Seocho 2013west 1595 ( December 11, 2013)

The payment of retirement allowances according to the rules on payment of retirement allowances for executives by a major resolution shall not be included in deductible expenses unless there is no evidence that the annual salary contract has been prepared ex post facto.

In the case of a family company without any evidence that the annual salary system contract has been prepared ex post facto, the provisions governing the payment of retirement allowances for executive officers by the total resolution shall be valid even if the company does not keep the form of the total resolution. The subsequent provisions governing the payment of retirement allowances cannot be applied to the calculation of wrongful calculation because the market price, etc. cannot be known without being included

2014Guhap53964 Revocation of Disposition of Imposing corporate tax

AAAA

The director of the tax office

September 4, 2014

October 16, 2014

1. On January 2, 2013, the Defendant’s disposition of imposing corporate tax on the Plaintiff in excess of ○○○○○○○○○○ (including additional tax for unfaithful payment, ○○○○○○○○, and additional tax for underreporting) (including additional tax for unfaithful payment, ○○○○, and ○○○○○○) of corporate tax in 2009, including additional tax for unfaithful payment, ○○○○○ (including additional tax for unfaithful payment, ○○○○, and ○○○○○) of corporate tax in 2010, 2011, and ○○○○○○○○ (including additional tax for unfaithful payment, ○○○○, ○○○, and ○○○○) of corporate tax in 201.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a juristic person established on April 6, 1968 and engaged in real estate rental business, and the composition of the Plaintiff’s shareholder composition and board of directors are as follows.

[Attachment 1, December 31, 201]

Name

Title

Number of shares (number of shares)

Ratio (%) %)

Relation

Jinay

BB

Representative Director;

○ ○○

62.96

Principal Representative Director

CCC

Executive Director

○ ○○

16.00

Spouse

August 31, 2011

DD

Managing Director;

○ ○○

7.01

A.

EE

-

○ ○○

7.01

A.

FF

Directors

○ ○○

7.02

A.

Total

○ ○○

100

B. On June 18, 2010, the Plaintiff enacted the Plaintiff’s articles of incorporation, which provides that “The remuneration or retirement allowance of an officer who retired or resigned, shall be governed by the rules on retirement allowances for officers, which have been adopted by the resolution of the general meeting of shareholders” (hereinafter “instant rules on retirement allowances”).”

C. On December 30, 2011, the board of directors made a decision on the conversion from 2012 to annual salary system, which had been previously operated as a monthly salary system, into the annual salary system, and to pay the retirement allowances by the settlement of accounts.

D. Accordingly, on December 31, 2011, the board of directors decided to pay BB retirement benefits of ○○○○ and DoD total sum of ○○○○○○○○○○ (hereinafter “instant retirement benefits”) to BB, a representative director of the Plaintiff, in accordance with the calculation method of retirement allowance regulations of the instant retirement benefits.

E. The Plaintiff paid each retirement benefit of this case to BB and DD respectively, and year 2011

When filing a corporate tax return, it was included in the loss.

F. Meanwhile, while operating a vehicle under the Plaintiff’s name (hereinafter “instant vehicle”) in the form of lease, the Plaintiff disbursed the following expenses related to the said vehicle (attached Table 2), and included them in deductible expenses when filing a corporate tax return for each business year.

[Attachment 2, Unit: Won]

209

2010

2011

Lease fees

○ ○

○ ○

○ ○

Oil expenses, etc.

○ ○

○ ○

○ ○

Total

○ ○

○ ○

○ ○

G. The Defendant: (a) conducted a tax investigation on the Plaintiff from August 29, 2012 to October 19, 2012; and (b) subsequently, on the ground that the instant retirement benefit was paid without any ground despite that BB and DD did not actually retire, the Defendant excluded the instant vehicle expenses from deductible expenses on the ground that they were paid irrespective of the Plaintiff’s business; (c) on January 2, 2013, the Defendant imposed the Plaintiff a disposition of imposing corporate tax ○○○○, ○○, ○○, and ○○○, 2011 corporate tax on the Plaintiff (hereinafter “instant disposition”).

H. On March 26, 2013, the Plaintiff was dissatisfied with the instant disposition (However, as indicated in the Disposition, the Plaintiff contests only the part related to the instant vehicle, not the entire corporate tax in 2009, and the Defendant corrected corporate tax in 2010 to ○○○○○ on January 29, 2013) but filed an appeal with the Tax Tribunal on March 26, 2013. However, the Tax Tribunal dismissed the appeal on December 11, 2013. Accordingly, the Plaintiff appealed and filed the instant lawsuit on March 10, 2014.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 5, entry of Eul evidence 1 through 4, purport of whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

1) The instant retirement benefits

The retirement benefits of this case were paid in accordance with the retirement benefits rules of this case legally enacted, and BB and CCC were actually converted into annual salary system.

2) Expenses for the instant vehicle

Expenses incurred in relation to the instant vehicle are actually related to the Plaintiff’s business.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) The instant retirement benefits

이 사건 처분의 사유 중 이 사건 퇴직급여 부분과 관련된 처분사유는, � '이 사건 퇴직금규정을 제정한 주주총회와 연봉제 전환을 의결한 이사회의 결의의 효력을 인정할 수 없다.'는 점과, 'BBB과 DDD은 실제로 연봉제로 전환한 사실이 없다.'는 점, '이 사건 퇴직급여가 법인세법 제19조의 손금산입 요건에 해당하지 않는다.'는 점, '부당행위계산부인에 해당한다.'는 점 등이므로, 이하에서는 위 각 처분사유가 적법한지 여부에 대하여 살펴보기로 한다.

A) Validity of the resolution of shareholders' general meeting and board of directors

The retirement allowance provision of this case, which was the basis for the payment of the retirement benefits of this case, was established at the Plaintiff’s general meeting of shareholders (hereinafter “instant general meeting of shareholders”) on June 18, 2010, and was paid to BB and DD on the basis of this provision, as seen earlier. However, the Defendant asserted to the effect that the validity of the instant general meeting of shareholders cannot be recognized on the ground that the instant general meeting of shareholders did not go through the general meeting of shareholders under the Commercial Act.

그러나 구 상법(2014. 5. 20. 법률 제12591호로 개정되기 전의 것, 이하 '상법'이라 한다) 제363조는 제1항에서 주주총회를 소집할 때에는 주주총회일의 2주 전에 각 주주에게 서면으로 통지를 발송하거나 각 주주의 동의를 받아 전자문서로 통지를 발송하여야 한다. 다만, 그 통지가 주주명부상 주주의 주소에 계속 3년간 도달하지 아니한 경우에는 회사는 해당 주주에게 총회의 소집을 통지하지 아니할 수 있다.", 제2항에서 "제1항의 통지서에는 회의의 목적사항을 적어야 한다."라고 규정하면서도, 제5항에서 "자본금 총액이 10억원 미만인 회사는 주주 전원의 동의가 있을 경우에는 소집절차 없이 주주총회를 개최할 수 있다"라고 규정하고 있는바, 이는 자본금의 규모가 작은 영세한 회사 또는 주주의 구성이 가족 등으로 폐쇄적으로 이루어져 있는 소규모 회사의 경우에는 비록 주식회사의 형태를 취하고 있다고 하더라도 실제로는 개인회사와 같이 경영이 이루어지는 경우가 보통이므로 이러한 경우까지 엄격하게 주주총회의 소집절차를 거치도록 하는 것은 불필요한 비용을 초래하고 오히려 거래의 안전을 해칠 수 있다고 보는 것에 규정의 취지가 있다고 해석되는바, 2010. 6. 18.경 원고의 주주현황은 [표1] 기재와 같이 대표이사 윤PP과 그 가족들로 구성된 상황이었던 사실은 앞서 본 바와 같고(또한 그 당시는 김QQ이 윤PP과의 불화 등으로 원고의 사내이사에서 사퇴하기 이전이다),갑 제13호증의 기재에 의하면 원고의 자본금 총액은 ○○○원에 불과한 사실을 인정할 수 있으며, 을 제5호증의 1의 기재에 의하면 2010. 6. 18.자 임시주주총회 의사록에는 주주의 총수(5인)와 주식총수(○○○주), 출석주주의 수와(3인) 그들의 주식수(○○○주)가 기재되어 있으며 출석주주의 기명날인이 갖추어져 있는 사실을 인정할 수 있고, 여기에 원고의 주주들은 모두 동거가족이었으므로 주주 구성원들이 소집절차 없는 주주총회의 소집에 반대할 이유가 없고, 피고가 원고의 주주들 중 이 사건 주주총회의 소집절차 없는 소집에 반대한 사람이 있다는 점을 주장・입증하지도 않고 있는 점을 더하여 보면, 이 사건 주주총회는 상법 제363조 제5항에 의하여 적법한 주주총회라고 해석하야야 한다.

Meanwhile, the Defendant asserts to the effect that the authenticity of the instant general meeting is doubtful since the total number of shareholders is four, three, and the number of shareholders present is different from that of the minutes of the general meeting of shareholders as of March 31, 2011, the minutes of the general meeting of shareholders (No. 5-2) are different from that of the minutes of the general meeting of shareholders. However, even if the minutes of the general meeting of shareholders as of March 31, 201 include any error in the minutes of the general meeting of shareholders as of March 31, 201, the validity of the instant general meeting of shareholders cannot be denied solely on the ground that there is an error in the minutes of the general meeting of shareholders as of other dates.

In addition, on December 30, 201, the Plaintiff, holding a board of directors on December 30, 201, converted the salary system for executive officers into the annual salary system that requires the payment of annual salary including retirement allowances from the monthly salary system. Accordingly, the Defendant stated that the minutes of the board of directors of this case did not include specific annual salary system and the company subject to conversion of company and its payment procedures, and thus, the instant retirement benefits cannot be paid based on the above resolution of the board of directors. However, at the time of the Plaintiff’s director, the Plaintiff’s director was in the position of only two directors BB and DD (Evidence 4) and the two directors BB and DD were the counterparts to the payment of the instant retirement benefits. Thus, it appears that there is no possibility of disagreement between the board of directors on the conversion into the annual salary system and its contents, and Article 393 of the Commercial Act stipulates that the Defendant’s establishment or transfer of the company’s annual salary system and its contents cannot be viewed as unlawful by the resolution of the board of directors (Article 101).

B) The substance of the conversion into the annual salary system

The Plaintiff’s presentation of the grounds for the conversion of the annual salary system to BB and DD is the evidence No. 6 (annual salary contract; hereinafter “the annual salary contract of this case”) in addition to the minutes of the general meeting of shareholders and the board of directors as seen earlier. Accordingly, the Defendant requested the Plaintiff to present documents in the course of the tax investigation, and the Plaintiff’s related party did not have any particular contract concerning the annual salary contract at the time, and submitted the above annual salary contract of October 16, 2012, which was after the application for the suspension of tax investigation, when the Plaintiff did not comply with the request for the presentation of documents. In light of the above, the Plaintiff’s submission of the annual salary contract of this case was made on October 16, 2012, the Plaintiff asserted that the conversion of the annual salary system as claimed

However, in addition to the above facts and evidence, following the Plaintiff’s statement and the overall purport of the statement and argument of the witness GG, it is reasonable to recognize the Plaintiff’s annual salary contract of this case as follows: (a) on January 3, 2012, immediately after the Plaintiff decided to convert the Plaintiff into the annual salary system for the payment of benefits to BB and DD; (b) at the time the Plaintiff requested the HH tax accountant office to calculate the amount of retirement pay to BB and DD; and (c) at the time, the Plaintiff was also included in the instant annual salary contract; (d) the existence of the instant annual salary contract after the commencement of the tax investigation was at issue; and (e) the Plaintiff was returned the instant annual salary contract of this case along with documents bound by the Plaintiff’s return, salary, and withholding receipt, etc., along with other documents supporting the annual salary contract of this case; and (e) on September 13, 2012, it is reasonable to recognize the Plaintiff’s intent to convert the annual salary contract of this case to B and each of BD on October 16, 16, etc.

In other words, the defendant presents the evidence No. 15, and the evidence No. 15 shows that the defendant's employee visit the third certified tax accountant's office at the time of the tax investigation to the person in charge of practical affairs.

Although whether or not there was a document in custody, it is true that there was no document in custody. However, the document No. 15 stated that the document No. 15 is not signed and sealed, and it is merely a simple output that does not have a title of preparation, and thus it cannot be used as evidence to reverse the fact of recognition, and the document No. 7 alone lacks to reverse the fact of recognition, and the defendant merely asserts that it is difficult to believe that the statement of GG is made.

c)that the instant retirement benefit does not meet the requirements of inclusion in deductible expenses under Article 19 of the Corporate Tax Act.

Article 19(1) of the Corporate Tax Act provides that "deductible expenses shall be the amount of losses incurred by transactions which reduce the net assets of the corporation, excluding the refund of capital or financing, appropriation of surplus funds, and those stipulated in this Act." Paragraph (2) provides that "deductible expenses under paragraph (1) shall be generally accepted as losses or expenses incurred in connection with the business of the corporation or directly related to profits, except as otherwise provided for in this Act and other Acts." Paragraph (4) provides that "the matters necessary for the scope and classification of losses under paragraphs (1) through (3) shall be prescribed by Presidential Decree." Article 19 subparag. 3 of the Enforcement Decree of the Corporate Tax Act provides that "labor expenses" as one of the losses under the above provision of Article 19 subparag. 4 of the Corporate Tax Act shall not be included in deductible expenses, and Article 26 of the Corporate Tax Act provides that "the amount deemed excessive or unreasonable as prescribed by Presidential Decree among the following losses shall not be included in deductible expenses" in Article 19(1)1 of the Enforcement Decree of the Corporate Tax Act, and Article 44 of the Corporate Tax Act provides that "retirement benefits shall not be included in deductible expenses."

D) The fact that the act constitutes a wrongful calculation panel

Article 52 (1) of the Corporate Tax Act provides that "the head of a tax office or the Commissioner of the competent Regional Tax Office having jurisdiction over the place of tax payment may calculate the income amount of a domestic corporation for each business year regardless of the calculation of the income amount of the corporation where it is deemed that the tax burden on the corporation's income has been reduced unfairly through an act or transaction with a related party prescribed by Presidential Decree." Paragraph (2) of the same Article provides that "in applying paragraph (1), the calculation of the income amount of the corporation shall be based on the prices (including rates, interest rates, rents, exchange rates, and other similar rates; hereafter the same shall apply in this Article) applied or to be applied in sound social norms and commercial practices and normal transactions between a person who is not a related party." The delegated Enforcement Decree of the Corporate Tax Act provides that "type of wrongful calculation avoidance, etc." under Article 88 and Article 89 of the Enforcement Decree of the Corporate Tax Act shall be within the scope of the market price of the corporation's income amount to be excluded from deductible expenses for the reason that the result of an act between a corporation and a related party constitutes wrongful calculation."

Although the Defendant asserted that the payment of the instant retirement benefits to BB and DD constitutes a wrongful calculation, the Defendant did not disclose whether the instant disposition was made or not as it falls under any type of Article 88 of the Enforcement Decree of the Corporate Tax Act.

In rendering the instant disposition, the Defendant did not specify the market price that is the basis for denying wrongful calculation (the amount provided by Article 44(4)2 of the Enforcement Decree of the Corporate Tax Act is only the calculation provision on retirement benefits to be included in deductible expenses, if retirement benefits are not determined by the articles of incorporation, and cannot be seen as the market price provision).

Therefore, this point cannot be a legitimate ground for the disposition of this case.

E) Sub-decisions

Ultimately, it cannot be recognized that the resolution of the general meeting of shareholders and the resolution of the board of directors on the conversion of the annual salary system, which enacted the retirement allowance rules of this case, are not valid, and that the leapP and leapR are not actually converted to the annual salary system, and that the 'the retirement benefit of this case does not meet the requirements for inclusion in deductible expenses under Article 19 of the Corporate Tax Act,' and that 'the calculation of wrongful calculation' constitutes a legitimate reason for the disposition of this case.

2) Expenses for the instant vehicle

Article 27 of the Corporate Tax Act provides that "the following amounts out of expenses paid by a domestic corporation for each business year shall not be included in deductible expenses for the purpose of calculating the amount of income for the relevant business year." Subparagraph 1 lists "the amount prescribed by Presidential Decree, such as expenses incurred by acquiring and managing assets prescribed by Presidential Decree that are deemed not directly related to the business of the relevant corporation." Article 49 subparagraph 2 (b) of the Enforcement Decree of the Corporate Tax Act provides that "motor vehicles that are not directly used for the relevant business." Meanwhile, since the tax authority bears the burden of proving the legality of taxation, the tax authority bears the burden of proving necessary expenses as a matter of principle. However, the deduction of necessary expenses is not only favorable to the taxpayer, but also within the control area of the taxpayer, and the tax authority has difficulty in establishing necessary expenses. Therefore, it is reasonable to have the taxpayer prove taking into account the difficulty of proof or equity between the relevant parties, the tax authority must return the necessity of proof to the taxpayer, taking into account the circumstances surrounding the acquisition of the relevant corporation's assets and its related business purpose 16.

In full view of the above provisions and relevant legal principles, in order for a company to include expenses related to the purchase and use of a motor vehicle for its business purposes, it is necessary to prove that there is expenses that the company spent on the motor vehicle. On the contrary, in order for the corporation that was paid on the motor vehicle to exclude it from deductible expenses on the grounds that it is unrelated to the business, it is necessary to prove that the motor vehicle is an automobile unrelated to the business of the company, through the explanation of the purpose of the corporation, the circumstances the company acquired the motor vehicle, the use and actual condition of the motor vehicle, the passage period after the acquisition of the motor vehicle, the relationship between the company's business, the principal user's residence and the location of the company, etc.

However, according to the facts and evidence examined earlier, the expenses incurred by the Plaintiff with respect to the instant vehicle are indicated in [Attachment 2]. On the other hand, the Defendant did not present any data except that some of the expenses paid with respect to the instant vehicle are settled in the area of Sungnam-si, which is not the location of the Plaintiff’s office, not the location of the Plaintiff’s office. This alone does not lead to the minimum proof that the instant vehicle is an automobile unrelated to the Plaintiff’s business, and even if it is a corporation operating a real estate rental business, it is reasonable to deem that at least one vehicle is necessary for its business as long as it is pursuing profit (in particular, the Plaintiff is not a corporation for the convenience of real estate ownership without human and physical facilities, but a corporation with full-time employees such as the head of the management office and the person in charge of accounting, etc.), and the non-deductible part of the expenses paid with respect to the instant vehicle among the disposition of this case cannot be a legitimate ground for disposition of this case.

D. Sub-committee

Ultimately, the grounds for the instant disposition, which the Plaintiff is disputing, are all unlawful, so the instant disposition is revoked within the scope sought by the Plaintiff.

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per Disposition.