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

A. From Sep. 13, 2002 to Dec. 31, 2003, Nonparty 12,522,663,562 (hereinafter “instant embezzlement”) embezzled the Plaintiff’s company’s funds from Jan. 1, 200 to Dec. 31, 2004, and went back overseas on Jan. 1, 2004, and the Plaintiff as “other special losses”, but adjusted the said embezzlement to a non-deductible reserve.

B. On June 15, 2005, the Defendant regarded the instant embezzlement as bonus to ○○○○, and disposed of the income. On June 15, 2005, the Defendant issued a notice of change in the amount of income for KRW 12,522,63,562 to the Plaintiff (hereinafter “instant notice of change in the amount of income”), and the Plaintiff did not pay the withholding income tax following the notice of change in the amount of income. On August 22, 2005, the Defendant imposed the Plaintiff the withholding income tax of KRW 5,070,373,980 on August 22, 2005, imposed the amount of withholding income tax of KRW 5,070,373,939,902,439 on September 21, 2005 (the remaining portion of the disposition of KRW 12,522,902,439).

[Ground of recognition] Facts without any dispute, Gap evidence 1, 2, 3, Eul evidence 1, 2-3, Eul evidence 1, 2-3, Eul evidence 3, the purport of the whole pleadings and arguments

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Although ○○○ was in the position of the representative director of the Plaintiff Company, it is merely an employee and is not a de facto manager. The Plaintiff filed a complaint with ○○○ on the charge of occupational embezzlement and expressed his intent to recover claims, such as filing a lawsuit against ○○○○○, etc., immediately after becoming aware of the above embezzlement, and thus, each of the dispositions of this case taken on a different premise is unlawful, notwithstanding that the above embezzled amount cannot be deemed to have been out of the company.

(2) Article 106(1)1(b) of the Enforcement Decree of the Corporate Tax Act, which imposes an obligation to withhold income tax on the embezzled money on the victim of the embezzlement, by disposing of the embezzlement money as a bonus to the representative director and ultimately imposes the obligation to withhold income tax on the victim of the embezzlement pursuant to the relevant Acts and subordinate statutes, violates the principle of tax punishment, the principle of tax equality, and the principle of proportionality under the Constitution, and infringes on the essential substance of the property right, and thus, each disposition of this case based on

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the embezzlement of ○○○ was deemed to have been out of the company

In full view of the statements in Gap's evidence Nos. 10, 11, 13, Eul evidence Nos. 4, 5, Eul evidence Nos. 6-1, 2, and Eul evidence Nos. 7 and the purport of the whole pleadings based on the testimony by ○○○○ witness, he was appointed as the representative director of the plaintiff company on Sept. 13, 2002. On Oct. 17, 2003, he was the largest shareholder by taking over 1,120,00 shares equivalent to 17.8% of the shares issued by the plaintiff on Nov. 26 of the same year. 200, he was merely 812,50 shares with capital increase on Nov. 26, 200; ○○○○ was merely 20 times the total assets of the plaintiff company for which he had been employed as the representative director, and 20 times the fact that he could not be seen as 160 times the funds of the plaintiff company for 200.16 times the above.2.

As above, the act of diverting the corporation's funds, such as embezzlement by the representative director who actually manages the corporation, is not conducted on the premise of the early recovery of difficulties, and thus, it constitutes an outflow from the company as an expenditure itself (see, e.g., Supreme Court Decision 99Du3324, Sept. 14, 2001). Thus, this part of the Plaintiff's assertion is without merit, further examining whether there are circumstances such as the Plaintiff's prior or ex post facto implied consent, and waiver of collection of claims, etc. that can be objectively expressed that the company would not recover its damage claims.

(2) Whether Article 106(1)1(b) of the Enforcement Decree of the Corporate Tax Act is unconstitutional

Article 67 of the Corporate Tax Act provides that the amount included in the calculation of the corporate tax shall be disposed of as prescribed by Presidential Decree, such as bonus, dividend, outflow from the company to the person to whom the corporate tax was imposed, in determining or revising the corporate tax base, and Article 106 (1) 1 (b) of the Enforcement Decree of the Corporate Tax Act provides that where it is clear that the amount included in the calculation of the income under Article 67 of the Act has leaked out of the company, the person to whom the income belongs shall be disposed of as a bonus to the person to whom the income belongs, in cases where the amount included in the calculation of the income has been distributed out of the company is an executive officer or employee. Such disposition of income shall be made as a bonus to the person to whom the income tax was attributed, in cases where the difference arising from the difference between corporate accounting and tax accounting or the difference arising from fraudulent, wrongful, or omission (e.g., omitted income which would not have been collected if the corporation had been disposed of normally, and the items, tax rates, and amount of income tax are different depending on the person to whom the person to whom the income belongs and type.

However, since the representative director of a corporation has the authority to exercise overall control over the general management of the company under the Commercial Act and dispose of the company's assets on behalf of the company, it can be deemed that the representative director has embezzled the company's assets, and furthermore, it can be deemed that the company has paid the amount of income to the representative director at the time of embezzlement. Thus, even if Article 106 (1) 1 (b) of the Enforcement Decree of the Corporate Tax Act has embezzled the company's funds, it shall not be deemed that such embezzled funds are disposed of as bonus to the representative director, in violation of the principle of no taxation without the law, the principle of tax equality, and the principle of proportionality, and it shall not be deemed that the intrinsic contents of property rights are violated, and as a result, it shall not be deemed that there is a difference

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.

m. Corporate Tax Act

Article 67 (Disposition of Income)

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

【Enforcement Decree of the Corporate Tax Act

§ 106. Disposal of income

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

1. Where it is obvious that the amount included in the calculation of earnings has leaked out of the company, it shall be the dividend, bonus from the disposal of profits, other income, and other outflow from the company under each of the following items according to the person to whom it reverts:

(b) Where the person to whom it reverts is hospitalized or employed, the bonus to the person to whom it reverts;

/ Income Tax Act

Article 20 (Earned Income)

(1) Earned income shall be the following income generated in the relevant year:

1. Class A:

(c) Amount disposed of as a bonus under the Corporate Tax Act;

Article 127 (Liability for Withholding)

(1) Any person who pays any of the following income or revenue amount to a resident or nonresident in the Republic of Korea shall withhold income tax on the resident or nonresident pursuant to the provisions of this Section:

4. Employment income amount of Class A;