Suwon District Court-2017-Gu Partnership-68616 ( October 02, 2018)

The disposition of outflow from the company to include the processing costs under the name of the agency for sale, and the transfer of funds to the name account of the representative.

It is reasonable to see that the amount of this case transferred to the representative's account through the borrowed account by including the cost of processing in the account book and the borrowed account was leaked out of the company. There is no special circumstance to see that it is difficult to see that it was transferred from the beginning to the plaintiff under the premise that it is to be recovered from the company.

Article 106(1) of the Enforcement Decree of the Corporate Tax Act

2018Nu69785 Notice of change in income amount, or revocation of revocation thereof.

○ Construction Corporation

△ Director of the Regional Tax Office

Suwon District Court Decision 2017Guhap68616 Decided October 2, 2018

June 26, 2019

August 14, 2019

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. On December 1, 2016, the defendant revoked the notification of change in the income amount made to KimA by the defendant to the plaintiff in 2013, the bonus year to which the plaintiff belongs, the income amount of 537,745,520, and the income amount of 537,745,

1. Details of the disposition;

The reasoning for this part is that the court’s reasoning is identical to the corresponding part of the reasoning of the judgment of the court of first instance, except for the deletion of the part “after the closing of argument in this case” in Part 18, No. 3 of the reasoning of the judgment of the court of first instance.

2. Whether the disposition is lawful;

The reasoning for this part is that the court's reasoning is identical to the corresponding part among the reasons for the judgment of the court of first instance, except for the part concerning "the plaintiff's assertion" and the part concerning "the judgment" of the court of first instance Nos. 2 through 6 on the grounds of the judgment of the court of first instance No. 4 and the part concerning "the judgment" of the court of first instance No. 5 and the corresponding part. 2.

○ ○. The Plaintiff’s assertion

On September 30, 2013, the instant money that the Plaintiff transferred to the borrowed account in the name of 13 persons, including KimB, was transferred to the account in the name of KimA, and 325,000,000 of which was remitted to △△ Construction. Of the said KRW 325,00,000, the remainder of KRW 230,000,000, excluding KRW 95,000,000, out of the said KRW 325,000,000, which was deposited to the Plaintiff again within 3 hours after the withdrawal. Thus, the said KRW 230,00,000, which was expected to be recovered from the beginning, cannot be deemed to be the outflow from the company, and the remainder of KRW 95,00,00,000, which was reverted to △△ Construction, should be treated as a "other outflow from the company" instead of a bonus to KimA.

Even if the amount of this case was out of the company, the amount should be recovered and reported to be included in the gross income before the tax investigation. Therefore, the disposition of this case is unlawful.

○ ○. Judgment

In full view of the following circumstances acknowledged by comprehensively taking account of the evidence mentioned above, Gap evidence Nos. 7 through 9, and Eul evidence Nos. 7 through 9 and the purport of the whole pleadings, the amount of this case can be deemed to have been leaked as the processing cost. Thus, the disposition of this case is lawful, and the plaintiff's assertion is without merit.

(1) Three persons, including u300 GB, etc., did not provide the Plaintiff with the service related to the sales agency service, but the Plaintiff included the amount equivalent to the amount of the instant money in deductible expenses. It constitutes the most typical type of outflow from the company to include the processing expenses and to prohibit the corporation’s funds to the representative or interested parties.

② As seen earlier, the Plaintiff and KimA were convicted of the facts constituting a crime, such as violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax). According to the above criminal case appellate judgment, ParkCC had no choice but to include the service cost in the investigation agency in order to reduce corporate tax because of a large amount of profit in 2013 from △△ Construction. KimA, on the account of the accounting officer, divided into the sales promotion cost into two parts: (a) it appears that the sales agency fee is too large; (b) if the expenses were to be handled by KimA, it would be calculated how much corporate tax is reduced; and (c) if KimA knew of the expenses, it would be said that the payment was made by the accounting officer of △△ Construction for the purpose of corporate tax evasion; and (d) it would be said that the above remittance of the expenses was made for the purpose of corporate tax evasion.

③ The Plaintiff, a contractor, was unable to settle the price of construction KRW 10 billion on DD Construction, a contractor, due to low sales performance, and tried to form a appearance such as paying a large amount of sales agency fees to sales agents in order to delay the settlement date through negotiations with DD Construction. Accordingly, the Plaintiff, a related company, as a sales agent, transferred the instant money to 13 accounts, such as KimB, but the △△ Construction again recovered from the financial institution around April 2014 by receiving loans from the financial institution and thereby the risk of resolving the shortage of the payment of construction costs.

However, even if the Plaintiff transferred the instant money to △ Construction in order to favorable negotiations with DD Construction, it is reasonable to view that the instant money was already transferred from the Plaintiff to 13 accounts, including KimB, and actually leaked, and that the amount equivalent to the instant money was transferred from KimA to △ Construction on the same day, but KimA was the representative of △△ Construction, not only the Plaintiff, but also the Plaintiff. △△ Construction paid the instant money to the Plaintiff as short-term loans for shareholders, officers and short-term loans, even if the instant money was deposited to the Plaintiff within a short-term period or transferred KRW 95,00,000,000 from KimA to △△ Construction, it is inappropriate to view that the instant money was already reverted to the Plaintiff, the representative of the Plaintiff, and that the instant money was transferred to △△ Construction, and thus, the instant money was transferred to △△ Construction, and thus, it is inappropriate to dismiss the instant appeal to 2010Du38284, Jul. 26, 2012).

Ultimately, it is difficult to view that the instant money was transferred to 13 persons, such as KimB, etc. on the premise that it would have been recovered to the Plaintiff, and there is no special circumstance to deem otherwise that the instant money was not leaked out of the company.

(4) Where a corporation unfairly collects the amount of outflow from the corporation, such as omitting sales and processing expenses, within the deadline for filing a revised return under Article 45 of the Framework Act on National Taxes and files a report by including it in gross income as a tax adjustment, the disposition of income shall be deemed internal reserve (the main sentence of

In order to dispose of the amount of this case out of the company as an internal reserve pursuant to the provision of the above Article, the plaintiff should have filed a revised return of corporate tax for the pertinent business year by including the recovered amount in the gross income by tax adjustment within the revised return period, and the plaintiff did not have filed a revised return with respect to corporate tax for the business year 2013. Therefore, the above provision cannot be applied since the plaintiff did not have filed a revised return with respect to corporate tax for the business year 2013."

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.