early 209west2983 ( October 28, 2009)

Where the representative director accounts for the amount of processing labor expenses as the repayment of the provisional payment;

Even if there is no money released directly from the company in the process of appropriating processing labor costs, the Plaintiff Company treated the same amount of money that was already paid to PB as the representative director of the same amount of money that was already paid to PB, and the above processing labor costs were extinguished as the above processing labor costs were not actually refunded. Accordingly, the above processing labor costs included the above processing labor costs in the calculation of the above processing labor costs, thereby

The contents of the decision shall be the same as attached.

1.A request for revocation of the imposition of corporate tax for the year 2005, in excess of 199,077,497, among the instant actions, shall be dismissed.

2. All remaining claims of the Plaintiff are dismissed.

3. The plaintiff shall bear the litigation costs.

The defendant's imposition of corporate tax of 203,59,270 on February 2, 2009 against the plaintiff, and the imposition of corporate tax of 2005 on February 2, 2009, and each notification of changes in the amount of bonus income of 526,169,980 won for the year 2005 and the amount of bonus income of 1,923,680,000 won for the year 207 shall be revoked.

1. Circumstances of the disposition;

A. On August 1, 1993, the Plaintiff Company registered its business with specialized construction works, etc., and currently operates the singing laping construction business, structure reinforcement construction business, soil construction business, etc.

B. After conducting an integrated corporate tax investigation and criminal investigation with respect to the Plaintiff Company for about two months from October 13, 2008, the Defendant appropriated the amount equivalent to KRW 529,620,000 as labor cost, KRW 12,000 as labor cost, KRW 505,380,00 as labor cost, and KRW 15,49,98 as depreciation cost, such as patent right, and KRW 1,923,680,00 as labor cost, KRW 18,00 as remuneration for the Plaintiff Company for the business year 2005, and KRW 12,000 as labor cost, KRW 30,00 as salary cost, KRW 30,00 as cement material cost, KRW 30,685,885,788,785,788,79, as labor cost, etc. for each business year.

C. On February 2, 2009, the Defendant issued each disposition of the Plaintiff Company as to corporate tax of KRW 203,59,270 for the year 2005 and corporate tax of KRW 209,818,610 for the year 2006, and corporate tax of KRW 161,31,570 for the year 2007, and notification of changes in the amount of income for the year 2005 and KRW 538,169,980 for the year 2007, and KRW 1,953,523,703 for the year 2007 ( KRW 1,919,769,703 for the year 207, and KRW 33,754,00 for the Managing Director ParkCC for the year 2007).

D. On March 30, 2009, the Plaintiff Company filed an objection against the Defendant on March 30, 2009. On April 23, 2006 of the same year, intangible assets, such as patent rights, which were denied on the ground that they were appropriated as processed assets from the Defendant in the business year 2006, shall be deemed as normal assets appropriation, and the details thereof shall be corrected. The amount of KRW 45,000,000 ( KRW 12,000,000, KRW 15,000,000, KRW 18,000,000, and KRW 18,000,000, which were paid in the business year 205 or 207) shall be deemed as normally paid, and the remainder of the objection was determined to be partially cited.

E. The Defendant corrected corporate tax for the business year 2005 to KRW 199,07,497 in accordance with the above decision of acceptance of part of the objection, and issued a follow-up disposition such as reduction of KRW 12,000,000 out of the income amount of the income amount of 18,000,000 out of the income amount of 19,000,000 in the business year 205 business year 2005, and notification of change of income amount in the business year 2007 business year 207.

F. The Plaintiff Company filed an appeal with the Tax Tribunal on July 21, 2009, but the appeal was dismissed on October 28, 2009.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, 3-1, 2, Eul evidence 1-1 to 12, Eul evidence 2, 3-1, Eul evidence 4, Eul evidence 5-1, Eul evidence 6, and the purport of the whole theory of change

2. Whether the part concerning the revocation of the disposition imposing corporate tax for the business year 2005 exceeding KRW 199,077,497 among the lawsuit in this case is legitimate

According to the reasoning of the above disposition, the portion exceeding KRW 199,077,497 of the corporate tax belonging to the business year 2005, Feb. 2, 2009 exceeds KRW 203,59,270, and exceeds KRW 199,07,497 of the corporate tax belonging to the business year 2005 was already extinguished by reduction revision. Thus, the claim for revocation of the corporate tax belonging to the business year 2005, exceeding KRW 199,07,

3. Whether each of the dispositions of this case (excluding the above dismissal part) is legitimate

A. The plaintiff company's assertion

1) In accordance with the notice of the change in corporate tax imposition and income amount for the business year 2005

A) Of the labor cost of June 27, 200, 265,660,000 won which the Defendant denied, the Defendant paid 137,70,000 won for unpaid labor cost of April 30, 2005 and 127,960,000 won for unpaid labor cost of May 31, 2005. The Plaintiff Company paid 362,571,540 won out of the construction cost of 362,571,540 won, which was paid by the principal contractor on June 27, 2005, to the Defendant’s construction site of apartment apartment, and paid 137,70,000 won for unpaid labor cost of May 31, 2005. The Plaintiff Company was unlawful in performing the above labor cost of 362,571,540 won, which was paid by the principal contractor on June 27, 2005.

B) Of the labor cost of 164,740,000 won as of August 9, 2005, the Defendant denied the above labor cost of 124,740,000 won, 124,740,000 won, which was actually incurred at the construction site of △△ apartment, and paid the unpaid labor cost of June 30, 2005. Although 163,598,440 won out of the deposited money from the corporate head of △△ apartment, which was remitted from the corporate head of the Plaintiff company to the △B account through the EE account, the money was transferred to the △B account, but 160,000,000 won on the same day, and the Defendant was presumed to have been used at the corporate head of the Tong because there was no evidence to verify the fact that it was used in connection with the corporate affairs, the burden of proof is unlawful for the Defendant to deny this part of the above labor cost.

C) If the Plaintiff Company denied the labor cost on June 27, 2005 and August 9, 2005, the Plaintiff Company completed the construction cost of KRW 630 million within the limit of KRW 300,000,000,000, which shall be considered as the labor cost of KRW 300,000,000,000, and this part of the disposition that denied each of the above labor cost is unlawful against the real relationship

2) In accordance with the notice of change in the business year income amount in 2007

The Plaintiff Company entered into a construction contract at the end of 2007, which had no particular performance. In order to be favorable to the credit assessment of the bank at the time, it appropriated the price of the said construction contract in excess of the annual sales in 2007. In order to meet the cost rate for this, labor costs were additionally appropriated, but the amount equivalent to the above labor costs is not leaked outside of the company, but merely handled only in the accounts. Therefore, this part of the disposition based on the premise that the amount equivalent to the above labor costs was leaked outside of the company is unlawful.

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

1) Whether the disposition of imposing corporate tax for the business year 2005 and the notice of change in the amount of income is legitimate

A) Barring special circumstances, the act of the representative director, etc., who is the actual manager of a corporation to divert the corporation’s funds is not based on the premise of recovery from the beginning, and thus, constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be deemed as not premised on recovery from the utilization time, the determination should be made individually and specifically by taking into account all the circumstances, including where the intent of the representative director, etc. is identical to the intent of the corporation or where it is difficult to deem that the corporate economic interest is in fact identical with the representative director, etc. through the actual status of the corporation, such as the representative director, etc., who is the principal manager of the embezzlement, the degree of control over the corporation, the circumstances leading to the embezzlement, and the measures taken by the corporation after embezzlement, etc.

B) In full view of the overall purport of the arguments in evidence Nos. 2 and 12, Eul evidence Nos. 5-1, 2, 3, and Eul evidence Nos. 6, and Eul evidence No. 5-1, 2, 3, and Eul evidence No. 6, the plaintiff company included KRW 362,571,540, which was remitted to EE’s account on June 27, 2005, in the name of labor cost. However, the above money again was remitted to E-B’s account and red account. ② The plaintiff included KRW 163,598,40, which was remitted to E-B’s account on August 9, 2005, but the above money was again deposited to E-B’s account. Thus, it is reasonable to view that the money paid under the name of labor cost was actually used for the actual purpose of payment of labor cost, as stated in each of the above facts, and the corporation appropriated the amount of the plaintiff’s processed labor cost as long as it was transferred to HoBD account.

다) 한편, 갑 제2, 4호증의 1, 2, 갑 제5호증, 갑 제6호증의 1, 2, 갑 제14, 15호증, 을 제5호증의 1, 2, 3, 을 제6호증의 각 기재에 변론 전체의 취지를 종합하면 ① 원고 회사가 2005. 3. 25. 원사업자인 ○○판매 주식회사와 사이에 ◇◇ 아파트 건설공사와 관련하여 작성한 건설공사 하도급계약서에는 총 공사대금 1,714,000,000원(부가가치세 제외) 중 노무비로 578,751,280원이 책정되어 있고, 대금의 지급은 월 1회 기성부분에 대하여 지급일 60일 이내의 어음을 지급하는 방법으로 되어 있는 사실,② 원고 회사는 2005. 9. 30. ○○판매 주식회사와 사이에 위 계약의 내용 중 총 공사대금을 1,869,000,000원(부가가치세 제외)으로, 그 중 노무비를 631,089,360원(총 공사대금 중 노무비의 비율은 약 34%)으로 각 변경하는 내용의 변경 계약을 체결한 사실,③ 원고 회사가 주식회사 △△토건이나 □□건설 주식회사와 사이에 체결한 건설공사 하도급계약서에는 총 공사대금 중 노무비 비율이 약 28%(= 223,600,000원 ÷ 798,600,000원)와 약 47%( = 139,921,224원 ÷ 300,000,000원)로 되어 있는 사실,④ 홍DD은 2005. 5. 31. 정BB의 계좌로 300,000,000원을 입금하였고, 정BB는 같은 날 위 돈 중 299,560,162원을 현금으로 출금한 사실,⑤ 정BB는 2005. 8. 9. 이EE의 계좌를 통하여 원고 회사로부터 163,598,440원을 송금 받았고, 같은 날 160,000,000원을 출금하여 원고 회사의 법인계좌에 입금한 사실을 각 인정할 수 있으나, 갑 제2호증, 제5호증의 3, 갑 제11호증의 1, 을 제5호증의 1, 3, 을 제6호증의 각 기재에 변론 전체의 취지를 종합하여 의하여 인정되는 다음 각 사정, 즉 ㉮ 원고 회사의 주장과 같이 정BB가 원고 회사가 지급하여야 할 노무비를 대신 지급하였다면 원고 회사가 이를 대표이사 차입금 등으로 정상적으로 처리하지 아니할 이유가 없을 것인 점, ㉯ 정BB는 위 각 노무비 계상 무렵인 2005. 6. 17.에 자신의 명의로 원고 회사의 법인계좌에 10,000,000원을 송금한 바 있고, 위와 같은 송금 절차가 번거롭다거나 시간이 오래 소요된다고 할 수도 없으므로 정BB가 회계처리 미숙이나 다급한 사정 등으로 인하여 2005. 5. 31.에 출금한 299,560,162원을 원고 회사에 입금하지 않고 곧바로 자신의 계좌에서 출금하여 현장에 건네었을 것으로 보기는 어려운 점,㉰ 원고 회사는 2005. 5. 31. 당시 법인계좌에 118,369,485원의 잔고가 있었으므로, 노무비를 급히 지급할 사정이 있다면 우선 위 법인통장의 돈으로 지급하였을 것으로 보이는 점,㉱ 원고 회사는 2007년에 종전에 원고 회사에서 근무하였던 윤FF 외 74명의 인적사항을 이용하여 가공의 노무비 지급 대장을 작성하였으므로 2005년에도 같은 방식으로 갑 제12호증 등 가공의 노무비에 관한 증빙서류를 마련하여 두었을 가능성을 배제할 수 없는 점,㉲ 정BB가 2005. 8. 9. 원고 회사의 계좌로 160,000,000원을 입금한 이후에도 같은 날 출금된 163,598,440원을 노무비로 계상한 것을 수정하지 아니하였고, 위 출금액이 이EE의 계좌로 송금된 반면 위 입금액은 정BB의 명의로 이루어진 이상 위 입금은 위 출금액을 반환하기 위한 것이 아니라 대표이사 가지급금을 변제하는 등 별도의 목적 및 명목에 의하여 이루어진 것으로 보이는 점 등에 비추어 보면 위 인정사실 및 가공 노무비를 제외하는 경우 공사금액 중 노무비 비율이 다른 공사의 경우에 비하여 상당히 낮게 된다는 사정 등 원고 회사가 주장하는 사정들로는 위 나)항의 인정을 뒤집고 피고가 가공 노무비로 인정한 금액 상당액이 실제로 노무비로 사용되었다고 보기는 어렵다.

D) Therefore, the Plaintiff Company’s argument is without merit, and each processing labor cost is not included in deductible expenses for the business year 2005, and the imposition of corporate tax for the business year 2005 and the notice of change in income amount are lawful.

2) Whether notice of change in income amount in the business year 2007 is proper

A) In light of the purport of the entire pleadings in the evidence Nos. 2, 9, and 5-1, 2, 3, and 6-1, 5-2, 5-3, and 6, the Plaintiff Company shall include the labor cost of KRW 1,923,680,00 which was not actually paid in the business year 2007 as the processing work cost was paid by the representative director as if the above processing labor cost was paid by the representative director and the advance payment. Thus, even if there was no amount leaked to the outside of the company in the process of including the above processing labor cost, the Plaintiff Company treated the same amount that was paid by the representative director who was already paid to fixedB in the previous process as the basis for the above processing labor cost was not actually refunded, and thus, it is recognized that the above processing labor cost was leaked to the outside of the company.

B) On January 1, 2008, the Plaintiff Company asserted that the appropriation of the above processing labor cost was merely a provisional error in accounting, and that it did not constitute a case where it is obvious that the above amount was leaked out of the company, since it was corrected and reported as the interest of electrical error in the calculation of the income immediately. However, each of the following circumstances acknowledged by the above evidence, i.e., the Plaintiff Company accepted the proposal from ParkCC to adjust the provisional payment and advance payment to its own labor cost, and included the above processing labor cost and the above processing labor cost as if it were repaid to the Plaintiff Company’s regularB. Thus, it can be deemed that it was impossible to recover the provisional payment from the previous accounting manipulation rather than the provisional accounting error. (ii) In light of the above circumstances, it is reasonable to view that the Plaintiff Company revised the matters concerning the loans for processing labor cost and fixedB after the tax investigation was conducted for the business year (which was planned to be included in the amount equivalent to the above processing labor cost at the time of the Plaintiff Company’s restoration to its original state.

C) Therefore, the Plaintiff Company’s assertion is without merit, and the notice of change in the amount of income related to the business year 2007, which was made by disposing of the above processing labor cost as a bonus to the fixedB.

4. Conclusion

Of the instant lawsuits, the part of the claim for revocation of the disposition imposing corporate tax for the business year 2005, exceeding KRW 199,077,497, is dismissed as unlawful, and all of the claims of the Plaintiff Company are dismissed as it is without merit.