Cho High Court Decision 2010Du3175 ( December 27, 2011)

An economic rationality exists in the act of providing samples in supplying them to a related corporation as OEM

The plaintiff's act of providing samples free of charge to a related corporation through the OEM is deemed as not having economic rationality, and thus a disposition which is erroneous in the calculation of wrongful calculation is unlawful.

2012Revocation of disposition of revocation of imposition of corporate tax, etc.

AAA et al.

Head of Sung Dong Tax Office et al.

November 30, 2012

January 4, 2013

1. On May 3, 2010, the part of the imposition disposition imposing corporate tax for each business year 2008 and special rural development tax for each business year 2006, which was made by the head of Sungdong Tax Office against the Plaintiff AA on May 3, 2010, which exceeds the tax amount stated in the column of each tax amount in the annexed sheet (1) imposed by the Plaintiff AA. shall be revoked.

2. The disposition of imposition of each corporate tax on January 3, 201 and January 11, 201 by the head of the tax office of Cheongju shall be revoked as indicated in the attached Form No. 2 of the imposition (2) imposed on the Plaintiff Company BB.

3. The remaining claims of the Plaintiff AA are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff AAA and the Defendant Sungdong Tax Office is 9/10 and the remainder is borne by the Plaintiff AAA and the Defendant Sungdong Tax Office, and the part arising between the Plaintiff BB and the Defendant Cheongju Tax Office is borne by the Defendant Cheongju Tax Office.

The judgment as referred to in paragraph (2) of this Article and the decision of the head of Sungdong Tax Office on May 3, 2010 that the amount of charges in the annexed sheet (1) imposed by the Plaintiff AA with respect to the Plaintiff Co., Ltd. shall be revoked in excess of each tax amount stated in the annexed sheet (1) and special rural development tax, and the tax amount imposed

1. Details of the disposition;

A. The Plaintiff AAA (hereinafter referred to as “AAAA”) was changed to “AAAAA” on April 12, 2006, and hereinafter referred to as “Plaintiff AAA” was divided from Plaintiff BB (hereinafter referred to as “Plaintiff BB”) on April 27, 2000. The Plaintiff BB, a surviving divided corporation, is carrying out health functional foods and manufacturing and selling cosmetics. The Plaintiffs are specially related parties under the Corporate Tax Act.

B. From October 29, 2009 to December 31, 2009, the director of the Seoul Regional Tax Office conducted an integrated investigation of the corporate tax of the Plaintiff AA and notified the Defendant of the tax adjustment matters against the Plaintiffs as follows:

(1) Plaintiff AAA

(Omission of Notice)

(2) Plaintiff BB

(Omission of Notice)

C. Accordingly, on May 3, 2010, the head of the gender-based tax office imposed and notified the Plaintiff AAA of each corporate tax, special tax for rural development, and value-added tax (hereinafter “instant first disposition”) as indicated in the attached Form No. 1 on May 3, 2010, and on January 3 and 11, 201, the head of the gender-based tax office imposed and notified the Plaintiff BB of each corporate tax as indicated in the item of the amount imposed in the attached Form No. 2 (hereinafter “instant second disposition”).

D. Plaintiff AA filed an appeal on August 12, 2010, and received a decision of dismissal from the tax Tribunal on December 27, 2011. Plaintiff BB filed an appeal on March 30, 201, and received a decision of dismissal from the Tax Tribunal on November 21, 2011.

[Ground of recognition] The non-speed facts, Gap evidence 1, 2 (including household numbers), and Eul evidence 1, 2, and 3 (including household numbers), and the purport of the whole pleadings

2. Plaintiff AA’s claim against Defendant Dong Head of Sungdong Tax Office (instant Disposition 1)

A. Plaintiff AA’s assertion

(1) Camp expenses and expenses for seminars

Expenses incurred in direct connection with the sale of products, and sales units or advertising expenses shall be included in the calculation of losses.

(2) Scholarships

(a) the costs incurred in direct connection with the sale of the product, and fall under sales auxiliary costs or advertising expenses, and must be included in deductible expenses.

(B) Although it does not fall under sales unit costs or advertising expenses, it should be included in the amount of expenses paid as scholarships to individuals recommended by the head of the university pursuant to Article 24(1) of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009; hereinafter the same shall apply) and Article 36(1)2(a) of the Tong Enforcement Decree (amended by Presidential Decree No. 21302, Feb. 4, 2009; hereinafter the same shall apply).

(c) Amount equivalent to the interest on agency rental deposit;

(A) The provision that adds the amount equivalent to the interest on rental deposit under the Corporate Tax Act to gross income is an unfair calculation book (Article 52(1) and (4) of the Corporate Tax Act, and Article 88(1)6 of the Enforcement Decree thereof), and there is no basis provision that can be taxed by deeming the same as entertainment expenses. Therefore, deeming the amount equivalent to the interest on agency rental deposit as entertainment expenses and paying the amount exceeding the entertainment expenses as entertainment expenses, it is against the no taxation without law, and is not allowed

(b) Even if it may be considered as entertainment expenses, and since it has provided rental deposits to agencies for the purpose of increasing sales by promoting sales, the amount equivalent to interest on rental deposits shall be deemed as entertainment expenses, and the amount equivalent to interest on rental deposits shall be deemed as expenses for sales units directly related to the sales of the product.

(4) A logistics warehouse rental deposit and rent;

A logistics warehouse rental deposit and rent are paid according to the needs of the business in connection with the construction of the logistics system, used for the storage of the goods supplied to the logistics warehouse, and the rental deposit and rent required therefor are business-related assets or business-related expenses, economic rationality, and do not fall under the business calculation division.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Camp expenses and scholarships

(A) Plaintiff AA sold products through approximately 13,00 UP, belonging to 400 agencies and agencies.

(B) The plaintiff AA has provided a scholarship or camping to the agency's shop owners and employees, and its UP's children, and the expenses incurred from the 2006 project to the business year 2008 are as set forth in the Multi-Eup.

(Omission of Disbursement)

(C) Plaintiff AA took the form of its principal’s recommendation, and the purpose of awarding the scholarship to the parts of the parts that were awarded the scholarship in accordance with the internal criteria for selection is indicated as follows: “Eved an enterprise’s image improvement through the restoration of corporate profits to society, and “the boosting of morale and inspiring of petuity of a life-oriented designer and inspiring of a life-oriented designer.”

(D) Upon receiving a tax investigation, Plaintiff AA prepared a written confirmation that the scholarship and camping costs constitute entertainment expenses under Article 25(5) of the Corporate Tax Act as the donation and entertainment expenses paid to a specific person.

(2) Expenses for seminars

(A) On April 21, 2008, from April 21, 2008 to June 26, 2008, Plaintiff AA selected 141 of its employees, and 164,000 won as an event cost, by holding seminars in China.

(b) The time schedule of the seminars shall be specified in the internal parts as follows:

(Contents omitted of seminars)

(c) describe items such as accommodation expenses, hot spring, spion, mast, and alcoholic beverage purchase in the invoice charged at cost of the seminars.

(D) The Plaintiff AA prepared a written confirmation that “The expenses for seminars constitute entertainment expenses” under the tax investigation.

(c) agency deposits and loans;

(A) From the 2006 business year of Plaintiff U.S. to the 2008 business year of 2008, some agencies supported that they are the rental deposit and tea, such as multi-Eup. The rent was accounted as sales incidental expenses and included in the calculation of losses.

(Omission of Accounting)

(B) The head of Sungdong Tax Office applied the weighted average loan interest rate in accordance with Article 88(1)6 and Article 89(3) of the Enforcement Decree of the Corporate Tax Act with respect to the amount of the loan support, and applied the calculation of the amount of the loan support as follows, and applied the weighted average loan interest rate in accordance with Article 88(1)6 and Article 89(3) to the amount of the loan support,

(Non-deductibles omitted)

(4) A logistics warehouse rental deposit and rent;

(A) On July 5, 2006, Plaintiff AA made a lease deposit of KRW 000,133 square meters of above ground buildings 2,000, 000, and monthly rent of KRW 000, and from July 13, 2006 to July 12, 2007, Plaintiff AA made a lease by setting it as “the Plaintiff, and the products supplied by BB3, which were supplied by the Plaintiff BB3.”

"(B) On May 10, 2006, the plaintiffs requested HH consulting Co., Ltd. (hereinafter "HH") to provide consultation on logistics innovation for the purpose of reducing logistics costs." Since the current water flow analysis shows an increase in inventory level which is linked to the increase in sales as a result of the increase in the current water flow analysis, it is possible to newly construct the plaintiff BB BB with 000 won and 000 won for the total period of 207 and 000 won for the purpose of 208, as the cost reduction related to inventory is reduced, and the cash flow improvement effect can be expected in the total amount of 00 won and the cash flow improvement effect can be expected in the total amount of 00 won. (c) Accordingly, the plaintiff BB entered into the lease agreement with 00 won and 000 won for the 00 OB20,000,0000 won for the 200 OB20,0000 won for the 200 OB, and the plaintiff BB1750.7.7

(E) On January 1, 2008, the plaintiff AA entered into a logistics agency agreement with the plaintiff BB and the plaintiff BB on behalf of the plaintiff BB on behalf of the logistics agency for inventory of the plaintiff AB stored in the OO logistics center, and the main contents of the agreement are as follows.

(The main contents in the contract are omitted)

(f) Plaintiff AA’s 2007 and 2008 inventory management changes are as follows.

(Omission of Change)

(G) On December 2009, this third, the joint representative director of the Plaintiff AA and the Kim JJ made a tax investigation with the Plaintiff on October 1, 2007, that the Plaintiff AA paid the rent by entering into a lease agreement with the Plaintiff BB, and on January 1, 2008, the Plaintiff BB entered into a logistics agency agreement with the Plaintiff BB to pay a logistics agency fee. The OOOO logistics center is a logistics warehouse managing the Plaintiff BB’s inventory, and the Plaintiff AAAA has no reason to rent the OO logistics center from the Plaintiff BB, and it is difficult for the OB to confirm that the OOO logistics center was being used as the inventory of the Plaintiff’s goods at the time of delivery and the inventory of the goods at the time of delivery to the Plaintiff BB. It is difficult for the OB’s inventory center at the time of delivery to the extent that the OOB’s inventory and the inventory of the goods at the time of delivery to the Plaintiff BB.

[Grounds for Recognition] The entry into the non-contentious facts, Gap's 2, 5 through 19, 21 through 25, 31 through 57, 63, 64, 65, 80, and 81 (including household numbers), and Eul's 5 through 10 (including household numbers), and the purpose of the previous body for pleadings

D. Determination

(1) As to camping costs and seminars

(A) If the other party to a business among the expenses paid by a corporation for the business is a person related to the business and the purpose of the expenditure is to promote friendship among business persons through entertainment and other acts to facilitate smooth progress in transaction relations, such expenses shall be deemed entertainment expenses under Article 25(5) of the Corporate Tax Act. However, in light of sound social norms or commercial practices, if the expenditure process, nature, amount, etc. are recognized as normally required in direct connection with the sale of goods or products, such expenses constitute sales incidental expenses recognized as deductible expenses under Article 19(1) of the Corporate Tax Act and Article 19 subparag. 1 of the Enforcement Decree of the same Act (see Supreme Court Decision 2007Du12422, Nov. 12, 2009). If the other party to the expenditure is a large number of persons and the purpose of the expenditure is to stimulate the desire for purchase, they shall be deemed entertainment expenses (see Supreme Court Decision 200Du2990, Apr. 12, 2002).

(나) 돌이켜 이 사건을 보건대，① 캠프 비용에 관하여;㉮ 원고 AAAA와 직접적인 고용관계가 없는 대리점 점주 및 직원소속 UP의 자녀들을 상대로 지급한 점，㉯ 원고 AAAA는 대리점이나 UP를 통해 제품을 판매하고 있으므로， 이들과 친목을 두텁게 하여 거래관계의 원활한 진행을 도모하기 위할 목적으로 그들의 자녀들을 상대 로 매년 캠프를 개최하여 온 것으로 보이는 점，㉰ 제품 판매를 위하여 이러한 형태의 캠프를 개최하여야 할 필요성이 있다고 보이지 아니하므로，제품 판매에 소요되는 비용으로 볼 수 없는 점，㉱ 비용의 상대방이 특정되어 있고，캠프 개최가 구매의욕을 자극한다고 볼 수 없는 점，② 세미나 비용에 관하여;㉮ 세미나 개최지가 해외이고， 그 일정이 스파 및 온천， 쇼핑 등 여행일정으로 계획되어 있으며， 비용도 대부분 여행에 관한 것인 점，㉯ 판매실적이 우수한 대리점 점주 및 직원， 소속 UP의 노고를 치하하고 사기를 진작함으로써 거래관계를 보다 원활하게 진행할 목적으로 세미나 형식을 취 한 해외여행을 보내 준 것으로 보이는 점，㉰ 제품 판매를 위하여 이러한 형태의 세미나를 개최하여야 할 필요성이 있다고 보이지 아니하므로， 제품 판매에 소요되는 비용으로 볼 수 없는 점，㉱ 비용의 상대방이 특정되어 있고， 세마나 개최가 구매의욕을 자극한다고 볼 수 없는 점 등을 고려할 때， 캠프 비용， 세미나 비용은 사업관계자들과의 사이에 친목을 두렵게 하여 거래관계의 원활한 진행을 도모하기 위한 접대비에 해당한 다고 봄이 타당하므로， 위 원고의 위 주장은 이유 없다.

(2) As to the scholarship

① The fact that the plaintiff AA paid the product to an agency with no direct employment relationship with the non-party owner and the affiliated UP child, ② the plaintiff AA appears to have sold the product through an agency or UP, and the defendant's friendship with them are to have paid the scholarship for the purpose of promoting the smooth progress in the transaction relationship. ③ Since it is not necessary to pay the scholarship for the sale of the product, it cannot be viewed as the cost of the sale of the product. (See Supreme Court Decision 91Nu1285 delivered on July 14, 192). (See Supreme Court Decision 91Nu1285 delivered on July 14, 1992.) The purpose of the payment in the domestic part is "inspiring the morale and inspiring the morale of the life health designer and the related UP child," and the plaintiff AA is considered to have paid the product with excellent sales performance to the agencies and employees, and the child under his control according to the internal selection criteria, so it is reasonable to see that the plaintiff's two kinds of scholarships were paid to the person concerned with the scholarship, regardless of the consideration.

(3) As to the amount equivalent to the interest on agency rental deposit

Article 25 (1) of the Corporate Tax Act provides for entertainment expenses, and the sum of entertainment expenses paid by a domestic corporation for each business year shall not be included in deductible expenses in calculating its income for the concerned business year, and Article 25 (5) provides that "entertainment expenses shall mean expenses paid in connection with the business of the concerned corporation regardless of their names, such as entertainment expenses, school expenses, recreation, and other similar expenses". Article 24 (1) of the Corporate Tax Act provides that "not less than the amount calculated by subtracting the amount of subparagraph 2 from the amount of subparagraph 1, among donations paid by a domestic corporation for each business year under the conditions as prescribed by the Presidential Decree in consideration of public interest such as social welfare, culture-art, arts, education, religion, charity and science, donations other than designated donations shall not be included in deductible expenses in the calculation of its income amount for the concerned business year, and donations under the provisions of Article 24 (1) of the Enforcement Decree provides that "not less than the market price of the concerned corporation shall be included in deductible expenses without reasonable cause" and Article 35 of the Enforcement Decree shall provide that "not less than the market price of the corporation without reasonable cause:

(1) The provision that exceeds the limit of entertainment expenses and donation under the Corporate Tax Act or the provision that exceeds the limit of deductible expenses in the calculation of deductible expenses or the provision that regulates the reduction of corporate tax by reflecting losses incurred by a corporation in the calculation of deductible expenses. However, the provision that does not include entertainment expenses and donation excess of the limit of deductible expenses in the calculation of deductible expenses is a provision that provides that the legal effect of the wrongful transactions is recognized as it is as it is, and that the relevant corporation reflects losses in deductible expenses by appropriating it as expenses (including cases of inclusion of expenses at the time of disposal, and including cases of inclusion of assets) and that provides that the excess of statutory limit shall not be included in deductible expenses in the calculation of deductible expenses. Therefore, if a corporation does not reflect the unfair transaction expenditure in the calculation of deductible expenses, it is not necessary to separate calculation of deductible expenses and that there is no need to apply to the calculation of deductible expenses [the excess amount... The excess amount shall not be included in deductible expenses, and donations shall not be included in the calculation of deductible expenses of each corporation without any disadvantage in the calculation of deductible expenses for the following business year.

(2) Where a person with a special relationship provides a security deposit without compensation to the related party, the provision regarding the wrongful calculation register under Article 88(1)6 of the Enforcement Decree of the Corporate Tax Act applies, and specifically, the transaction that provided a security deposit without compensation shall be denied, and the transaction that provided a security deposit shall be limited to one side of the transaction that provided the security deposit, and the amount equivalent to the security deposit shall be legal effect following the restriction. On the other hand, where a security deposit is provided to a person who is not a related party as in this case, the transaction itself cannot be denied, and there is no way to reflect the amount equivalent to the security deposit in the calculation of losses by appropriating it as cost-free. Ultimately, there is no loss to be denied

③ 원고 AAAA는 대리점 임대보증금에 대한 이자상당액을 '손금에 반영'하지 아니하였다. 그런데 피고 성동세무서장은 이자상당액을 손금에 반영한 것으로 의제하고 이를 다시 손금불산입 처리하였으므로， 단순히 손금부인한 불이익을 준 것이 아니라 추가적부로 익금에 산업한 불이익을 준 것이다(부당행위계산 부인에 따른 전형적인 법률효과이다). 예컨대，접대비한도초과 법인이 ㉮ 특수관계자 아닌 자에게 000원의 차임을 무상 지원하고 접대비로 비용계상한 사안과 ㉯ 0000원의 임대보증금(이자율 10% 가정)을 지원하고 비용계상하지 아니한 사안의 세부담 효과를 살펴보면 아래 표와 같은데，㉮ 사안에서 이자상당액을 손금불산입하게 되면 이자 상당액을 추가적으로 익금산입한 효과가 발생함으로써， 그 금액만큼 ㉮ 사안 보다 법인세 부담액이 커지게 된다. 이는 접대비 한도초과액 손금불산업 규정이 예정하고 있는 손금부인의 효과를 넘어선다.

(Omission of List)

④ Compared with the case of subsidizing a security deposit for rent, corporate tax would be reduced to the amount equivalent to the amount of interest income. However, this would result in a reduction of corporate tax as much as the case of receiving a normal interest. However, this would be understood as a case where a profit would not accrue by using an unjust method even if a normal method could occur, and thus, it would be understood as a loss of opportunity. This would only be a provision regulating the inclusion of ‘profit not actually generated' in the calculation of gross income under the Corporate Tax Act as a wrongful calculation (such as interest for recognition of provisional payment). On the other hand, the excessive portion of entertainment expenses or contribution would only be a provision regulating ‘the cost of actual disbursement' in the calculation of deductible expenses in the calculation of deductible expenses. Therefore, in order to regulate the loss of opportunity through an unfair transaction between a person who is not a specially related person, even if the actual amount of loss of opportunity expense falls under entertainment expenses

⑤ Article 35 subparag. 2 of the Enforcement Decree of the Corporate Tax Act provides that “The provision on constructive donation shall be applied to a transaction corresponding to the type of wrongful calculation (Article 88(1)1) or provisional transfer (Article 88(1).” In other words, if a transaction between a person who is not a person with a special relationship falls under the category of wrongful calculation (Article 88(1)2 of the Enforcement Decree of the Corporate Tax Act, the provision on entertainment expenses or donation excess amount shall be applied, there is no reason to do so, and the above provision shall be deemed as a legislative provision introduced to regulate the calculation of gross income between a person who is not a person with a special relationship (Article 88(1)2 of the Enforcement Decree of the Corporate Tax Act (Article 35(1) of the Enforcement Decree of the Corporate Tax Act within the scope of 30/100 of the market price or 30/100 of the market price).” On the other hand, if a transaction corresponding to the above type can be considered as entertainment expenses, the difference between the Seoul High Court and the Seoul High Court.

6) The head of the Sungdong Tax Office asserts that if the entertainment expense or donation exceeds the limit of the entertainment expense should be applied according to the substance over form principle, it should be applied to the exclusion of the excess of the entertainment expense or donation pursuant to the substance over form principle. However, if capital transactions are excluded, it can be regulated as entertainment expense (in the absence of business relations), or donation (in the absence of business relations), and it can be regulated as the exclusion of the excess of the entertainment expense or donation. Therefore, the existence of the provision on the exclusion of the inclusion of wrongful calculation is rarely lost (i.e.,, if the excess of the entertainment expense is a donation, it is not a legal or designated donation, and even if the excess of the entertainment expense is a donation, it is included in the exclusion of the total entertainment expense, and if it is entertainment expense, the excess of the entertainment expense is not included in the exclusion of the entertainment expense, and it goes against the purpose of legislation of the provision on the exclusion of the entertainment expense. Article 25 (5) of the Corporate Tax Act provides that the entertainment expense is included in the calculation of the entertainment expense under the nature of the entertainment expense.

(7) Where money is lent to a person who is not a specially related person without compensation, provisions concerning non-deductible expenses exceeding the limit of entertainment expenses or contribution cannot apply to the amount equivalent to the interest accrued.

(4) As to logistics warehouse rental deposit and rent

① If the objective meaning of the phrase is clear between the contracting parties in writing, it is necessary to recognize the existence and content of the expression as stated in the language and text (see Supreme Court Decision 2000Da72572, May 24, 2002). Article 2 of the logistics agency contract provides 'O logistics center products and the goods for inventory management delivery and recovery' as one of the items, and Article 3(3) provides 'the cost of storage and inventory management for the use of the OO logistics center' as one of the items, and the phrase "if there is no reason to believe that it is 00, 300, 300, 300, and 00, 300, 100, 300, 000, 200, 30,000, 30,000,000, 30,000,000,000,00,000,00).

(5) Scope of revocation

The amount equivalent to the interest on agency deposits from 2006 to 2008 of Plaintiff AAA’s 2006 shall not be deemed entertainment expenses and shall not be included in pride, and the reasonable tax amount on the Plaintiff AAA’s 2006, 2007, corporate tax for the business year 2008, and special rural development tax for the business year 2006 shall be as stated in the column of legitimate tax amount in the attached tax calculation sheet (each disposition imposing value-added tax is related to entertainment expenses, and there is no relation to the amount equivalent to the interest on rental deposits, and special rural development tax for the business year 2008 shall not be subject to the reduction of special rural development tax for the business year 2008). Therefore, the portion exceeding each tax amount stated in the table of imposition (1) 206, 207, 208, 2008, and special rural development tax for each business year 206.

3. Plaintiff B’s claim against Defendant Cheongju Tax Office (instant Disposition No. 2)

A. Plaintiff BB’s assertion

The sales of the Plaintiff AAA, which is the main trader, are increased by the increase in the sales of the Plaintiff BB. The sales of the samples can be provided for the increase in the sales, and the value of the samples provided are 3% of the sales, and economic rationality is also possible. Accordingly, the second disposition of this case based on the premise that there is no economic rationality.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On January 3, 2005, Plaintiff BB entered into and renewed a consignment production contract with Plaintiff AA on consignment, and as follows, entered into a contract by distinguishing between the supply of Plaintiff BB’s own products and the supply of them to OEM.

(a)a contract for the supply of its own goods;

(Omission of Contents)

(b) OEM supply contract

(Omission of Contents)

(2) In accordance with Article 6(2) of the Agreement with the Plaintiff AA, the Plaintiff BB drafted an agreement on incentives as in the Multi-Eup.

(A) A letter of agreement on January 3, 2005

(Omission of Contents)

(B) An agreement on the encouragement of January 1, 2006

(Omission of Contents)

(3) According to the consignment production contract, Plaintiff BB provided Plaintiff AA with samples equivalent to 3% of its sales in accordance with the consignment production agreement, that produced and supplied health-supporting food, such as OO-flus and OOO-flus, and cosmetics, such as fashion, and skins.

(4) The calculation of the sales and operating profits by dividing the Plaintiff BB’s sample into those subject to and non-subject to the payment of samples is as follows:

(a) Persons eligible for samples;

(Omission of Contents)

(b) a non-payment of samples;

(Omission of Contents)

(5) According to the data kept in the custody of the Korea Cosmetics Association, and the percentage of samples provided by the 2008 business year by the cosmetic manufacturer company is as follows:

(Omission of Contents)

[Based on Recognition] The non-speed facts, Gap's 3, 4, 26 through 30, 58, 59, 66 through 79, 94 (including the family number), Eul's 2, 3, and 4, and the purport of the whole pleadings.

D. Determination

(1) "Calculation by wrongful act" means the calculation of a taxpayer's act of reducing or excluding the burden of taxes arising when a taxpayer takes the ordinary rational transaction form without using the normal economic person's reasonable transaction form, the multi-stage act and other abnormal transaction form. The purport of Article 52 of the Corporate Tax Act which provides for the denial of wrongful act and calculation by wrongful act under Article 52 of the Corporate Tax Act is to be recognized as disregarding economic rationality by abusing all the forms of transaction under each subparagraph of Article 88 (1) of the Enforcement Decree of the Corporate Tax Act with a corporation in a special relationship with the corporation, and to have been neglected in terms of tax law, when it appears that the person having the authority to impose taxes would have suffered income objectively deemed reasonable, to ensure fairness in taxation and to prevent tax avoidance by imposing taxes on the basis that the person having the authority to impose taxes would have had objectively reasonable income, and the determination of whether the transaction is unfair in light of sound social norms or commercial practices (see, e.g., Supreme Court Decision 201Du7268, Sept. 4, 2002).

(2) The plaintiff BB needs to increase the sales of the plaintiff AB in order to increase the sales of the product corresponding to approximately 80% of the sales revenue of the plaintiff AB. Thus, if the product is supplied to the plaintiff AB, it is deemed that there is a significant incentive to provide samples even if the product is supplied to the OEM, the contractor can request the provision of samples even if the product is supplied to the OEM, and if so, it is inevitable to provide samples to maintain and secure the customer from the producer.Third, the plaintiff BB provided samples in accordance with the prior agreement, and if it is compared with other cosmetics, the value of the samples is not excessive to 3% of the sales revenue, and the value of samples supplied to the OEM is less than 10% of the sales revenue, and the value of samples supplied to the 2OEM is less than 10% of the sales revenue, and it is not more than 20% of the sales revenue of the 200 sample, but not more than 200 new samples supplied to the company.

(3) Therefore, Plaintiff BB’s above assertion is with merit.

4. Conclusion

Thus, the claims of the plaintiff AA are accepted within the above scope of recognition, and all claims of the plaintiff BB are reasonable, and the remaining claims of the plaintiff AA are dismissed as it is without merit. It is so decided as per Disposition.