Seocho 2010west 1253 (201.04.05)

If the amount leaked to a third party other than the representative has been reverted to a third party, it shall not be disposed of for recognition.

If it is clear that the disposition on recognition has been carried out of the company from among the amounts included in the calculation of earnings, but it is unclear that the amount shall be deemed as a bonus for the representative, and if it is proved that the amount leaked out of the company has been attributed to a third person other than the representative, the disposition on recognition shall not be taken.

2011Guhap2050 Revocation of Disposition of Imposing tax on earned income;

XX Stock Company

Samsung Head of Samsung Tax Office

March 23, 2012

April 6, 2012

1. The Defendant’s disposition of imposing KRW 000 on the Plaintiff on January 4, 2010 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On November 21, 2002, the Plaintiff entered into a subcontract (hereinafter referred to as the “instant subcontract”) with respect to a corporation established for the purpose of carrying out the cryp construction business, etc. on November 21, 2002, and the XX Construction Co., Ltd. (hereinafter referred to as the “GG construction”) and the cryping construction work in Busan Metropolitan City XXtel (hereinafter referred to as the “in-house cryping construction work”).

B. The Plaintiff, while carrying out construction works under the above contract, issued each tax invoice listed in [Attachment 1] or 15 [Attachment 1] among the list of the issuance of tax invoices and the payment list (hereinafter “Attachment 1 list of this case”) from February 28, 2006 to February 28, 2007, in order, issued each tax invoice listed in [Attachment 1] or 15 [Attachment 1]. In addition, the Plaintiff issued each tax invoice listed in [Attachment 1] or 15 [Attachment 1].”

C. However, the defendant added 00 won ( = 000 won x1.1; hereinafter referred to as "amount omitted from sales") to gross income on the ground that the plaintiff filed a return on the tax base and tax amount of corporate tax for the business year 2006 and the second-year value added tax for the business year 2006 and the second-year value added tax for the business year 2006, on the ground that the sales return was omitted. Since the amount omitted from sales was leaked and it is unclear that the amount omitted from sales was reverted to others, the defendant decided and notified 00 won of the earned income tax for the year 2006 as bonus belonging to the plaintiff's representative director at the business year 2006 (hereinafter referred to as "disposition of this case").

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 1, 2010, but the Tax Tribunal dismissed the Plaintiff’s appeal on April 5, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, 4, Gap evidence 5-1, 2, Gap evidence 7-1 through 8, Eul evidence 1 through 4, Eul evidence 5-2, Eul evidence 7, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, who was awarded a subcontract for the instant interior housing construction from the GATT, entered into a re-subcontract with the B, and the Plaintiff paid the obligation for the construction cost under the said re-subcontract by either issuing a promissory note in the name of the Plaintiff or delivering a promissory note received from the XX. A promissory note issued by the XX Construction to pay the obligation for the construction cost under the tax invoice 10 was directly received from the TPP Construction and appropriated for the claim for the construction cost against the Plaintiff. Therefore, the amount of the shortage in the sales of the instant housing construction is not leaked out of the company, and it does not fall under the case where it is clearly unclear that the payment was made to the B, the instant disposition should be revoked.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

(c) Fact of recognition;

1) On January 2006, the Plaintiff, who was awarded a subcontract for the instant in-house heading construction from XX Construction, concluded the instant re-subcontract with the B to re-subcontract the entire said construction.

2) XX Construction, in order to pay each of the obligations for the construction cost under the tax invoices of this case from March 30, 2006 to January 25, 2007, stated each of the Promissory Notes listed in Articles 1 to 13 (hereinafter referred to as the “ Promissory Notes of this case”) in the separate sheet No. 1 to 13 in the separate sheet No. 1 of this case. The Promissory Notes No. 14-1 stated in the separate sheet No. 14-1 of this case (hereinafter referred to as the “ Promissory Notes No. 14-1 of this case”) and the No. 14-2 stated in the separate sheet No. 14 of this case (hereinafter referred to as the “No. 14-2 of this case”) as the receipt of each of the instant Promissory Notes No. 15 of this case (hereinafter referred to as the “Plaintiff No. 14-1 of this case”) and the Plaintiff No. 1 of this case’s receipt of each of the instant Promissory Notes No. 251 of this case (hereinafter referred to the Plaintiff No. 251 of this case).

3) Meanwhile, around March 6, 2009, the Plaintiff filed a complaint against B in fraud, etc. on the following grounds: (a) around March 6, 2007, the Plaintiff stated that BB had been continuously received the bill of exchange related to the interior title construction work; (b) the Busan District Prosecutors’ Office received the bill of exchange related to the interior title construction work of this case from the Plaintiff before the receipt of the promissory notes from the Plaintiff, and (c) he received the direct construction payment from the Plaintiff under the agreement of the Plaintiff. (d) At the same time, the Plaintiff filed a complaint against B in fraud, etc.: (a) however, the Plaintiff stated that B had continuously received the bill of exchange related to the interior title construction work of this case; (b) the Busan District Prosecutors’ Office received the bill of exchange related to the interior title construction work of this case from the Plaintiff before the receipt of the promissory notes, and (c) made a decision that May 28, 2009.

[Basis] Facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 8, Gap evidence No. 10-14, 17, 18, 19, 20, 24, 29, 30, 31, Gap evidence No. 11-1, 2, 12, and Eul evidence No. 5-7

D. Determination

1) Of the omitted sales of this case, 000 won

A) Article 67 of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006) and Article 106 (1) 1 (proviso) of the former Enforcement Decree of Corporate Tax Act (amended by Presidential Decree No. 19891 of Feb. 28, 2007) shall be deemed to have been released from the company among the amounts included in the calculation of earnings, but the unclear amount shall be deemed to have been attributed to the representative and the purpose is to consider the amount as a bonus to the representative without any condition regardless of its substance so that it may be deemed as a bonus to the representative without any condition. In case where it is proved that the amount discharged out of the company has been attributed to a third party other than the representative, the taxation office may not take such measures as such recognition

B) As to the instant case, the following circumstances, i.e., (i) the Plaintiff was obligated to pay the obligation to pay the construction cost under the said re-subcontract to the B by entering into the re-subcontract with the B by entering into the said sub-subcontract; (ii) the Plaintiff granted the right to receive a promissory note directly from the XX by delivering the Plaintiff’s deposit sheet (receipt) to the B for the payment of the construction cost under the said sub-subcontract; and (iii) the construction directly delivered the 10 promissory note from the B on December 4, 2006 to the B upon receiving the deposit sheet (receipt) of the Plaintiff’s issuance; and (iv) the 10 promissory note directly delivered to the B on December 4, 2006 to the B; and (v) the 10B was extinguished by the endorsement of the said promissory note, and thus, it cannot be deemed that the 0B amount belongs to the Plaintiff’s sales amount of the said sub-subcontract.

2) The remainder of the omission in sales of the instant case

In light of the following circumstances acknowledged by the purport of each entry in Eul's 3, 4, and Eul evidence 5-7 and all pleadings, namely, ① when the plaintiff filed a tax base and tax amount of corporate tax for the business year 2006 and value-added tax for the second year 2006, all sales under each tax invoice of this case are reported; ② The 13 Promissory Notes issued for the payment of construction payment liability under the tax invoice of this case are deemed to have been paid normally on February 28, 2007, and the payment of the said Promissory Notes is deemed to have been introduced to the plaintiff. ③ The sum of supply values under the above tax invoice of this case was 00 won, but the sum of supply values under the tax invoice of this case was 00 won only simply simple number of copies, it cannot be deemed that the amount of the above omitted sales amount was calculated as tax base and tax amount.

3) Sub-decisions

Therefore, since the omitted amount of the instant case cannot be deemed to have leaked out of the company or to have become unclear, the Defendant’s disposition based on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.