Cho Jae-2014-west-4267 ( November 10, 2014)

Even if a nominal donation is made, the price paid in return for the takeover of the school shall be equivalent to other income (e.g., honorarium).

Even if a nominal donation is made, the price paid in return for the takeover of the school falls under other income, and it is subject to non-deductible expenses as expenses unrelated to the affairs.

2015Guhap53015 Notice of Change in Amount of Income

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Samsung Head of Samsung Tax Office

June 25, 2015

July 23, 2015

1. The plaintiff's claim is dismissed.

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

On January 2, 2014, the Defendant’s income earner BB against the Plaintiff, and income amount ○○○○○.

notice of change in income amount shall be revoked.

1. Details of the disposition;

A. The Plaintiff deposited ○○○ on December 28, 2012 (hereinafter referred to as “instant dispute amount”) into an account in the name of DoDDD Cultural Foundation (hereinafter referred to as “Non-Party Foundation”) designated by Non-Party BB in the process of accepting the DaDDD Cultural Foundation (hereinafter referred to as “CC”), which is a KOSDAQ-listed corporation that operates software development and supply business, and ○○○ on January 10, 2013.

B. As a result of conducting a corporate tax investigation on the Plaintiff (hereinafter “instant tax investigation”), the Defendant deemed that the key amount reported by the Plaintiff as designated donations in the business year 2012 falls under BB as an honorarium for BB, and disposed of the amount as other income related to BB after non-Inclusion of the amount in the deductible expenses. On January 2, 2014, 2014, the Defendant issued a notice of the change in the amount of income (hereinafter “instant disposition”). The Defendant notified the Plaintiff of the change in the amount of income at ○○○○ (other income) in the business year 2012.

C. The Plaintiff, who was dissatisfied with the instant disposition, filed a request for a trial with the Tax Tribunal on August 12, 2014 on April 4, 2014, but was dismissed on November 10, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 2, and the whole pleadings

chapter 6

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The Plaintiff avoided the method of directly paying the amount of money to the president, etc. of the school juristic person in order to take over theCC contribution by legitimate means, and donated the amount of money to the non-party incorporated foundation. Even if B, etc. voluntarily withdrawn and distributed the said money, it is irrelevant to the Plaintiff, and there is no difference in the legal nature of the key amount.

Even if the issue amount is an honorarium, it is a cost required for the promotion of the Plaintiff’s smart education project, and thus cannot be deemed unrelated to the work, and the permission of the competent Office of Education is granted.

Since the acceptance has been made unreciled in middle due to the failure to receive it, the key amount at issue shall be recovered in length.

set forth in subsection (1).

In addition, since BB is nothing more than a simple intermediary, the person to whom the income belongs shall be the DD Institute or EE, the chief executive officer of the CC, and since BB has recently been convicted of fraud on the grounds that it acquired the key amount by fraud, it is not allowed to regard the key amount equivalent to the amount of fraud fraud as other income.

Therefore, the instant disposition should be revoked because it appears to be any mother or illegal.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Legal nature and person to whom the issue amount pertains

Article 21(1)17 of the former Income Tax Act (amended by Act No. 11611, Jan. 1, 2013; hereinafter the same) refers to money and valuables provided as one of other income in connection with the performance of business affairs or provision of services, and whether it constitutes such money and valuables ought to be determined by comprehensively taking into account the motive and purpose of receiving the relevant money and valuables, relationship with the other party, amount, etc. (see Supreme Court Decision 2010Du27288, Sept. 13, 2013). In addition, if the income, profit, property, act or transaction subject to taxation is merely nominal and there is a separate person to whom it actually belongs, the tax law shall apply to the person to whom it actually belongs, and the provisions on the calculation of tax base in tax-related Acts shall be applied in accordance with the substance of income, profit, property, act or transaction, regardless of the name or form of transaction (see Article 14 of the Framework Act on National Taxes).

Considering the overall purport of the arguments, Gap evidence Nos. 5, 6, and 12, it is recognized that the non-party EE is a school foundation Dental Institute (hereinafter referred to as "DD Institute"), the president of which is a CC, not a CCA (hereinafter referred to as "CCA"). However, considering the overall purport of arguments as stated in Gap evidence Nos. 8 through 10, and Eul evidence Nos. 2 through 4, the plaintiff was aware of the CC's operating body as the CCA at the time when the CC was to take over the CCA (on a practical basis, the CCA was not permitted by the Office of Education, but the acquisition procedure was nonexistent), the price and method of payment for taking over the CC, which is the actual operator of the CCA, and the fact that the plaintiff was not aware of the fact that the 1CC was not aware of the fact that the 2CC's decision to grant donations to both parties to the CC was made by the 3rd Office of Education.

In a clear perception that the other party to an underwriting agreement is BB (orCCA), the key issue amount was paid to BB as the case of taking the procedure to receive a free donation for the school site, teachers, etc. inCC along with the right to operate the school. However, it is reasonable to deem that only the form of giving a donation to the non-party incorporated foundation to avoid the possession of the violation of the Private School Act.

Therefore, it is consistent with the principle of substantial taxation to view that the amount at issue belongs to BB as a "compensation" under Article 21 (1) 17 of the former Income Tax Act. The other plaintiff's assertion is without merit.

2) Whether the expenses related to the business fall under the category of expenses

Article 19(1) of the Corporate Tax Act provides that "deductible expenses shall be the amount of losses incurred from transactions which reduce the net assets of the relevant corporation, except as otherwise provided for in this Act and other Acts." Paragraph (2) of the same Article provides that "deductible expenses under paragraph (1) shall be losses or expenses generally accepted or directly related to profits, which are generally accepted as losses or expenses incurred in connection with the business of the relevant corporation, except as otherwise provided for in this Act and other Acts." "generally accepted expenses" under Article 19(2) of the Corporate Tax Act means expenses that other corporations engaged in the same type of business as taxpayers are deemed to have disbursed under the same situation. Determination of whether such expenses constitute expenses must be made by comprehensively taking into account the process and purpose of spending, the form, amount, effect, etc. thereof (see, e.g., Supreme Court Decision 2012Du7608, Jan. 15, 2015).

The plaintiff's act of paying honorariums to the representative, etc. in order to take over a school operated by a specific school foundation cannot be deemed as an ordinary expenditure in the course of performing the same business. Thus, the amount that the plaintiff paid to BB does not constitute business related expenses. Therefore, the plaintiff's above assertion is without merit.

3) Claim to be recovered is not subject to disposal of income.

In principle, the disposal of income pursuant to Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 24357, Feb. 15, 2013; Presidential Decree No. 2009Du9307, Nov. 10, 201; etc.) is a principle that disposal of income pursuant to Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 24357, Feb. 15, 201).

In this case, the circumstances alleged by the Plaintiff are irrelevant to the legitimacy of the instant disposition, since all of the circumstances asserted by the Plaintiff in this case are nothing more than the subsequent reasons that occurred after the establishment of income tax liability. Accordingly, the Plaintiff’s assertion on this part is without merit.

4) Whether fraud constitutes fraud fraud

In light of the following circumstances, Gap evidence Nos. 5 and 8, which can be recognized by comprehensively considering the overall purport of the pleadings, namely, the fact that Eul actually paid 2 billion won of the money received from the plaintiff to EE as the acquisition price, and due to the decision of rejection of disposition of fundamental property for education on February 5, 2013 by the competent office of education (hereinafter "decision of rejection of this case"), the acquisition business duringCC was final and conclusive. However, until that time, the relevant procedures such as the establishment of school juristic person, the agreement on donation of free-of-charged institutes, etc. were progress, and the decision of rejection of this case was based on the financial condition of DDF. Since there was no evidence to deem that BB had well known the internal situation of DB, the first decision of 6 and 12 evidence (the first and second court judgment against B) was not sufficient to support the plaintiff's first decision to acquire or acquire the amount of money by deceiving the plaintiff from the beginning and there was no other evidence to support that BB did not have any issue.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.