Board of Audit and Inspection 2009 depth049 (O3, 2011)

The amount of income under the service contract shall be calculated in accordance with the principle of the establishment of rights and obligations.

When there is a contract to provide multiple unspecified services within the contract period, if there is no other way to indicate the degree of service performance more well, income can be recognized on the basis of the straight-line method, the work hours, or the work date for practical convenience. As such, the calculation of income under the service contract of this case by the plaintiff pursuant to the Financial Accounting Standards No. 4 and the profit-making type No. 5, and this is also consistent with the principle of the right and duty confirmation or the principle of the respect of corporate accounting.

2011Guhap 17646. Revocation of a request for rectification of corporate tax

XX Co., Ltd

Head of Seocho Tax Office

October 28, 2011

November 25, 2011

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s disposition on June 11, 2009 against the Plaintiff on the request for corporate tax reduction for the business year 2006 and the disposition on imposition of corporate tax of KRW 714,917,050 for the business year 2006 and the disposition on imposition of corporate tax of KRW 27,687,240 for the business year 207 shall be revoked.

1. Details of the disposition;

The following facts may be acknowledged either as having no corner between the parties, or as having a comprehensive view of the purport of the entire pleadings in each entry in Gap's I, 2, 11, 13, Eul's evidence Nos. 3-5-1, 2, Eul's evidence No. 3-8, Eul's evidence No. 4-7, Eul's evidence No. 5-1, and Eul's evidence No. 5-2.

가. 원고는 2005. 10. 21. 설립된 해외투자 및 투자자문업, 분양대행 및 컨설팅업을 하는 업체로서 2006. 2. 18. 카자흐스탄 공화국에 있는 현지 법인인 유한책임회사 XX 아르트{XX Art Co. LTD, 이하 '현지 법인'이라 한다)와 카자흐스탄 얄마티시 QQQQ 282,189.99㎡ 지상 고층공동주택단지 및 상업시설 개발사업(이하 '이 사건 개발사업'이라 한다)에 관한 컨설팅 용역계약(이하 '이 사건 용역계약'이라 한 다)을 체결하였다.

B. Upon filing a corporate tax return for the business year 2006, the Plaintiff reported the amount of KRW 14,003,596,274 (hereinafter “instant amount”). The key amount is the Plaintiff’s only amount of income for the business year of 2006, and USD 17,400,000, which is the service cost for the business year of 1 year under the instant service contract, shall be calculated on a daily basis from the contract date.

C. After that, on April 22, 2009, the Plaintiff filed a correction claim with the Defendant that the Plaintiff’s revenue amount for the business year 2006 is zero won.

D. The Defendant did not notify the Plaintiff of the refusal to correct or correct the above claim for correction. Meanwhile, on June 11, 2009, the Defendant imposed corporate tax of KRW 714,917,050 for the business year of 2006 and corporate tax of KRW 27,687,240 for the business year of 2007 on the Plaintiff on the ground that the Plaintiff omitted interest income return (hereinafter “each of the instant dispositions”).

E. The Plaintiff filed a petition for review against each of the instant dispositions on August 18, 2009, but the petition was dismissed on March 3, 2011.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Under the instant service contract, the period of attribution should be set according to the work progress rate prescribed in the main text of Article 69(2) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same) and Article 34 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 547, Mar. 30, 2007). However, since the construction cost for the instant development project site was not incurred at the time of 2006, the work progress rate is zero percent. Accordingly, the key amount is not attributed to the business year of 2006.

2) If it is impossible to calculate the rate of work progress, service earnings should be recognized on the scheduled date of the completion of the instant development project scheduled five years after the date of the contract pursuant to the proviso of Article 69(2) of the Enforcement Decree of the Corporate Tax Act ( December 31, 201). Accordingly, the key amount is not attributed to the business year 2006.

3) The Plaintiff, taking into account the actual executor of the instant development project or the legal regulation of the Republic of Kazakhstan, is carrying out the instant development project, and only the Plaintiff took the form of providing consulting services to a local corporation. The instant service contract was made to recover the enforcement benefits that may arise from the local corporation. As such, the service benefits accrue to the Plaintiff at the time when the sale of the instant development project was carried out in accordance with the principle of substantial taxation, and are reverted to the maturity and final and conclusive at the time when the benefits accrue. However, the instant development project is still in the pre-sale phase. Accordingly, the key amount is

4) As can be seen, the key amount does not belong to the business year 2006. Nevertheless, the Defendant deemed the key amount as belonging to the business year 2006, and rejected the Plaintiff’s claim for correction as of April 22, 2009. Moreover, where the key amount is deemed not to be attributed to the Plaintiff in the business year 2006 and 2007. Since the Plaintiff incurred losses in the business year 2006 and 2007, even if the interest income claimed by the Defendant was omitted, the calculated corporate tax amount to be paid to the Plaintiff in the business year 2006 and 2007 does not occur. Ultimately, each of the instant dispositions is unlawful

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings in each of the evidence No. 9 and No. 8-11.

1) On February 18, 2006, the Plaintiff entered into the instant service contract with a local law officer on the instant development project as follows, and provided services, such as the establishment of the project plan and the preparation of design drawings and specifications necessary for the instant development project from around that time. On February 22, 2006, the Plaintiff acquired the entire shares of a local legal entity.

1.7.4 million US dollars was entered into on September 10, 2008. The scope of consulting services under the instant service agreement was reduced to OOT 1 block development projects among the instant development projects, on the other hand, the scope of services provided by the Plaintiff was reduced to OOT 1 block development projects, and the marketing center operation for sale in connection with the OOT 1 block development projects, the OOT 1 block design services, the overall public relations activities, and the end of the business was changed to December 31, 201, and the service fees was deposited into the instant Plaintiff’s account within 20 days from the date of settlement after settling accounts at the end of the business of OT 1 block, and the amount was reduced to 45 million US dollars and the contract was concluded to amend the terms and conditions to make it possible for the Plaintiff to modify the terms and conditions under mutual agreement.

3) The Plaintiff was subject to external audit of the 2006 business year’s financial statements by the regular accounting corporation. The Plaintiff was subject to external audit of the 2007 business year’s financial statements.

D. Determination

In light of the evidence mentioned above and the following circumstances revealed in the pleading of this case, the key issue amount shall be attributed to the business year 2006. Thus, the Plaintiff’s assertion that each disposition of this case was unlawful against the principle of substantial taxation or the principle of confirmation of rights and obligations is without merit.

O) As seen earlier, the Plaintiff and local corporations did not decide to settle the service cost on the basis of the work progress rate while entering into the instant service contract, and agreed to settle the service cost set on a yearly basis from the contract date to the end of the instant development project every one year when the Plaintiff continues to provide the service, and the completion date of the instant development project was not determined under the first written service contract, and the total expenses to be incurred to the Plaintiff was not determined. In light of the above, it is difficult to view that the service profit in the instant service contract belongs to the Plaintiff as of the standard for the work progress rate or the completion date of the service provision.

C. Under subparagraph 4 of the corporate accounting standards, when there is a contract to provide multiple unspecified services within the contract period, such as corporate consulting, if there is no other method to show the degree of service performance more easily, income can be recognized on the basis of the straight-line method, work hours, or work date for practical convenience. Therefore, when calculating income for the business year 2006, calculating income under the service contract of this case would be in accordance with subparagraph 4 of the corporate accounting standards and subparagraph 25 of the profit-making type, and this would also be consistent with the principle of confirmation of right under Article 40(1) of the Act or the principle of corporate accounting under Article 43 of the Corporate Tax Act.

O Even if it is based on the work progress rate, comprehensively taking account of the main text of Article 69(2) of the Enforcement Decree of the Corporate Tax Act and Article 34(1) of the Enforcement Rule of the same Act, the work progress rate of construction shall be calculated by dividing the total construction cost accumulated by the end of the pertinent business year by the total construction cost plus the total construction cost accumulated by the end of the pertinent business year, and in the case of other than construction, it shall be calculated by applying mutatis mutandis thereto. Thus, the work progress rate of the instant service contract shall be divided into the total cost calculated by dividing the cumulative total construction cost incurred by the Plaintiff up to the end of the pertinent business year under the instant service contract by the total cost anticipated to be incurred to the Plaintiff under the instant service contract. However, the Plaintiff’s assertion did not cause construction cost of the site development project conducted by the local corporation, so the work progress

In full view of the proviso of Article 69(2) of the Enforcement Decree of the Corporate Tax Act and Article 34(3) of the Enforcement Rule of the same Act, where it is deemed that a service contract with a contract term of one year or more is unable to calculate the work progress rate, and where it is impossible to confirm the cumulative total amount of the total expenses actually incurred by the corporation due to the absence of books kept and kept, or the details of the books kept and kept are insufficient until the end of the pertinent business year, the profits and losses shall belong to the business year to which the end of the service provision belongs. However, as seen earlier, in light of the Plaintiff’s accounting report prepared by external auditors on the Plaintiff’s business year and 2006 and the financial statements of 207 business year, it is difficult to deem that there is no books kept and kept by the Plaintiff or that the contents thereof are insufficient. Meanwhile, the scheduled date of the completion of the instant development project is determined on December 31, 2011 by the second amendment contract. Therefore, the contents of the second amendment contract cannot be

Unless there are special circumstances, such as that the form of transaction chosen by the Plaintiff constitutes a disguised act, etc., the effect of the tax law according to the form of transaction should, in principle, be respected. In light of the developments leading up to the conclusion of the instant service contract and its contents, the instant service contract is merely a contract under which the Plaintiff continuously supplies various services related to the instant development project to a local corporation until the completion of the development project, and thus, each disposition of the instant case is consistent with Article 14(2) of the Framework Act on National Taxes, which stipulates the substance principle of the transaction. Therefore, it is difficult to deem that the instant

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.