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(영문) 가공경비에 대한 대표자상여처분의 당부(기각)

조세심판원 조세심판 | 2010-07-26 | 조심2008서1857 | 소득

[Case Number]

Seocho 208west 1857 (Law No. 26, 2010)

[Items]

Global Income

[Types of Decision]

Dismissal

[Summary of Decision]

Unless there are special circumstances, such as a processing obligation under the name of a person who does not plan to report to the representative director, it shall be reasonable to view that it has already been leaked to the representative director who is the other party to the transaction of provisional collection and has already been reverted to the representative director.

[Related Acts]

Article 45-2 of the Framework Act on National Taxes / [Request for Management of Income of Article 67 of the Corporate Tax Act]

【Reference Decision】

The early appellate court 2009 middle 3836/10

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of disposition;

A. The director of the tax office confirmed the processing expenses of the OOO, a stock company located in the OOOOO (hereinafter “OOO”) 96,390,000 won (310,798,000 won in 2004, personnel expenses of 94,361,000 won in 205, 475,090,000 won in 205, labor expenses of 116,141,000 won in 205, 116,141,000 won in 205, and 116,531,030 won in losses at the time of calculating the corporate income amount (hereinafter “OOO”) and withheld the amount of 15,531,030 won in 203,000 won in 204, 205, 2030,300 won in 205, 207, 3601,3060

B. On September 14, 2007, the claimant filed an objection with the director of the O tax office on the ground that the notice of change in the above amount of income was inappropriate, and the claimant did not have any standing to sue. On January 10, 2008, the claimant filed a request for correction of the tax amount on global income for the year 2004 and the year 2005, with the purport that the above bonus disposition is unfair since the claimant did not gain any economic benefits, and the disposition office, which is the district tax office having the jurisdiction over the applicant's domicile, applied for the correction of the tax amount on global income for the year 2004 and the disposition office rejected

C. The claimant appealed and filed an appeal on May 14, 2008.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

In order to secure the legality of the Act on Transportation Business and Business by leasing a vehicle to an engineer on the condition that the taxi driver bears fuel expenses, and operating the vehicle on the condition that it receives a fixed amount of fuel expenses, the company receives a tax invoice for fuel expenses without paying fuel expenses, and appropriates fuel expenses as the expenses of the company's fuel expenses, and appropriates fuel expenses and personnel expenses as the expenses of the corporation by using the processed expenses as the company's expense even without paying wages to the engineer. However, this case's disposal of fuel expenses and personnel expenses was unfair because the processed expenses were appropriated only for the long time, and the cash was not distributed out from the company. The purpose of appropriating the processed expenses as the processed expenses was also the processed expenses only for the long time, and the processed expenses was also appropriated and processed by using the processed expenses only for the long time, and as for the collected expenses included in the account book, the company did not have a duty

(b) Opinions of disposition agencies;

(1) The initial claimant filed an objection with the former representative director qualification of the OOO, but the applicant was rejected on the ground that the applicant was not qualified as a party because it was OO, and the applicant filed a request for correction to the competent tax office having jurisdiction over the domicile and dismissed the request, which is the competent tax office having jurisdiction over the domicile, and the appeal filed against it is deemed not qualified as

(2) It is clear that the OOO included processed fuel cost and processing personnel cost in cash to the counterpart account that the cash has been leaked out of the company, and the deposit and half-in-aid have been continuously recorded in the account book, and the above processing expense is deemed to have been out of the company at the time of half-in-out of the provisional deposit, and it is reasonable to view the accumulated balance of the provisional deposit as an obligation against the representative director.

(3) Although it was only used to cover the instant processing costs, the claimant is responsible for proving this. Even if the processing costs are collected, it is reasonable to view that the OOO is reverted to the representative, as it increased the liability of the representative director.

3. Hearing and determination

(a) Points in dispute;

(1) Whether a claimant is a legitimate claimant.

(2) The propriety of the disposition that is disposed of as a representative bonus by deeming the processing expenses (fuel or personnel expenses) to have been out of the company.

(b) Related statutes;

(1) Article 45-2 of the Framework Act on National Taxes (amended by Act No. 7582, Jul. 13, 2005)

(1) Any person who has filed the tax base return within the legal return term, may request from the chief of the competent tax office a decision or rectification of the tax base and amount of the national tax (where the decision or rectification is made pursuant to the provisions of each tax-related Act, it refers to the tax base and amount of tax after such decision or rectification is made) which has been filed for the first return and the revised return,

1. Where the tax base and tax amount entered in the tax base return (referred to the tax base and tax amount after such decision or correction is made, if such decision or correction is made under the provisions of each tax-related Act), exceed those to be returned under the tax-related Acts;

2. Where the deficit amount or refundable tax amount entered in the return of tax base (referred to the deficit amount or refundable tax amount after such decision or correction is made, in case where such decision or correction is made pursuant to the provisions of each tax-related Act), is short of the deficit amount or refundable

(4) The provisions of paragraphs (1) through (3) shall apply mutatis mutandis to cases falling under any of the following subparagraphs with respect to a person having an income falling under Article 73 (1) 1 through 8 of the Income Tax Act (hereafter in this paragraph and Article 52, referred to as the “person having an earned income, etc.”). In this case, the term “person who has filed a tax base return within the statutory due date of return” in the part other than paragraphs (1) and (2) shall be read as “a person who has filed a tax base return within the statutory due date of return”, “a withholding agent or earned income earner, etc. who has paid a tax year or withheld income tax and has submitted a payment report within the due date pursuant to Article 164 of the Income Tax Act”, “after the due date of return expires” in the part other than each subparagraph of paragraph (1) shall be read as “after the due date of payment for the year-end tax or withholding tax amount”, and “tax base and tax amount

1. Where a withholding agent pays his income tax as a result of his year-end tax settlement under Articles 137, 138, 143-4 and 144-2 of the Income Tax Act and submits a payment record within the submission period under Article 164 of the same Act;

2. Where a withholding agent pays income tax withheld at source under Article 146 of the Income Tax Act, and submits a payment record within the submission period under Article 164 of the same Act; and

(2) Article 67 of the Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007)

In filing a report on the corporate tax base on the income for each business year under the provisions of Article 60, or in determining or revising the corporate tax base under the provisions of Article 66 or 69, the amount included in gross income shall be disposed of as bonus, dividend, other outflow from the company and internal reserve, etc. according to the person to whom it reverts,

(3) Article 106 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706 of Feb. 19, 2005)

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of under the provisions of the following subparagraphs. The same shall apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed as accrual to the representative (where the total number of stocks held by an officer who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30/100 or more of the total number of stocks issued or total investment amount of the relevant corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation which has been exempted from withholding taxes under the provisions of Article 46 (12) of the Restriction of Special Taxation Act reports that there is a separate representative among the officers who are stockholders, etc., the reported person shall be the representative, and where

(a) Where the person to whom benefits accrue is a stockholder, etc. (excluding a stockholder, etc. who is an executive officer or employee), the dividends to such person;

(b)where the person to whom it belongs is an officer or employee, the bonus to that person;

(c) Where the person to whom the income accrues is a corporation or an individual operating the business, other outflow from the company: Provided, That it shall be limited to cases where the distributed profit constitutes the income of a domestic corporation or a domestic business place of a foreign corporation under Article 94 of the Act for each business year, or the business income of a resident or a nonresident

(d) Other income of the person to whom it reverts, in case where the person to whom it reverts is the person.

2. Where the amount included in gross income has not leaked out of the company, it shall be deemed internal reserves;

C. Facts and determination

(1) We examine issues ①.

(A) As a result of the tax investigation on the OO, the head of the OO confirmed the processing cost of the OO, and affixed it to the deductible expenses when calculating the corporate income amount, and imposed the corporate tax on the OO, and disposed of the controversial amount as a bonus and notified of the change in the income amount, the OO withheld and paid the relevant Class A labor income tax.

On the other hand, the claimant's claim for correction of global income tax with the aim of refunding the already paid Class A's income tax because the related bonus disposition is unfair is appearing in the hearing materials of the disposition agency.

(B) AnOO filed a year-end settlement report on the amount of 68,300,000 earned income of an applicant in 2004 and the amount of 68,300,000 earned income of 205 and the amount of 68,30,000 earned income of 205 respectively in February 2005 and February 2006, and the details of the revised return on July 10, 2007 reflecting the recognized contributions arising from the bonus disposal are appearing in the report on performance of the relevant withholding tax and the receipt for tax withholding for earned income.

(C) According to Article 45-2(4) of the Framework Act on National Taxes amended by Act No. 7008 of Dec. 30, 2003, where the tax base and tax amount entered in the receipt for tax withholding exceeds the tax base and tax amount to be reported under the tax-related Acts, the withholding agent or wage income earner who has paid the year-end tax or the income tax withheld through withholding, and submitted the payment record within the period for submission of the payment record under Article 164 of the Income Tax Act shall be entitled to request the correction of the tax base and tax amount within two years (within three years after July 13, 2005) after the expiration of the payment period for the year-end tax or the amount of withholding tax (Article 4 of the Addenda applies from July 13, 2005) by the OOO made the year-end tax settlement on the earned income belonging to the applicant for the year 204 and 205, and the income tax was returned and paid as bonus in February 2006, respectively, the applicant for tax correction request shall be eligible within three years.

(2) As to the issue ②

(A) The claimant inevitably operates the OO on condition that he/she will not pay fuel costs and salary due to taxi operation and receive only contract fees from the contractor, and inevitably appropriates the processing fuel costs and processing costs as if they were paid without actual cash expenditure. Since the processed fuel costs and processing costs were entered in the account book and the actual cash was not leaked out of the company, it is argued that the disposition of this case made to the representative director is improper.

(B) According to the certified copy of the registry of the OOO, the claimant has registered as the representative director of the OO on August 20, 1993 and resigned on June 5, 2007.

(C) In the confirmation document prepared in April 2007, the OO confirmed that it reported corporate tax by appropriating the following benefits as the input tax deduction and revenue response expenses at the time of filing the value-added tax return for fuel expenses used by the contractor.

(unit: source)

282, 543, 65728, 25728, 254, 365310, 798, 798, 0294, 361, 525405, 159, 547205, 431, 900, 22143, 190, 021475, 24216, 141, 584591, 231, 8263, 714, 43, 87871, 444, 38785,888, 26420, 503, 10996, 391,373

(D) According to the financial statements of the OOO and the president of each account, etc., the OO appears to have been transported as the main revenue source for the business type of cash revenue. In the accounting process of this case through the cash account, when most of the processing expenses are accounted for through the cash account, the representative director paid the shortage as the expenses on the day by receiving cash, and the representative director paid it as the cash account without going through the corporation's deposit account. The amount of cash received by the representative director is immediately deposited into the cash account and paid in cash on the day.

(E) The chief director of the OO's monthly virtual gold accounts shows a trend of increase in the amount calculated by subtracting the aggregate amount of the virtual gold from the aggregate amount of the virtual gold as shown in the attached Table 3. According to the cash receipt and disbursement book in 2004, according to the OOO's cash receipt and disbursement book in 2005, the details of the receipts and disbursements except the virtual gold and the provisional payment are shown as follows.

(unit:,000 won)

(A) The deposit and provisional payment (b), 145, 301, 857, 857, 857, 80284, 2333,157,157,157, 2387, 3847, 3841, 7747, 77747, 597, 597, 597, 597, 797, 23746, 597, 597, 797, 597, 2377, 232,679, 797, 7797, 7797, 105, 1057, 8639, 2057, 407, 405, 407, 407, 5797, 407, 57405, 797, 7947, 7947, 7975,47407

(F) According to the balance sheet of the OOO presented by the claimant, it appears that the amount of provisional receipts related to processing expenses (including 96,391,000 won) remains in the year 2004, since the amount of provisional receipts in the year 2004, 746,597, 717,299,000 won in the year 2006, 1,036,564 in the year 207, and 1,095,665,000 won in the year 208, as follows.

(unit:,000 won)

199, 863746, 597717, 2991, 2007 2008 2007 2006 2007 2006 2008 2008 2006 5649, 274 other provisional receipts96, 391 391 019, 863746, 59717, 291, 296, 5641, 5645,6565

(G) Unless there are special circumstances, such as the processing obligation under the name of only one that was not planned to counter-influence against the representative director, it is reasonable to view that the provisional loan obligation was already leaked to the representative director, who is the other party to the transaction of provisional loan and it was reverted to the representative director, who is the other party to the transaction of provisional loan at the time of appropriation as provisional loan (OOOO, majority of the directors on February 25, 2010). In this case, the representative director's deposit and semi-deposit occurred frequently, and the balance of provisional loan remains on the corporate balance sheet. It is difficult to say that the evidence such as the cash receipt and cash receipt presented by the claimant is practically difficult to distinguish the provisional loan from the actual amount claimed by the claimant, and it is difficult to see that the processing expenses equivalent to the main amount is attributed to the representative of OOO, and it is not found to have been disposed of as a bonus.

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes, because the petition for a trial has no merit as a result of the trial.