A claim for penalty and claim for indemnity may not be included in the gross income double;

In applying the principle of substantial taxation, the substance of the claim for penalty is a claim for indemnity, so it shall not be included in double earnings.

Article 19-2 of the Corporate Tax Act

2014Guhap550 Revocation of Disposition of Imposing corporate tax

AA Unemployment Corporation

Head of the District Tax Office

January 7, 2015

February 6, 2015

1. On October 4, 2011, the Defendant revoked the part in excess of O,O, andO in the disposition of the Corporate Tax Doo,Oo, andO on the part of the Plaintiff on the imposition of the Corporate Tax Doo,Oo, andO in the 2008.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The disposition under paragraph (1) and the Defendant’s legal entity in the business year 2009 against the Plaintiff on October 4, 2011

The part exceeding the o,O, andO among the disposition of the o,O, andO shall be revoked.

1. Details of the disposition;

A. The inclusion in the gross income in 2008

1) The Plaintiff was established on March 29, 1962 and sold sports facilities business, real estate sales and rental business, and petroleum sales.

Unlisted corporation that runs the business, etc., o-gu Seoul o from May 2006, o

Dong***-* Large 5,475.1m2 (hereinafter referred to as the “instant land”) and its ground ① A mobile iron bars.

The three residential facilities and parking lots of the T and steel frame prefabricated prefabricated roof, three residential facilities and parking lots, and 2 non-Dong steel bars

Land and construction of concrete structure, concrete slves roof, general business facilities and neighborhood living facilities (hereinafter referred to as "land and construction").

BBB of the corporation, while coloring the purchaser of the

(hereinafter referred to as "B") received a proposal for sale.

2) On May 7, 2007, BB obtained a loan of KRW o0 million from theCC bank (hereinafter “CC bank”). On the same day, the Plaintiff concluded a mortgage agreement on the instant real estate as the maximum debt amount, o0,000,000 won, and concluded the following special agreement in order to secure the said loan with theCC bank, and completed the registration of the establishment of a neighboring mortgage.

A) The creditor and the debtor cannot increase the loan without the written consent of the plaintiff, who is the mortgagee of the right to collateral security.

B) A creditor cannot claim the time limit set for this contract against a debtor other than that set forth in this contract.

C) Where a sales contract on the security of the instant case concluded between the debtor and the mortgagee of the right to collateral security is rescinded, the holder of the right to collateral security may claim termination of the contract regardless of the period of establishment.

D) Of the loans under this Agreement, if a normal payment is made in the account (the account holder: the Plaintiff and the bank name: Doo branch of Doo branch of Doo, Account Number:*********) of Doo branch of Doo branch of Do bank.

3) On May 11, 2007, the Plaintiff entered into a sales contract with BB and DD Co., Ltd. (hereinafter collectively referred to as “B, etc.”) with respect to the instant real estate (hereinafter referred to as “instant contract”), and received o0 million won on the same day.

0 Seller and buyer

Seller: Plaintiff

Buyer: BB, DD

0. Sales price and payment method (Article 2)

-the proceeds of sale shall be zero billion won.

-B, etc. shall pay the purchase price under the preceding paragraph to the Plaintiff as follows. The timing for payment of the remaining price under subparagraph 2 shall be reduced by the written agreement at the time of the decision of the construction

1. Contract deposit o00 million won: Payment in the contract day; and

2. The payment of o billion o on August 31, 2007

0 Transfer and delivery, etc. (Article 4)

- On August 31, 2007, the Plaintiff received the remainder from the purchaser, and at the same time fulfilled its obligation to transfer ownership by delivering all documents necessary for the registration of transfer of ownership of the subject matter to the purchaser (such as a registration right certificate, power of attorney, certificate of personal seal impression, etc.

0. Cancellation, etc. of a contract (Article 8)

- The Plaintiff may rescind this sales contract where the buyer has any of the following reasons:

1. When the purchaser delays the payment of all or part of the remainder by the date of payment of the remainder under Article 2 (2) 2;

2. Where the buyer has transferred all or part of the rights and duties under the sales contract to a third party without the written consent of the plaintiff;

3. When the purchaser is declared bankrupt or insolvent; and

- If the sales contract is terminated by the plaintiff due to the occurrence of the causes set forth in subparagraphs of the preceding paragraph, the down payment under Article 2 (2) 1 shall revert to the plaintiff in full, and the buyer may demand the plaintiff to return in whole or in part.

0. Penalty (Article 9)

When this contract is cancelled due to a cause attributable to the plaintiff, the plaintiff shall pay to B, etc. the double amount of the down payment prescribed in Article 2 (2) 1, and if the contract is cancelled due to a cause attributable to B, etc., B may not claim the return of the down payment

0 Matters of special agreement (Article 11)

-the plaintiff shall allow creditor financial institutions such as BB, etc. to set up the claim security within the limit of 130 percent of the principal and interest amount (o0 million won), provided that no other than the principal and interest amount may be set up, and BB upon termination of the contract shall, without delay, extinguish the right to set up the claim through the creditor bank.

4) The loan principal was changed from November 7, 2007 to January 31, 2008 from o08 to o00,000,000,000 won. On January 29, 2008,CC bank notified the Plaintiff, a debtor, and a person who created the right to collateral security, to repay the loan and interest of this case by January 31, 2008.

5) Since the BB failed to repay the principal and interest of the instant loan, on February 12, 2008, theCC bank notified the Plaintiff on February 1, 2008 that on the instant real estate on which the collateral security was established, there was a delay in the total of o, oo, oo, oo, oo, oo, o, oo, oo, and owon (on February 11, 2008, 2008). In the event that the repayment of the instant loan was not made, the bank notified the Plaintiff that the legal procedure on the instant real estate on which the collateral security was established will be commenced.

6) On March 14, 2008, on the part of the Plaintiff, on March 27, 2008, theCC bank requested that the Plaintiff pay the principal in arrears, oo, oo, oo, oo, and oo, o, o, o, o, o, o, o (the base date March 31, 2008) on behalf of the Plaintiff. On April 17, 2008, the bank notified the Plaintiff that the loan would be to be conducted by auction on the instant real estate.

7) Meanwhile, while B paid the balance o billion won by August 31, 2007 from the original sales contract of this case, B had not been paid until the due date, the Plaintiff requested B, etc. to extend the remainder payment date on several occasions, and the Plaintiff continued to extend B, etc. on March 10, 2008, April 4, 2008, and April 25, 2008, but B, etc. failed to pay the remainder. The Plaintiff finally notified B, etc. on May 15, 2008, that the overdue interest would be repaid until May 20, 2008, and that the termination of the contract would be the legal acceptance for the termination of the contract.

8) Meanwhile, on August 31, 2007, BB, etc. agreed to compensate the Plaintiff for the following damages as long as the remainder payment was delayed.

A) Compensation equivalent to the rental fee of the instant real estate in proportion to the o,O, andO

B) The Plaintiff’s loan interest on KRW 100,000 that was loaned to the lessee of the instant real estate in order to return the lease deposit to the lessee.

9) Nevertheless, in order to prevent the real estate of this case from being put into a voluntary auction, the Plaintiff subrogated to theCC bank for the sum of o, o, o, oo, o, oo, and oo on June 2, 2008, in order to prevent the real estate of this case from being put into a voluntary auction.

10) Meanwhile, on February 27, 2008, BB entered into a construction contract with EEE Co., Ltd. for the construction of the 6th underground and the 6th ground surface on the instant land. However, on May 26, 2008, B notified the Plaintiff of the fact that it is difficult to carry out the instant sales contract due to the display of contract with EE Co., Ltd., and EEE also entered into a construction contract for the Plaintiff on June 5, 2008 and carried out the project strike for the financing of the instant project, but it was no longer possible to carry out the construction contract, which was terminated on June 5, 2008.

11) On June 11, 2008, the plaintiff filed a claim with BB to compensate for damages of o,o,o,o,o, ando, the sum of o,o,o,o, ando, according to the repayment of the deposit of the leased enterprise, for the damages of o,o,o,o, ando, according to the repayment of the deposit of the leased enterprise. On April 10, 2009, BB et al. filed a lawsuit for damages claim (Seoul Central District Court 2008Gahap91468), and on April 10, 2009, B et al. had the obligation to pay damages, including the damages agreed upon by the agreement corresponding to the rent, to the plaintiff, foro,o,o,o,o, and the damages for delay.

12) The Plaintiff’s accounting process related to the instant real estate down payment is as follows. The Plaintiff offsets the down payment already received by substitute payment with substitute payment, thereby omitting accounting and tax adjustment.

-the time when contract amounts are received ( May 7, 2007),

(Change) Ordinary deposit o,oo,oo,oo,oo (devitation)

- When principal and interest are subrogated, 208.2

(Change) Gooo,oo,oo,oo, ooo, ooo

Accountable interest oo,oo,oo

13) From December 7, 2010 to January 17, 2011, the Defendant: (a) based on the results of the Plaintiff’s tax investigation on the details of the return of corporate tax for the business year from 2006 to 2009; (b) premised on May 20, 2008, the date of the final payment of the remainder of the instant sales contract, which was the date of the instant payment notice; and (c) based on the premise that the instant sales contract was terminated on May 20, 208, the Plaintiff received as the penalty, deemed that the KRW o00,000, which was confiscated as the penalty, was included in the gross income for the business year of 2008;

(b) Gross income of the interest on the purchase price of treasury stocks;

1) The Plaintiff’s shareholders, New-Shee and seven others (hereinafter “the shareholders of this case”) claimed that the Plaintiff purchase 737,886 shares out of the Plaintiff’s issued shares (hereinafter “the shares of this case”) at the price assessed in accordance with the Inheritance Tax and Gift Tax Act as follows.

Evaluation of the number of stockholders to request purchase and acquisition value;

***Oo,Oo,oo,oo

***O,Oo,O,oo

***O,Oo,O,oo

***O,Oo,O,oo

***O,Oo,O,oo

***O,Oo,O,oo

***O,Oo,O,oo

***Oo,Oo,oo,oo

Total 737,886 o,oo,oo

2) On August 7, 2009, the Plaintiff’s representative director FF held a board of directors meeting on August 7, 2009. As such, since the shareholders of the instant case requested purchase of shares, all of the board of directors agreed on the proposal to retire profits by purchasing shares.

3) On March 23, 2011, the Plaintiff: (a) held a general shareholders’ meeting on March 23, 201, and passed a resolution with the consent of all shareholders to retire profits after purchasing 737,97 common shares (total acquisition value: o,o,oo) by December 31, 2011; and (b) accordingly, the total number of outstanding shares issued by the Plaintiff decreased from 2,800,000 to 2,062,114 shares.

4) As to this, the Defendant’s acquisition of the instant shares through a tax investigation does not constitute a ground for acquiring treasury stocks under the Commercial Act, and thus is null and void, the amount paid to the shareholders of the instant case shall be deemed as a provisional payment without office of business, and shall be deemed as an admission of the oo,o, andoo to the gross income of the business year 2009, and shall be added to the gross income of the business year 2009, and the oo,o,

(c) tax appeals and partial revocation;

1) On December 6, 2011, the Plaintiff filed an appeal with the Tax Tribunal on the disposition of the business year 2008 and 2009. On January 15, 2014, the Tax Tribunal rendered a decision of the order that the disposition authority dismissed the service fees between the Plaintiff and the Cancer industry and imposed corporate tax on the Plaintiff. As such, the part that the disposition authority denied the service fees between the Plaintiff and the Cancer industry for the account of an unfair act is erroneous, the Plaintiff corrected the tax base and tax amount by including the o, o, o, o, o, and oo in deductible expenses for the business year 2008 and correcting the tax base and tax amount, and the remainder of the appeal was dismissed.

2) In accordance with the decision of the Tax Tribunal on February 13, 2014, the defendant revoked the oo,oo,oo, and the oo,oo, andoo in the business year 2008, and the corporate tax for the business year 2009, the defendant left the o,o,o, andoo in the corporate tax for the business year 2008.

Facts that there is no dispute with recognition, Gap's 1 through 36, Eul's 1 and 2 (Ga number all);

(2) Each entry and the purport of the whole pleading;

2. The plaintiff's assertion

A. The instant KRW o00,000, not the penalty reverted to the Plaintiff, has the nature of the custody for performing the guaranteed obligation to BB in preparation for the event that the instant contract had not been performed normally, and the Plaintiff paid the KRW o00,000 by subrogation before the rescission of the instant contract, so it is difficult to deem that the right to the penalty has become final and conclusive. In full view of the fact that a cause for bad debts occurred in relation to the claim for reimbursement arising from the performance of guaranteed obligation in the same business year, the Plaintiff was obligated to bear the guaranteed obligation to receive KRW o0,000,000,000, which included KRW 2,922,451,070, which was included in gross income for the business year 2008.

B. On August 7, 2009, the agreement on acquisition of shares entered into with the shareholders of the instant case through the resolution of the board of directors of the Plaintiff constitutes Article 341 subparag. 1 of the Commercial Act and becomes effective. Therefore, the part of the disposition of oooo and oo in the disposition of ooo under the premise that the acquisition of shares of the instant case is null and void is unlawful.

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Determination

A. The corporate tax imposed for the business year 2008

1) Time to cancel the contract

A) Comprehensively taking account of the facts acknowledged earlier, BB notified the Plaintiff on May 26, 2008 that it is difficult for BB to implement the instant sales contract due to the failure of the contract with EE, a contractor, and the EE also sent the Plaintiff a letter of non-performance of the contract on June 5, 2008. Since EE sent to the Plaintiff on June 5, 2008, the instant contract was rescinded on June 11, 2008, when the Plaintiff claimed damages for the rescission of the instant sales contract on the premise that B would cancel the instant sales contract.

B) As to this, the Defendant alleged that the instant sales contract was terminated by the notice of May 15, 2008, but the Plaintiff notified B, etc. that “In the event the overdue interest of bank loans is not repaid before May 20, 2008, and the overdue interest is not redeemed, it is difficult to deem that the Plaintiff expressed its intent of rescission of the instant contract merely because one of the parties expressed his/her intention of non-performance of his/her own obligation in advance. In general, if one of the parties expressed his/her intention of non-performance of obligation in the B contract, the other party can rescind the instant contract without the peremptory notice of performance or the provision of his/her own obligation. Whether there was such intention of refusal should be determined by comprehensively examining the party’s action and specific circumstances before and after the performance of the contract (see, e.g., Supreme Court Decision 2007Da41508, Jun. 25, 2007; Supreme Court Decision 2007Da52085, Feb. 15, 2008).

2) Whether earnings are included in gross income

Article 40(1) of the Corporate Tax Act provides that “The business year in which the profits and losses of a domestic corporation accrue for each business year shall be the business year which includes the date on which the profits and losses are determined,” and adopts the principle of confirmation of rights. In principle, the principle of confirmation of rights requires that when there is an interval of time between the time and the time when the rights occur when the rights are determined and the time when the rights are realized, the income shall be deemed to have accrued at the time when the rights are determined, and that the income for the pertinent business year shall be calculated, even if it is not necessary until the income is realized in reality, even if it is not necessary until the income is realized.

Whether the right to receive income is mature and finalized or not shall be determined by comprehensively taking into account the specific nature and contents of each right and various matters of law and fact-finding. ② Whether the contract is scheduled to pay the other party the contract deposit when the contract is terminated due to a cause attributable to the other party, or whether the contract deposit is a penalty for breach of contract or a penalty for breach of contract when the contract belongs to the other party is determined individually in a specific case, but the penalty for breach of contract is presumed to be liquidated damages under Article 398(4)

In order to interpret a penalty as a penalty for breach of contract, special circumstances should be asserted and proved (Supreme Court).

In light of the fact that the penalty prescribed in Article 9 of the contract of this case is also an estimated amount of damages. ③ The fact that the Plaintiff, a seller, did not receive the down payment prior to the conclusion of the contract of this case, under the trust that it would be able to secure damages arising from the down payment. ④ The Plaintiff’s claim for damages arising from the payment of the down payment would not be included in the deductible expenses in the calculation of earnings for the purpose of preserving the land of this case and the amount equivalent to KRW 200,000,000,000,000,000,000,000,000 won was 80,000,000,000,000,000,000 won was 8,000,000,000,000,000 won was 8,000,000,000,000 won, which was 20,000,000 won.

B. The imposition of corporate tax for the business year 2009

1) Article 341 of the former Commercial Act (amended by Act No. 10281, May 14, 2010) provides that "the company shall, when it retires its shares, when it takes place for a merger of the company or an acquisition by transfer of the whole business of another company (Paragraph 1), when it is necessary for the achievement of its purpose in executing its rights (Paragraph 2), when it is necessary for the disposal of the shares of the company (Paragraph 3), when it is necessary for the disposal of the shares (Paragraph 4), when the shareholder exercises his/her appraisal right (Paragraph 5)." Article 342 provides that the company shall without delay take procedures for the invalidation of shares in cases falling under subparagraph 1 of Article 341.

2) Article 28(1)4(b) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter referred to as the “Corporate Tax Act”) and Article 53(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21972, Dec. 31, 2009; hereinafter referred to as the “Enforcement Decree of the Corporate Tax Act”) shall include as deductible expenses the interest on loans equivalent to the amount of loans not related to the business of the relevant corporation, regardless of its title, such as the provisional payment for the related parties possessed by the relevant corporation.

section 52(1) of the Corporate Tax Act, Article 88(1) of the Enforcement Decree of the Corporate Tax Act

Subparagraph 6 and Article 89 (3) of the Act shall apply to a corporation by lending money without compensation to a person with a special relationship.

tax burden on income is deemed to have been unjustly reduced by the tax authority.

It is deemed that this can be calculated by calculating the interest rate recognized as a wrongful calculation and included in the gross income.

The Act stipulates.

3) On the other hand, whether a sale of shares constitutes a transfer of shares as an asset transaction, or a retirement of shares or a refund of capital, which is a capital transaction, is a matter of interpretation of legal act, and should be determined based on the content and intent of the parties concerned. However, in light of the substance over form principle, the entire process of the transaction, such as the content and form of the contract in question as well as the process of concluding the contract in question, the method of determining the price, and the progress of the transaction, should be grasped and determined (see, e.g., Supreme Court Decision 2012Du

4) Under such relevant provisions, the Health Board and the shareholders of the instant case requested the Plaintiff to purchase their own shares on July 27, 2009. The Plaintiff held a board of directors meeting on August 7, 2009.

In light of the aforementioned facts, the Plaintiff’s representative director FF at the time of the board of directors’ meeting, on August 7, 2009, explained that “the prompt sale of shares should find out a plan for the retirement of shares.” The Plaintiff did not take the procedure for the retirement of shares for two years after the purchase of the shares. The Seoul Regional Tax Office conducted an integrated corporate tax investigation on the Plaintiff from December 7, 201 to January 17, 201, it was difficult to find that the Seoul Regional Tax Office opened a general meeting of shareholders on March 23, 201 to take the procedure for the purchase of shares for the retirement of profits, each Plaintiff’s audit report in 209, 2010, and the Plaintiff’s acquisition of shares for the purpose of acquiring shares from other shareholders to other related companies, and the Plaintiff’s acquisition of shares for the purpose of acquiring shares for the purpose of acquiring shares for the retirement of shares for 30 years or more, and the Plaintiff’s acquisition value for the purpose of acquiring shares for 30 years or more.787 shares.38.7.

5) The provisional payment without any legal ground under Article 28 of the Corporate Tax Act and Article 53 of the Enforcement Decree of the same Act includes not only purely meaningful loans, but also loans corresponding to the nature of claims such as indemnity bonds, etc. The issue of business relationship should be objectively determined based on the purpose of business or business contents of the pertinent corporation (see, e.g., Supreme Court Decision 2005Du1558, Oct. 26, 2006). The shareholders of the instant case constitute a shareholder of the instant shares as a shareholder of the instant corporation, and the acquisition of the shares from the shareholders of the instant case constitutes null and void. As such, the Plaintiff’s acquisition price, oo, ooo, ooo, and oo which were paid to them without any legal cause. Accordingly, the Plaintiff’s immediate recovery should be deemed to have been paid to the shareholders of the instant case without justifiable grounds.

6) In addition, even if the transfer income tax was paid or imposed on the shareholders of the instant case, it is difficult to deem that the disposition of imposing the corporate tax for the business year 2009 is unlawful solely on the grounds that the said transfer income tax was paid or imposed, aside from filing a claim for rectification or a lawsuit seeking revocation of the said disposition. Ultimately, the Defendant’s disposition on this part is lawful.

5. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining parts shall be accepted.

Subdivision is dismissed as it is without merit, and it is so decided as per Disposition.