KSS Shipping Co., Ltd. (Law Firm LLC, Attorneys Choi Tae-hoon et al., Counsel for the defendant-appellant)

Head of the tax office;

January 17, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of corporate tax of KRW 54,924,960 (including additional taxes), ② the imposition of corporate tax of KRW 79,625,769 (including additional taxes) in the business year 2006, ② the imposition of KRW 1,268,112, and KRW 105,774,580 (including additional taxes) in the imposition of corporate tax of KRW 7,709,654, and KRW 80,76,650 (including additional taxes) in the imposition of corporate tax of KRW 80,776,478 for the business year 2006, ③ the imposition of KRW 45,89,797, KRW 768, KRW 1967, KRW 1798, KRW 2097, KRW 2097, KRW 2089, KRW 175, KRW 2097, KRW 186, KRW 297, KRW 2097, KRW 197,84796, KRW 2796,794,7,79486, KRW 797,797,107.

1. Details of the disposition;

A. The director of the Seoul Regional Tax Office conducted a tax investigation on the Plaintiff from October 10, 201 to November 20, 201. “(1) On the account books, the Plaintiff acquired on July 28, 2006 and June 1, 2007, the total amount of 1,598,498,274 square meters (hereinafter “the instant real estate”) and the total amount of 274.5 square meters of the site and 274.5 square meters of the real estate (hereinafter “the instant real estate”), 434,246,414 + 1,64,164,250, 200 won and 205, 200,000 won and 50,000 won and 50,000 won and 50,000 won and 1,000 won and 50,000 won and 1,07,000 won and 97,07,07,000 won and 5,067,0.

B. On March 2, 2012, the Defendant issued a notice of change in the amount of income (including additional taxes) to the Plaintiff on March 2, 2012, 110,775,940 won of corporate tax for the business year 2006 (including additional taxes), KRW 133,908,170 of corporate tax for the business year 2007 (including additional taxes), KRW 131,885,950 of corporate tax for the business year 2008 (including additional taxes), KRW 80,768,650 of corporate tax for the business year 2009, KRW 46,334,290 of corporate tax for the business year 2010 (including additional taxes), ② the notice of change in the amount of income (including the amount of income for the business year 2006, KRW 43,454,747, KRW 987, KRW 116,989, KRW 16316, KRW 17,17416,27

C. On May 29, 2012, the Plaintiff appealed and tried on May 29, 2012. On the grounds that “the performance deposit constitutes shipping income” from the Tax Tribunal on May 15, 2013, the Plaintiff was determined as follows: “The disposition imposing corporate tax on the Plaintiff on March 2, 2012 was rendered by the Defendant to the Plaintiff on March 2, 2012: (a) the interest (136,768,674 won in 2006, 142,47,642 won in 207, 2007, 73,888, 306 won in 208, 1,661,86 won in 20, 2010; and (b) the tax base and tax amount were corrected as shipping income; and (c) the remainder of claims are dismissed.”

D. Accordingly, on June 3, 2013, the director of the Seoul Regional Tax Office reduced corporate tax of 54,924,960 won (including additional tax), corporate tax of 2007 79,625,769 won (including additional tax), corporate tax of 2008 105,774,580 won (including additional tax), corporate tax of 2008, and corporate tax of 45,898,805 won (including additional tax) for corporate tax of 2010 (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3, 5, 8 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering the following circumstances, the reasonable amount of tax shall be as listed below, and the portion exceeding the amount indicated below among the disposition in this case shall be revoked as it is unlawful.

Table (units: 2006 2007 2008 2009 2010 01,268,112 7,709,654 62,776,478 478, 534,309 5,179,120,471,810 11,061,915

(1) The formal and substantial owner of the instant real estate is the Plaintiff, and it cannot be denied the judicial effect of the lease agreement between the Plaintiff and Nonparty 1. Therefore, it is only applicable to the wrongful calculation report on the ground that it is lower than the market price, and it is unlawful to deem that the instant real estate acquisition fund was lent to the Plaintiff and to add the recognized interest to the gross income

(2) Under the Plaintiff’s corporate registry, the real estate business is specified as the objective business, and the instant real estate was leased to Nonparty 1. Therefore, the instant real estate is not an asset irrelevant to business, and thus, the non-deductible of losses is unlawful

(3) The Plaintiff acquired the assets (ship) and liabilities from △△△△△△△△△. The pertinent vessel was offered as a collateral to the Industrial Bank. The Plaintiff supplied the instant pledged assets as a substitute security while selling the vessel. As such, the economic substance of the instant pledged assets is the same as that of the vessel previously offered as a collateral. Therefore, the instant pledged assets are related to the vessel acquisition activities from △△△△△△△△△△△, and thus, the instant pledged assets

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) According to the Plaintiff’s certified transcript of corporate register, “investment in maritime transport business, land transport business, trade, circulation and warehouse business, real estate business, domestic and overseas tourism-related business, development business, and other necessary or beneficial business, and all of the incidental businesses in each of the above subparagraphs are written as its intended business.”

(2) On October 26, 2005, the Plaintiff sold the instant real estate to 1,549,260,000 won (=land 414,20,000 + building 1,135,060,000), and completed the registration of ownership transfer on land on July 28, 2006, and on June 1, 2007, respectively. The Plaintiff appropriated the instant real estate as tangible assets (land and buildings).

(3) On October 29, 2008, the Plaintiff leased the instant real estate from November 1, 2008 to October 31, 2009 with the lease agreement extended by December 31, 2010 to Nonparty 1 (the holding of shares by 27.06% as of October 26, 2007), who is the largest shareholder, to Nonparty 1 (the holding of shares by 27.06% as of October 26, 2007), with the annual rent of KRW 18,00,000, and the lease period from November 1, 2008 to October 31, 209. The Plaintiff appropriated the rent received from Nonparty 1 in each business year as follows:

A person shall be appointed.

(4) The Plaintiff’s internal document and Nonparty 1’s e-mail, etc. are indicated as follows.

(A) The Plaintiff’s internal statement on October 20, 2005, on the purchase of the straw box.

In order to supply the real estate of this case to domestic and foreign customers who are related to the business in the ticket contained in the main text to be a lodging and resting place, the goods shall be returned to be purchased and the main time shall be avoided.

(B) On March 29, 2007, “Report on the Results of the door-to door visit” drawn up inside the Plaintiff.

1. The current condition of Samsung .. The plaintiff's equipment and fixtures are also confirmed to have been provided by finch 1. The replacement of finch 1. The majority of the products was completed except for finch 1. The construction of finch finish finish finch finish finish finish finish finch fin fin fin fin fin f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f. f.

1) Nonparty 1 appears to refer Nonparty 1.

(C) Notice sent by Fintech to the Plaintiff on September 18, 2007

B. During the construction period of Table 2. The contractor visited the construction site almost every day during the construction period of the instant construction period to take into account the construction progress, and ordered and supervised the contractor to take account of the number of times during which the contractor uses hot spring facilities in the non-totopya. The contractor’s free utilization status of hot spring facilities (up to April 9, 2007) in total in 2006, Nonparty 1, 247, 73, 207, 208, 208, 258, 300,000,000,000,000,000 more than seven times during the construction period of the instant construction period. On May 1, 200, the contractor visited the site of the non-topyia and agreed on all matters concerning the construction progress at the time of the construction progress. Rather, the contractor may be aware of the problems of the contractor’s personal use of the assets, not the actual performance of the instant construction.

(D) “A case of bearing the expenses for the management of the heading house (household/joint)” prepared inside the Plaintiff on May 3, 2007.

On April 9, 2007, Table 2007 included in the main sentence, the management expenses for the kind of watchhouse, which the adviser moved in and used to us as the owner, shall be paid in full from the company, and the management expenses for each household, such as electricity fees incurred by the adviser residing in the adviser, shall be paid in full, and the cost for each household, such as electricity fees, television receiving fees, gas fees, general telephone fees, Internet user fees, Internet user fees, cable TV license fees, housing hot spring rental fees, water supply and drainage fees, cleaning expenses - joint management expenses: The management expenses for incidental facilities, such as housing expenses, quarantine expenses, and community center, etc.

(E) e-mail sent by Nonparty 1 to the Plaintiff’s employee on April 22, 2007

본문내 포함된 표 비오토피아 입주안내문을 받아보면, 공동관리비와 세대별 관리비가 부과되게 되어 있다. 이곳 관리사무소는 법인의 경우 법인에 청구한다. 전부 내가 부담하여야 할 것이나, 그렇게 되면 세무당국이 볼 때, 회사가 관리하지 않는 것으로 인식될 우려를 금할 수 없을 것이다. 이 점을 잘 검토하여 총무부에서 방침을 만들기 바란다. 예를 들어 내가 쓰는 전기료, 상하수도료, 가스료, 인터넷사용료, TV수신료, 전화료, 케이블TV 수신료, 주택온천료, 청소비 등은 내가 부담하고, 공동관리비와 주택 보전에 필요한 비용, 즉 주택경비비(SECOM료)와 1년에 한두 번 발생하는 주택방역비나 조경관리비는 회사 부담으로 한다든지 하는 방안, 이 부분도 손비로 인정되지는 않을 것이기 때문에 세무조정사항이 되어야 할 것으로 보인다. 그러나 일반회계로라도 처리하지 않으면 의심받을 가능성은 있는 것 아닌가 한다. (이하 생략) 내가 병이 들어 요양을 하지 않을 수 없고, 앞으로 3년 이상은 이곳에서 요양을 하여야 할 것이다. 나 때문에 회사에 누를 끼쳐 미안하나, 부득이한 실정이다. 그래서 내 건강회복을 위하여 샀는데, 이로 인한 세무문제로 여러분 담당자들과 회사에 미안할 뿐이다.

(f) e-mail sent by Nonparty 1 to the Plaintiff’s employee on April 22, 2007

The work in the main text after the luxation of a lux director has been completed is sent daily to grow the number of trees, such as tree planting, turf height, gardening, gardening, gardening, and lux water supply, etc. In addition, the additional construction cost in this part will be added to the additional construction cost. It is difficult to receive compensation for delay as a policy by adding up the additional costs up up until now after the completion of the construction work. The other corporations will not be able to return the compensation for delay. The other corporations will not be able to do so only in the yielded shape. The other corporations will not be able to do so in our future. The author tried to see after any pressing all together.

(G) e-mail sent by Nonparty 1 to the Plaintiff employee on October 20, 2008

It seems too little to be calculated at the present price of the table published in the main text.In my opinion, it would be inappropriate to regard the amount of 1.5 million won per month to the extent of 1.5 million won per annum, and to calculate the amount of 18 million won per annum. Furthermore, management expenses will be directly paid in full, and if so, the annual burden will be 36 million won per annum. In this case, it would be reasonable to some extent, and the Company's think (hereinafter omitted) will be omitted.

(h) Around July 2008, Fink presented to the Plaintiff a notice of opinion gathering to change the method of gas supply of the instant real estate. The said document states that “I will make a settlement after confirming the opinion of the actual user,” in writing.

(5) In around 1984, the Plaintiff accepted five vessels from △△△△△△△, and the said vessel was offered as security for the obligations of the Industrial Bank of △△△△△. From 1995 to 197, the Plaintiff sold the said vessels to the Industrial Bank, while setting a pledge on the instant pledged property, which was indicated below as a substitute security, with the Industrial Bank. The Plaintiff appropriated the interest income accrued from the instant pledged property as shipping income.

A person shall be appointed.

[Ground of recognition] Each entry of Gap evidence 6, 7, 8 (including paper numbers), Eul evidence 2 through 13, and 16 (including paper numbers), and the purport of the whole pleadings

D. Determination

(1) Whether the acquisition fund of the instant real estate constitutes a provisional payment irrelevant to the business

(A) Article 52 of the Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same) provides for the following: (a) “Disstatement of wrongful calculation” as provided for in Article 52 of the Enforcement Decree of the said Act (amended by Presidential Decree No. 200619, Feb. 22, 2008; (b) prior to the amendment by Presidential Decree No. 20619, Feb. 22, 2008; (c) 2008, 209, and 2010 shall be deemed 208(1)50, Dec. 30, 2010; and (d) the period of 205, when a corporation unfairly evades or reduces tax burden by abusing the various types of transactions enumerated in each subparagraph of Article 88(1) of the said Act (amended by Act No. 10423, Dec. 30, 2010; and (e.g., the Supreme Court Decision 2014).

In addition, since the system of wrongful calculation is based on the premise of a legitimate and effective calculation in the private law, its basic factual relations exist as true and are in taxation relations, but in accordance with the normal act calculation deemed appropriate in place of calculation of the act denied by the tax authority in light of the tax legal point of view, the calculation of the act itself made in reality does not bring about any substantive change. Furthermore, if the basic facts in the corporate accounting books are clearly unfair, such as a case where the basic facts in the corporate accounting books are obviously unfair, it may be denied by denying false facts through the authority to correct the tax base by the tax authority under Article 66 of the Corporate Tax Act, rather than by the wrongful act authorization system under the Corporate Tax Act. In other words, if the basic facts in the corporate accounting books are clearly unfair, the tax base may be corrected by denying false facts by the authority to correct the tax base of the tax authority under Article 66 of the Corporate Tax Act. In other words, the act or the income amount that does not coincide with the factual relations is not subject to the avoidance of wrongful calculation.

(B) It is recognized that the instant case was paid the acquisition tax, registration tax, and property tax after the Plaintiff acquired the instant real estate, and appropriated it as a tangible asset, and the fact that Nonparty 1 entered into a lease agreement with Nonparty 1 and received rent and management expenses.

그러나 ① 부당행위계산부인의 취지: 위에서 본 바와 같이 과세소득계산상 범위 내에서만 변동을 초래할 뿐 당사자 사이의 사법상 법률행위의 효력을 부인하는 것이 아니므로, 대여로 소득금액을 계산한다고 하더라도 이 사건 부동산 취득이나 임대차계약의 효력까지 부인하는 것은 아닌 점, ② 취득목적: 원고는 최대주주인 소외 1의 거주 목적으로 이 사건 부동산을 분양받은 점, ③ 소외 1의 관여 정도: 소외 1은 이 사건 부동산의 건축시부터 신축현장에 수시로 방문하여 게스트룸을 서재로 변경하고, 욕조를 없애고 안방과의 사이에 옷장을 설치하며, 테라스 및 돌담을 설치하는 등 사양변경을 요구하였고, 이에 따라 공사가 이루어진 점, 원고는 사양변경에 따른 추가비용을 부담한 점, 이 사건 부동산의 가스공급변경을 위한 공사도 소외 1에게 의사결정권이 있었던 것으로 보이는 점, ④ 차임, 관리비의 결정 경위: 소외 1은 2007. 4. 22. 원고 직원에게 보낸 이메일에서 “건강회복을 위해 이 사건 부동산을 샀다.”고 기재하였고, 법인세 등을 우려하여 관리비용을 일부 부담하겠다는 의사를 밝힌 점, 이에 따라 원고가 관리비를 지급하고, 후에 소외 1과 정산하기로 한 점, 소외 1은 차임으로 연 1,800만 원을 제시하였는데, 이는 2007. 4. 22.자, 2008. 10. 20.자 이메일의 내용에 비추어 법인세의 인정상여 등 과세처분을 피하기 위한 것으로 보이는 점, ⑤ 원고의 임대사업 현황: 원고는 이 사건 부동산 외에 부동산 임대업 등을 영위하기 위한 다른 부동산을 보유하고 있지 않은 점, ⑥ 이 사건 부동산의 사용현황: 소외 1은 2008. 11. 1. 이 사건 부동산에 입주하여 계속 거주하였고, 소외 1과 그의 가족 외에 국내외 거래처 귀빈 등 다른 사람이 이 사건 부동산에 거주한 바 없는 점 등을 고려할 때, 이 사건 부동산은 소외 1의 사용을 위해 취득, 개조, 사용되었으므로, 사실상 소외 1이 사용할 부동산 구입에 소요되는 대금, 즉 취득자금을 대여한 것과 동일하고(원고와 소외 1의 부당행위계산은 이 사건 부동산 취득에 관한 것이고, 임대행위에 관한 것이 아니므로, 저가임대에 부당행위계산이 있었다고 보기 어렵다), 이 사건 부동산 취득자금은 법인세법 시행령 제88조 제1항 제6호 에서 정한 ‘금전, 그 밖의 자산 또는 용역을 무상으로 대부한 경우’에 해당한다.

(C) Therefore, since the gain acquired by the Plaintiff is the same as the loan of the acquisition fund of the instant real estate, it is legitimate to include the recognized interest and amount equivalent to the acquisition fund of the instant real estate in gross income.

(2) Whether the instant real estate constitutes an unrelated asset for business purposes

(A) According to Article 27 subparagraph 1 of the Corporate Tax Act and Article 49 (1) 1 (a) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19891 for the business year 2006, Feb. 28, 2007; Presidential Decree No. 20720 for the business year 2007, Feb. 29, 2008; Presidential Decree No. 2008, 2009, and corporate tax for the business year 2010), among the expenses paid by a domestic corporation for each business year, the amount prescribed by Presidential Decree, such as expenses incurred by the acquisition and management of real estate not directly used for the business of the corporation, among the expenses paid by the domestic corporation for each business year, shall not be included in deductible expenses. In addition, according to Article 27 (1) 1 (a) of the same Enforcement Rule (amended by Presidential Decree No. 2007, Mar. 30, 2009; Presidential Decree No. 209, 2010).

(B) It is recognized that the instant case was added to the purpose business on February 27, 2002 by the Health Team, the Plaintiff’s “real estate business” in the Plaintiff’s corporate registry, and has been maintained until now.

However, Article 49 (1) 1 (a) of the Enforcement Decree of the Corporate Tax Act limits the "direct use for the business of a corporation". Thus, it cannot be deemed that it is not a business related solely on the ground that it constitutes a business purpose under the corporate register. ② The Plaintiff's "written goods purchased at the convenience and rest place in Korea and abroad related to the Plaintiff's business" merely stated that "it is intended to provide it to the customers who have come to know in Korea and abroad related to the Plaintiff's business." Thus, it seems that there was no intention to engage in real estate business. ③ As seen above, the Plaintiff acquired and remodeled the instant real estate for the purpose of residence of Nonparty 1, allowed Nonparty 1 to exclusively use the instant real estate, ④ The Plaintiff acquired and operated the instant real estate business, and ④ The Plaintiff did not engage in the real estate business by acquiring other real estate than the instant real estate, even if the Plaintiff leased the instant real estate to Nonparty

Therefore, since the instant real estate falls under assets unrelated to business, it is legitimate to exclude the expenses incurred in relation to the instant real estate from deductible expenses.

(3) Whether interest income accrued from the assets of the pledge of this case constitutes non-shipping income

(A) As to the interpretation of the Act on Taxes and Charges, it shall be interpreted in accordance with the provisions of the Act, unless there are special circumstances, regardless of the requirements for imposition or exemption, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fairness to strictly interpret the provision that is clearly considered as a preferential provision among the requirements for reduction or exemption (see Supreme Court Decision 2007Du9884, Oct. 26, 2007).

According to Article 104-10(1) of the Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006 for the business year 2006, 2007, for the business year 2008, prior to the amendment by Act No. 9671 of May 21, 2009, for the business year 2010, prior to the amendment by Act No. 11989 of Jul. 30, 2013), the corporate tax base of a shipping enterprise, among domestic corporations, shall be calculated based on the income prescribed by the Presidential Decree related to ocean-going transport activities, which is related to ocean-going transport activities as prescribed by the Presidential Decree. In addition, Article 104-7(2)2 (d) of the Enforcement Decree of the same Act provides for "the activities related to the acquisition, maintenance, management and disuse of a ship as shipping income."

(B) In light of the fact that, at the time of the Plaintiff’s acquisition of a ship from the △△△△△, the security right was established to secure the existing debt against the industrial bank at the time of the Plaintiff’s acquisition of the ship from the △△△△△△, the Plaintiff acquired a ship with the security right, and the Plaintiff did not provide it as a security for the acquisition of the ship, it cannot be deemed that the acceptance of the secured debt was a condition for the acquisition of the ship. The acquisition of the ship and the acceptance of the secured debt is merely a combination of circumstances. The pledge asset of this case was established as a substitute for the ship following the sale of the existing secured ship. The interest income accrued from this case was derived after the acquisition of the ship, and the industrial finance bond bond of this case, which is the pledged asset of this case, was appropriated as a short-term investment asset (the audit report of 2010 and No. 17). Considering that Article 104-7(2)3(a) of the Enforcement Decree of the Restriction of Special Taxation Act excluded the investment asset, interest income

Therefore, it is legitimate to classify interest income generated from the pledged assets of this case as non-shipping income.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Shin Ha-chul (Presiding Judge)