[행정처분취소][집32(3)특,358;공1984.9.1.(735)1353]
In a case where the representative director of a single company embezzleds proceeds from the sale of the company's property, whether the disposition imposing corporate tax on the company is proper (affirmative)
Since the representative director sells a port business right and ship, etc. owned by the company to 15 million won and receives the price, the proceeds from the sale shall be deemed to have accrued to the company. Even if the above representative director embezzled the proceeds from the sale, the company has the right to claim compensation for damages or the right to claim the return of unjust enrichment corresponding thereto, and this is the company's gross income, and therefore the corporate tax and defense detailed and disposition are justified.
Article 9(2) of the Corporate Tax Act, Article 12(1)3 of the Enforcement Decree of the Corporate Tax Act, Article 389 and Article 209 of the Commercial Act
Supreme Court Decision 84Nu30 Decided April 24, 1984
Attorney Choi Nam-nam Marine Oil Co., Ltd., et al., Counsel for the defendant-appellant
Head of Yeongdeungpo-do Tax Office
Daegu High Court Decision 81Gu136 delivered on October 26, 1982
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s ground of appeal is examined.
According to the reasoning of the judgment below, the court below found on January 18, 1979 that the non-party 1, who was the representative director of the plaintiff company at the time of the plaintiff company, was one of the non-party 1, who was holding all the shares of the plaintiff company, to be 46,00,000 won in price for the business rights of port and implied call to the non-party 2 on January 21, 1979, and 46,000,000 in price for the business rights of port and port of leisure to the non-party 3 and the non-party 4 on January 21, 21 of the same year, and 750,000 tons in the 13,00,000 won in price for the 13,00,000 won in price for each of the plaintiff company's shares, and consumed it at each of the above time. The plaintiff company did not err in the misapprehension of the legal principle as seen above and the records.
If the facts are as above, the above non-party 1's sale act and the effect of the receipt of the price on the plaintiff company shall be deemed to have been reverted to the plaintiff company. Thus, the above non-party 1's embezzlement of the sale price does not change its conclusion.
The decision of the court below that 95,454,544 won after deducting the amount equivalent to the value-added tax from the above sale price constitutes an unfair act, and therefore, it should be viewed as the calculation of earnings and the recognition of the representative, as pointed out in the theory of lawsuit, is erroneous in the misapprehension of the legal principle of the denial of calculation of unfair act. However, the plaintiff company has the right to claim compensation for damages equivalent to the above money or the return of unjust enrichment against the non-party 1, and this should be regarded as the plaintiff company's gross income. Thus, the decision of the court below is just in its conclusion, and there is no error of law such as misunderstanding of legal principles as to
Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices O Sung-sung(Presiding Justice)