경영을 사실상 지배한 대표자라고 볼 수 있는지 여부[국승]
Examination Income 2009-049 (2009.07.09)
Whether it can be viewed as a representative who actually controlled management.
Although the plaintiff has received a report on the overall business, it is reasonable to see that he/she actually controlled the management in light of the fact that he/she has been in charge of the overall business.
1. All of the plaintiff's claims are dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Each disposition of the Defendant’s global income tax amounting to KRW 7,638,94 (the amount stated in a written notice of tax payment is KRW 7,638,90) for the year 2003, as notified by the Defendant against the Plaintiff, shall be revoked as of February 6, 2009, and KRW 47,240,100 for the global income tax for the year 2004.
1. Details of disposition;
A. BB (hereinafter “B”) was established on June 13, 2001, and the Plaintiff was recorded in the corporate register as the representative director from June 13, 2001 to December 30, 2004.
B. As a result of the tax investigation conducted on BB, the head of the Geumcheon Tax Office confirmed that AA had omitted sales amounting to KRW 18,125,500 and KRW 112,460,200 each in 203 and 2004, and imposed corporate tax on BB by including the omitted amount in the gross income, while disposing of the omitted amount as the representative director, and notified the Plaintiff of the change in the amount of income on April 4, 2008.
C. On February 6, 2009, the Plaintiff did not pay the income tax from the above disposition of income, the Defendant issued a correction and notification of the Plaintiff’s global income tax amounting to KRW 7,638,94 (the amount stated in the correction resolution) for the year 2003, and global income tax amounting to KRW 47,240,100 for the year 2004 (hereinafter “instant disposition”).
D. On April 28, 2009, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on April 28, 2009, but was dismissed on July 9, 2009.
[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 and 2 (including each number), the witness KimCC's partial testimony, and the purport of the whole pleadings
2. Whether the dispositions of the instant case are legal.
A. The plaintiff's assertion
The plaintiff is merely registered in the corporate register as the representative director of BB in the form of form, and since the actual representative director of BB is KimCC, the defendant's disposition of this case based on the premise that the plaintiff is the actual representative director of BB is illegal.
B. Key statute
Attached Form is as shown in the attached Form.
C. Determination
1) Article 106(1) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706, Feb. 19, 2005) provides that the corporation shall be deemed as a bonus to a unconditional representative regardless of substance as to certain facts that can be recognized as such act in order to prevent an unlawful act under tax law by the corporation, rather than based on the fact that such income actually accrued to the representative. Thus, the representative who is deemed to belong to the recognized contribution shall be a representative who actually operates the company, and even if the registration was made on the corporate register as the representative director of the company, such recognized income shall not be subject to the comprehensive income tax unless it actually operates the company (see, e.g., Supreme Court Decisions 92Nu3120, Jul. 14, 1992; 93Nu176, Mar. 8, 1994); however, it shall not be proved that the person who actually asserted to be a corporation manager.
2) Comprehensively taking account of the aforementioned evidence, Gap evidence Nos. 6 through 11, Eul evidence Nos. 5 (including each number), and witness KimCC’s testimony, the whole purport of the arguments is as follows: ① KimCC held office as a director and vice president of BB from the establishment of BB to December 15, 2004; ② at the time KimCC owned 20% of the shares of BB; ② the annual salary was KRW 48,00,000; ③ KimCC was involved in the operation of BB; ④ the plaintiff was working as the representative director of BBG from 1982 to 104; ⑤ the plaintiff was not paid wage and salary from BB from 2001 to 204; ⑤ The representative director of the Gangwon K, who was employed as the auditor of BB, is only the plaintiff’s actual document No. 1).
However, evidence consistent with the plaintiff's assertion is not easily believed, and the above facts alone are insufficient to deem that the plaintiff is merely the representative director of BB as a simple investor with respect to BB, and there is no other evidence to acknowledge it.
In contrast, the following circumstances, which can be acknowledged by comprehensively taking account of Gap evidence Nos. 12, Eul evidence Nos. 3, 4, and 5 (including each number), and witness KimCC's testimony, i.e., the plaintiff established BB as the subsidiary company of (State)GGG for the purpose of selling (State) external hard disks manufactured by (State)GGGGGG with the representative director; ② the plaintiff owned 30% of BBB shares from 2001 to 2004; and (State)GG owned 30% of the BB shares in 204; ③ the plaintiff owned 41.36% of the 404GG shares in 204, and 9.79% of the 9.79% of the Plaintiff’s testimony; ④ The plaintiff made an annual audit report to the plaintiff on the overall management of BB from 201 to 204, and ③ the plaintiff made an annual audit to 30GGG 201.
3) Therefore, the Plaintiff’s above assertion is without merit.
3. Conclusion
Thus, the plaintiff's claim of this case is dismissed for all reasons.