경정이 있을 것을 미리 알고 수정신고 한 것이므로 상여로 소득처분함은 적법함[국승]
Since the revised return was filed with prior knowledge that it would be corrected, the disposal of income as bonus is legitimate.
The issue amount is useful in light of the fact that the time of the return of the revised tax return or the time of the return of the issue amount is the time when the tax investigation was conducted, and the plaintiff did not intend to recover the issue amount at the beginning of the tax investigation, and the revised tax return was filed with prior knowledge of the correction in accordance with the tax investigation
2010Guhap8776 Such revocation as corporate tax, etc.
○○ Co., Ltd.
○ Head of tax office
December 23, 2010
January 20, 201
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The defendant's disposition of notice of change in income amount of KRW 175,00,000 against the plaintiff on September 23, 2009 shall be revoked.
1. Details of the disposition;
A. On March 31, 2008, the Plaintiff: (a) included the construction cost under the new construction contract of 175,000,000 won in the above 175,000,000 won, excluding value-added tax of 14,910,000 won in the above 175,00,000 won; (b) included 159,090,000 won in deductible expenses; and (c) filed a corporate tax return with the Defendant in March 31, 2008 for the business year of 2007.
B. After that, on May 23, 2008, the Plaintiff appropriated the above construction cost excessively to the Defendant, and appropriated the key amount in the instant case as a provisional payment irrelevant to business affairs, added the interest of KRW 14,067,123 to the gross income, added the interest of KRW 14,067,123 to the gross income, and added the interest of KRW 14,067,123 to the gross income, and disposed of the revised return of corporate tax for the business year 2007 (hereinafter “the revised return of this case”).
C. On September 21, 2009, the defendant disposed of the issue amount of this case as representative bonus and notified the plaintiff of the change in the amount of income (hereinafter referred to as the "disposition of this case") on September 21, 2009.
D. On January 7, 2010, the Defendant requested the Board of Audit and Inspection to revoke the instant disposition, but was dismissed on April 23, 2010.
[Ground of recognition] Facts without dispute, Gap evidence 3, Eul evidence 6-1, Eul evidence 1, and the purport of the body before oral argument
2. Whether the instant disposition is lawful
A. The parties' assertion
(1) The plaintiff's assertion
The revised declaration of this case does not know in advance that it would be corrected.
(2) The defendant's assertion
In the instant revised return, the Plaintiff received the disposition of income on the premise that the Plaintiff lent the key amount of the instant case to Gangwon, one’s representative director, but the key amount of the instant case was diversion of Gangwon, which was not premised on the Plaintiff’s initial recovery. Thus, even if the Plaintiff intended to recover the key amount, it was not subject to the disposition of income as a bonus for Gangwon. Even if the Plaintiff intended to do so, the Plaintiff did not industrial and passive disposition of KRW 159,090,90,909, which was excessively appropriated in excess of the actual construction cost for the instant factory building. Accordingly, the instant revised return was not proper, regardless of whether the Plaintiff had already known that it would be corrected, so the instant disposition was legitimate.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
(1) The representative director or actual manager of a corporation who uses his/her position and discharges profits from the corporation to other than the company and used them for the corporation’s business is a bonus or temporary salary (see, e.g., Supreme Court Decision 9Du3324, Sept. 14, 2001). Moreover, barring any special circumstance, the act of the representative director, etc., who is the actual manager of a corporation uses the corporation’s funds from the corporation, constitutes an outflow from the corporation as one of its own expenses, unless it is premised upon the initial recovery. As to special circumstances that cannot be deemed as not premised on recovery from the utilization time, the actual status of the corporation, such as the representative director, etc., within the corporation, and the process leading up to embezzlement and the degree of control over the corporation after embezzlement shall be determined by comprehensively taking account of all the circumstances such as whether it is difficult to view that the representative director, etc.’s intent is identical to the corporation’s intent or whether the corporate economic interest is in fact consistent with the corporate representative director’s intent, and it shall be determined ex post facto and specifically.
(2) Under such legal doctrine, the Plaintiff deposited KRW 10,00,000 on January 16, 2007 with the account under the name of the non-party company as of 16, 100,000,000 on October 71, 2007 under the overall purport of each statement and pleading Nos. 2, 5, and 2 through 5 (including Serial number). The non-party company deposited KRW 10,000 on the above deposit date in cash and transferred each of the above money to the account under the name of the Gangwon-do Governor as of 00,000,000,000 won from 0.3,000,000 won from 0,000 won from 0,000 won from 0,000 won from 2,07,000 won from 0,000 won from 0,07,000 won from 2,07,005,00 won from 08.
According to the above facts, the non-party company deposited the money equivalent to the amount of the issue of this case among the construction price that the non-party company received from the plaintiff two times and the one who deposited each of the above money into the account of Gangwon. The non-party company deposited the money equivalent to the amount of the issue of this case received from the plaintiff in cash after withdrawing the money in cash, and the time when the plaintiff returned the money equivalent to the amount of the issue of this case to Gangwon after the non-party company was under tax investigation. In light of the above facts, it is reasonable to deem that the non-party company conspired with the non-party company and the representative director of the company of this case used the issue amount of this case, and it is insufficient to reverse the above facts of recognition. Accordingly, the plaintiff should have filed a revised report on the correction of this case, and the time when the plaintiff returned the money equivalent to the amount of the issue of this case to the plaintiff was under tax investigation by the non-party company.
Even if the Plaintiff intended to recover the key amount from GangwonA, it is difficult to view that the revised return of this case was properly consistent with the tax base and tax amount to be reported under the tax law, in that the Plaintiff did not actively withhold and dispose of the asset value excessively appropriated for the instant building in deductible expenses.
Furthermore, even if the revised return of this case was properly filed, it is reasonable to view that the plaintiff filed the revised return of this case with prior knowledge that it would be corrected according to the tax investigation conducted by the non-party corporation. Thus, it cannot be treated as internal reserve pursuant to the proviso of Article 106 (4) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619, Feb. 22, 2008).
After all, the plaintiff's argument is without merit and the defendant's argument is with merit.
3. Conclusion
Thus, the plaintiff's claim of this case is dismissed as it is without merit.