The early appellate court 201 1454

It is reasonable to exclude expenses for the maintenance and management of landscaping land paid by the requesting corporation from necessary expenses by deeming such expenses as expenses for private expenditure of the representative.

Since the applicant firm appears to have leased a landscaping site to meet the requirements for registration of the landscaping business, it is reasonable to regard the maintenance and management expenses of the landscaping site as the expenses for the maintenance and management of landscaping trees owned by the representative director who is not the expenses of the applicant company, and the expenses for the maintenance and management of landscaping rocks

Article 27 (Non-Inclusion of Expenses not Related to Business)

2013Guhap739 Revocation of Disposition of Imposing Corporate Tax

AA Company

Head of the Office of Government

September 16, 2014

October 14, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s corporate tax of KRW 00,000,000 for the business year 2005, October 0, 2000, against the Plaintiff

Of the corporate tax of 00,000,000, 2000,000,0000 won for the business year of 2006, and the laws of the business year of 2007

The imposition of tax of KRW 00,000,000,000 among the Indian tax of KRW 00,000,000,000 among the corporate tax of KRW 000,000,000 for the business year of 2008, and ② the imposition of KRW 00,000,000 among the corporate tax of KRW 200,000 for the business year of 2009 on January 30, 2013 shall be revoked in entirety.

1. Details of the disposition;

A. The Plaintiff’s civil engineering and construction work business, etc. with CCTV Dol 223-3 as its principal place of business at BB

corporation is a corporation that runs the business.

B. The director of the Seoul Regional Tax Office conducted a tax investigation on the Plaintiff from October 0, 000 to October 00, 000, and notified the Defendant of the following taxation data:

C. The defendant, according to the above taxation data, shall be the plaintiff as of October 0, 000 and the corporate tax for the business year of 2005.

The decision of correction was made to impose corporate tax of 00,000, 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 of corporate tax for the business year of 2008, and 200,00,000,000,00 of corporate tax for the business year of 2009.

D. Accordingly, the plaintiff filed an appeal with the Tax Tribunal on October 00, 000, and the Tax Tribunal has made the appeal.

On October 0, 00, 500, 6) accepted the Plaintiff’s claim on the matter, and decided to correct the relevant tax base and tax amount.

E. After that, the Defendant decided to reduce corporate tax of 2007 as of October 0, 2000 to 0,000,000, and to reduce corporate tax of 2008 business year to 0,000,000,000. The Defendant decided to reduce corporate tax of 2009 business year to 0,000,000 but to increase corporate tax of 2009 year to 0,000,000 as of October 0, 2000, thereby, the Defendant decided to increase corporate tax of 2009 year to 0,000,000 as of October 00.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 5, Eul evidence 1-1 through 5, Eul evidence 2, 3, 7, Eul evidence 14-1 through 4, the purport of whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Paragraph (1) and (2) of this case are illegal for the following reasons, and thus, during the disposition of this case,

Part of the purport of the claim shall be revoked.

1) The Plaintiff may meet the registration standards for landscaping construction business under the Framework Act on the Construction Industry.

When leasing the instant land for the purpose of growing trees owned by EE by the representative director planted,

The management expenses of trees were stipulated under a special agreement to be borne by the plaintiff, and accordingly, they were paid the management expenses of this case from 2005 to 2009. Thus, the management expenses of this case are not unrelated to the plaintiff's business.

2) QQ산업은 원고로부터 이 사건 영구앵커공사를 하도급받아 실제로 공사를 진

Accordingly, the construction cost of this case was paid in KRW 00,000,000, and there was no subsequent collection by the plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the ground for disposition No. 1

A) Facts of recognition

(1) The plaintiff was established on October 0, 00 for the purpose of packing construction business, Class 1 electrical construction business, etc.

On October 0, 000, the Gyeonggi-do Governor obtained a construction business license for landscaping construction business, and EE, the representative director of the plaintiff, has 10% of the shares and actually controls the plaintiff.

(2) On April 2003, the Plaintiff’s trade name: EE from EE, EE, “HH”; and

The lease period of the land of this case, which is the location of an individual place of business, who has engaged in a towing and landscaping business, is five years.

As from October 0, 000 to October 0, 000, rent of 1 billion won for five years shall be paid in advance, respectively.

The Plaintiff, at the Plaintiff’s expense, entered into a special agreement to manage the landscape trees of the instant land and to permanently reside in one custodian (hereinafter referred to as “instant special agreement”). After July 2008 and March 2009, the Plaintiff re-leased the instant land for one year in 2008, and then increased the rent to KRW 00 million in the case of 2008 and KRW 00 million in the case of 2009.

(3) In accordance with the instant special agreement, the Plaintiff from 2005 to 2009 as listed below:

In the instant case, the Plaintiff bears the total of 345,759,632 won of the instant management expenses, such as expenses for the maintenance and management of landscaping trees, landscaping stone, turfy, etc. (pesticides, turfy, etc.), manager’s wages, welfare expenses, communications expenses, water and light heat, repair expenses, repair expenses, vehicle maintenance expenses, expenses for books, printing expenses, office supplies expenses, and mid-term rental fees for the instant land, and the total of 17,184,363 won of the relevant input tax amount was deducted, but there was no data on sales or profits that the Plaintiff incurred in relation to the landscaping construction business for the same

(4) EE under tax investigation on September 30, 2010, “the instant land” to the public official in charge.

If the imported trees are sold in the place and the revenue accrues, the person to whom the revenue accrues shall be EE.

SE sells landscaping trees after opening the business on April 1, 2003, the fact that the EE does not have any record of selling landscaping trees.

was stated.

[Ground for Recognition: Facts without dispute, Gap evidence 3 through 6, Gap evidence 8-1, 2, 3, 2

Each entry of evidence 6 to 6, the purport of the whole pleadings

B) Determination

Article 27 subparagraph 2 of the Corporate Tax Act refers to the expenses paid by a domestic corporation for each business year.

Article 50 (1) 1 of the Enforcement Decree of the Corporate Tax Act provides that "An amount of expenditure recognized as not directly related to the business shall not be included in deductible expenses for the purpose of calculating the amount of income for the relevant business year," and accordingly, Article 50 (1) 1 of the Enforcement Decree of the Corporate Tax Act provides that "the cost and expenses for the maintenance of places, buildings, goods and others (excluding executives and employees who are not stockholders, etc. and minority stockholders, etc.) are mainly used by others (excluding executives and employees who are not stockholders

In this case, according to the construction business registration standards under Article 13 and attached Table 2 of the Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 18092 of Aug. 21, 2003), which was in force at the time of the lease contract between the Plaintiff and EE that was entered into on October 1, 000, land for growing trees shall be used for cultivating ornamental trees on land of at least 25,000 square meters with superficies or leases registered or may continue to be used as their own ownership, and there is a requirement that trees for five years or more are planted for more than 1,000 square meters, and thus, it cannot be deemed that the Plaintiff entered into the instant special agreement with EE to bear management expenses for landscaping trees planted on the said land.

However, the following circumstances, i.e., EE, known by the aforementioned facts, are:

The representative director and the Plaintiff’s shares are 100% of the Plaintiff’s 100% of the Plaintiff’s representative director and one shareholder who actually controls the Plaintiff, EE appears to have opened HH on April 1, 2003 and leased the land of this case, which is the place of business of HH, to the Plaintiff. The management costs of the land of this case are also borne by the Plaintiff. The sales proceeds of the land of this case from 2005 to 2009 to 2009 to 200, the land of this case’s expense is 00,000,000, and the management expenses of the land of this case borne by the Plaintiff for the same period are 00,000,000,000, and there is no evidence that the Plaintiff incurred sales or profits related to the landscaping construction business as well as the management expenses for the land of this case, which are not directly related to the Plaintiff’s management expenses for the land of this case under the Presidential Decree No. 205, Jun. 205, 2008.

2) As to the grounds for Disposition B

(a) A corporation, despite the fact of sales, fails to enter its sales in its account book;

In a case where the total amount omitted in sales has been leaked out of the private company, barring special circumstances, the special circumstance that the omission in sales should be proved by the legal entity asserting that the amount omitted in sales was not leaked out of the private company, and even if the other party account was settled by appropriating the amount received by the legal entity in the provisional account, which is a temporary account, and thus, cash, the other party account, was entered once into the legal entity, and thus, the other party account was entered, if the contents of the provisional loan account were to be entered in the short-term loan transaction from the representative director, and it is proved that the other party account was an obligation against the representative director in the long-term loan transaction from the representative director, such transaction does not entail a change or increase in the net assets of the legal entity, and thus, it is irrelevant to the legal entity's profits or expenses. Thus, barring any special circumstance, such as where the amount omitted in sales as revenue of the legal entity had already been counted in the accounting book, it shall be deemed that the above amount should have been accrued to the representative director (see, e.g., Supreme Court Decision 2001Du361.

(B) In light of the above legal principles, Dominant, No. 3, and No. 7 to 10

호증의 각 기재에 변론 전체의 취지를 종합하면, 원고는 0000. 0. 00. 이 사건 영구앵커공사와 관련하여 QQ산업으로부터 이 사건 공사비 000,000,000원 상당의 세금계산서를 교부받아 0000. 0. 00. 위 돈을 QQ산업에 지급하였다가, 0000. 0. 0.경부터 0000. 0. 00.경까지 위 돈을 모두 회수한 사실, 원고는 위와 같이 회수한 이 사건 공사비 중 0억 0000만 원은 2008 사업연도에 대표이사 EEE에 대한 가수금으로 회계처리하였고, 나머지 0,000,000원은 장부상 기표하지 않은 사실, EEE은 0000. 00. 00. 세무조사를 받으면서 위와 같이 회수한 이 사건 공사비는 자신이 수령하여 사적으로 사용하였음을 확인한다는 취지의 확인서를 제출한 사실을 인정할 수 있고, 갑 제16호 증의 기재만으로는 위 인정에 방해가 되지 않는바, 위 인정사실에 의하면 특별한 사정이 없는 한 원고가 QQ산업으로부터 회수한 이 사건 공사비 000,000,000원은 사외로 유출되어 대표이사인 EEE에게 귀속되었다고 봄이 상당하므로, 위 공사비를 원고의 손금에 산입할 수 없다고 할 것이다.

이에 대하여 원고는, 설령 원고가 QQ산업으로부터 이 사건 공사비 상당의 금원

을 회수하였다고 하더라도, 위 금원은 2009 사업연도에 직원 상여금으로 지출되었으므로 위 돈이 사외에 유출된 것이 아니라는 취지로도 주장하므로 살피건대, 갑 제3호증의 기재에 변론 전체의 취지를 종합하면, 원고의 지급내역서, 지출전표에 의하면 원고가 2009 사업연도에 직원 상여금 등으로 0000. 0. 00.부터 0000. 00. 00.까지 합계 000,000,000원을 지출한 사실은 인정되나, 한편 갑 제3호증, 을 제2, 7 내지 10호 증의 각 기재에 변론 전체의 취지를 종합하면, 원고는 0000. 0. 0.부터 0000. 00. 00.까지 3회에 걸쳐 0억 0,000만 원을 대표이사 가수금 계정에 계상하였다가 0000. 0. 00.까지 이를 반제한 것으로 회계처리한 사실, 그런데 위 직원 상여금 등은 위 반제처리된 이후인 0000. 0. 00.부터 0000. 00. 00.까지 지출된 것으로 기재되어 있고, 원고가 QQ산업으로부터 회수한 금원의 액수와도 상이한 사실을 인정할 수 있으므로, 원고가 QQ산업으로부터 회수한 이 사건 공사비로 위와 같은 직원 상여금 등을 지급하였다고 보기 어렵다. 따라서 원고의 이 부분 주장도 이유 없다.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.