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

Cheong-gu Office

In August 3, 2015, the defendant's notification of change in each income amount stated in the separate sheet against the plaintiff shall be revoked.

A. Since Nonparty A assumed office as a director of the Plaintiff Company on November 20, 2001, Nonparty A served as the director, representative director, etc. of the said Company and its affiliate companies, and took charge of the management of the Plaintiff and its affiliate companies by using the position of “chairperson from March 18, 2008.” Nonparty B, a major shareholder of the Plaintiff Company, etc., was Nonparty B, as the colon of Nonparty ACC, the Plaintiff Company, etc., and managed the financial affairs of the Plaintiff Company and its affiliate companies from January 208.

B. ThisA withdrawn company funds through LB, etc. and used them for private purposes, and then, it was difficult for LB, etc. to repay them instead of funds created by false accounting. On April 17, 2007, 2007, thisA instructed LB to LB to LB to order LB to transfer 10 million won in its name to LB for the short-term loans to LB on the same day, and then withdrawn KRW 10 million in the name of LB to LB and then account transfer to LD from August 29, 2011 (including ① embezzlement 26,000,000,000 won in 207,217,600,000 won in Embezzlement in 208).

다. 최BB은 2008. 12. 주식회사 XXXX로부터 허위세금계산서를 수취하면서 매입대금 명목으로 123,200,000원을 송금하였다가 부가가치세와 수수료 등을 공제한 나머지 금원을 차명계좌로 반환받는 등 그 무렵부터 2011. 10. 27.까지 원고 회사의 자금 합계 737,620,000원(③ 2008년도 횡령액 123,200,000원, ④ 2009년도 횡령액 344,300,000원 포함, 위 ① 내지 ④ 횡령액을 합하여 이하 '이 사건 횡령액'이라 한다)을 횡령하였다.

D. ThisA and most BB deposited 532,443,000 won on January 28, 2015, and 648,000,00 won on December 11, 2013, respectively, while the criminal trial on the above embezzlement (Cheongju District Court 2013,000, 2013, 2013, 201, 2013, 201, 200, and 648,000,000 won on December 11, 2013, the Plaintiff Company recovered all of the above deposit (hereinafter referred to as “the instant deposit”).

Prosecution

Plaintiff’s application for compensation order

Finality of criminal judgment

IsaA

November 20, 2013

December 23, 2013

(Cheongju Law, 2013 Maa)

July 9, 2015

(Supreme Court Decision 2015Do000 Decided Dismissal of Appeal)

LB

September 17, 2013

November 20, 2013

(Cheongju District Court Decision 2013Hubbb)

May 2, 2014

[Court Decision 2014No000]

E. On August 3, 2015, the Defendant notified the Plaintiff of the change in the amount of income to the effect that the amount of the instant embezzlement would be disposed of as bonus as stated in the separate sheet (hereinafter “instant disposition”).

F. The Plaintiff filed a request for review with the Commissioner of the National Tax Service on August 26, 2015 against the instant disposition, but was dismissed on November 23, 2015.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1-3, Gap evidence 2-1, 2-2, Gap evidence 3-1-2, Gap evidence 4-1 through 5, Gap evidence 5, Eul evidence 1-1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

First, since the amount of embezzlement of this case occurred in 2007-2009, which was before the enactment of the latter part of Article 26-2(1)1 of the Framework Act on National Taxes (hereinafter “new law provision”), the exclusion period for imposition of global income tax in the above taxation period should be five years pursuant to Article 26-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201) (hereinafter “former Act”) and the exclusion period for imposition of ten years pursuant to the new law provision for the above taxation period is not allowed as a law for appeal.

Second, the Plaintiff confirmed the embezzlement of thisA and the largestB and applied for compensation order in the criminal trial procedure. Since all of the instant deposits were recovered, the amount of the instant embezzlement should be disposed of as internal reserve pursuant to Article 106(1)2 or (4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22035, Feb. 18, 2010; hereinafter referred to as the “former Enforcement Decree of the Corporate Tax Act”).

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Whether the new law provisions apply

The principle of non-sufficiency in tax statutes or the principle of prohibition of retroactive taxation means that, in cases where any enactment or amendment of tax statutes, or any interpretation or any revision of the guidelines by the tax authorities for the interpretation or management of the statutes, the pertinent statutes cannot be applied to the facts of taxation requirements that are closed before the validity thereof. It does not restrict the application of new statutes, etc. to the facts of taxation requirements that have been pending before or after the lapse of the guidelines (see Supreme Court Decision 2001Du10790, Mar. 26, 2004).

However, according to the background of the above disposition, the taxable period of global income tax at issue in this case is from 2007 to 2009, and the starting date of the exclusion period is June 1, 2008, which is the day following the filing deadline of global income tax, and June 1, 2010, which is the day following the filing deadline of global income tax, so it can be seen that five years of the exclusion period under the provisions of the former Act, which was newly established as of December 31, 201, had yet to expire.

In light of the above facts, the Defendant’s application of the ten-year exclusion period under the provisions of the new law in rendering the instant disposition constitutes so-called “unprocessed retroactive legislation”. However, there is no evidence to deem that the instant disposition constitutes a case where there are special circumstances to restrict the application of the provisions of the new law in violation of the principle of trust protection.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether Article 106(1)2 of the former Enforcement Decree of the Corporate Tax Act is applied

Unless there are special circumstances, the act of the representative director, etc., who is the actual manager of a corporation, uses the corporation's funds on the premise of recovery at the beginning, and thus, it constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be viewed as not premised on recovery from the utilization time, it shall be determined individually and specifically by taking into account all the circumstances, including where the intent of the representative director, etc. is identical to the intent of the corporation or where it is difficult to see that the corporate economic interest with the representative director, etc. is in fact identical through the actual status of the corporation, such as the representative director, etc., who is the principal manager of the embezzlement, and the degree of control over the corporation, the circumstances leading to the embezzlement, and the measures taken by the corporation after the embezzlement, etc.

However, according to the above circumstances, this case's embezzlement is the chairperson of the case group to which the plaintiff company and its affiliates belong, and most BB is a relative relative of this case's company and a person entrusted with the management of funds within the group under the direction of this case's order, and two persons were absent any institution that can substantially control or supervise it within the inside and outside of the plaintiff company while raising funds through false accounting over several years, and the plaintiff applied for compensation order for two persons and recovered the deposit money of this case. However, in light of the above legal principles, it is reasonable to deem that this case's embezzlement was conducted only after the two persons were prosecuted after the lapse of four years from the time of the occurrence of the embezzlement amount of this case's embezzlement amount, and it is reasonable to deem that this case's embezzlement was not immediately identical to the plaintiff's second person's intent since it was actually controlled by the plaintiff company and the plaintiff's second person's second person's second person's intent. Thus, it is reasonable to deem that this case's embezzlement was not immediately identical.

Therefore, the plaintiff's assertion on this part is without merit.

3) Whether Article 106(4) of the former Enforcement Decree of the Corporate Tax Act is applied

Article 106 (4) of the former Enforcement Decree of the Corporate Tax Act provides that "in cases where the relevant amount is recovered within the time limit for filing a return of return and the amount is included in the gross income as a tax adjustment, and the fact of outflow from the company is not confirmed in the course of investigation or trial." However, there is no evidence to acknowledge that the plaintiff satisfies the above requirements, this part of the plaintiff's assertion is without merit.

3. Conclusion

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