2011west 1850 (No. 27, 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 18 of the Framework Act on National Taxes and prohibition of retroactive taxation

Article 21 of the Income Tax Act

2011Guhap43256 Revocation of Disposition of Imposing income tax

IsaA

The Director of Gangnam District Office

May 1, 2014

June 5, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On March 10, 2011, the Defendant revoked the imposition of the global income tax OOOO for the Plaintiff on March 10, 2009.

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 BB accounting corporation (hereinafter referred to as BB) from May 12, 2005 to July 1, 2008; "2) the plaintiff entered into an agreement between BB and B on June 30, 2008, which was prior to the retirement (the meaning of the set management is disputed by the plaintiff; hereinafter referred to as "the agreement in this case"; hereinafter referred to as "the agreement in this case") with BB; hereinafter referred to as "O209, 2000, 2000, 2000, 2000, 300,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

Classification

Year

Amount payable (cost)

PCC

Liquidation Amount

209

OOO

2010

OOO

Compensation Reserve

209

OOO

2010

OOO

(b) Imposition of global income tax;

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

2) However, the Plaintiff: (a) deducted 80% of the pertinent amount from necessary expenses on the ground that the instant settlement amount constitutes the transfer price of business rights; and (b) filed a comprehensive income tax return for the amount of damages reserve classified as dividend income in 2009.

"3) On the ground that the instant settlement amount and the compensation reserve constituted other income as a honorarium, the Defendant filed an appeal against the Plaintiff on March 3, 201 (hereinafter “instant disposition”), which was dismissed by the Tax Tribunal on September 26, 201, on the ground that the instant settlement amount and the compensation reserve constituted other income.

[Ground of recognition] Documents Nos. 1 through 4, Eul Nos. 1 and 2 (including natural disaster) and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) The settlement of the instant case

The Plaintiff was in de facto in a business position and received the instant settlement from BB in return for the transfer and withdrawal of the transaction relationship with the existing transaction partners to BB. Therefore, the instant settlement amount ought to be considered as the consideration for the transfer of business rights, which are intangible property value, or other similar rights.

2) The compensation reserve of this case

BB distributed profits and reserved the compensation reserve in order to prepare for losses that may arise to the customer that the Plaintiff accepted. The compensation reserve received from BB is the dividend income.

B. Relevant statutes

Attached Form. The entry in the relevant statutes is as follows.

(c) Fact of recognition;

1) The plaintiff's severance from employment

"A) The Plaintiff worked as a partner in the D Accounting Corporation (hereinafter referred to as "D") before becoming a member of BB. DD was divided into six headquarters around the time of the Plaintiff’s retirement. The 2nd headquarters was divided into six groups from A to F groups. The Plaintiff was the 2nd A Group liability partner, and six members including EE were the 5nd liability partner. The responsible partner was paid benefits within the scope of the balance after deducting the group’s direct cost, corporate cost, corporate tax distribution, etc. from the sales amount of audit fees, etc. for the clients under their management. In relation to taxes, D was withheld as income tax. (b) BB (former FF Accounting Firm) entered into a merger with DD around January 2005, but the 2nd head office was divided into six groups, but the Plaintiff was the 5nd liability partner of DB, respectively, due to the failure of DD’s accounting audit.

C) After having joined the partnership of D Accounting Corporation, BB was operated by D Accounting Corporation for the two accounting years from April 1, 2005 to March 31, 2007 by unit of sub-groups of liability accounting firms employed individually from D Accounting Corporation. From April 1, 2007 to March 31, 2008, B and organization were integrated into a single system and operated as a single system. During the above integration period, the Plaintiff determined income based on the previous year’s revenue performance or business capacity, and settled based on the results after the end of the fiscal year. B was internally calculated for each partner, but did not share profits or losses for each partner.

2) Plaintiff’s retirement

"A) BB is a member of the organization of GG (hereinafter referred to as "GG") which is an international accounting corporation. Four places among the domestic accounting corporations are affiliated with a large accounting corporation of a foreign country (HH III, Delitte J, KK LL, GGB). Local accounting corporations that did not have a business partnership with a large accounting corporation of a foreign country are difficult to accept the audit of the listed company." (b) BB, around 2008, reduced the retirement age to 60 years according to the integrated policy of GG, and proposed retirement from the partnership over 60 years of age.

On April 18, 2008, the Plaintiff, JungCC, and the EE meeting called the “regional integration and retirement plan” meeting at the meetings of GB representative director M, GG’s SteN, and PPPwe. As a result of the meeting, BB presented a transitional measure to pay the following amount at the time of retirement to the Plaintiff. As a result of the meeting, the Plaintiff, JungCC, and the EE may work until the age limit of 65 if they continue to work in DD, but the details of benefits were determined to be more than 3.5 times the remuneration of 2008, considering the remaining period until they reach the age of 65, since they were transferred to BB and reduced the retirement age.”

Confirmation of Benefits

Benefit Period

Age of retirement

June 30, 2008

3.5 times the remuneration for partnership on June 30, 2008

Payment each month in quarterly installments 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 years of age

June 20, 2009

No beneficiary shall be beneficiary

relevant matters that do not exist

63 years of age;

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

D) On June 30, 2008, the Plaintiff transferred the equity shares to BB representative director on the OO (65 units of equity investment, face value per unit). On January 1, 2009, the Plaintiff retired from BB 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 retirement.

1. Arrangement 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.

GG Erity means a cooperative body composed of GGGrabal Limed.

Regrative rate means the date of June 30, 2008.

Standard's Organization refers to BB's Standler's Organization on March 23, 2007.

2. The amount agreed;

2.1Subject to the premise that partnership shall implement all the conditions of Articles 2.5, 3 and 4 (or BB waivers), BB shall pay to the parties the amounts calculated under the following Articles and 2.3 (However, on the premise that B.2 shall follow):

2.1.1.1. Ful I 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 calculated by multiplying the FY208 Basic Unit by the OOOO(s)-However, the amount shall be subtracted from that amount.1.5.

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, GGG agreed with the existing partners, including partnerships, to compensate for financial risks arising from the change of the basic operational model.

2.3. Ammot constitutes part of the financial compensation contained in a credit agreement, and is the amount of compensation and settlement of the monetary rights and partnerships which it receives as a partner in connection with a credit agreement.

2.4.2.2.2.2.2.3 and under the conditions of 5, the agreed amount shall be paid in the following manner:

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

2.4.2.To be paid quarterly over a five-year period, on the beginning date of each quarter, and once payment shall be made on the first business day after the Departure DNA rate (the retirement pay of 2.4.5.).

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 on waiver of positions and profits of partners;

4.3.Notwithstanding the provisions of subparagraph 4, BB and partnerships agree as follows:

3.1. A partner shall transfer to BB any responsibility held after the date of the decision-making and resignation related to all management and management and shall waive this transfer.

3.2. A partner must fully cooperate in legal disputes or investigations by supervisory bodies conducted by BB. 3.3. A partner will waive BB’s partnership positions as of the date of resignation.

3.4. It will terminate, as of the date of resignation, a partnership’s employment contract of any kind entered into with GGG Enit.

4. Obligations to undertake partnership;

4.1. As of the date of resignation, partnership should resign from the office of any Ent Director related to BB and should transfer the reduced location of the partner. Partnership must sign the relevant document for the purpose of beyond the right of signature of the bank account of GG Ent.

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

5. Ful and Final Set Management;

5.1. The terms and conditions of this Agreement include, in the future, the final settlement that covers any claim for compensation or right to lawsuit of any kind arising for and by any means on unson’s grounds.

5.1.1. A partner will waive the right to claim compensation or a lawsuit to be held currently or in the future against GG, GGG partnership, directors, employees, etc. as an agreement to this Agreement.

9. Uncompetitive competition (N-Copete);

4.2.Subject to the foregoing, Article 21 amended on June 20, 2008 shall apply to partnership partners.

F) On December 10, 2008, the Plaintiff agreed to revise the contents of the non-competitive agreement set forth in the Annex to the Agreement (E White 1) with BB.

1. Scope of the application of Article 21 of the Regulations on Basic Operation for Non-compete (hereinafter referred to as "Stadard Regulations");

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

1.1. Within the period of 24 months following January 1, 2009, neither an 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 at the end of every month from April 1 every year to March 31 of the following year) is at least 100 nor an officer or employee of a tax accounting corporation or a law firm in competition with each other.

1.2 Within the period of 247H after January 1, 2009, GGB E-H may not induce, or provide services to, those persons with the same kind of transaction, any customer who has been engaged in a transaction with the 1 year to the 247H and any person who has been engaged in a negotiation to become a customer.

1.5. After the date of retirement, in cases where independence in the audit of the GGB is impaired by negotiations with a view to working or working as an officer or employee of a corporation auditing as of the date of retirement of the GGB in order to maintain the independence of audit, the retirement partner may not negotiate with a view to working or working as an officer or employee of the customer company of the GGB 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 BB accounting corporation may, notwithstanding the provisions of 6.2. of the Agreement, restrict the payment of the amounts as provided in 2.1.2.

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 BB’s request for cooperation in business, other than the duty of prohibition of competition after retirement.

(iii) payment and provision of funds to retirement partners BB;

A) From January 2008 to the beginning of 2009 among the partnership accountants entered into DD from D to BB, seven persons were retired. All retired partners entered into a mutual agreement with BB, and the settlement amount and the compensation reserve was paid as follows. In the agreement, Article 21 of the Basic Operating Regulations (SOR) of BB explicitly stated the duty to prohibit competitive business.

Name

The settlement amount (the cost of detention)

Period

Compensation reserve (in million won)

Period

D

OOO

Payment in installments for three years after retirement

OOO

Payment in installments for two years after retirement

E

OOO

Payment in installments for one year after retirement

OOO

Payment in installments for two years after retirement

F

OOO

Payment in installments for two years after retirement

OOO

Payment in installments for two years after retirement

G

OOO

Payment in installments for one year after retirement

OOO

Payment in installments for two years after retirement

H

OOO

Payment within one month after retirement;

OOO

Payment within one month after retirement;

K

OOO

Payment within one month after retirement;

OOO

Payment within one month after retirement;

B

OOO

Payment within one month after retirement;

OOO

Payment within one month after retirement;

B) The amount paid by BB to a retired partner was calculated by the position at the time of retirement, the level, age, and the period of obligation not to engage in competitive business after retirement. BB paid the amount by dividing it into retirement consolation money and honorarium depending on the nature of the amount, and the retirement consolation money was treated as earned income, and the honorarium was treated as other income.

C) BB paid settlement payments to retired partners D, E, F, and G for the purpose of the prohibition of competition and confidentiality during the period of installment payments. BB was liable for the prohibition of competition and confidentiality, but the interest with the legal entity is not the same as the interest with the legal entity, and disposed of as retirement consolation money when it was immediately paid after retirement.

D) Article 21 of the Basic Operating Regulations (SOR) provides that BB shall not engage in competitive business 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 juridical person or any partner or employee of a company constituting the GG network for a period of 12 months from the date of retirement, or propose or conclude any other business cooperative relationship.

(4) During a 24-month period from the date of retirement, a person who was or was a customer with an organization company of a corporation and GGG network within the period of time for retirement or reference, or a person who was engaged in negotiations to become a customer, or a person who had been engaged in an important transaction during a reference period for which the member was an employee or employee of the corporation, shall not, directly or indirectly, investigate, induce, access, or provide a service to such 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) BB accumulated the amount allocated to an individual by referring to the sales of each partnership in preparation for the accounting audit error, etc. BB accumulated as the compensation reserve. BB did not pay 100% of the compensation reserve for damages to the partnership accumulated in its own name at the first time upon retirement of a partner who has worked for a long-term period of time, claiming the right to the reserve, and 50% thereafter. However, the remaining accounts claim that the compensation reserve can be used at the time of liquidation of the accounting firm, and that it is a limited amount that can be received only after the remainder after appropriating the liabilities. As such, BB did not pay the amount equivalent to the compensation reserve to the partner who retired as of the date of the closing of the argument in this case.

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

Article 17-2 of the Act on External Audit of Stock Companies (hereinafter referred to as the " External Audit Act") imposes an accounting firm on the Republic of Korea to set aside a joint compensation fund composed of the basic and annual reserve in the Korean accounting society," while BB has purchased a liability insurance policy at the time of the Plaintiff's retirement, there was no obligation to set aside an annual reserve under the External Audit Act, and there was no change in the unpaid dividends and reserve in the financial statements.

H) BB did not settle profits or incur losses for each partner, nor calculated all corporate profits and losses. However, partnership evaluated and reflected its achievements such as attracting new customers.

[Ground of recognition] Gap's evidence Nos. 1 through 4, 9, 10, 12, Eul's evidence Nos. 1 through 8, part of Gap's evidence No. 11, and the result of each fact inquiry into BB by this court, the witness's testimony and the purport of the whole pleadings

D. Determination

In light of the following circumstances revealed in the above facts, the Plaintiff was deemed to have received the instant settlement and compensation for damages in order to avoid the retirement age more than five years prior to the retirement age guaranteed in DD, and to bear the obligation to comply with the duty of prohibition of competition and the request to cooperate in business for the same period after retirement from the workplace for the same period of time after retirement from the workplace. The Plaintiff cannot be deemed to have been paid the instant settlement and compensation for damages. The Plaintiff cannot be deemed to have a business right, which is an intangible and independent property value of excess earnings, or to have received the settlement of this case by transferring it to BB.

1) First, the Plaintiff cannot be deemed to have an independent business right.

The term "business right" means an intangible asset value, such as the company's tradition, social credibility, location conditions, existence of a special manufacturing technology or special trading relationship, etc., and other intangible asset value, which can bring more profits than the profits raised by other companies operating the same kind of business through the monopoly of the manufacturing and sale (Supreme Court Decision 2003Du7804 Decided April 9, 2004).

According to the External Audit Act, listed companies enter into an audit contract on a three-year basis, and unlisted companies enter into an audit contract on a one-year basis, and may not dismiss auditors except for statutory reasons during the period of the audit contract (see Article 4). In addition, a stock company whose total amount of assets as of the end of the immediately preceding business year exceeds a certain size shall be audited by an external auditor independent of the stock company, and the auditor shall be limited to an audit team registered with an accounting corporation or the Korean Institute of Certified Public Accountants (see Articles 2 and

In light of the following facts: (a) the customer concludes an audit contract with BB, not only the Plaintiff individual but also the legal relationship with the customer; (b) the accounting firm is responsible for compensating for erroneous accounting audits, etc.; (c) the listed company, etc. cannot independently conclude an accounting audit contract with the individual capacity of the accounting firm; and (d) only the accounting firm can enter into the contract with the foreign accounting firm according to statutory restrictions; (c) in particular, a local accounting firm, which has not entered into a business partnership with a foreign large accounting firm, has important business partnership with the foreign accounting firm; (d) the reputation and reliability of the accounting firm itself are important; (e) even the customer managed by the Plaintiff is not able to enter into the audit contract with the Plaintiff at the Plaintiff’s will; and (e) the customer is merely merely merely able to encourage the Plaintiff to enter into the audit contract with the Plaintiff; and (b) the operating regulations explicitly indicate that the operating right belongs to the corporation regardless of the changes in its members. It cannot be said that the Plaintiff, a partner of the corporation, has an exclusive business right to recognize intangible property value, which belongs to the accounting firm.

2) BB was not a structure to share earnings and losses for each partner.

In this context, the Plaintiff, as a partner of an accounting firm, appears to have been in a relationship with BB by stating that it was not a place in which each partner was calculated, but that the entire corporation was able to work for a single account, and that the management of the performance of each partnership was carried out at the internal management level. The Plaintiff may personally and pro rata to facilitate the relationship with BB and its customer, and played an important role in the relationship with the customer as a partner. However, this is only an act for an accounting firm as a partner of an accounting firm, but it cannot be recognized as an independent business activity. The Plaintiff reported the income received from D or B as earned income, and the accounting firm cannot be deemed to have acted as an individual business entity because it was treated as earned income. In other words, the audit contract with the customer is exclusively belonging to a specific partner, or the customer managed by the Plaintiff and transferred it to B while leaving the company.

3) The instant settlement and compensation reserve are the consolation money that the Plaintiff retires at an early stage than the period guaranteed by DD, and that is paid as consideration for the duty to prohibit competition after retirement.

B In the instant contract, the Plaintiff agreed to pay the instant settlement and compensation reserve on a quarterly basis on the condition that the Plaintiff fulfilled the obligation not to engage in the business operations for a long time after the retirement. BB paid the Plaintiff the amount of money on a yearly basis according to the early retirement from the Plaintiff, in particular, at the time when the Plaintiff retires after June 30, 2009. In other words, there is no mentioning the business rights in the instant contract, nor is it paid the fixed amount according to the number of business partners managed regardless of the time of retirement. Other retirement partners received the settlement and compensation reserve as well as the Plaintiff received the payment of more money than other retirement partners on condition that the Plaintiff would respond to the request for the business operations in addition to the duty not to engage in the business operations after retirement. In view of the interests of BB after retirement and the possibility of conflict with the interests of BB after retirement, the period of prohibition of the business operations is shorter, or the settlement amount is less than the settlement amount. Considering the nature of the settlement and compensation reserve, the terms and conditions of the Plaintiff’s early retirement.

4) 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 to compensate for damages to a company or a third party (Article 17-2 of the Act); Article 17-3(4) of the Enforcement Decree provides that if a corporation is dissolved due to a cause or event prescribed in its 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 after three years from the date such cause or event occurred (Article 10 of the Enforcement Rule of the Certified Public Accountant Act). Article 28(2) of the Certified Public Accountant Act strictly limits the reserve for compensation to prevent any use other than for damages without approval of the Financial Services Commission

In light of the fact that the statute strictly limits the repayment of the joint compensation fund, and that BB is exempt from the obligation to accumulate annual reserves (4/100 of the total audit fees) by subscribing to liability insurance, and that there is no change in BB’s dividends and reserve funds even for the Plaintiff’s retirement, the compensation reserve of the instant case that BB paid to the Plaintiff does not return to the Plaintiff the compensation fund accumulated in accordance with the Act on External Audit, etc.

As seen in the above facts, considering the fact that the compensation reserve accumulated in BB was not paid to partnership partners, the compensation reserve of this case is the money paid on condition of complying with the obligation not to engage in ordinary business, the amount accumulated by sales, and the possibility of losses remains as a result of the partner's retirement, as seen above, it is deemed that the settlement amount of this case is the amount paid as compensation for the liability after the retirement, considering the contribution of existing partnership partners in BB as well as the settlement amount of this case. It cannot be said that the Plaintiff, a partner, has accumulated the profit to be distributed in advance.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.