Seoul Administrative Court 201Guhap27650 ( October 13, 2012)

Cho High Court Decision 2010Du1544 (No. 24, 2011)

The time of reversion of the amount of land transfer shall be the year 2002 when the provision of service is completed.

In the settlement of the price for the provision of services, 70% of cash and 70% of the land of this case shall be distributed to a third party; in the case of selling to a third party, 70% of the amount after deducting the expenses from the sale price can be acknowledged as agreed to be distributed to the plaintiff. Thus, it can be recognized that the plaintiff's right to the land of this case is objectively recognized as at the time of the settlement of the above agreement at the time of the settlement, and the time of reversion of the amount

2012Nu4694 Revocation of Disposition of Imposing Corporate Tax, etc.

XX Stock Company

Head of Seocho Tax Office

Seoul Administrative Court Decision 2011Guhap27650 decided January 13, 2012

August 30, 2012

September 6, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s imposition of KRW 000 of corporate tax for the business year 2004 against the Plaintiff on September 1, 2009, and the imposition of KRW 000 of corporate tax for the business year 2006 (the record seems to include penalty tax) and the notice of change in the amount of income of KRW 00 of bonus disposal amount, respectively.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the reasons for the judgment of the first instance;

The reasons why the court should explain in this decision are as stated in the corresponding part of the judgment of the court of first instance except for adding the judgment of the defendant as to the defendant's argument in Paragraph 2 below. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The part concerning additional determination as to the defendant's argument

A. As to the assertion that the time of attribution of the key amount of the instant case is the business year 2004

(1) Even though the pertinent laws and regulations, such as Article 40(1) of the Corporate Tax Act, stipulate the period of attribution of earnings for each business year of a corporation, the concept of "determined" under the above laws and regulations should be determined on the basis of whether the possibility of realizing the income in a specific case is mature and confirmed. Although the service in this case was completed on August 22, 2002, the defendant could not objectively grasp the facts that the plaintiff received the allocation of each of the land in this case for the service in this case and the control relation thereof, and it could not be objectively determined. Comprehensively taking account of the circumstances such as the fact that the land in this case was transferred to a third party on January 2004, each of the instant dispositions were lawful not only for 2002 business years but also for 2004 business years.

(2) Therefore, "the principle of confirmation of right" in relation to the occurrence of income subject to taxation means the time when a right which is the cause of income accrues when a right that is not the time when income is realized exists when there is an interval between the time when a right that is not the time when income is realized and the time when income is realized, and the method of calculating income in the current year is significant to allow a prior taxation of uncertain income under the premise that it is realized in the future. In order to prevent a taxpayer from harming the income for a taxable year. In order to determine that such income has been realized, even if it is not necessary until the income is realized, it shall be considerably mature and determined in light of the feasibility of the income, and therefore, it shall not be deemed that there has been income when the right to receive income has been established without this degree, but it shall not be uniformly determined whether the right to receive income has become mature and finalized, and it shall not be determined by the Supreme Court Decision 205Du1457, Dec. 15, 2005.

However, according to the facts and evidence cited above, the plaintiff completed the provision of this case in 202 and received 00 won in cash and 70% out of each of the land of this case with AA Construction on August 22, 2002. However, if each of the land of this case is sold to a third party, it can be recognized that the plaintiff agreed to receive distribution of 70% out of the purchase price after deducting expenses. As of the time of settlement of accounts, it can be recognized that the plaintiff's right to each of the land of this case is objectively recognizable, and no other circumstance can be found that there was a special obstacle in exercising the above right. ② In addition, Article 69 (1) and (4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577 of Dec. 30, 2010) which is applicable to this case, it is difficult to interpret the above legal principles and the point of view that the defendant's provision of the service of this case belongs to the above 20th business year without any specific reasons.

B. As to the assertion that the notice of change in the amount of income in each of the dispositions in this case is legitimate

(1) In addition, the defendant asserts that among each disposition of this case, the defendant, at least disposed of the key amount as a bonus to the plaintiff's representative at the time of 2004 and that the notice of change in the amount of income (hereinafter "the notice of this case") against the plaintiff on September 1, 2009, was legitimate, since the plaintiff did not report the amount as the amount of income in question as the amount of income, and the source was not revealed.

(2) On the other hand, in filing a return, determination, or correction of the corporate tax base, the disposal of income under the relevant laws, such as the Corporate Tax Act, is confirmed as to whether the amount included in the income is reserved or leaked to the corporation’s inside or outside of the company. If the amount included in the income is leaked to the company outside of the company, it is a procedure of ex post facto confirmation of the income belonging to the person to whom the income belongs and the type of income is determined by specifying the type of income belonging to the person to whom the income belongs. In a case where the tax authority deemed that the amount included in the income was reverted to the officer or employee, and accordingly disposes of the income as bonus, the time when the liability to pay global income tax belongs to the person to whom the income belongs is established shall be deemed as the time when the income tax belongs ends (see, e.g., Supreme Court Decision 2006Du187, Apr. 24, 2008). In addition, in order to establish the exclusion period of taxation as above 207 notice of change in the income amount already paid to the representative.

However, according to the facts cited above and evidence, the defendant, based on the premise that the issue amount was attributed to the plaintiff in the business year of 2002, not to the business year of 2004, as the profit of the service of this case, was leaked, but the plaintiff's income corresponding to the issue amount was disclosed out out of the company. However, in 2004, the plaintiff's representative director at the time of the business year of 2004, considering that the attribution is unclear, it can be recognized that ① the year to which it belongs: 204, ② the amount of income: the issue amount(00), ③ the income amount(00), and ③ the income amount(2) of this case's notification(Evidence evidence No. 2) made to the plaintiffB. Meanwhile, in counting the issue amount to the plaintiff's gross income, it is reasonable to view

In light of the above legal principles, the point at which the issue amount subject to the above recognition and contribution disposition belongs to the income of the above doorB should also be deemed to be 2002. The defendant's notification of this case was made on September 1, 2009 when five years have passed from the exclusion period for imposition of the income tax of the above doorB as stipulated in Article 26-2 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010). Ultimately, the defendant's assertion asserted on such premise cannot be accepted.

3. Conclusion

Thus, the defendant's appeal is dismissed as it is without merit.