Seoul Administrative Court-2011-Gu 43256 (2014.05)

Cho High-201-Seoul Government-1850 (Law No. 27 September 2011)

The amount of settlement and the amount of compensation reserve paid in accordance with the performance of various duties after resignation before the expiration of the term of office shall be equivalent to the honorarium among other income.

The settlement amount and the compensation reserve received as a result of the performance of the duties, such as the prohibition of competition, confidentiality, waiver of a job lawsuit, etc., prior to the expiration of the contract's term of office, shall correspond to the honorarium among other income.

Article 21 of the Income Tax Act

1. The plaintiff's appeal is dismissed.

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

1. Details of the disposition;

(a) Status and agreement of the Plaintiff;

(1) The plaintiff, as a certified public accountant, worked as a partner at the O Accounting Corporation (OO) from May 12, 2005 to July 1, 2008; 2) the plaintiff entered into an agreement between O and O on June 30, 2008 on the meaning of the set up management (the meaning of the set up management is disputed by the plaintiff; hereinafter referred to as the "Agreement" in this case; hereinafter referred to as the "Agreement" in this case; 1,313,000,000 won in total for five years from O, and 2000,000,000 won in total, 200,000,000 won in total, 200,0000,000 won in total, 208,000,000,0000 won in total, 208,0000,0000 won in total, 208,0000,000 won in the following agreement reserve for damages.

Classification

Reversion Year

Amount of payment (cost)

Liquidation Amount

209

262,600,000

2010

262,600,000

Compensation Reserve

209

40,209,00

2010

40,209,00

(b) Imposition of global income tax;

1) TheO judged that the instant settlement and compensation reserve constituted other income as a honorarium, and did not deduct necessary expenses, and withheld 20% of the paid amount as income tax, and submitted the payment record.

2) However, the Plaintiff filed a comprehensive income tax return for the year 2009 by deducting 80% of the amount per year from the necessary expenses and classifying the instant compensation reserve as dividend income on the ground that the instant settlement amount constitutes the transfer of business rights.

3) On March 3, 2011, the Defendant corrected and notified the Plaintiff of KRW 98,791,740 of the global income tax attributed to the year 2009 (hereinafter “instant disposition”).

4) On May 6, 201, the Plaintiff filed a request for a trial on May 6, 201, and received a decision of dismissal from the Tax Tribunal on September 26, 2011.

【Evidences 1 through 4, 1, 2, 1, 1, 2, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1,

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) The settlement of the instant case

The plaintiff asserts that the settlement amount of this case is the price for the transfer of business rights for the following reasons:

① In light of the fact that an accounting audit contract with a client is concluded in the name of O, and the customer enters into an accounting audit contract under the fiduciary relationship with an OO’s partner, the amount of audit fees, etc., which is the main content of the accounting audit contract, is determined by an agreement with a partnership accountant, that personal services are provided under the accounting audit contract by a partnership accountant, and that fees, such as audit fees, are, in principle, distributed between the relevant partnership accountant and the OO, the actual parties to the accounting audit contract shall be deemed to be a partner between the client and the OO. Therefore, de facto influence or control over the Plaintiff, which is a partner of the OO, while managing the client, shall be deemed to be the goodwill that belongs to the Plaintiff, and the Plaintiff transferred such business rights to the O while leaving the O.

② The instant contract was concluded by the O to transfer, transfer, and transfer to O the customers managed by the Plaintiff following the transfer from the individual partnership-centered customer management method to the corporation-centered customer management method. The instant contract refers to the price for transfer of the instant settlement amount to the O, and the instant settlement amount also was calculated by the method of assessing the future value of the Plaintiff’s investment shares, and the instant settlement amount should be deemed to have been paid in return for the transfer and transfer of the instant settlement amount to the O. The instant settlement amount cannot be deemed to have been paid in return for the instant settlement amount merely because the instant settlement amount was not a ground for payment, but merely because the instant settlement amount was paid.

③ Even if the Plaintiff’s early retirement was partially included in the instant settlement money, and the Plaintiff, who was early retired as the Plaintiff, is merely a degree of KRW 136 million, which is the settlement amount that the account holder who did not transfer his/her goodwill, and thus, the remainder ought to be considered as the consideration for the transfer of his/her goodwill.

2) The compensation reserve of this case

The plaintiff asserts that theO reserved part of profits at the time of settlement of accounts in order to prepare for damages and accumulated the amount in proportion to profits in the name of each partner accountant, and that the partnership accountant withdraws the above reserve at the time of retirement and pays it as a compensation reserve, and that the compensation reserve in this case has the nature of dividend income as it received accumulated profits.

(b) Related statutes;

The reason for use in this part is the same as the entry in the corresponding column of the judgment of the court of first instance, and thus, it is accepted by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Facts recognized

1) The plaintiff's severance from employment

A) The Plaintiff worked as a partner in BB accounting corporation (hereinafter referred to as “B”) before the Plaintiff entered theO. BB was divided into six headquarters around the time when the Plaintiff retires, and the headquarters 2 was divided into six groups from A to F groups. The Plaintiff was a member of the secondary headquarters A liability partnership, and six persons, including the GangseoA, were the director of the headquarters 5 headquarters liability partnership. The responsible partner was paid benefits within the scope of the balance after deducting the group’s direct costs, corporate common costs, corporate tax distribution, etc. from the sales amount of audit fees, etc. for the clients who manage the audit. In relation to taxes, BB withheld withheld income tax as earned income.

나) OO(당시 ㅁㅁ회계법인)은 2005. 1.경 BB과 합병을 위해 양해각서를 체결 하였으나，BB의 부실감사로 인한 우발채무를 우려하여 양해각서를 해지하였다. BB 소속 파트너들은 같은 팀이나 본부에서 일하던 회계사들과 함께 OO에 개별적으로 입사하였고，원고도 개별적으로 OO에 입사하였다.

C) After joining a partnership of BB accounting corporation, the O was operated by each group of liability auditors employed by the BB accounting corporation for the two accounting years from April 1, 2005 to March 31, 2007. The O and the organization were integrated into a single system from April 1, 2007 to March 31, 2008. Dur the above integration period, the Plaintiff determined income based on the previous year’s earnings or business capabilities, and settled profits or losses based on the results after the end of the fiscal year. The O calculated income for each partner, but the profits or losses were not shared by each partner. The partnership auditors employed by BB accounting corporation for the period from April 1, 2005, and for the period from March 31, 207 to March 31, 207 to the period from March 30, 2005 to the period from March 31, 205 to the period from March 30, 2005 to the period from March 31, 2005.

2) Plaintiff’s retirement

"O" is a member ofCC(CC) which is an international accounting corporation. Four places among domestic accounting corporations are affiliated with a large-scale accounting corporation in a foreign country (D, F, E,CC, andO). Local accounting corporations that do not have a business partnership with a large-scale accounting corporation in a foreign country have difficulty in accepting accounting audits of listed companies." Under the integrated policy ofCC around 2008, PO proposed reduction of retirement age at 60 years and retirement from partnership over 60 years. Since the Plaintiff, Pao and Gangseo did not include the 30th anniversary of its representative director, and Soo, Moo, Moo, and Moo, the local government, and O.O. In addition, the Plaintiff and Pao were not included in the retirement age of 60 years until the 60th anniversary of its meetings, but did not include the 30th anniversary of its decision on the retirement age of 60 years and the 3th anniversary of its decision on the retirement age of 60 years and the 5th anniversary of its meetings.

Confirmation of Benefits and Benefits

Benefit Period

Age of retirement

June 30, 2008

3.5 times the remuneration for partnership on June 30, 2008

Payment each month by quarter for five years;

61 years of age;

June 30, 2009

on June 30, 2009 2.5 times the remuneration for partnership.

Payment each month in quarterly installments for five years;

62 Taxes

Since June 30, 2009

No beneficiary shall be beneficiary

relevant matters that do not exist

63 taxes

C) The Plaintiff received benefits while serving in theO, and theO withheld income tax as earned income.

D) On June 30, 2008, the Plaintiff transferred 65,000,000 investment shares to the O representative director (65 units of investment, 1,000,000 per unit par value) and retired from the O on January 1, 2009.

E) The main contents of the instant contract are as follows: (a) the date of resignation and the departure rate are indicated as the date of withdrawal:

1. The definitions of terms;

1.1.For the purpose of this Agreement, unless the context otherwise requires:

Departure DNA means the 31 December 2008 or the .. the representative director or the representative director. Any other date agreed.

The term “Ooo” means a cooperative body composed ofCC Gooo Lo Loo.

Regrative rate means the date of June 30, 2008.

Standard's Organization refers to the O on March 23, 2007, the Standard Evaluation Regulations.

2. The amount agreed;

2.1Subject to the premise that partnership complies with all the conditions of Articles 2.5, 3 and 4 (or O waivers), the O shall pay to the parties the amounts calculated under the following Articles and 2.3 (However, on the premise that 2.2 shall comply):

2.1.1.1. Ful 2008 Emmmot-Provided, That the amount already paid prior to the date of this contract shall be subtracted.

2.1.2. partnership 3,5 times the amount obtained by multiplying the FY208 Basic Unit by 780,000 won (amount of settlement), however, the amount shall be subtracted from the amount paid on January 5, 200.

2.1.3.the compensation reserve corresponding to the partnership's share: the other Losss Relerve Ammont;

2.1.4. Capital;

2.1.5 June 30, 2008, accumulated as a partner retirement allowance until now.

The sum of the above amounts shall be agreed upon.

2.2. On April 10, 2007, Eo agreed with partners at the time including partnerships to compensate for financial risks arising from the change of the basic operational model.

2.3. Scunitt consists of a part of the financial compensation contained in Hooo and is compensation and settlement amount for the rights as a pecuniary right and partnership that he will receive in connection with Hoo and that will be entitled to receive as a partner.

2.4.2.2.2.23 and under the conditions of 5, the agreed amount shall be payable in the following manner:

2.4.1. 2008 Earlings Ammont were paid in accordance with normal methods.

2.4.2.Set management sets shall be paid quarterly over a five-year period, payable on the beginning date of each quarter, provided that once more is given;

Departure DNA rate shall be paid on the first business day after the first business day (the retirement pay of 2.4.5 shall be paid for the first business year).

2.4.3. Loss Redunt shall be calculated at the Departure DNA rate and payable quarterly over two years;

2.4.4.The capital shall be paid immediately after retirement;

2.4.5.The payment of retirement pay shall be made immediately after retirement;

2.5.Set Management shall be payable by a partner under the conditions that the partner fulfills the obligations under SOR (Basic Operating Regulations) and this Agreement.

3 Agreement to waive partnership positions and interests

43.Notwithstanding the provisions of this paragraph, OO and partners agree as follows:

3.1. A partner shall transfer toO all the decision-making rights and responsibilities held after the date of resignation with respect to all the management and management, and shall waive this transfer.

3.2. A partner shall fully cooperate with the Corporation in legal disputes or investigations conducted by supervisory bodies.

3.3. A partner will waive a partner position of O as of the date of resignation.

3A Partnership will terminate as of the date of resignation any kind of employment contract that a partner has entered into with Eo.

4. Obligations to undertake partnership;

4.1 as of the date of resignation, partnership must resign from the office of any Ent Director related toO and shall transfer the place of investment. Partnership must sign the relevant documents for which it exceeds the right of signature of the Eo bank account.

4.2. A partner agrees to comply with the provisions of Article 21 (Duties after Retirement of Members) of the SOR on June 20, 2008, which provides for non-competitive competition. This Article shall be accompanied by this Agreement in Ex White 1.

5. Agreement between the Financial Transactions and Capital, and final settlement;

5.1. The terms and conditions of this Agreement include, in the future, the final settlement that covers all kinds of claims for compensation or rights to lawsuit arising on grounds of and in any manner arising therefrom.

5.1.1.a partner intends to waive as an agreement under this Section the right to claim compensation or a lawsuit to be held currently or in the future against EO partnerships, directors, or employees;

9. Uncompetitive competition (N-Copete);

42.Subject to the foregoing, Article 21 amended as of June 20, 208 shall apply to partnerships.

F) On December 10, 208, the Plaintiff agreed to revise the non-competitive content set forth in the Annex to the Agreement (E White 1) with O on December 10, 208, and with O.

1. Scope of the application of Article 21 (Duties after Retirement) of the Regulations on Basic Operation for Non-compete;

From 4.2. and 9., the retirement partner agrees to apply Article 21 of the SOR to the following meaning:

1.1 Within a period of 24 months after January 1, 2009, no accounting corporation in the Republic of Korea whose number of certified public accountants belonging to that accounting corporation (referring to the average number of certified public accountants as of the end of every month from April 1 every year to March 31 of the following year) is 100 or more or any tax accounting corporation or law firm or its officer or employee in competition with that other accounting corporation.

1.2. Within a period of 24 months following January 1, 2009,CC and Hao Eo may not induce, for the purpose of opening the same kind of transactional relationship, any customer who has traded with o & oo; nor any person who has been under negotiation to become a customer, or may not provide the same service to such person during a period of one year to the retirement.

1.3. Within a period of no more than twenty-four months after January 1, 2009, no person shall induce or propose for the purpose of employment any employee of the O or odvisy (including partnership; hereinafter the same shall apply) and any officer or employee of the Manaer who has performed, directly directed, or supervised the work at the time of his/her employment.

1.5. After the date of retirement, in cases where the independence in the audit and inspection of Hoo is impaired by negotiating to work or work as an executive officer or employee of a corporation that is audit and inspection as of the date of retirement of Hoo; in order for Hoo to land the independence of audit and inspection, the retirement partner may not negotiate to work or work as an executive or employee of the customer company of Hoo for one year from the date of retirement.

2. Partial amendments to the Agreement 6.2;

Notwithstanding the provisions of 6.2. of the Agreement and the Agreement, in a case where a retirement partner violates the provisions of the Agreement and the provisions of the Annex thereto, the OO Accounting Corporation may, notwithstanding the provisions of 6.2. of the Agreement, restrict the payment on January 2, 201.

G) The Plaintiff was classified as a representative class or higher, and was paid more money than other retirement partners under the condition that it would respond to the O’s request for cooperation in business after retirement.

3) Payment and provision of money to retirement partners of OO

A) From January 208 to January 2009, 2009, 7 partners who were employed as O from B to O were retired. All retired partners entered into a mutual agreement between O and O, and the settlement amount and the compensation reserve were paid as follows. In the agreement, Article 21 of the basic operating rules (SOR) of O’s management rules (SOR) was explicitly stated in the agreement.

Name

The settlement amount (the cost of detention)

Period

Damages

Reserve (per million won)

Period

D

3.51

Payment in installments for three years after retirement

4

Payment in installments for two years after retirement

E

0.95

Payment in installments for one year after retirement

2.4

Payment in installments for two years after retirement

F

2.14

Payment in installments for two years after retirement

3.5

Payment in installments for two years after retirement

G

1.36

Payment in installments for one year after retirement

4.4

Payment in installments for two years after retirement

H

2.S3

Payment within one month after retirement;

4.4

Payment within one month after retirement;

K

2.47

Payment within one month after retirement;

4.4

Payment within one month after retirement;

B

1.8

Payment within one month after retirement;

0.2

Payment within one month after retirement;

B) The amount paid by O to a retired partner was calculated on the basis of the position at the time of retirement, the number of salaries in the previous year, and the period during which the employee is obligated to refrain from engaging in competitive business after retirement.O paid the amount by dividing it into retirement consolation money and honorarium depending on its nature, and the retirement consolation money was treated as wage and salary, and the honorarium was treated as other income.

C)O paid settlement funds to retired partners D, E, F, and G for the period of installment payments in return for the prohibition of competition and confidentiality.O only bears the prohibition of competition and confidentiality, but it did not conflict with the legal entity and treated it as retirement consolation money, with the payment immediately after retirement.

D) Article 21 of the Basic Operating Regulations (SOR) provides for the duty of prohibition of competition as an obligation after retirement.

Article 21 (Duties after Retirement)

1. The undertaking of detention;

Where a representative director becomes a partner, each member shall consent to the retirement of a member, except where the representative director subsequently determines otherwise or where the corporate regulations expressly stipulate otherwise:

(3) shall not, directly or indirectly, induce or propose the employment of any partner or employee of a corporation, or propose or conclude any other business cooperative relationship to any partner or employee of a company constituting a network, for a period of 12 months from the date of retirement.

(4) For a period of twenty-four (24) months from the date of retirement, a person who was or was a customer engaged in a transaction with a constituent company of a network or who was a customer to become a customer shall not, directly or indirectly, investigate, induce, access, or provide a service to, a person who had been engaged in an important transaction for a reference period for which he was an employee or employee of a juridical person.

11. Goodwill; and

Even if the membership rights of a juristic person are changed ( regardless of the change in the new membership or withdrawal of members or the rate of payment of dividends among members), the value of the business rights of the juristic person shall not be affected.

E) In preparation for accounting audit errors, etc., the O set aside an amount allocated to an individual as a compensation reserve, referring to the sales revenue for each partnership, in preparation for the liability for damages of a corporation. O has set aside a long-term partner who has been employed as a partner and claimed his/her right to the reserve and paid 100% of the compensation reserve to the partnership that has been accumulated in his/her own name and 50% thereafter. However, inasmuch as the remaining accounting firms can use the compensation reserve at the time of liquidation of the accounting firm, and the remaining amount can only be paid after appropriating the liability, it is argued that there is no need to pay to the withdrawing partner, whileO does not pay the amount equivalent to the compensation reserve to the partnership that has been set aside as of the date of the closing of the instant argument.

F) The OO treated the compensation reserve as earned income or consolation money, taking into account the reasons for the payment of the settlement amount.

G) Article 17-2 of the Act on External Audit of Stock Companies (hereinafter “ External Audit Act”) compels an accounting firm to set aside a joint compensation fund composed of the basic and annual reserves in the Korea Accounting Society. The O has purchased a liability insurance policy prior to the Plaintiff’s retirement, and there was no obligation to set aside an annual reserve under the External Audit Act, and there was no change in the accrued dividends and reserves on the financial statements.

The OO settled the profits and losses of the entire corporation and paid benefits to the accounting officers, and the results of the management of the partnership accounting were evaluated and incentives were paid to the partnership accounting officers.O managed the sales in the name of the head of the OO in the account of each department, which was conducted to measure the performance of the management, and the above head of the Tong was entirely kept in the accounting and accounting of the OO, and he could withdraw money through the approval of the head of the management support headquarters and the representative director.

[Based on Recognition] Each of the testimonys 1 through 4, 9, 10, 11, 12, 20, 22, 26, 27, 28, 31, 32, and 1 through 8 of Gap (except for each of the testimonys 1 and 28 of Gap), witness of the first instance court, EA, EA, or EA of the first instance court (except for each testimony of thisA and EA which is not believed later), and witness of the first instance court and EA of the first instance court, each fact inquiry into the court of the first instance and OO, the whole purport of the arguments, [unit evidence] of the first instance court, and part of the testimonys 1 and 28 of the testimonys 1 and 11 and 28 of the first instance court, and the testimony of EA and EA of EA.

D. Determination

1) As to the instant settlement amount

A) The meaning of business rights and whether the Plaintiff has business rights

The plaintiff asserts that the settlement amount of this case is the transfer price of business rights, so it is examined as to whether the plaintiff holds business rights in relation to the OO.

Article 21(1) of the former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010; hereinafter the same) provides that “The money and valuables received in return for the transfer or lease of business rights (No. 7)” as one of other gains. The business rights refer to the intangible property value of an enterprise’s tradition, social credibility, location conditions, special manufacturing technology, existence of special manufacturing or special trading relations, etc., which can bring profits more than those raised by other enterprises engaged in the same kind of business due to the monopoly of the manufacturing and sale (see Supreme Court Decision 2003Du7804, Apr. 9, 2004). In this case, in concluding an accounting audit contract with the customer, the accounting firm has considerable influence on the connection and capacity of each partner, and the trust relationship with the customer is deemed to play an important role in the relationship with the Plaintiff as a partner of the OO.

However, as revealed in the above facts, the customers enter into an accounting audit contract with the Plaintiff not the Plaintiff but the O, the customers are obligated to pay fees to the O pursuant to the accounting audit contract, and the accounting firm is also liable for damages for wrong accounting audits, etc. in relation to the relationship with the trader, and the listed company, etc. is obligated to enter into the accounting audit contract with the accounting firm, not the individual but the accounting firm according to statutory restrictions (Articles 2 and 3 of the External Audit Act). In full view of the fact that the company should enter into the accounting audit contract with the customer, it can be deemed that the legal authority and responsibility for the accounting audit contract belongs to the O exclusively, and the Plaintiff cannot be deemed

Furthermore, it is difficult to view that even if a local accounting firm does not have a special relationship with a foreign large-scale accounting firm, the business partnership with the foreign accounting firm is important, and the reputation or reliability of the accounting firm itself accounts for a significant portion of the conclusion of the accounting audit contract. Moreover, even if the transaction partners managed by the Plaintiff do not necessarily have any legal obligation to conclude the audit contract according to the Plaintiff’s intent or to conclude the audit contract with the OO as a partner, the Plaintiff is merely merely to recommend the O to conclude the audit contract with the OO as a partner, even if it maintains a special relationship with the customer who has been mainly managed by the Plaintiff, it is difficult to view it as a performance of the Plaintiff’s personal connection or ability.

In addition, as a matter of principle, O would settle the total profits and losses of the corporation and pay annual wages to partnership accountants, it did not take an independent accounting system by evaluating performance results and paying incentives to partnership accountants. From April 1, 2005 to March 31, 2007, with respect to partnership accountants BB, it is classified as small groups and operated in a manner close to the independent accounting system, such as operating separate from the calculation of profits and losses of OO's existing partners. However, from April 1, 2007, BB partners including the Plaintiff were completely integrated into the organization of O. 1, 207, and the annual salary was changed to 20 years after the end of the fiscal year, the Plaintiff concluded the instant contract with 30 independent accounting partners, including the Plaintiff, and the Plaintiff did not have an independent accounting auditor's right to receive 1,000,0000 won from 20,0000,0000 won.

In light of the legal form and substance of the accounting audit contract, the operating method of the OO, and the status of a partner, etc., it is difficult to deem that the Plaintiff has a business right as an exclusive position to recognize the intangible asset value of excess earnings, as it is only possible to evaluate that the Plaintiff has a relationship or trust relationship with the customer he/she managed as a partner as a partner of the OO as well as to deem that the Plaintiff had a business right as an exclusive position to recognize the intangible asset value of excess earnings.

B) Details of the instant contract and whether business rights are transferred

The Plaintiff asserts that in the instant contract, the Plaintiff agreed to receive the instant settlement money in return for the transfer of the Plaintiff’s business rights to theO. However, the instant contract does not fully mention the business rights or similar rights, and thus, does not specify what the Plaintiff intended to transfer, or what is the content of the business rights. If the settlement money in the instant case is the cost of transfer of business rights as the Plaintiff asserted, it is difficult to understand that it does not mention the contents of the instant contract, the business rights to be transferred to the Plaintiff, and the basic contents of the instant contract, such as sanctions against nonperformance, in light of the amount and importance of the settlement money in the instant case.

"If the method of calculating the amount of this case's settlement is examined, and the plaintiff and the plaintiff were to retire on June 30, 2008 (the age of 61) when the plaintiff retires on June 30, 2008 (the age of 61) the amount obtained by deducting the amount accumulated as retirement allowances from 3.5 times the partner's remuneration until the retirement is paid, and when the plaintiff retires on June 6, 2009 (the age of 62 years of age of retirement), it is difficult to view that the plaintiff would not receive any remuneration when he retires after June 30, 2009 (the age of 63 years of age of retirement) after receiving 2.5 times the remuneration partner's remuneration and retirement after the retirement on June 30, 209 (the age of 63 years of age of retirement). If the plaintiff retires on June 30, 2008, after deducting the amount of this case's sales remuneration from the contract of this case's settlement or settlement based on the premise that the amount would be late.

C) Whether the honorariums are honorariums

The former Income Tax Law stipulates that money and valuables should be paid for the purpose of the case in relation to administrative affairs or provision of services, and it should be determined by comprehensively taking into account the motive, purpose, relationship with the other party (see, e.g., Supreme Court Decision 2010Du27288, Sept. 13, 2013). "First of all, the circumstances during which the contract of this case was concluded are health, and the local integration and retirement plan" agreed to reduce the retirement age according to the o&O policy, and the O did not provide for the plaintiff with an annual transitional measure, and it seems that the plaintiff would be more likely that the plaintiff would bear an obligation not to pay compensation for the plaintiff after the early retirement of the plaintiff, and that the plaintiff would have a separate obligation not to pay compensation for the plaintiff after the termination of the contract of this case.

On the other hand, the plaintiff's argument is also based on the plaintiff's assertion, and even if the plaintiff transfers the business rights to OO, the plaintiff bears passive acts that the plaintiff does not require another accounting firm to enter into an accounting audit contract with the other accounting firm, and the O has entered the other accounting firm and paid audit earnings that the pertinent accounting firm can make by entering into an audit contract with the other accounting firm as the settlement amount of this case. Accordingly, the business right asserted by the plaintiff cannot be an officer or employee of the accounting firm with 100 or more certified public accountants under the ORR No. 21 (Duty after Retirement) in accordance with the annexed agreement to the contract of this case. It is also difficult to view that it is beyond the duty of prohibition of competitive business provided for in the POR No. 21 (Duty after Retirement).

In light of the circumstances before and after the conclusion of the instant contract, the contents of the instant contract, and, in particular, the duty to prohibit competitive business, the instant settlement amount has been paid in compensation for the Plaintiff’s early retirement from the retirement age guaranteed by BB for more than five years, and for the Plaintiff’s liability to comply with the duty to prohibit competitive business and the request to cooperate in business for the same period after retirement, so the settlement amount of this case has the nature of “compensation” under the former Income Tax Act.

D) Sub-committee

Ultimately, the Plaintiff cannot be deemed to have a business right, which is an intangible property value, which is an intangible property value of excess earnings, or to have received the instant settlement money by transferring it to the O, and the Plaintiff can not be deemed to have withdrawn from the retirement age guaranteed by BB more than five years, and the instant settlement money and the instant settlement money and the instant compensation for damages in order to compensate for the burden of fulfilling the obligation to comply with the obligation to prohibit competitive business and request to cooperate in business for the same period after retirement from the date of retirement, apart from the working cost. Therefore, the instant settlement money has the character of “compensation” under the former Income Tax Act, and the Plaintiff’s above assertion against this cannot be accepted.

2) As to the compensation reserve of this case

According to Article 17 (1) of the former Income Tax Act, dividend income means dividends or shares of profits or surplus received from a domestic corporation in the relevant taxable period, dividends of interest under Article 463 of the Commercial Act (paragraph (1) and other similar income which are in the nature of profit distribution (paragraph (9)).

Article 17-2 of the Act provides that an accounting corporation shall set aside a joint compensation fund at the Korean Institute of Certified Public Accountants in order to compensate for damages to a company or a third party (Article 17-3(4) of the Enforcement Decree). Article 17-3(4) of the Act provides that if a corporation is dissolved due to a cause or event prescribed in the articles of incorporation, the balance of the joint compensation fund shall be returned to its members at the time of dissolution, and such balance may be returned three years after the cause or event (Article 10 of the Enforcement Decree). Article 28(2) of the Certified Public Accountant Act strictly limits that the compensation fund shall not be used for any other purpose than the compensation fund without the approval of the Financial Services Commission. In light of the fact that the Act and subordinate statutes strictly limits the return of the joint compensation fund, and that theO is exempt from the liability to set aside annual reserves (4/100 of the total audit fees), and that the Plaintiff’s reserve fund cannot be seen as having been paid to the Plaintiff as the Plaintiff’s dividends and the foreign audit fund.

Furthermore, as seen in the above facts, it is difficult to view that the compensation reserve of this case was set aside in advance by the Plaintiff, a partner, and that the compensation reserve of this case was paid on the condition of complying with the obligation not to engage in competitive business, etc., and that it was only set aside certain amount in the name of the partnership accountant in proportion to the sales of each partner accountant, and that it was not a partial set aside of the earned surplus in consideration of its equity, and that the compensation reserve of this case is the same amount as the above reserve, and the amount is ultimately equal to the Plaintiff’s service period and sales, and that the possibility of continuing the compensation for damages remains even if the partner retires, it is difficult to view that the compensation reserve of this case had accumulated the profit that the Plaintiff, a partner, reserved in advance, and received dividends together with the retirement company under the former Income Tax Act.

When comprehensively taking into account all the circumstances such as the process of payment, terms of payment, and calculation method of the amount of the compensation reserve of this case, the compensation reserve of this case also corresponds to the amount paid in O as consideration for the obligation to prohibit competitive business after retirement, considering the contribution of existing partners, etc., and therefore constitutes "compensation, which is other income under the former Income Tax Act." Therefore, the disposition of this case based on the same purport is lawful, and the plaintiff's above assertion against this is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed and it is so decided as per Disposition.