Gwangju District Court 2010Guhap3725 ( August 18, 2011)

early 2009 Mine1610 (24 May 2010)

The date the service provision is completed belongs to the deductible expenses and the related payment expenses fall under the losses carried forward, but it may not be deducted due to excessive deduction of losses carried forward.

Even if the date the service provision is completed belongs to the deductible expenses and the related payment expenses can be recognized as losses carried forward in calculating the corporate tax base for the business year 2003, it shall not be deducted as losses carried forward because it is recognized that the reduced amount of liabilities due to the transfer debt exemption was included in the gross income and deducted excessively from losses carried forward for the business year

2011Nu1619 Revocation of Disposition of Imposing Corporate Tax, etc.

XX Co., Ltd

The director of the tax office

Gwangju District Court Decision 2010Guhap3725 Decided August 18, 2011

May 31, 2012

June 14, 2012

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

In the first place, it is confirmed that the Defendant’s imposition of corporate tax of KRW 000 on August 13, 2008 against the Plaintiff on the part of KRW 200,000 among the imposition disposition of corporate tax for the business year of 2003, and the preliminary disposition is null and void.

2. Purport of appeal

Under the judgment of the first instance court, the first instance court revoked the part against the Plaintiff, which is the primary claim for nullification, as well as the conjunctive part of the judgment against the Plaintiff. The first instance court confirms that the Defendant’s first instance judgment revoked the portion of KRW 69,202,349, out of the disposition imposing corporate tax on the Plaintiff for the business year 2003, August 13, 2008, and that the said disposition is null and void.

1. Scope of the judgment of this court;

In the first instance court to impose corporate tax of 00 won for the business year of 2003, the Plaintiff filed a lawsuit against the part that was not recognized as deductible expenses or carried-over losses in relation to the disposition of this case with respect to ① payment of 000 won for building management services to the limited liability company (hereinafter referred to as the " XX corporation"), ② payment of 00 won for lease deposit to the OO corporation (=00 won for lease deposit + damages for delay 000 won; hereinafter referred to as "O-related amount"), ③ payment of 00 won for claims and debts, ③ payment of 00 won for the portion that was not recognized as deductible expenses or carried-over losses, and the first instance court lost the above amount, but the appeal is limited to 00 won for the above part related to O-related damages, and thus the scope of the above judgment of this court is limited to the part related to O-related to 00 won and damages for delay.

2. Details of the instant disposition

A. On August 13, 2008, the Defendant corrected and notified the corporate tax for the business year of 2003 as KRW 000 according to the result of the investigation of the corporate tax for the business year of 2003 against the Plaintiff (hereinafter “original disposition”).

B. Accordingly, the Plaintiff filed an objection against the original disposition on November 12, 2008, but the Defendant dismissed it on December 22, 2008.

C. On March 20, 2009, the Plaintiff filed an appeal against the original disposition with the Tax Tribunal. On May 24, 2010, the Tax Tribunal partly accepted the Plaintiff’s claim and decided to dismiss the remainder.

D. On December 23, 2008, the Defendant issued a correction to reduce the amount of KRW 000,000, to reduce the amount of KRW 17,126,628 as of March 2, 2010, to reduce the amount of KRW 17,126,628 as of August 2, 2010, and to reduce the amount of KRW 00 again on August 2, 2010, and accordingly, the final disposition became 00 won (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

3. Whether the instant disposition is lawful

A. As to the part related to XX construction

(1) Summary of the Plaintiff’s assertion

Since August 1998 to February 200, the Plaintiff Company was provided with building management services for the buildings located in XX 1326-1 (hereinafter “instant building”) owned by the Plaintiff, the Plaintiff’s payment of KRW 00 as the service price to the XX Corporation around 2003 under the circumstances that the Plaintiff could not be deemed to have been paid clearly due to default or due to the application of the extinctive prescription for commercial matters, should be included in the loss for the business year of 2003, the time when the Plaintiff actually paid the amount, and even if not, the loss occurred within 5 years from the beginning date of the business year of 2003, and the amount was not deducted within the next business year, and thus, the amount should be reduced from the tax base for the business year of 2003.

(2) Determination

(A) Whether it can be included in the loss

1) According to the overall purport of Gap evidence Nos. 2, 4, 8, 9 and Eul evidence Nos. 2, 5 through 8 and the entire arguments, the XX Corporation provided the plaintiff with services to manage and clean the building of this case from August 1998 to February 200, but did not receive the service cost from the plaintiff, and received the decision of provisional seizure on the building of this case from the Gwangju District Court's net support on March 18, 2000. Accordingly, on December 5, 2003, the plaintiff deposited 00 won, which is the claim amount of the provisional seizure decision with the Gwangju District Court's net Branch's above provisional seizure decision, and under the purport of Gap evidence Nos. 2, 8, 9 and Eul evidence Nos. 2, 5 through 8, it confirmed that the claim for corporate tax was extinguished after receiving 00 won from the plaintiff as agreed money for the management of the building of this case (clean) service, and that the plaintiff did not have any legal problems with the corporate tax claim for each of this case No.

2) However, Article 69(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010) provides that "the business year of accrual of earnings and losses for the provision of construction, manufacturing, and other services shall be the business year which includes the date of delivery of the object (in the case of the provision of services, the date of the completion of the provision of services)." Even if the Plaintiff paid the amount related to the x Corporation to the x Corporation on December 10, 203, the date of completion of the provision of the building management (clean) service of this case from August 1998 to February 200, the amount related to the x Corporation shall not be included as losses for each business year from August 1998 to 2000.

3) Furthermore, even if it is reasonable to include the amount relating to the above XX construction in the Plaintiff’s deductible expenses in the business year from 1998 to 2000, the exclusion period for imposition of five years has expired from August 13, 2008, which is the time of the instant disposition, since the Plaintiff’s assertion on this part has no merit.

(B) Whether the loss for this month can be recognized

1) Pursuant to Article 14(2) of the Corporate Tax Act, losses mean losses in any business year exceed the total amount of gross income for that business year. According to Article 18(1)1 of the Enforcement Decree of the Corporate Tax Act, losses in this case shall be losses in calculating the tax base for each business year thereafter. Under Article 13 subparag. 1 of the former Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008) and Article 10(1) of the Enforcement Decree of the same Act, losses in this case shall be losses in the business year that began within five years before the beginning date of each business year and shall be deducted in order from the first day of each business year at the time of calculating the tax base for each business year thereafter. According to Article 14(1)1 of the former Corporate Tax Act, losses in this case shall be deducted from the total amount of losses in each business year after the beginning date of each business year, the amount related to the construction work in this case may have been counted within 20 years from 1998 to 200 years after each business year.

2) As to this, the Defendant had excessively deducted KRW 000 as a loss carried forward when calculating the Plaintiff’s corporate tax base for the business year 2003. However, even if the Plaintiff’s assertion recognizes the amount relating to the rest-up project as a loss carried forward, the instant disposition is still justifiable, and the Plaintiff asserts that the disposition is not permitted as an addition or modification of the grounds for disposition. Accordingly, the Plaintiff’s above assertion should be examined.

A) Whether the defendant's assertion to deduct excessive losses carried forward is permitted

On the other hand, the subject matter of a lawsuit for revocation of a tax disposition is objective existence of the tax base and amount of tax recognized by the disposition of the tax authority, and the tax authority may exchange and change the subject matter of the lawsuit within the scope of maintaining the unity of the disposition within the scope of maintaining the unity of the disposition, in support of the legitimacy of the tax base and amount of tax recognized by the disposition until the closing of arguments at the trial court (see Supreme Court Decision 2000Du2181, Mar. 12, 2002). Even if the defendant newly asserts the grounds for the above excessive deduction of the subject matter of the disposition in this case as the grounds for the disposition in this case as to the disposition in this case, it is reasonable to deem that it constitutes an addition of the grounds for disposition within the scope of maintaining the identity of the disposition in this case as the disposition disposition in this case, which is the disposition disposition for

B) Whether the Plaintiff’s loss brought forward is excessively deducted when calculating the corporate tax base for the business year 2003

In full view of the purport of the argument in Eul evidence Nos. 1, 10 and 11, the plaintiff's losses incurred within five years from the time of calculating the tax base of the business year of 2003 (i.e., the 1998 to 2002 business year) and the total amount of losses that can be deducted is 000,000,000,000,000,000 won for losses incurred by the defendant in calculating the corporate tax base of the business year of 203 business year in relation to the disposition of this case, and the amount not deducted from the amount of the corporate tax base of the losses incurred from the business year of 1996 to the business year of 1997, which belongs to June 18, 1996, is 00,000 won, and it is recognized that the defendant included KRW 500,000,000,000,000,00 won for the above amount of losses due to the above debt payment (i.

3) Sub-decisions

Therefore, even if the amount of XX construction related to the disposition of this case can be recognized as losses for this purpose in calculating the corporate tax base for the business year of 2003, the plaintiff's assertion that the above excessive losses were deducted as losses carried forward during the disposition of this case, and the plaintiff's corporate tax base for the business year of 2003 calculated by the defendant in the disposition of this case exceeds the amount determined at the disposition of this case (=00 won - 000 won). Thus, there is no reason for the plaintiff's assertion that the tax amount calculated by recognizing the amount related to the construction of this case as losses carried forward among the disposition of this case should be reduced or corrected as the amount determined at the disposition of this case.

B. As to the portion on delay damages out of the O-related amount

(1) Summary of the Plaintiff’s assertion

Of the amount paid by the Plaintiff to theO on December 4, 2003, the obligation and amount of the damages for delay shall be determined as a litigation agreement, and shall be included in the loss for the business year of 2003, which is the time when the Plaintiff actually paid the amount. Even if not, the loss occurred within five years from the beginning date of the business year of 2003, and the amount was not deducted for the next business year, so it shall be reduced from the tax base for the business year of 2003.

(2) Determination

(A) Whether it can be included in the loss

1) Comprehensively taking account of the purport of the arguments stated in Gap evidence 5, 6, and Eul evidence 16, the plaintiff filed a lawsuit against the plaintiff on December 10, 199 against the plaintiff, and on December 10, 199, the plaintiff was sentenced to 5% per annum from September 29, 199 to December 10 of the same year, and 25% per annum from the next day to December 31 of the same year, and the above judgment became final and conclusive on December 31 of the same year. The plaintiff could not request the plaintiff to return 00 won of the outstanding amount of the lease deposit to O on November 28, 200, corporate tax amount of 00, corporate tax amount of 000,000,000,0000,0000,000,000,000,000,000,000,000,000,000 won.

2) However, Article 40 of the Corporate Tax Act, Article 71(4) of the Enforcement Decree of the same Act, and Article 36 of the Enforcement Rule of the same Act provide that "the fiscal year of accrual of earnings and losses of a domestic corporation for each fiscal year shall be the fiscal year which includes the date on which the concerned earnings and losses are finalized, unless otherwise provided for in the same Act or the Restriction of Special Taxation Act." General Rule 40-7120 of the Corporate Tax Act provides that the amount of damages paid or paid by a court ruling shall be included in the gross income or deductible expenses for the fiscal year which includes the date on which the court ruling becomes final and conclusive. The damages for delay shall have the nature of damages (see, e.g., Supreme Court Decision 2010Da24435, Sept. 9, 201). Of the above O-related amount, 00 won shall not be included in the deductible expenses for the fiscal year of 199, which is the fiscal year in which the above judgment becomes final and conclusive.

3) Furthermore, even if it is reasonable to include 000 won of delay damages out of the above O-related amount as deductible expenses in the Plaintiff’s business year in 1999, the exclusion period for imposition of five years has already expired on August 13, 2008, which was the time of the instant disposition. Accordingly, the Plaintiff’s assertion on this part is without merit.

(B) Whether it can be recognized as a loss brought forward

살피건대, 위 OO 관련 금액 중 지연손해금 000원을 원고의 2003 사업연도 법인세 과세표준 계산시 이월결손금으로 인정할 수 있다고 하더라도, 위 QQ환경공사 관련 금액에서 살펴본 바와 같이, 피고가 이 사건 처분 시 이윌결손금으로 000원을 과다 공제하였고, 위 과다 공제된 이월결손금이 XX공사 관련 금 액 000원과 위 OO 관련 금액 중 지연손해금 000원을 합한 금액을 초과하여 피고가 이 사건 처분시 계산한 원고의 2003 사업연도 과세표준은 정당한 금액보다도 오히려 000원(= 000원 - 000원 - 000원)이 못 미치게 되므로, 이 사건 처분 중 OO 관련 금액 중 지연손해금 000원을 이월결손금으로 인정하여 산출한 세액을 감액 • 경정하여야 한다는 원고의 주장도 이유 없다.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as it is so decided as per Disposition.