모순된 진술을 하고 있어 이들의 진술을 그대로 믿기 어려운 점，② 원고와 BB건설 사이에 원고가 주장하는 금액을 매매대금으로 하여 작성된 매매계약서가 없는 점，③ 김DD이 세무 조사 및 수사 과정에서 다운계약서를 작성하였다는 주장을 한 바 없고， 오히려 세무조 사에서 밝혀진 조세 포탈 사실을 모두 인정한 점，④ 앞서 본 바와 같이 원고는 2003. 2.경 BB건설로부터 이 사건 상가 분양권을 일괄 매수하였는데， 원고가 BB건설에 추 가로 15억 원을 지급하였다고 주장하는 시기는 매매계약 체결 이전인 2002. 12. 24.， 2002. 12. 30.인 점，⑤ 원고는 BB건설의 부회장인 최HH에게 000원을 지급하였다 고 주장하고， 그 증거로 최HH이 BB건설의 부회장이라고 기재되어 있는 명함(갑 제 11호증의 1)을 제출하고 있으나， 위 명함만으로는 최HH이 BB건설의 부회장이라고 단정하기 어렵고，오히려 갑 제11호증의 2의 기재에 의하면 최HH은 BB건설의 대표 이사인 신OO과의 개인적인 관계로 BB건설의 부회장이라고 기재되어 있는 명함을 가지고 다니면서 활동을 하였으며， BB건설이 최HH에게 월급을 지급한 사실은 없는 점，⑥ 최HH은 위 서울중앙지방법원 2010고합64호 사건에서 'BB건설의 회장에게 박FF로부터 전달받은 000원을 교부하였더니 이를 다시 자신에게 교부하였고，이에 로비 후원금무로 00 내지 0000원을， 개인 용도로 00 내지 000원을 사용 하였다'라는 취지로 진술하였는데， BB건설의 회장이 법을 위반하면서까지 조성한 비자금을 다시 최HH에게 전액 지급하였다는 것은 선돗 믿기 어렵고， 최HH의 실제 사 용처에 관하여도 자료가 없는 점，⑦ 김DD은 위 서울중앙지방법원 2010고합64호 사건과 그 항소심인 서울고등법원 2011노2377호 사건에서 다운계약서와 관련된 000원 공제 주장을 하였으나， 앞서 본 사정 등을 이유로 받아들여지지 않은 점(김DD은 위 서울고등법원 2011노2377호 사건에서 2012. 끄. 1. 징역 2년에 집행유예 3년， 벌금 12 억 원을 선고받고j 이에 불복하여 대법원 2012도13900호로 상고하였으나， 2013. 2. 28. 상고가 기각됨에 따라 위 판결이 그대로 확정되었다) 틈을 종합하면， 원고가 제출한 증거만으로는 원고가 BB건설로부터 이 사건 상가의 분양권을 매수할 당시 다운계약서를 작성하였고 그 차액인 00억 원을 BB건설에 지급하였다는 사실을 인정하기 부족하고， 달리 이를 인정할 증거가 없다. 따라서 원고의 위 주장은 이유 없다.",2) 분양수당 및 분양대 행 수수료 공제 주장에 관하여

According to the following circumstances, the plaintiff's 10 won and 20 won were each known to the employees of the Seoul Central District Court, and 10 won were 10 won and 30 won were each known to the sales agency, but KimE, an employee of the plaintiff, was present as a witness in the above Seoul Central District Court 2010 and 64, and the plaintiff was paid approximately 5% of the sales price per case to the sales agency, and 25% of the sales price were recruited to the sales agency, and 5% of the sales price of the sales price was 10 won were 60 won and 5% of the sales price was 50 won were 10 won were 60 won and 5% of the sales price was 50 won were 10 won were 60 won and 200 won were 5% of the sales price of the sales agency.

As seen earlier, the buyer who purchased the commercial building in this case from the plaintiff directly paid 000 won, which is part of the sales price, to BB construction, but the BB construction already sold the sales price of the commercial building in the same manner to the plaintiff, and the buyer paid the sales price to the plaintiff to the plaintiff by the buyer, not the BB construction, and it is reasonable to deem that the buyer actually received the above amount from the buyer because the buyer paid the sales price to the plaintiff by the buyer to pay the purchase price balance to BB construction. Therefore, the above 000 won cannot be deducted from the plaintiff's sales. Therefore, the above argument by the plaintiff is without merit.

4) As to the assertion that the amount equivalent to the interest on the loan to purchase the sales right of the commercial building of this case is deducted

The following circumstances are revealed by considering Gap evidence No. 16's overall purport of the argument, i.e., ① the plaintiff's 00 won borrowed from Kim II to pay interest, and ② the fact-finding confirmation (No. 16-1) of Kim II as evidence to support the purchase of the right to sell the commercial building in this case, and Kim II submitted the bank account (No. 16-3) in the name of KimD whose money has been transferred to Kim II, but the plaintiff did not submit a certificate of borrowing, and the above evidence is not sufficient to prove and prove that the plaintiff did not first use 00 won for the purchase of the right to sell the commercial building in this case from Kim II, and that it is hard to conclude that the plaintiff's 200 won was 0,000 won for the first time from the appellate court's 200,000 won for the first time, and that there was no other evidence that the plaintiff was 00,000 won for the above 20,000 won for the first time from the Seoul High Court's II.

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