Seocho 2012west 1004 ( December 16, 2013)

Allowances and other similar amounts paid for services temporarily shall constitute other income under the provisions of subparagraph 19.

Executives and employees, regardless of the Plaintiff’s employment, received the instant incentive from the Plaintiff for temporarily attracting service subscribers and providing the Plaintiff with services related to the principal business of the company to which they belong, so that they are more consistent with other income in subparagraph 19.

Article 21 of the Income Tax Act

2014Guhap54127 Disposition of revocation of imposition of corporate tax, etc.

AA Corporation

The Director of Gangnam District Office

2015.03.17

2015.03.27

1. The disposition of the Defendant’s total amount of OOO and OOO as shown in the attached Table 1 attached hereto against the Plaintiff shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On January 1, 2010, the Plaintiff is a corporation that is engaged in the business of leasing telecommunications line facilities and providing Internet connection services through a merger with BB on January 1, 2010 (hereinafter referred to as “Plaintiffs” in total, including Plaintiff and BB, a corporation before the merger).

B. On September 2005, the Plaintiff sent a super-high speed Internet service (hereinafter “instant service”) in the name of the product called “CCC” and provided the above service to the present time. The Plaintiff, upon the formation of the number of subscribers after the commencement of the instant service, went into effect on May 2006 in order to increase the number of subscribers, the Plaintiff, including Dchemicals, DDRs, DDRs, and DDRs, which are affiliated with the Plaintiff and the Plaintiff, conducted the following events to attract the affiliates to the officers and employees of the D Group all affiliated companies (hereinafter “affiliated companies”) of the instant service (hereinafter “instant events to recommend executives and employees”):

Main contents of the event to join the recommendation of executives and employees of this case

- The target volume of accession: 10 per officer or employee of an affiliate and planned to attract approximately 500,000 new subscribers.

- The criteria for the payment of incentives (hereinafter referred to as "in this case incentives"): 100,000 won per case shall be paid, and additional 100,000 won shall be paid, whenever officers or employees of an affiliate attract new subscribers.

- Subscription Procedures: An affiliate officer or employee registered an account for payment of allowances with an EE or each set of F-only website through each set of e-netner when attracting new subscribers, and then selects new subscribers' subscription goods, enter information and fare payers' information, and apply for subscription. The subsequent actual subscription or opening procedures will be processed by the employee of the relevant department of the Plaintiff.

- The settlement and current status of incentives: Giving incentives to the designated accounts on the 15th day of each month on the basis of the number of pages as of the end of the previous month among the cases for which the application was filed. If a new policyholder terminates or suspends the use within three months after opening, payment will be made after deducting incentives for the said new subscribers from the incentives to be paid in the following month. The executives and employees of an affiliate can confirm the progress of the opening of the customer joining and the customer list for attracting the customer. Upon receipt of the application for termination, the above fact is notified to the executives and employees of the recommending affiliate by e-mail or Sms.

- Provision of private goods to new subscribers: incentives may be used as private goods, but in the event that foreign goods exceeding KRW 100,000 per policyholder are provided, it is desirable to pay attention not to exceed the above amount, as it may be in violation of the public notice of free gifts.

(d)specific procedures for joining, where executives and employees of an affiliate attract participants, are:

1) Confirmation of the place of installation

In advance, whether the address of the person eligible for subscription is an area in which the Plaintiff’s instant service circuit is installed (in case of entering the detailed address on the available page of the system and making inquiries, whether it is possible to provide the service shall be indicated).

(ii) a service application;

If it is an area where a service can be provided, the type of service, the number of PCs used in the screen of the application for the service, the arrangement period (1/2 year/3 year), additional services (clock web, PC depth, web lock, etc.) shall be entered (if the service is selected, the monthly estimated payment amount shall be expressed and notified to the customer who has invited the subscription).

(iii)information of information on subscribers and payers;

After applying for a service, the executives and employees of an affiliate shall enter the information of the insured and the information of the payer as follows:

- Customer Classification (Selection from among individuals/corporate operators/individual operators/foreigners/foreigners)

- Customer Name and Resident Registration Number

-the location address, telephone number, telephone call time, date of opening, e-mail address;

-The method of payment of charges, either account transfer or credit card transfer,

- deposited account information [names of deposit account holders, bank (credit card), bank (credit card), bank (credit card) number]

-The method of claiming charges (e-mail claims, text messages claims, choice and address during postal claims);

4) Customer management;

As above, the customer who entered the service selection and personal information shall be continuously and continuously managed through the customer management procedure within the system. The customer’s progress indicate the customer’s progress and confirm whether the customer is waiting for opening via the system, whether the customer has been opened, and whether the customer has cancelled the opening, etc., the reason for cancellation of the opening is identified by contact with the Plaintiff on the case of cancellation of the opening, and the paid incentive shall be refunded for the cancellation of the opening within three months after opening.

If a customer requests revocation as a customer center for subsequent cancellation, he/she shall immediately receive letters from the plaintiff, and may verify the cause of revocation and continue to use the service as much as possible.

E. From October 1, 2006 to December 31, 2010, the Plaintiff paid to its executives and employees an amount equivalent to the total OOO won as indicated in the instant license agreement as listed in the instant license agreement. The Plaintiff considered it as other income following the temporary service of Article 21(1)19(d) of the Income Tax Act (hereinafter “other income”) and deducted 80% from necessary expenses, and withheld and paid the income tax as listed below.

F. Meanwhile, the director of the Seoul Regional Tax Office, while conducting an integrated investigation of corporate tax against the Plaintiff from September 26, 201 to December 31, 2011, notified the Defendant of the taxation data that denies the whole necessary expenses by deeming the instant incentive as falling under the honorarium under Article 21(1)17 of the Income Tax Act (hereinafter referred to as “compensation”). Accordingly, the Defendant received a request for adjudication on October 15, 201 and January 18, 201, as shown in attached Table 1, on the ground that the Plaintiff underpaid the source income tax and failed to submit a payment record (hereinafter referred to as “each disposition of this case”). The Plaintiff received a request for adjudication on December 16, 2012 from each disposition of this case, each of the disposition of this case, and each of the disposition of objection on October 25, 2011, and each of the disposition of this case was rendered to the Tax Tribunal.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 1 and 2 (including branch numbers for those with additional numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The motive and purpose of the Plaintiff’s payment of the instant incentive to its executives and employees is to ex post facto compensate for the cash company’s money and other necessary expenses incurred in the process of soliciting and attracting new subscribers, which are provided to the new executives and employees of the affiliate. As such, the instant incentive in the nature of compensating for actual expenses does not constitute income listed in the Income Tax Act, but does not actively generate income from the standpoint of the person who received the said incentive, and as such, the instant incentive cannot be deemed income of the executives and employees of the affiliate.

2) Even if not, the instant incentive constitutes other income under subparagraph 19 as consideration for providing personal services to executives and employees of the affiliate companies based on a contract concluded between the Plaintiff and executives and employees of the affiliate companies following the instant solicitation of executives and employees.

3) Therefore, each of the instant dispositions that imposed the additional income tax and corporate tax by deeming the instant incentive as an honorarium No. 17 on a different premise is unlawful.

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

C. Determination

Each disposition of this case was conducted on the premise that the incentive of this case constitutes the honorarium No. 17, and thus, we examine this.

1) Article 21 (1) of the Income Tax Act provides that "other income shall include interest income, dividend income, real estate rental income, labor income, temporary property income, annuity income, retirement income, transfer income, and forestry income as follows." Article 21 (1) 17 of the Income Tax Act provides that "compensation" refers to money and other valuables paid as one of other income in connection with administrative affairs or provision of services, and it shall be determined by comprehensively considering the motive and purpose of receiving the relevant money, relationship with the other party, amount, etc. (see, e.g., Supreme Court Decision 97Nu20304, Jan. 15, 199). Article 21-05 (2) of the General Rules of the Income Tax Act provides that "money and other valuables received by a person who is not obligated to do so for another person" under subparagraph 1 of the same Article, "money and other valuables received by an employer in connection with his/her duties" under subparagraph 2 of the same Article refers to money and other valuables received by a person other than a contract intermediary or trust.

2) Examining the instant case back to the instant case, considering the following circumstances related to the motive and purpose of giving and receiving the instant incentive, the relationship with the Plaintiff and its executives and employees, etc., which is acknowledged by comprehensively considering the aforementioned evidence and the overall purport of the pleading, the instant incentive cannot be deemed as money and valuables paid as the meaning of the case, and there is no other evidence to acknowledge it.

① The instant incentive was planned at the level of all affiliate companies of the Plaintiff and the Plaintiff, without any limit to the number of times, to attract executives and employees for a certain period. Officers and employees engaged in the instant incentive, trusting the payment of the instant incentive and individually, and in fact, the Plaintiff paid the instant incentive based on the said event. According to the above facts, the instant incentive payment was based on the prior agreement between the Plaintiff and its executives and employees, and was made on the organizational, systematic, and broad level, and was ordinarily conducted in light of the examples of the terms used in the terms of ordinary cases, it is somewhat somewhat unreasonable to understand the instant case as the meaning of the instant case.

② In light of the contents of the above events, executives and employees of the affiliate are engaged in attracting new subscribers, select new subscribers' subscription goods by accessing the Internet site, and enter information of subscribers and persons paying fees into the subscription process, and provide services such as confirmation of subscription status, confirmation of customer list and management, etc. after subscription, and the Plaintiff agreed to pay 100,000 won per new subscribers. Based on the above event, the amount of services performed by employees and employees of the affiliate is equivalent to the amount of services performed by the affiliate, and the instant incentive payment agreement on the outcome thereof is sufficient to be the motive for the service work. Thus, it is difficult to deny the quid pro quo between the service work and the instant incentive.

③ The Plaintiff’s payment of the instant incentive to 100,000 won per capita is reasonable in light of the amount of cash products that are paid by an ordinary agency to cCC new subscribers. In light of the amount of cash products, it is reasonable to deem that the amount of the instant incentive is spent or at least necessary to attract employees and employees in the process of attracting new subscribers, and that it is difficult to separately specify the degree of the price for each case.

④ In addition, the instant incentive is determined in proportion to the performance of attracting new subscribers. It seems significantly difficult to clearly determine the frequency, scope, details, etc. of providing services to employees and employees of an affiliate, and to pay the price accordingly (i.e., the original duties of executives and employees of an affiliate; (ii) whether an affiliate is actually engaged in attracting employees and employees; and (iii) it is difficult to prove whether an affiliate has been engaged in attracting employees and employees; and (iv) it is a method to raise the performance of an affiliate’s services attracting employees and employees by granting incentives only when the actual purchase of such incentives is completed; and (iv) making it difficult to determine the frequency, scope, and contents of providing services to attract employees and employees of an affiliate.

⑤ Meanwhile, the National Tax Service and the Ministry of Strategy and Finance replyed to the purport that the amount of allowances and other similar nature paid according to the result of the service provided continuously in the capacity of independent regardless of the employment, regardless of the employment, constitutes business income under Article 19 (1) 15 of the Income Tax Act, and the amount of allowances and other similar nature paid for the services temporarily provided and received constitutes other income under Article 21 (1) 19 of the same Act. However, in this case, the employees and employees of the affiliate in this case received the incentive in this case, regardless of the Plaintiff’s employment, to temporarily provide the Plaintiff with the services of attracting subscribers to the instant service and participating in the procedure for joining the company, which are not related to the business of the company to which they belong, and therefore, according to the above questioning reply, the above amount conform

3) Therefore, the instant disposition premised on the premise that the instant incentive is an honorarium No. 17 ought to be revoked in an unlawful manner.

3. Conclusion

Therefore, the claim of this case is justified, and it is decided as per Disposition by admitting it.