Cho High Court Decision 2010Du1544 (No. 24, 2011)

The time when the provision of services is completed in the year 2002 and proceeds accrue shall be the date when the provision of services is completed.

The fact that the provision of service was completed in 2002 is not a dispute between the parties, and the time of attribution of the proceeds of the service is 2002 business year.

2011Guhap27650 Revocation of Disposition of Imposing corporate tax, etc.

XX Stock Company

Head of Seocho Tax Office

December 23, 2011

January 13, 2012

1. The defendant's disposition of imposing corporate tax of 149,680,160 won for the business year 2004 against the plaintiff on September 1, 2009, and the disposition of imposing corporate tax of 219,670,970 won for the business year 2006 and the notice of changing the amount of bonus of 1,281,00,000 won for the business year 206 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry in Gap evidence Nos. 1 and 18-2, Gap evidence No. 2, 3, and 19-1 and Eul evidence No. 1-2.

A. On August 30, 199, the Plaintiff entered into a contract with the company XX building business (hereinafter referred to as the “ XX building business”). On August 30, 199, the Plaintiff entered into a contract with the Plaintiff with the content that the Plaintiff will act on behalf of the Plaintiff with respect to various design, authorization, and permission works related to the creation of school sites necessary for the apartment building construction project, which was promoted in XX if the XX building business is constituted.

B. The plaintiff completed the provision of this case in 2002, and on August 22, 2002, 2002, 458.43 out of 1,823,034,540 won in cash and 000-00 m2,165 m2,165 m2,168 m2 (654.9 m2, hereinafter referred to as "each land of this case") in return for the provision of the service of this case, 7:00 m2,000 m2,168 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2.

C. The director of the Seoul Regional Tax Office found the Plaintiff’s omission of the report of the above amount of issues, and notified the Defendant as taxation data, upon conducting the consolidated investigation of the corporate tax for XX case.

D. On September 1, 2009, the Defendant imposed corporate tax of KRW 149,680,160 on the Plaintiff for the business year of 2004 on the premise that the key issue amount is the service profit of this case, and imposed corporate tax of KRW 219,670,970 for the business year of 2006, and imposed corporate tax of KRW 1,281,00,000 for the business year of 204, at the time of notification of the change in the amount of income, which is the bonus for the Plaintiff’s representative director, at the time of 204 (hereinafter “each disposition of this case”).

E. The Plaintiff, who was dissatisfied with each of the dispositions of this case, filed an objection on November 2, 2009, but the objection was dismissed, and the Plaintiff filed an appeal on April 27, 2010, but the claim was dismissed on May 24, 201.

2. Whether the disposition is lawful;

A. The parties' assertion

1) The plaintiff's assertion

The Defendant rendered each of the instant dispositions on the premise that the key issue amount falls under the instant service income and the time of attribution falls under the business year 2004. However, given that the instant provision was completed in 2002, the instant service income under Article 69(1) of the Enforcement Decree of the Corporate Tax Act is bound to be attributed to the business year 2002. Therefore, if the key issue amount is the instant service income, it shall be attributed only to the business year 2002 and shall not be attributed to the business year 2004. At the time of September 1, 2009, the date of each of the instant dispositions, each of the instant dispositions, the five-year exclusion period for the business year 2002. Each of the instant dispositions was unlawful, based on the erroneous period for attribution.

2) The defendant's assertion

Although the Plaintiff completed the provision of this case in 2002, it is difficult to view the supply of this case in light of the content of the service contract of this case or the settlement statement of this case, and the supply price of 458.43 of each land of this case distributed to the Plaintiff through the provision of this case shall be determined on January 1, 2004, which is at the time of transfer, and pursuant to Article 22 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act, the issue amount, which is the profit of this case, belongs to the business year of 2004. Accordingly, each disposition of this case

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts may be acknowledged by integrating the purpose of the whole pleadings in each entry of evidence Nos. 3 and evidence No. 18-1.

1) The main contents of the instant service contract (Evidence A No. 3) signed by the Plaintiff and XX case business on August 30, 1999 are as follows.

2) The main contents of the instant settlement statement (Evidence A No. 18-1) prepared by the Plaintiff and XX case business on August 22, 2002 are as follows.

D. Determination

The Defendant rendered each of the dispositions of this case on the grounds that the issue amount received by the Plaintiff among the proceeds from the sale of each of the lands of this case constitutes the service proceeds of this case and was reverted to the Plaintiff in 2004.

However, in light of the above facts, the Plaintiff’s income from the service of this case is KRW 1,823,034,540 in cash and KRW 458.43 in each land of this case, and the key amount is the transfer price of KRW 458.43 in each land of this case, which is a part of the profit from the service of this case. Thus, the key amount cannot be viewed as the profit from the service of this case as alleged by the Defendant. Furthermore, even if the key amount is deemed as the profit from the service of this case, it cannot be viewed as the profit from the service of this case, as alleged by the Defendant, in determining the time when the profit from the service of this case corresponding to the income of each business year under the Corporate Tax Act is attributed to the service of this case, there is no legal basis for applying Article 69(1) of the Enforcement Decree of the Corporate Tax Act, not Article 22 subparag. 3 of the Value-Added Tax Act, and there is no dispute between the parties.

Therefore, each of the dispositions of this case made on different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and all of them are accepted, and it is so decided as per Disposition.