2. The costs of appeal shall be borne by the Defendant.

On March 29, 2011, the judgment that the Defendant’s notice of change in the amount of income in the business year of 2005 (income earner: ParkCC and income amount: 000 won) that the Plaintiff was revoked.

2. Purport of appeal

The judgment of the first instance is revoked and the plaintiff's claim is dismissed.

The following facts shall not be disputed between the parties, or may be acknowledged by adding the whole purport of the pleadings to the statements in Gap evidence Nos. 1, 2, 3, and 5:

가. 재일교포인 박DD(일본 이름 : 原進, 하라 EEE)은 ㅇㅇ에 FF빌딩을 신축한 후 임대업을 위해 1988. 3. 25. 원고(상호가 FF개발 주식회사였다가 2009. 12. 28. 현재의 상호로 변경되었다)를 설립하여 1992. 9. 30.부터 2001. 7. 20.까지 대표이사로 있었고, 박DD의 아들인 박CC(일본 이름 : 原勳, 하라 GGG)은 1993. 12. 22.부터 원고의 대표이사로 취임하여 대표이사의 직무를 수행하였다.

(B) On March 29, 201, the Defendant withdrawn on October 24, 2001, the sum of KRW 000 and KRW 000,000, the subordinated claim amount under the name of Gaddddd on December 31, 2002 (hereinafter “the instant amount”). After that, on December 27, 2005, the Defendant repeated the deposit and withdrawal of the instant amount under the name of Gadddd on December 31, 200 and embezzled the instant amount under the name of Gadd on a deposit basis, such as withdrawing KRW 00 from December 27, 2005 to 2005, on the following grounds: “The instant amount was re-issued and embezzled under the name of Gadd on a deposit basis,” and “the amount was excluded from the bonus disposal amount calculated on January 3, 2005 (hereinafter “the instant amount”).

Date

Amount (won)

1

October 24, 2001

00

2

December 31, 2002

00

3

The amount of this case (1+2)

00

4

The total amount of withdrawal in 2004 (the exclusion period for taxation)

00

5

January 3, 2011

00

6

Notice of change in the amount of income (3 - 4-5)

00

C. The Plaintiff dissatisfied with the request for inspection on June 20, 201, and the Plaintiff caused the Board of Audit and Inspection on June 7, 2013.

was dismissed by the court.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful on the following grounds.

1) The allegation that the amount of this case was not disclosed from the company in 2004 and 2005

The act that ParkCC withdrawn KRW 000 from the Plaintiff’s account around 2004 and 2005 is merely a half of the Plaintiff’s claim against ParkCC, and is irrelevant to the embezzlement of the instant amount. Nevertheless, the instant disposition is unlawful in that it was done with respect to the amount out of the business year 2005, on the premise that the instant amount was out of the business year 2004 and 2005.

2) The exclusion period map and argument

ParkCC embezzled the Plaintiff’s assets by withdrawing the instant amount on October 24, 2001 and December 31, 2002 on two occasions. At the same time, the instant amount was finally released from the company.

Therefore, the date of establishment and confirmation of the Plaintiff’s withholding obligation is April 1, 2002 and April 11, 2003, and the disposition of this case was made after the exclusion period of imposition (five years) for withholding obligation was expired. Thus, it is unlawful.

3) The assertion that the disposition of income is not premised on the inclusion in gross income

The source of the instant amount is interest income accrued from the Plaintiff’s operation of the rental deposit, and the disposition of income under Article 67 of the Corporate Tax Act is premised on the inclusion of the income for the pertinent taxable year. However, the Defendant, not the business of 2001 and 2002, but the business of 2004 and 2005, which was carried out by the household deposit, was disposed of on the basis of the business year, and was not included in the gross income subject to the disposition of income in the pertinent taxable year. Therefore, the instant disposition was unlawful as it failed

4) Claim that no taxation may be levied on the non-resident's domestic source income

ParkCC is a non-resident who is a permanent resident in Japan and is residing in Japan, and the recognition and contribution to ParkCC is not a domestic source income under Article 119 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same) which is a taxation requirement for non-residents, and thus, it cannot be taxed.

(b) Related statutes;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

(c) Fact of recognition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for the order of the fifth page of the reasoning of the judgment of the court of first instance as follows. Thus, this part of the judgment is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Business year

Analvines (in half of gold);

Secretary-General (Deposit in Home Fees)

The difference between the difference and the difference;

202

00

00

2003

00

00

Total

00

00

D. Determination

1) Whether the outflow was ultimately carried out in the business year 2005

A) The nature of the instant amount

In a civil trial, the facts acknowledged in the judgment of other civil cases, etc., even though they are not bound by the facts established in the judgment of other civil cases, etc., shall not be rejected without reasonable grounds, unless there are special circumstances. In particular, the facts that the two previous and previous civil cases are identical to the parties and form the basis of the dispute are the same, but the same is more true in cases where a new claim can be made as a result of the difference in the subject matter of lawsuit and does not conflict with the res judicata effect (see Supreme Court Decision 2008Da48964, 48971, Mar. 26, 2009). Thus, the above legal principle should be interpreted to be identical in this case, in light of the purport of Article 8(2) of the Administrative Litigation Act, which applies mutatis mutandis the Civil Procedure Act, unless there are special circumstances.

In light of the following facts: (a) the instant case was in dispute over the nature of the instant amount in the lawsuit for the revocation of a fraudulent act and the claim for return of unjust enrichment; (b) the competent tribunal recognized that the instant amount was incurred in relation to the money that was delivered or lent to the Plaintiff by Park DoD; (c) Park CC asserted that the instant amount was the interest income accrued from the operation of the Plaintiff’s deposit; and (d) the fact that the instant amount was not accepted in the said lawsuit, which was the interest income accrued from the operation of the Plaintiff’s deposit; and (b) the fact that the instant amount was the interest income accrued from the operation of the Plaintiff’s deposit, other than the Plaintiff’s certificate of Park CC (Evidence B No. 1), it is reasonable to deem that the Plaintiff was delivered or lent from

B) Evaluation of ParkCC’s withdrawal on October 24, 2001 and December 31, 2002

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 the early recovery, and thus, it constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be seen as not premised on the recovery from the utilization time, it shall be determined individually and specifically by comprehensively 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 embezzlement, etc. (see, e.g., Supreme Court Decisions 2007Du2323, Nov. 13, 2008; 207Du20959, Jan.

The court in charge of this case's withdrawal on October 24, 2001 at the Health Center, the revocation of fraudulent act and the claim for return of unjust enrichment was made by ParkCC deposited the plaintiff's funds into the account of Park DoD which was newly established by Park DoD and immediately withdrawn on December 31, 2002. Since withdrawal on December 31, 2002 also withdrawn the plaintiff's funds, each of the above withdrawal acts cannot be deemed to be an act of repayment against Park DoD's claims against the plaintiff, and Park DoD still holds the claim against the plaintiff. Accordingly, the act of Park CC withdrawing the amount of this case on October 24 and December 31, 2002 constitutes an act of embezzlement against the plaintiff.

Furthermore, ParkCC appears to have been exercising the right of management against the plaintiff as the representative director at the time of the above embezzlement (JCC's representative director on July 20, 201). Although it appears that ParkCC embezzled embezzled the amount of this case from the plaintiff in a lawsuit claiming revocation of fraudulent act and claim for restitution of unjust enrichment, there is no circumstance to deem that the plaintiff took legal measures, such as seeking compensation for damages in relation to the embezzlement of the amount of this case against ParkCC or filing a criminal complaint; (C) as seen in the above, it is difficult to view that ParkCC deposited 00 won to the plaintiff by December 31, 2003 as the recovery of the amount of this case, and otherwise, it cannot be deemed that the amount of this case from the time of embezzlement cannot be deemed to have been premised on the recovery of the amount of this case from the time of embezzlement. Accordingly, it is reasonable to view that the above amount of the embezzlement of this case from the time of the above embezzlement of this case.

C) Evaluation of deposits from January 30, 2002 to December 30, 2003 of ParkCC

The defendant asserts that from January 30, 2002 to December 30, 2003, the amount of this case embezzled by depositing 000 won in the plaintiff's account in the form of virtual gold, was fully recovered, and on December 31, 2003, the actual balance of the plaintiff's virtual amount of ParkCC as of December 31, 2003 is 00 won after deducting the amount of this case from the balance in the account book.

However, as seen earlier, from January 30, 200 to December 30, 203, ParkCC deposited the Plaintiff’s account in excess of the instant amount. However, the following circumstances acknowledged in addition to the overall purport of the pleadings, i.e., the remainder remaining after entry and withdrawal into the Plaintiff’s account in the name of ParkCC over a period of two years, and it is difficult to readily conclude that the instant amount is identical to the instant amount or the instant amount is source. From January 28, 2002, ParkCC created a short-term loan account with it as its creditor from January 28, 2002, and appropriated 00 won in the short-term loan account, and thus, it is anticipated that the said deposit amount would be deemed as a counter-resumed to the Plaintiff, regardless of the Plaintiff’s right to claim restitution of unjust enrichment, and that it would not be deemed that the Plaintiff’s right to claim restitution of unjust enrichment would have accrued to the Plaintiff.

Ultimately, since ParkCC actually deposited KRW 000 in the Plaintiff’s account from January 30, 2002 to December 30, 2003, as long as the deposit amount of the Plaintiff was appropriated as a claim for short-term loans in the name of the Plaintiff’s short-term loans to ParkCC, it is reasonable to view that ParkCC held the Plaintiff a claim for provisional loan equivalent to the above KRW 000,000 against the Plaintiff, apart from the fact that it bears the Plaintiff’s liability for damages arising from embezzlement of the instant amount and the obligation for return of unjust enrichment. Therefore, the Defendant’s above assertion is without merit.

D) Evaluation as to withdrawal from March 24, 2004 to December 27, 2005 of ParkCC

The defendant asserts that since ParkCC withdrawn from the plaintiff's account from March 24, 2004 to December 27, 2005 a considerable portion of the amount of this case from 000 won which was withdrawn from the plaintiff's account, it constituted an outflow from the company since ParkCC withdrawn from the name of half of the claim amount which was false.

Therefore, it is recognized that ParkCC withdrawn KRW 000,000 from the loan to December 27, 2005 on several occasions from the above date and time to December 27, 2005 the sum of KRW 000 from the Plaintiff’s account under the pretext of borrowing loans or deposit money. However, as seen in paragraph (1) of the same Article, the above withdrawal constitutes a lawful repayment of the claim against the Plaintiff by ParkCC as of December 31, 2003, and it does not constitute a repayment of false claims.

As a result, ParkCC’s withdrawal of the above 00 won from the account of this case at the same time reduces the asset account and debt account equivalent to the amount that has been withdrawn under the principle of double entry, and thus, it does not affect any profit or loss for the pertinent business year. Thus, the withdrawn amount cannot be included in the gross income or non-deductible expenses, and the equivalent amount of the withdrawn amount cannot be deemed to have been released from

E) Whether the exclusion period has expired

Notice of change in income amount that establishes a withholding obligation with respect to a corporation may not be issued after the expiration of the exclusion period of corporate tax assessment (see, e.g., Supreme Court Decision 95Nu4056, Mar. 12, 1996). Meanwhile, if a source taxpayer’s income tax liability has already expired due to the lapse of the exclusion period of imposition of income tax, etc., the corporate withholding obligation cannot be established. Thus, the subsequent notice of change in income amount is unlawful (see, e.g., Supreme Court Decision 2007Du20959, Jan. 28, 2010).

With respect to this case, the facts that the amount of this case was flown out of Korea on October 24, 2001 and around December 31, 2002 under the false anti-defluence of the amount of provisional income from stuffed D and reverted to the ParkCC are as above. Accordingly, it is possible to give notice of the change in the amount of income for the business year 2001 and 2002 that the amount of this case is disposed of as bonus to the ParkCC. However, the Plaintiff’s liability to pay corporate tax for the business year 2001 and 2002 is applied for the exclusion period of five years from the beginning date of each of the above dispositions [Article 262-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 7008 of Dec. 30, 203; hereinafter the same shall apply] and Article 262-13 of the former Corporate Tax Act (amended by Act No. 6015, Jan. 26, 2001).

F) Sub-decisions

Ultimately, the instant disposition that is premised on the possibility of giving notice of change in the amount of income due to the lack of exclusion period, should be revoked as it is unlawful as it is not necessary to further examine the remainder of the Plaintiff’s assertion. However, as the instant case’s recognition of ParkCC did not constitute domestic source income of a nonresident, it should be further determined as to whether it could not be subject to taxation from the beginning.

2) Income tax imposed on non-residents such as personal contribution and income tax

Article 3 of the former Income Tax Act provides that only the income tax shall be imposed on the domestic source income under Article 119, and Article 119 subparagraph 7 of the same Act provides that "income received as compensation for labor provided in the Republic of Korea and for labor prescribed by Presidential Decree" shall be the domestic source income of a nonresident. Accordingly, Article 179 (7) 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19327 of Feb. 9, 2006; hereinafter the same) lists "income received as compensation for labor prescribed by Presidential Decree" as one of the incomes received as compensation for labor prescribed by Presidential Decree.

According to these regulations, wages received as compensation for work provided in Korea by the representative director of a domestic corporation is a typical earned income, and even if the representative director is a nonresident, income tax can be imposed because it is a domestic source income subject to income tax even if it is the non-resident. However, there is a problem of whether it can be viewed as a domestic source income subject to income tax as a bonus disposal to the representative director under the Corporate Tax Act.

In this case, as seen earlier, since ParkCC, the representative director of the corporation, has leaked the plaintiff's funds out of its own position to belong to himself/herself, barring any special circumstance, the amount reverted to ParkCC can be confirmed as income received as compensation for work provided in Korea or as a representative director's qualification. In addition, the recognition of the representative director is deemed as belonging to the representative director's income under certain conditions, and it constitutes a representative director's earned income, and therefore, it is reasonable to view that it can be imposed as one domestic source income on the ground that there is no reason to treat differently from the "wages received as an officer of a domestic corporation" under Article 179 (7) 2 of the Enforcement Decree of the Income Tax Act (Article 179 (7) 2 of the former Corporate Tax Act, which was amended by Presidential Decree No. 26027 of Feb. 3, 2015, and thus, Article 179 (8) 3 of the Corporate Tax Act (excluding the amount disposed as bonus from the non-resident's income received as compensation for work).

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

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.