Busan District Court 2009Guhap3904 (2010.02.05)

Cho High Court Decision 2008Da3807 (No. 20, 2009)

bonus disposal is legitimate for the representative of the corporation of Lebacon Park

Since a corporation that operates civil engineering and construction business has not been actually supplied with ready-mixed, the disposition that imposes a comprehensive income tax on the representative of the corporation by disposing of the income not attributable to the corporation as a bonus when the park is excluded from deductible expenses is legitimate.

2010Nu962. Detailed global income and revocation of disposition

XX Kim

O Head of tax office

Busan District Court Decision 2009Guhap3904 Decided February 5, 2010

June 22, 2011

July 13, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of global income tax of KRW 115,173,820 against the Plaintiff on August 11, 2008 shall be revoked.

1. Circumstances of dispositions;

A. XX Development Co., Ltd. (hereinafter referred to as " XX development") is a company established for the purpose of civil engineering and construction business. When filing a corporate tax return in 2005, the company calculated and reported corporate tax by including the above amount equivalent to the above amount in deductible expenses (hereinafter referred to as "tax invoice of this case") on the basis of the tax invoice dated 31, 2005 (hereinafter referred to as "tax invoice of this case") that was prepared and received from Omer storage Co., Ltd. (hereinafter referred to as "Omer storage").

B. On April 1, 2008, the Defendant revised the amount equivalent to the above supply value to increase corporate tax for the year 2005 on the grounds that the instant tax invoice was excessive purchase data. On August 11, 2008, on the other hand, on the Plaintiff on August 11, 2008, the Defendant disposed of the above supply value and the value-added tax totaling 304,369,120 won to the Plaintiff as bonus to the Plaintiff in x development, and corrected that the amount of KRW 115,173,820 to increase the global income tax for the year 205 (hereinafter “instant disposition”).

C. On November 5, 2008, the Plaintiff filed an appeal against the instant disposition with the Tax Tribunal, and on May 20, 2009, the Tax Tribunal rendered an adjudication on May 20, 2009 on the following: (a) the Defendant re-examineed the supply price of 276,69,200 won from Omerdozzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

D. After that, the Defendant conducted a reinvestigation on whether the instant tax invoice was actually traded, and around June 2009, notified the Plaintiff that the instant disposition was justifiable.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2 to 4 (including relevant branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Around November 2004, △△ Industries and △△ Development Co., Ltd. entered into a construction subcontract with the content that, among the new construction works of 2.74 billion won (in addition tax), △△△ Industries Co., Ltd. contracted to 2.74 billion won (in addition tax), the construction works of the construction works of the construction works of the main complex building located in the middle-gu Busan Metropolitan Transportation Daegu, Busan Metropolitan City Co., Ltd., the construction works of the construction works of the construction works of the construction works of the construction works of the construction works of the construction works of the construction works of the 2.54 billion won (additional tax). However, due to the relationship with the company with which the development is a comprehensive construction license at the time, △△△ was unable to subcontract the construction works of the said civil works to the PP development, the Plaintiff and △△△ Industries Co., Ltd., Ltd., under mutual agreement with each other, made the private business entity of △△△ Construction,

As seen above, the Civil Works Corporation was in the appearance of the △△ City, and actually performed construction works by inserting all construction materials and human resources at the above construction site under its responsibility in accordance with the above construction subcontract agreement. Since the supply price of the tax invoice of this case was supplied from Omerzer, the above supply price of ready-mixed should also be included in the deductible expenses of XX development. Thus, the disposition of this case premised on the premise that the above supply price of ready-mixed is not the deductible expenses of XX development is not the deductible expenses of XX development.

(2) As long as it is apparent that XX development paid money equivalent to the value of supply stated in the tax invoice of this case to Omerzer, the instant disposition that received bonus disposal from the representative Plaintiff is unlawful on the premise that the attribution is unclear.

(b) Fact of recognition;

(1) Subcontract agreements for civil engineering works under AAfel Lease

"(A) On June 25, 2004, the △△△ Group Co., Ltd. (hereinafter referred to as the "△△ Group Co., Ltd.") contracted the civil construction works (hereinafter referred to as the "civil engineering works of this case") among the new construction works of △△ Complex Building Afel Lease in Busan Metropolitan Transportation-gu, Busan, to the 2.74 billion won (hereinafter referred to as "the civil engineering works of this case"), all materials were supplied by the subcontractor to the effect that the contracting company does not have any materials to be supplied by the subcontractor, and the △△△ Group Co., Ltd. (hereinafter referred to as the "△△△△ Group Co., Ltd.") was changed to the △△△△ Group Co., Ltd. (the △△△△ Group Co., Ltd. of December 14, 2004, Oct. 25, 2006; hereinafter referred to as the "△△△△△ Group Co., Ltd.)., Ltd. (hereinafter referred to as the "△△△ Group") in this case.

(2) Suspension, etc. of civil engineering works of the instant industry

(A) On April 28, 2005, the △△ industry discontinued the civil engineering work of this case while carrying out the construction work equivalent to KRW 1,433,292,000. On May 2, 2005, the △△△ industry requested on May 2, 2005 to pay 44,7260,000 for the progress payment that was not paid until then to the △△ City.

(B) Meanwhile, during the period from December 24, 2004 to February 25, 2005, prior to the discontinuance of the above construction, the Corporation supplied all ready-mixeds necessary for the civil engineering works of this case (hereinafter referred to as the "le-mixeds of this case"), but did not pay the price. On April 25, 2005, the △△ industry and the △△△ City and △△ City agreed to pay the price of the above ready-mixeds in the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the completed portion of the construction of this case, the △△△ City and △△ City agreed to pay the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the construction of the construction of the construction of this case

(C) On May 20, 2005, ○○○○ 44,7260,000 won for the above progress payment, including KRW 22,363,00 won in bills, remittance KRW 22,3630,000,000,000, in total, to the Doi-gu, Seoul Special Metropolitan City.

(3) Of the instant civil works, the △ Remodelling of the remaining works and the conclusion of a contract between XX development.

On May 2, 2005, △△ City was awarded a contract for the remaining construction works among the civil construction works in the instant case to XX Development in KRW 1,306,708,00. On the other hand, △△ City, △△ City, from △ Industries, was directly paid the construction cost and material cost incurred by giving up the construction work to the actual contractor performing the AAel Lease project and the construction work from △△ Industry on the same day, but as the said contract is concluded between △ City and △ Development, △ City, △△ City, as the said contract is concluded between △ City, takes over the labor cost and material cost, and △ Development is paid the construction cost and material cost.

(4) The process of issuing the tax invoice on the instant ready-mixed

(A) As seen earlier, during the period from December 24, 2004 to February 25, 2005, the supply at the AAD D&D site was completed. Omera prepared and issued each sales tax invoice (total amount of KRW 276,69,200) of the supply value of January 20, 2005 to the △△ industry, KRW 135,781,500, the supply value of KRW 120,454,50, the supply value of KRW 120,454,50, the supply value of KRW 20,463,200 on March 31, 2005, and the preliminary return of value-added tax was made for the year 2005.

In addition, the sales ledger of the Omerdo has sold ready-mixeds worth KRW 276,69,200 in total amount of KRW 39,693,00 in December 39, 2004, KRW 140,563,00 in January 140, 2005, KRW 99,953,00 in February 2005, KRW 3,509,80 in March 2005, and KRW 276,69,200 in December 23, 200.

(B) On May 31, 2005, Omerer revoked the issuance of three above sales tax invoices upon request of XX development, and prepares and issues them to XX development, and then files a final return on the first-term value-added tax return for the year 2005 with the sales place of the instant ready-mixed as the PP development.

(C) After the final return, the pertinent tax invoice was investigated with respect to the gold Domina and Yangyang-si’s tax invoice having jurisdiction over the location of the XX development location, and the Omera filed a revised return on the sales place of the instant ready-mixed to △△ industry, and paid the additional tax on negligent tax returns accordingly.

(5) The circumstances leading to the payment of the instant ready-mixed

The price for ready-mixed in this case is KRW 276,69,200 (including additional dues of KRW 304,369,120). The development paid KRW 136,172,520 as a bill (i.e., one of the 16116325) issued in the name of △△△ for the payment of the above progress payment to the Omera on May 26, 2005, 150, 150,000,000,000,000 issued by Omera in the future of the PP development (i.e., a bill issued by the Omera in 1616799), and 18,192,600,000 in cash to OOmer, around August 26, 2005.

(6) The amount of income accrued to the year 2005 reported by the △ Development and KimA (Seoul).

(A) The amount of income accrued to the year 2005 when the XX Development reported is KRW 1.809,831,447, the tax base is KRW 41,184,584, and the amount of output tax for value-added tax in April 1, 2005 (from April 1, 2005 to June 30, 2005) is KRW 1,095,857,049.

(B) The KimA also declared the business income in the name of the Si/Gun/Gu, when filing a global income tax return on himself/herself, in the name of the city/Si/Gun. The amount of the business income for the year 2005 reported by KimA is KRW 1.065,613,087, and the amount of the necessary expenses are the same.

(7) Meanwhile, with respect to the instant civil engineering works, △△ Industries published sales tax invoices of KRW 1.026,692,00 in total supply value for △△ Industries. ② The △△△ City issued sales tax invoices of KRW 452,50,00 in total, value-added tax invoices of KRW 497,750,00 in total, value-added tax invoices of KRW 45,250,00 in the supply value for △△△ Industries; and the sales tax invoices of KRW 406,60,600 in value-added tax invoices of KRW 447,260,00 in total, value-added tax invoices of KRW 440,60,00 in value-added tax for the above progress payment in △△ Remodelling.

[Ground of recognition] Facts without dispute, Eul evidence 1 to 19 evidence, 24 evidence, 26 evidence, 31 evidence, 34 through 37 evidence (including all relevant numbers), the purport of the whole pleadings and arguments

C. Determination

(1) Determination on the first argument

(A) In the event that a tax invoice on a part of the expenses reported by a taxpayer has been prepared in a false manner without a real transaction, which is proved to a considerable extent by the tax authority as to whether it is an actual cost, and the purpose of the expenses claimed by the taxpayer and the other party to the payment thereof have been proved to a considerable extent, the taxpayer needs to prove that it is easy for the taxpayer to present data, such as account books and evidence regarding the fact that such expenses have been actually paid (see, e.g., Supreme Court Decisions 2005Du16406, Apr. 14, 2006; 2007Du1439, Aug. 20, 2009).

(B) Based on the above legal doctrine, in addition to the following circumstances, the company that actually received the instant ready-mixed from the Omerdoz from the Omerzz, as to whether it is △△ industry, and whether they are XX development, the company that received the instant ready-mixed from the Omerzzzzer, should be deemed to be the △△△ industry.

1) It was the △△ industry that received a contract for the instant civil engineering work from △ Remodelling.

Omerer prepared and delivered three tax invoices equivalent to the price of the instant ready-mixed to the original △ industry, and then made a preliminary return of value-added tax by designating the sales office as the △ industry. After doing so, even though the sales office was entered in the final return of value-added tax with the development of XX, the sales office as the △ industry was finally filing a revised return of value-added tax and paid the revised return of additional tax on negligent tax returns. Furthermore, the head of sales office of Omer and the Omerer are the recipients of the above ready-mixed as the △△△ industry.

2) If, as the Plaintiff’s assertion, the development undertaken the instant civil works from the beginning to the △△ industry by subcontracting the instant civil works from the △△ industry, the amount of revenue accrued to the development in XX 2005 should be at least KRW 2.54 billion, which is the subcontract price for the instant civil works, even if the development undertaken only in the instant civil works on 2005.00,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,

3) As the Plaintiff’s assertion, it is difficult to separately agree that Omerdodo and the instant ready-mixed, as Omerdodo and the Plaintiff’s assertion, would make an Omerdo and the instant ready-mixed, if the Plaintiff was an individual business entity created for the instant civil engineering works, and Omerdo and △△△ City receive the price of ready-mixed from the development in XX. Therefore, there is no reason to separately agree that Omerdo and △△△△ City will pay the price of ready-mixed to the Omerdo

4) The confirmation document of May 2, 2005, drawn up between the △△ industry and the △△ City and the △△ City, is the case of the △△ in which the actual performance of the civil construction work in this case was subcontracted from the △△ industry, and if the plaintiff's assertion, there is no reason to prepare the confirmation document

5) The △△ industry consistently asserts that the company that traded with itself is not developing XX in the city of △△△. As seen earlier, Omera had cancelled the issuance of sales tax invoices issued in the future of the △△ industry at one time, and filed a final return on the return of value-added tax with its sales place, but at that time, Omera was paid the price of the above ready-mixed from XX development.

6) When filing a report on the revenue amount belonging to the city of Do, Do, and XX Development in 2005, prior to May 2, 2005 of the sales amount of the civil works of this case, the purchase amount of the farmland of Gun, and after May 2, 2005, the purchase amount of the land of Gun, Gun, and Gun, seems to have been divided into the revenue amount of the development, and reported on May 2, 2005 (the tax invoice of this case, which is the cost incurred prior to May 2, 2005, should naturally be the necessary expense for Do,

7) The Plaintiff first concluded a contract for the civil works of this case in the name of △△ Industries and between △△ Industries with the lending fee of KRW 200 million to △△ Industry and the lending of the name from △△△ Industry, but the Plaintiff alleged the same, but the Plaintiff’s assertion was changed to the above contents, etc. (The Plaintiff’s attorney’s assertion was erroneous, thereby making the Plaintiff’s assertion erroneous. However, the change of the Plaintiff’s assertion was made after the first instance court’s response to the fact-finding inquiry of △△△ Industry (Evidence No. 31) received, and there

(C) On this basis, the Plaintiff: (a) divided the agreement between △△△ and △△△, △△, △△ 2, and △△△△, into 5, and divided the sales revenue of the instant public works into △△△△, 5, and △△△△, and divided into 6, 00, 6, and 7, and each of the testimony of △△, △△, and △△, 5, and the △△△, respectively; and (b) the △△△, not the first △, the △△△△, and the overall purport of oral arguments, were reviewed as follows; (c) the △△△, even if the Plaintiff’s assertion is a business entity that actually operates the business registration under the name of △△△ and △△△, △△△, the △△△△, and the △△△, 5,000, and the △△△, the △△△, which was the supply revenue of the instant public works.

(D) Therefore, the Plaintiff’s assertion on the premise that the company that actually received the instant ready-mixed from Omerdoz is developing XX is without merit.

(2) Judgment on the second assertion by the Plaintiff

(A) In cases where a corporation appropriates the cost of processing in the account book, barring special circumstances, the corporation’s profit equivalent to the cost of processing shall be deemed to have been leaked out of the company (see, e.g., Supreme Court Decision 97Nu19151, May 25, 199). The purpose of the Corporate Tax Act is to ensure that the corporation’s profit is not based on the fact that such income was generated to the representative, but rather to have certain facts that can be recognized as such in order to prevent unfair conduct under the tax law as a bonus to the representative without regard to such certain facts, regardless of their substance (see, e.g., Supreme Court Decision 2006Da49789, Sept. 18, 2008).

(B) Considering that it is reasonable to see the company that actually received the instant ready-mixed from the Omerer and Omerer as a bonus to the Plaintiff, the instant disposition that was disposed of as a bonus to the Plaintiff, who is the representative director of the PP development, is lawful, as long as it is unclear whether the proceeds from the development that was not included in the deductible expenses belong to anyone, the amount in question should not be included in the deductible expenses of XX development. In addition, the instant disposition that was disposed of as a bonus to the Plaintiff, which is the representative director of the PP development, is legitimate.

(C) The plaintiff asserts that the amount equivalent to the price stated in the tax invoice of this case was paid to Omer, so it is not clear that it is not an unclear case. However, the subject of the disposition of this case's income does not include the amount equivalent to the price stated in the tax invoice of this case in the calculation of losses, and the subject of the disposition of this case's income, which is unclear, does not increase due to the fact that the amount equivalent to the price stated in the tax invoice of this case is not included in the calculation of losses, and therefore, the plaintiff'

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.