원고가 소외법인의 자금을 개인채무 상환에 사용한 것으로 보아 상여로 소득처분하여 종합소득세를 과세한 처분은 잘못이 없음[국승]
It is deemed that the Plaintiff used the funds of the non-party corporation as a bonus and did not err in imposing a comprehensive income tax on the non-party corporation.
In light of the fact that the plaintiff was convicted by the court on embezzlement in relation to the use of the funds of the non-party corporation in repayment of his personal debt, etc., the plaintiff deemed that the funds of the non-party corporation were used for the repayment of his personal debt and was disposed of as bonus and did not impose the
Article 67 of the Corporate Tax Act
Busan District Court 2015Guhap2933 Revocation of a disposition of revised assessment of global income tax
AA
○ Head of tax office
March 25, 2016
April 22, 2016
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition imposing global income tax of KRW 000,000,000 on the Plaintiff on June 10, 2014 was revoked.
1. Details of the disposition;
A. The Plaintiff is a person who actually operated BB Co., Ltd. (hereinafter “BB”) and CCC Co., Ltd. (hereinafter “CCC”).
B. On September 1, 2010, CCC received KRW 0 billion from FFF Co., Ltd (hereinafter “instant amount”), and the Plaintiff used KRW 0 billion in repayment of the Plaintiff’s debt under the name of the Plaintiff.
C. The head of ○○○ book deemed the amount of KRW 0 billion repaid to the Plaintiff as a bonus to the Plaintiff and disposed of the amount of KRW 0 billion. Accordingly, on June 10, 2014, the Defendant issued a disposition imposing a correction of the global income tax of KRW 000,000,000 on the Plaintiff (hereinafter “instant disposition”).
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
BB lending the name of the construction business of the CCC to the new construction of the ○○ apartment, so the actual subject to the instant agreement is BB. Moreover, the Plaintiff succeeded to the BB’s debt and repaid it, and the Plaintiff either repaid BB’s debt or acquired the right to indemnity against BB. Ultimately, the Plaintiff actually used the instant agreement, which is the ownership of BB, to repay BB’s debt, and thus, the disposition of this case is unlawful against the substance over form principle against the Plaintiff’s bonus.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
In the original civil or administrative litigation, even though it is not bound by the facts recognized in a criminal trial, the facts recognized in the judgment of the relevant criminal case are significant evidence in the civil or administrative litigation, and thus it cannot be recognized that the facts opposed to those recognized in the relevant criminal case, unless there are special circumstances (see, e.g., Supreme Court Decision 81Nu324, Sept. 13, 1983).
In full view of the overall purport of the statement and arguments in Eul evidence Nos. 3 (including additional numbers; hereinafter the same shall apply), the plaintiff was convicted of having been convicted of having been charged for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on July 10, 2014 due to the fact that the judgment became final and conclusive on July 10, 2014 (In Busan District Court Decision 000DaDa10000, Busan High Court Decision 000Do0000, Supreme Court Decision 000Do0000, Supreme Court Decision 000Do0000), and since the plaintiff (1) BB performed apartment construction projects under the name of CCC, the actual subject of the settlement of the agreement in this case is BB, and (2) CB had a debt to BB with respect to the plaintiff who acquired the loan obligation, and thus, the plaintiff could not be found to have been aware of the fact that BB had paid the repayment of the loan in this case.
Therefore, according to the statements in Gap's evidence Nos. 5 and 12, among the construction works of ○ apartment that was ordered by ○○○ Construction around April 2009, DD Co., Ltd., EEE Co., Ltd. submitted a construction waiver note to BB as a principal contractor, among the construction works of ○ apartment that was ordered by ○○○ Construction Corporation, and the facts that DD Co., Ltd, CCC and their representatives were sentenced to a fine for a violation of the Framework Act on the Construction Industry due to a loan of construction business name (Seoul District Court Decision 000,000,000,000,000), and CCC were subject to a disposition of cancellation of registration on April 30, 2013 due to a mutual lease of construction business registration certificate and trade name to BB from ○○○○○○○○○○, but it is difficult to recognize the fact that the above facts were recognized in the criminal case, and it is difficult to recognize the agreement No. BB.
Ultimately, according to the fact-finding in criminal cases, the defendant considered KRW 0 billion used by the plaintiff for personal use as a bonus for the plaintiff, and the disposition of this case is lawful.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit.