세무조사 이후 횡령금을 일부 반환 받았다고 하더라도 이에 대한 소득은 사외유출된 것으로 보아야 함[국승]
Seoul Administrative Court 2015Guhap53015 ( October 23, 2015)
Seocho 2014west 4267 ( November 10, 2014)
Even if some of the embezzlements have been returned after the tax investigation, the income therefrom shall be deemed to have been out of the company.
(1) In light of the fact that there is no evidence that the reported amount of the returned embezzlement was filed, and that the time when the plaintiff received a return of some embezzlement after the tax investigation was conducted is after the tax investigation period, the plaintiff already received the above money after being aware of the fact that the correction was made in advance, and thus, the plaintiff is required to dispose of the income as stipulated in the proviso of Article 106(4) of the former Corporate Tax Act.
Article 67 of the Corporate Tax Act
2015Nu54188. Revocation of disposition of revocation of notice of change in income amount
○○ Co., Ltd.
○ Head of tax office
Seoul Administrative Court Decision 2015Guhap53015 decided July 23, 2015
December 10, 2015
2016.01.28
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 January 2, 2014, the notification that the Defendant rendered to the Plaintiff on January 2, 2014 is revoked.
1. Quotation of judgment of the first instance;
The reasoning of this court's judgment is as follows, except for the addition of the judgment on the plaintiff's argument at the appellate court to the following, and thus, it is consistent with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Judgment on the plaintiff's assertion
A. The plaintiff's assertion
The Plaintiff returned KRW 100 million from A on November 18, 2013, and the Seoul Central District Court Decision 2014Gahap ○○○ case, April 17, 2015, on the grounds that the “○○ Private Teaching Institute in the Reasons for Appeal of September 16, 2015” was returned from 0B (the “○○ Private Teaching Institute in the Reasons for Appeal of September 16, 2015 appears to be a clerical error) and thus, the part of the income amount in the instant disposition ought to be adjusted.
B. Determination
1) Article 106(4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 24357, Feb. 15, 2013; hereinafter the same) provides, “Where a domestic corporation collects the amount unlawfully flown out of the company, such as omitting sales, processing expenses, etc. within the period for filing a revised return under Article 45 of the Framework Act on National Taxes, and files a report by including the amount unlawfully flown out of the company in gross income as a result of tax adjustment, the disposition of income shall be deemed as internal reserve: Provided, That this shall not apply to any of the following cases in which the amount left the company was known in advance as being corrected in the gross income:
As to the amount reverted to the representative, etc. of the relevant corporation, once the income tax liability has been established, it shall not affect the income tax liability already established even if the amount was returned to the relevant corporation later, and thus, it shall be disposed of pursuant to Article 106 (1) of the former Enforcement Decree of the Corporate Tax Act. However, the main sentence of Article 106 (4) of the same Act is that where the amount was recovered by voluntary efforts made by the relevant corporation within the prescribed period, the amount shall not be deemed to have been out of the company, and thus, the relevant corporation shall be given an opportunity for voluntary self-resolution to the relevant corporation by failing to take such measures in accordance with the above principles. Therefore, even if the amount was recovered from the corporation, if it is not by voluntary efforts made by the relevant corporation, it shall be returned to the corporation again (see Supreme Court Decision 2009Du9307
2) In the instant case, comprehensively taking account of the overall purport of the pleadings as to Gap evidence Nos. 13 and 14, and Eul evidence Nos. 13 and 2, the defendant conducted the instant tax investigation with respect to the plaintiff from July 22, 2013 to October 4, 2013, and thereafter, the plaintiff received KRW 100 million from the tea on November 18, 2013, and the plaintiff filed a lawsuit (Seoul Central District Court 2014Gahap○○) claiming damages against 0B on January 15, 2014, and the said court acknowledged the fact that "the plaintiff shall pay KRW 00,000,000 to the plaintiff until May 31, 2015, and 00 ○○,00,000,000 won to the plaintiff".
However, even if the Plaintiff received 00 million won in total from 00 million won from 00 million won (the date of filing a lawsuit against 00 million won + 000 million won) according to the above reconciliation recommendation decision, there is no evidence to acknowledge that the Plaintiff received 00 million won and 00 million won from 00B from 100,000 won received from 200,000 won, and there is no tax adjustment within the revised corporate tax return period for 2012, it cannot be deemed that the above amount received constitutes a case of not disposing of income under the main provision of Article 106 (4) of the former Corporate Tax Act. In addition, in light of the fact that the time when the Plaintiff received the above money from 100,000 won from 200,000 won in total from 200,000 won in total from 200,000 won in total after 200,000 won in this case, regardless of the fact that the Plaintiff already received correction order after 200, it cannot be justified.
3. Conclusion
If so, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed.