법인 추계소득금액을 등기부등본상 재직기간으로 안분한 대표자 상여처분의 당부[일부패소]
propriety of the bonus disposition by the representative who distributes the estimated income amount to the period of service in the register;
Since it is reasonable to regard that the representative director performed his duties as the representative director in return for the corresponding benefit until the period of receiving the benefits as the representative director is in accord with the rule of experience, it is reasonable to dispose of the bonus by deeming it as the representative director.
Article 67 of the Corporate Tax Act
1. The part of the disposition imposing global income tax of KRW 83,804,540 on the Plaintiff on September 5, 2006, which exceeds KRW 37,828,736, which the Defendant imposed on the Plaintiff on September 5, 2006, shall be revoked.
2. The plaintiff's remaining claims are dismissed.
3. The costs of lawsuit shall be borne by the defendant.
Cheong-gu Office
The Defendant’s disposition of imposition of global income tax of KRW 83,804,540 on September 5, 2006, in excess of KRW 33,178,200, which was imposed by the Plaintiff on September 5, 2006, shall be revoked.
1. Details of the disposition;
A. On September 31, 2006, 1996, ○○○○○○ (○○○○○○○○○○○○○○○○) established for the purpose of the artificial fiber removal business, etc. was closed on December 31, 2001 without filing a corporate tax return for the business year 2001.
B. When the head of ○○ Tax Office determines the amount of income in the business year of the above company as a method of estimated investigation, on the grounds that it is deemed that 242,324,700 won out of the amount of income in the calculation of earnings was leaked out of the company, and that its attribution is unclear, on February 11, 2003, he disposed of 229,710,540 won out of the above amount of income as "representative recognized," and notified the Plaintiff of the change in the amount of income. On April 1, 2003, the Defendant notified the Plaintiff of the change in the amount of global income tax of 10,395,73 won in the business year of 201.
D. Accordingly, on May 1, 2004, the Defendant again decided and notified the Plaintiff of KRW 9,982,440 of the global income tax for the year 2001, and the Plaintiff re-appealed to it and filed a request for examination with the Commissioner of the National Tax Service on July 29, 2004. The Commissioner of the National Tax Service rendered a decision to re-calculated the amount of the Plaintiff’s service from January 1, 2001 to April 30 of the same year to rectify the tax base and tax amount.
E. According to the review and decision by the Commissioner of the National Tax Service, on October 4, 2004, on the premise that the service period of the Plaintiff’s ○○○○○○○○ representative director was until April 30, 2001, the Defendant decided to reduce KRW 70,411,550 among the dispositions taken on May 1, 2004, and the head of the ○○○○○○○○○○ representative director, following the Plaintiff, changed the service period of the ○○○○○○○ registered as the ○○○○ representative director from May 1, 2001 to December 31, 2001, and issued the original recognition and issued a disposition to additionally notify the change in the income amount of KRW 121,162,350 other than the initially notified of the change in income amount, and the Defendant corrected and corrected KRW 736,753,705,79, Apr. 1, 2005.
F. ○○○○ filed an appeal with the National Tax Tribunal on April 10, 2005, dissatisfied with the notice of change in the above amount of income. As a result, the Director of the National Tax Tribunal accepted ○○○’s claim, and rendered a decision revoking the above disposition of imposition of global income tax on ○○ on December 19, 2005.
G. The head of ○○ Tax Office, upon the decision of the National Tax Tribunal, conducted a reinvestigation that represents the real representative of ○○○○○○, but it was impossible to do so. On February 6, 2006, the head of ○○ Tax Office: (a) deemed the Plaintiff as the representative from January 1, 2001 to October 26 of the same year in accordance with the corporate register; (b) notified the change in the amount of the next income; and (c) determined and notified the Defendant of KRW 83,804,540, global income tax for which September 5, 2006 belonged to 83,804,540.
H. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on November 14, 2006, but was dismissed on May 30, 2007, and filed the instant lawsuit on August 28, 2007.
[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3, 4, 5, 7, and Eul 1 and 2
2. The assertion and judgment
A. The plaintiff's assertion
On April 30, 2001, the Plaintiff resigned from the office of the representative director of ○○○○○○ and transferred his business to ○○○○○○○○○, and there was no participation in the business of the said company, and merely was registered as the representative director on the corporate register until October 26, 201, and merely was registered as the representative director on the corporate register from October 26, 2001. Of the instant dispositions, the portion of the recognition granted to the period
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
1) According to Article 106 (1) of the Enforcement Decree of the Corporate Tax Act, in determining or revising the corporate tax base, Article 106 (1) of the Enforcement Decree of the Corporate Tax Act provides that the amount included in the calculation of earnings, for which the attribution of the outflow from the company is clear, shall be deemed to have been attributed to the representative, and the disposal shall be made by recognizing the same. The above corporate tax law provides that the corporation's disposal system for the representative shall not be based on the fact that such income has accrued to the representative, but shall be deemed as a bonus to the representative without any relation to the specific fact that can be recognized as such act in order to prevent unfair acts under the tax law by the corporation, and in such a case, the representative of the corporation subject to the bonus disposal shall be interpreted strictly (see, e.g., Supreme Court Decision
2) We examine whether the Plaintiff had maintained the actual status of the representative director of ○○○○○○, even after April 30, 2001 when the Plaintiff submitted a resignation notice.
As evidence consistent with this, 2-2 of evidence evidence Nos. 2-2 (written reasons for a request for a trial, the document stating that the Plaintiff has continuously performed his duties as representative director, such as attending the shareholders' meeting and presenting opinions on the operation of the company), 2-3 of evidence Nos. 2-2 (written statements of 00, the Plaintiff instructed the company status and the business plan through telephone and the shareholders' meeting), 2-4 of evidence Nos. 2 (the document of 00, the statement of 00, and the contents that the Plaintiff participated in the management meeting after submitting the resignation), but the written confirmation of 00 (the document of 00, the document of 00,000, the document of 100,0000 shareholders of 0,000, and the 000,000,000, from the 2000, to the 2000,000,000,000,00) was presented.
(iii)the calculation of a legitimate tax amount;
Therefore, the amount of global income tax calculated by adding the amount of income to the Plaintiff’s income by deeming the amount of service until July 31, 2001, which the Plaintiff received benefits to be the service period, is KRW 37,828,736 as shown in the separate sheet. Therefore, the portion exceeding the above amount of the instant disposition should be revoked.
3. Conclusion
If so, the plaintiff's claim of this case is reasonable within the above scope of recognition, and it is decided as per Disposition by the assent of all participating Justices.