Seoul High Court 2013Nu12593 (Law No. 29, 2014)

Although there is a high possibility of the payment of rebates, it cannot be included in deductible expenses because it violates the sound social order, and the disposition of income is necessary to examine the person to whom the disbursement belongs.

Although there is a high possibility of the payment of rebates, it is necessary to deny the loss in view of the expenditure in violation of sound social order, and to re-examine and determine the amount of the disposal of income by expenditure amount and its amount.

2014Du4306 Revocation of Corporate Tax Imposition Disposition, etc.

AAA, Inc.

The director of the tax office

Seoul High Court Decision 2013Nu12593 Decided January 29, 2014

January 29, 2015

The part of the lower judgment against the Plaintiff regarding the notice of change in income amount shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the imposition of corporate tax

A. As to the portion of cash payment

(1) In principle, Article 19(2) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same) provides that, in principle, losses or expenses incurred in connection with the business of the corporation are generally accepted as ordinary or directly related to profit. Here, “generally accepted expenses” refer to expenses deemed to have been disbursed if other corporations operating the same kind of business as the taxpayer are in the same situation. Determination of whether such expenses constitute expenses ought to be made objectively by comprehensively taking into account the process, purpose, form, amount, effect, etc. of the disbursement, and barring special circumstances, the expenses incurred in violation of sound social order is excluded (see Supreme Court Decision 2007Du12422, Nov. 12, 2009).

(2) Based on its adopted evidence, the court below found that the Plaintiff, who is a manufacturer and distributor of medicines, paid a total of OOOOO Won cash (hereinafter "cash payment") to the doctors, pharmacists, etc. in order to promote the sale of medicines in the year 2006 through 2008 and paid a total of OOOO Won's meal expenses (hereinafter "payment of merchandise coupons") in lieu of the total of OOOO Won's meal expenses (hereinafter "payment of merchandise coupons"), and reported corporate tax by including it in deductible expenses as business expenses, entertainment expenses, sales promotion expenses, and promotion expenses, etc. The Defendant considered the cash payment and merchandise coupon payment as entertainment expenses, and recognized the disposition of imposition of additional tax on March 2, 2010 as corporate tax after the imposition of corporate tax for the business year 206 through 2008 and reduced corporate tax for the pertinent business year as entertainment expenses, and revoked the disposition of imposition of additional tax on March 21, 2008 or revoked the disposition of imposition on 2008.

Then, the court below presumed that the portion of cash payment in this case was actually made to doctors, pharmacists, etc. under the name of so-called "bebert," unlike the details of the Plaintiff's report on corporate tax, provided that the Plaintiff must prove the fact that the portion of cash payment in this case was actually made to doctors, pharmacists, etc. <1> data on the calculation and enforcement of rebates submitted by the Plaintiff are merely data on the Plaintiff's business policy or data on the calculation of the amount of money to be paid to doctors, pharmacists, etc. according to the Plaintiff's business policy, and do not constitute data on the confirmation of whether the expenses were actually paid to doctors, pharmacists, etc.; 2) documents or confirmation documents containing the Plaintiff's business operators and some of the doctors or pharmacists who traded with the Plaintiff did not specify the fact that the payment in this case was made and received, but it is difficult to recognize that the amount of the cash payment in this case was actually made in violation of the Plaintiff's sound correction of the portion of the entertainment expenses paid to the Plaintiff's pharmaceutical business operator's business operator or the amount of the entertainment payment in this case.

(3) (A) First, we examine whether the cash payment of this case was made in rebates to the doctor, pharmacist, etc.

According to evidence duly admitted, ① the practice of offering rebates to doctors, pharmacists, etc. for the promotion of the sale of drugs continued to have a major reason to undermine the distribution system of drugs and the order of health insurance finance, causing the burden to the public. Accordingly, to eradicate this, the fact that: (a) medical wholesalers, etc., conducted the relevant provisions prohibiting the act of offering money, goods, benefits, labor, entertainment, and other economic benefits to medical personnel, founders of medical institutions, pharmacies, etc. for the purpose of promoting the sale of drugs; (b) relevant administrative agencies, such as the Ministry of Health and Welfare, etc. conducted a survey of the actual condition of rebates, and presumed the size of such practices to be at least 20% of the amount of prescription or sales; (c) the Plaintiff’s payment of gift certificates and meal expenses claimed by the Plaintiff as rebates; and (d) the Plaintiff’s payment of rebates within each business year and the Plaintiff’s payment of rebates by offering them to the medical personnel, medical institution founders, or pharmacy founders, etc., the Plaintiff’s payment of rebates within each business year’s business policy or within each business year.

In full view of the practices and general size of rebates related to pharmaceutical products, the Plaintiff’s standards, methods, and scale of the payment of rebates, etc., although the cash payment of this case does not individually specify the counterpart, the date, time, place, and amount of payment of the cash payment, the cash payment of this case is highly likely to have been disbursed as rebates to the Plaintiff’s business partner, the Plaintiff’s business partner, and the Plaintiff’s business operator, along with the share of gift certificates, meal expenses, and the share of the cash payment. Furthermore, in light of the aforementioned details and method of payment and the Plaintiff’s accounting performance, the amount of the rebates payment

(B) Next, we examine whether the cash payment of this case constitutes a loss under the Corporate Tax Act.

The act of a drug wholesaler to provide economic benefits to medical personnel, a medical institution founder, a pharmacy founder, etc. for the purpose of promoting the sale of drugs is likely to cause misuse and abuse of medicines to consumers, and ultimately may have a negative impact on national health. In addition, this act of providing economic benefits is not only linked to the distribution system of drugs and sales order of drugs, but also to the rise in the prices of drugs, but also ultimately leads to the aggravation of the national health insurance finance and its burden are transferred to citizens without limited options in reality.

구 약사법(2010. 1. 18. 법률 제9932호로 개정되기 전의 것》제47조의 위임에 따른 구 약사법 시행규칙(2008. 12. 1. 보건복지가족부령 제77호로 개정되기 전의 것) 제62조 제1항 제5호는 의약품의 품목허가를 받은 자 ‧ 수입자 및 도매상이 '의약품의 유통체계를 확립하기 위하여 준수하여야 할 사항'의 하나로 '의료기관 ‧ 약국 등의 개설자에게 의약품 판매촉진의 목적으로 현상품 ‧ 사은품 등 경품류를 제공하지 아니할 것'을 정하고 있었다. 그런데 2008. 12. 1. 보건복지가족부령 제77호로 개정된 약사법 시행규칙은 제62조 제1항 제5호를 '의료인, 의료기관 개설자 또는 약국 등의 개설자에게 의약품 판매촉진의 목적으로 금전, 물품, 편익, 노무, 향응, 그 밖의 경제적 이익을 제공하지 아니할 것'으로 개정함과 아울러, 제6조 제1항 제7호에서 '약사 또는 한약사가 의약품 구매 등의 업무와 관련하여 부당하게 금품 또는 향응을 수수하는 행위'를 금지하는 규정을 마련하기에 이르렀다. 이는 의약품 도매상 등이 의료인이나 의료기관 개설자 또는 약국 등의 개설자에게 의약품 판매촉진의 목적으로 경제적 이익을 제공하는 행위의 사회적 폐해가 지속된다고 여겨 약사법 등 관계 법령에서 현상품 ‧ 사은품 등 경품류 제공행위 뿐만 아니라 일체적 경제적 이익제공행위까지도 금지하고자 한 것이지, 위 개정에 즈음하여 비로소 이러한 행위를 규제할 필요성이 생겼기 때문에 위와 같은 규정을 마련한 것이 아니다.

Therefore, even though the rebates paid by a drug wholesaler to a medical person, a medical institution founder, or a pharmacy founder for the purpose of promoting the sale of drugs is not explicitly prohibited under the Pharmaceutical Affairs Act or other relevant Acts and subordinate statutes, it cannot be deemed that the rebates was paid in violation of sound social order under Article 19(2) of the former Corporate Tax Act, and thus, it cannot be deemed that it constitutes expenses directly related to ordinary expenses or profit-making which are generally accepted, and thus, it shall not be included in deductible expenses (see, e.g., Supreme Court Decision 2012Du7608, Jan.

(4) Examining in light of such legal principles, the lower court’s conclusion that the portion of cash payment in the instant case was not paid to the doctor or pharmacist, etc., but the lower court’s determination that the portion of cash payment in the instant case cannot be fully included in deductible expenses is justifiable, and there was no error affecting the conclusion of the judgment.

B. The court of final appeal may investigate and determine the portion of the gift certificates paid and the amount of meal expenses only to the extent of filing an objection based on the grounds of final appeal. The grounds of final appeal specifying the grounds of final appeal in the grounds of final appeal should explain specific and explicit reasons as to what points of the judgment below are in violation of the statutes, and the grounds of final appeal should be treated as failing to submit the grounds of final appeal when the appellate brief does not state such specific and explicit reasons (see, e.g., Supreme Court Decisions 2004Da25185, Mar. 9, 2006; 2009Du11607, Nov. 26, 2009).

However, the petition of appeal of this case did not state the grounds of appeal as to the portion of merchandise coupon payments and the amount of meal expenses in the disposition imposing corporate tax of this case, and there is no mention in the appellate brief as to how this part of the appellate brief is in violation of the law. Therefore, a legitimate appellate brief is not filed regarding this part. Furthermore, in light of the aforementioned legal principles and records, there is insufficient data to deem that the portion of merchandise coupon payments and the amount of meal expenses paid for merchandise coupon payments meet the requirements for losses under Article 19(2) of the former Corporate Tax Act, unlike the amount of cash

2. As to the notice of change in income amount

A. Based on its adopted evidence, the court below acknowledged the following facts: (a) based on its adopted evidence, the Defendant: (b) deemed that “the cash payment portion of the instant case was leaked out of the company, but its attribution is unclear; and (c) recognized the fact that the Plaintiff’s representative director was notified of changes in the income amount of this case, which was disposed of as bonus to RedB and ChoCC at the time of 2006 through 2008; (d) on the grounds as seen earlier, it is difficult to deem that the cash payment portion of the instant case was actually disbursed to the doctor or pharmacist, etc.; (e) on the other hand, the Plaintiff asserted that it was disbursed to the doctor or pharmacist, etc.; and (e) held that the notice of changes in income amount of the instant case disposed of as bonus to the Plaintiff’s representative

B. However, the lower court’s determination is difficult to accept for the following reasons.

Although the portion of cash payment in this case is highly likely to have been actually disbursed to doctors or pharmacists, etc. as seen earlier, it is difficult for the Plaintiff to prove that it is easy for them to present all materials, such as account books and documentary evidence, etc. regarding specific expenses disbursement, since it is unclear for each transaction to verify the payment counterpart, the date, time, place, and amount of payment, etc., as well as various items, such as business activity expenses, entertainment expenses, sales promotion expenses, public relations expenses, etc., and documentary evidence for each transaction to verify the payment counterpart, the payment counterpart, and the payment counterpart are not adequately kept and preserved.

However, according to the evidence duly admitted by the lower court, it can be seen that the Plaintiff specified the details of rebates payment by customer in the transaction details, such as the amount prescribed by each customer or the amount collected from some branches, including Daegu Branch, in comparison with the Plaintiff’s standards for the payment of rebates. As such, the lower court should have deliberated on the following matters: (a) with respect to a specific portion of the cash payment, the Plaintiff’s payment party, date and time, and amount meet the Plaintiff’s standards for the payment of rebates; and (b) whether the scope of the amount of rebates payment by

C. Nevertheless, the lower court did not deliberate and decide on this, and concluded that the entire cash payment of this case constitutes a case in which the attribution is unclear for the reasons as indicated in its reasoning, and it did not err by misapprehending the legal doctrine on the attribution of the amount out of the company, thereby failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.