The remuneration paid to the auditor as the auditor actually performed the duties shall be deemed as a loss item.

The remuneration paid to the auditor is an item of deductible expenses, since it is recognized that the auditor has actually performed his/her duties in light of the overall matters registered as a decrease in corporate register.

Article 19 (Scope of Losses)

2014Guhap50606 Disposition of revocation of the imposition of corporate tax

AAAA Corporation

a) the Director of the Tax Office

July 25, 2014

September 26, 2014

1. Of the instant lawsuit, the part of the claim for revocation regarding the disposition of imposition of corporate tax of KRW 000 for the business year 2010 shall be dismissed.

2. The Defendant’s imposition of KRW 000 of corporate tax for the business year 2007 against the Plaintiff on March 5, 2013 and KRW 000 of corporate tax for the business year 2008 shall be revoked.

3. Of the costs of lawsuit, 1/20 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

Paragraph 2 and the defendant on March 5, 2013 revoke the disposition of imposition of KRW 000 of the corporate tax for the business year 2010 against the plaintiff.

1. Details of the disposition;

A. BB on September 11, 1970, with her husband, CCC Co., Ltd. (afterward from the latter)

As set forth in XX Company and Plaintiff (the first one was SSS Co., Ltd.) and September 2012

19.B was divided into the current trade name (hereinafter referred to as "the company before the division"). BB was registered as a director until February 14, 200 on the corporate register of the company before the division, and as auditor from February 14, 200 to September 30, 2010.

나. CCC과 BBB의 아들인 QQQ, VVV는 2000. 2. 14. 분할 전 회사의 소유권

50% of the shares of the company prior to the division from the time when the management right has been transferred to another person

표이사로서 위 회사를 운영하였다. 이후 QQQ과 VVV 사이에 분쟁이 발생하여 QQQ은 분할 전 회사를 상대로 서울북부지방법원 2009가합6510호로 임금 청구소송을

제기하였는데, 위 소송 계속 중이던 2010. 6. 29. QQQ이 분할 전 회사를 순자산이

VV presents a plan to divide it into a surviving corporation and a new corporation, and VV presents one of them;

The mediation of this case is established in a way that selects the company before the division (hereinafter referred to as the "mediation of this case").

C. According to the instant conciliation, the company prior to the division is a surviving company on October 1, 2010.

회사(이하 'XX기업'이라 한다)와 신설법인인 원고로 분할되었고, 이후 QQQ과 VVV가 주식을 교환함으로써 QQQ은 XX기업을, VVV는 원고를 각 소유하게 되었다.

라. 1) 한편, 분할 전 회사는 2009. 10. 1. 'VVV는 QQQ이 분할 전 회사에 출근

하지 않자 QQQ에게 월급을 지급하지 않았다. 이에 불만을 가진 QQQ은 분할 전

Although the head of the Tong and the corporate card of the company are kept in the office, they are normally managed and used.

On July 24, 2009, a report was filed on the loss of an O bank and an O bank, and the O bank and the O bank were above.

Pursuant to the report of loss, the head of the Tong and the card transaction was suspended. O bank and the O bank shall report the loss of the bank.

(1) The payment of deposits should have been cancelled by the head of the Tong and the card transaction suspension.

The Seoul Central District Court 2009Gahap112416 filed a lawsuit claiming the payment of deposit against the O bank and the O bank.

2) 또한, 분할 전 회사는 2009. 10. 1. 'QQQ이 위 라.의 1)항 기재와 같이 허위로 OO은행과 OO은행에 통장 및 법인카드 분실신고를 하여 통장과 카드 거래를

pursuant to the suspension officer, the company before the division shall not be allowed to pay taxes, public charges, etc. in time.

하는 등 손해를 끼치고 있다'라는 취지로 주장하면서 QQQ을 상대로 서울동부지방법

The first 2009dahap17682 filed a claim for damages.

3) On July 2, 2010, pursuant to the instant conciliation, the company before the division withdraws all of the above lawsuits.

had been.

E. 1) The Defendant’s investigation of corporate tax against XX enterprises from December 11, 2012 to December 30, 2012

After holding the following table, ① the sum of the costs paid by the company prior to the division in connection with the above wage claim lawsuit, deposit payment claim lawsuit, and damages claim lawsuit in the year 2009 and 2010 shall be deemed as the individual litigation costs of V, a joint representative director, and ② the sum of the benefits paid by the company prior to the division, to the BB, registered as the auditor on the corporate register in the year 2007 through 2010, shall be deemed as the case where the tax burden has been unjustly reduced as the remuneration paid by the former company to the person who did not perform his duties, and shall be deemed as the bonus for the BB, and shall be disposed of as the bonus for the BB, and ③ other excess amount of the payment fees appropriated as the bonus.

Exclusion from gold, and on March 5, 2013, corporate tax of 000 won for the business year 2007, 2008

In the business year, corporate tax of 000 won and corporate tax of 2010 won in the business year(2009 business year is included in the amount of losses and there is no notified amount of tax). In accordance with Article 25 of the Framework Act on National Taxes, the plaintiff, a corporation established by division, imposed joint tax liability for the plaintiff.

List of votes

(unit: Won)

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 24, 2013. The Tax Tribunal filed an appeal.

on December 5, 2013, 2013, the defendant's exclusion of litigation costs from deductible expenses is deemed unlawful and "2010 g.

The disposition of imposition of 000 won corporate tax for the business year shall be the costs of lawsuit paid by the company before the division in 2010.

00 won shall be included in the calculation of losses to rectify the tax base and amount of tax, and to dismiss the remainder of such claims.

"....."

G. Accordingly, the Defendant revoked KRW 000 of the corporate tax for the business year 2010 around December 31, 2013.

was the Defendant’s corporate tax of 000 won for the business year 2007 against the Plaintiff on March 5, 2013;

Each disposition of imposition of corporate tax of KRW 000 for the business year 2008 is referred to as the "disposition of this case".

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 7, 12, 14, 15, 16 (including virtual numbers; hereinafter the same shall apply), Eul evidence No. 1, and the purport of the whole pleadings

2. We examine ex officio whether the part concerning the claim for revocation of the disposition imposing corporate tax of KRW 000 for the business year 2010 among the instant lawsuit is legitimate, and the Defendant’s revocation of corporate tax of KRW 000 for the business year 2010 around December 31, 2013 according to the purport of the decision of the Tax Tribunal is as seen earlier. As such, the part concerning the claim for revocation of the disposition imposing corporate tax of KRW 00 for the business year 2010 among the instant lawsuit is sought for revocation.

It is unlawful as the object does not exist.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

BB shall from time to time hold the corporation as the founder of the corporation before the division, even after the resignation of the director.

문하여 영업상황을 점검하고, 감사로서 공동대표이사이자 두 아들인 QQQ과 VVV

this paper examines whether the corporation's affairs and property are properly conducted, and from time to time investigate the corporation's affairs and property

였다. 또한, BBB은 QQQ이 분할 전 회사를 상대로 제기한 임금 청구소송에서 회사

를 대표하여 소송에 적극적으로 대응하였고, QQQ의 허위 분실신고로 인해 분할 전

회사의 업무가 마비되고 막대한 손실이 발생하자 QQQ을 상대로 손해배상 청구소송

before the division, the corporation filed a deposit against the O bank and the O bank. In addition, the corporation before the division

청구소송에서 QQQ이 은행 측에 보조참가를 하자 법원에 BBB을 특별대리인으로

BB filed an application for appointment. Such appointment shall be made by the corporation prior to the division as an auditor.

As the instant disposition was conducted on a different premise, it was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The company prior to the split-off is a corporation that runs real estate rental business.

2) QQQ이 분할 전 회사를 상대로 제기한 서울북부지방법원 2009가합6510호 임

금 청구소송에서, BBB은 당시 QQQ이 분할 전 회사의 공동대표이사였던 관계로 감사로서 분할 전 회사를 대표하여(상법 제394조 제1항) 소송대리인을

The appointment was made.

3) 분할 전 회사는 QQQ이 분할 전 회사의 통장 및 법인카드가 사무실에 보관되

(1) A false report on the loss of the O bank and the O bank, even if they are normally managed and used;

Seoul Central District Court 2009Kahap112416

예금지급 청구소송을 제기하였는데, 당시 분할 전 회사의 공동대표이사였던 QQQ이

OB shall appoint an auditor BB as a special representative, who has filed an application for assistance to the OB and the OB.

하여 줄 것을 신청하였다. 또한, BBB은 QQQ이 허위로 OO은행과 OO은행에 통

The head of the Gu and the corporation card loss report shall be made to suspend the transaction of the head of the Tong and the card before the division.

(1) A person appointed an attorney on behalf of the company prior to the division on behalf of the company for the reason that the damage was inflicted.

The Seoul East Eastern District Court 2009Kahap17682 filed a claim for damages against the public.

4) BB is a director not later than February 14, 200 on the corporate register of the company before its division, and on February 14, 2000, respectively.

The company was registered as an auditor from January 1, 2001 to September 30, 201, but was paid the company remuneration from the company before the split.

5) Monthly salaries received from 2007 to 2009 by CCC and BB, which were employed by BB and V, and as drivers of CCC and BB before subdivision in 1985, are as follows:

List of votes

6) 이 사건 조정에 따른 법인분할과정에서 당시 분할 전 회사의 임원이었던 QQQ, VVV, BBB을 모두 2010. 9. 30. 퇴직시키기로 하였고, 이에 분할 전 회사는

2010. 9. 29. QQQ, VVV, BBB에게 퇴임 시점인 2010. 9. 30.을 기준으로 근로기준법 규정에 의하여 계산한 퇴직금을 지급하였다.

7) On August 29, 2011, BB passed a resolution of the board of directors (hereinafter referred to as the “resolution of the board of directors of this case”) with the following content on June 20, 200:

The surviving XX enterprise has already paid the amount of retirement allowances calculated by the resolution of the board of directors.

XX enterprise is entitled to pay retirement allowances equivalent to the remaining amount after deduction.”

The Seoul Northern District Court 201Kahap7882 filed a lawsuit claiming the payment of retirement allowances against the Seoul Northern District Court.

On July 18, 2012, the above court rendered a ruling accepting the claim by BB, and on the grounds of that ruling, “BB was appointed to and resigned from office as director from February 14, 200 to February 14, 200 from the incorporation of the company before division, and resigned from office on the same day, and on the same day, retired from office on September 30, 2010 (Seoul High Court Decision 2012BB, dissatisfied with the above judgment).

6450 The appeal is currently pending before the appellate court. Meanwhile, the XX enterprise is in the above lawsuit.

'① 이 사건 이사회 결의서는 분할 전 회사에 대한 세무조사과정에서 QQQ, VVV가

as if the corporate reserve funds in the past were paid to KK as retirement allowances;

For this purpose, since the date of preparation on July 2004 was prepared formally retroactively, it is false that there is a false conspiracy.

(2) May 1, 1998, which was cited by BB as the ground for the resolution of the board of directors of this case

Since its articles of incorporation are not valid in its articles of incorporation, it is not a resolution of the general meeting of shareholders.

A resolution of the board of directors of this case with remuneration shall be null and void in violation of the articles of incorporation and Article 388 of the Commercial Act.

The retirement allowance of BB during the process of the instant conciliation and the corporate division for its implementation has already been settled;

I argued that it was "..."

8) BB was present in the court of this case as a witness, and the company before division was organized around August 200 and carried out real estate leasing business as a main business. Accordingly, the company was not separately engaged in the following business, and the company was mainly engaged in the management of buildings and the lease business.

Even after the resignation of the director because the corporation was the founder of the corporation prior to the division and became the other person.

At any time, the company was visited before the division and inspected the business situation, and two co-representatives as auditors.

I examined whether children are performing their duties properly, and even the affairs and financial status of the corporation from time to time.

G. The statement was made to the effect that the operation was properly verified.

9) After conducting a tax investigation with respect to the company prior to division in around 2004, the Defendant had the company prior to division.

The benefits paid to BB in 2001 were excluded from the deductible expenses, and the investigation report regarding this was not included in the deductible expenses.

상근임원에 대한 급여를 손금불산입 상여처분함'이라고 기재되어 있고, 당시 QQQ은

BB on July 14, 2004, "B confirmed that it was an auditor on February 14, 2000 and is an non-standing executive officer."

I prepared a written confirmation of its content. From July 1, 1995, to the date of division, the company before the division and the XX enterprise.

N on June 11, 2012, the term "B" is non-standing.

The letter of confirmation that the personnel expenses paid in king were not recognized as the necessary expenses.

was drawn up.

10) QQQ은 2012. 12. 21. 조사를 받으면서 'BBB은 저의 노모로 비상근임원

(Registration Audit). It was well known that the company prior to the split-off of real estate rental corporation did not have any particular duty to work for the company prior to the split-off of real estate for the elderly over 80 years of age, and did not have done its role as an auditor. However, it was paid to the old and its executive."

PP, which manages underground boiler rooms of the building owned by it, shall be the 2007 GB around December 2012.

for a period of up to 2010, there was no duty to specially work in the office, and actually work

The signature and seal was affixed to the confirmation letter stating that the fact was not a permanent address.

[Reasons for Recognition] Unsatisfy, Gap's 1 to 14, 19, 22 to 25, Eul's 3 to 6

each entry of evidence, witness BB's testimony, whole purport of the pleading

D. Determination

살피건대, 앞서 본 사실관계 및 앞서 든 증거에 변론 전체의 취지를 종합하여 알수 있는 다음과 같은 사정, 즉 ① 감사의 가장 주된 업무는 이사의 직무집행을 감사하는 것이고(상법 제412조 제1항), 회사가 이사에 대하여 또는 이사가 회사에 대하여 소를 제기하는 경우 감사는 그 소에 관하여 회사를 대표하게 되는데(상법 제394조 제1항), BBB은 분할 전 회사의 공동대표이사인 QQQ이 허위로 OO은행과 OO은행에 통장 및 법인카드 분실신고를 하여 통장과 카드 거래를 정지시킴에 따라 분할 전 회사에 손해를 끼치고 있다는 이유로 분할 전 회사를 대표하여 소송대리인을 선임한 후 손해배상 청구소송을 제기하였고, QQQ이 분할 전 회사를 상대로 제기한 임금 청구소송에서 소송대리인을 선임하는 등 분할 전 회사를 대표하였던 점, ②BBB이 XX기업을 상대로 제기한 퇴직금지급 청구소송에서 법원은 BBB이 2000.2. 14.부터 2010. 9. 30.까지 분할 전 회사의 감사로 재직하였다고 인정한 후 존속법인인 XX기업은 BBB에게 퇴직금을 지급할 의무가 있다고 판단한 점, ③ 만약 BBB이 분할 전 회사의 법인등기부상으로만 감사로 등재되어 있을 뿐 실제로 감사로서 업무를 수행한 사실이 없다면 QQQ이 퇴직금지급 청구소송에서 위와 같은 사정을 주장하였을 것으로 보이나 QQQ은 위와 같이 주장한 사실이 없고, 오히려 퇴직금지급 청구소송에서는 BBB이 분할 전 회사에서 감사로 근무하다가 사임함으로써 퇴직금을 받을 자격이 있다는 전제에서 BBB에게 더 지급받을 퇴직금이 남아 있는지 여부, 즉 퇴직금 액수만이 문제되었던 점, ④ 이 사건 조정에 따른 법인분할과정에서도 분할 전 회사는 2010. 9. 29. QQQ, VVV뿐만 아니라 BBB에게도 퇴임 시점인 2010. 9.30.을 기준으로 근로기준법 규정에 의하여 계산한 퇴직금을 지급하였던 점, ⑤ QQQ이 2012. 12. 21. 세무공무원으로부터 조사를 받으면서 BBB이 감사로서의 역할을 수행한 사실이 없다고 진술한 것은 퇴직금지급 청구소송에서 패소하고 이에 불복하여 항소한 이후인 점, ⑥ 피고는 2004년경 분할 전 회사에 대한 세무조사 당시 BBB이 실제 업무를 수행하지 않으면서 보수를 수령한 사실이 밝혀져 손금부인된 사실이 있고,당시 분할 전 회사의 공동대표이사가 이를 인정하였다고 주장하고 있으나, QQQ은BBB이 분할 전 회사의 비상근임원임을 확인한다는 내용의 확인서만을 작성하였을뿐인 점, ⑦ 상법 제542조의10 제1항, 상법 시행령 제36조 제1항에 의하면 자산 총액이 1,000억 원 이상인 상장회사만이 상근감사를 1명 이상 두어야 하는바, 분할 전 회사가 이에 해당하지 않는 이상 BBB이 분할 전 회사에서 상근하지 않았다는 이유만으로 감사로서의 업무를 수행하지 않았다고 단정하기 어려운 점 등에 비추어 보면, 피고가 제출한 증거나 주장하는 사정만으로는 BBB이 분할 전 회사에서 감사로서의 업무를 수행하지 않았다고 인정하기 부족하고, 달리 이를 인정할 증거가 없다. 따라서 이 사건 처분은 위법하다.

4. Conclusion

If so, cancellation of the disposition of imposition of corporate tax of 000 won for the business year 2010 among the lawsuit of this case

Since the part of the claim is unlawful, it is dismissed, and the remaining claims of the plaintiff are reasonable.

It is so decided as per Disposition by the assent of all participating Justices.

.