Article 300 u u3000 u300 n u3000 n u3000 Seoul High Court Decision 2007Nu6252 decided September 13, 2007

쇠은은 개은은 개은은은 3000 개은은은 3000 아은은은이 이 3000 개이 이 300 개이 30010.

44 44 44 44 44 45 44 444 64 44

The judgment below is reversed and the case is remanded to Seoul High Court.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

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., the subject of embezzlement, the degree of control over the corporation, the circumstances leading to embezzlement, and the measures taken by the corporation after embezzlement, etc. (see, e.g., Supreme Court Decision 2007Du2323, Nov. 13, 208).

원심은, 그 채용증거를 종합하여 김CC이 DD기업 주식회사(이하 'DD기업'이라 한다)를 실질적으로 경영하는 1인 주주 겸 DD토건그룹의 회장으로서, DD토건그룹에 대한 대출비리를 폭로하겠다는 EE종합금융 주식회사(이하 'EE종금'이라 한다)와 GG종합금융 주식회사(이하 'GG종금'이라 한다)의 노동조합원들을 무마하기 위하여, 1998. 2. 20.경 DD기업의 자금 중 60억 원을 빼돌려 EE종금의 노조위원장 최@@에게 노동조합원들의 퇴직위로금 명목으로 지급하고, 같은 해 6. 25.경 다시 DD기업의 자금 중 40억 원을 빼돌려 GG종금의 노조위원장 김**에게 같은 명목으로 지급한 사실, 또한 김CC은 같은 해 7. 11.경 DD기업의 자금 중 20억 원을 ☆☆ &&사에 기부한 것처럼 그 명의의 계좌에 입금하였다가 인출하여 유용한 사실, 이러한 일련의 횡령행위 등이유죄로 인정되어 김CC은 징역 3년 6월의 형을 선고받은 사실 등을 인정한 다음, DD기업은, 김CC이 EE종금과 GG종금의 노조위원장들에게 지급한 100억 원을 관계회사 대여금으로, ☆☆ &&사 명의의 계좌를 통하여 유용한 20억 원을 지정기부금으로 각 회계처리하였고, 김CC에 대하여 횡령 등으로 고소하거나 김CC 소유의 재산에 대하여 손해배상채권보전을 위한 어떠한 조치를 취한 적이 없으며, 김CC을 상대로 손해배상청구의 소송을 제기하는 등 채권회수를 위한 아무런 노력도 하지 않았다는 등의 이유로, 김CC이 위와 같이 횡령한 120억 원(이하 '이 사건 횡령금'이라 한다)은 DD기업으로부터 사외로 유출되어 김CC의 소득으로 귀속된 것이라고 판단하고, 이 사건 횡령금의 귀속자가 김CC이 아니라거나 DD기업이 김CC에 대하여 손해배상청구권을 취득하는 이상 이 사건 횡령금이 사외유출되었다고 볼 수 없다는 원고의 주장을 배척하였다.

In light of the above legal principles and relevant statutes and records, although the judgment of the court below is somewhat inappropriate in its reasoning, it is just in its conclusion that the embezzlement of this case was reverted to KimCC, and there is no error of law such as misunderstanding of legal principles as to the attribution of representative embezzlement, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

Whether a tax claim constitutes a reorganization claim under Article 102 of the former Company Reorganization Act (repealed by Act No. 7428 of Mar. 31, 2005, Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act), which is determined on the basis of whether the taxation requirements prescribed by the Act have been met prior to the commencement of the company reorganization procedure and the tax claim has been established. Where the tax authority disposes of the amount embezzled by the representative of the corporation as a bonus and notifies the change in the amount of income, the obligation to pay tax on the labor income subject to withholding shall be established at the time when the notice of change in the amount of income has been served on the corporation concerned. Thus, if the notice of change in the amount of income has arrived after the commencement of the company reorganization procedure, a tax claim on the labor income subject to withholding arising from a cause arising after the commencement of the company reorganization procedure is not a reorganization claim under the former Company Reorganization Act (see, e.g., Supreme Court Decisions 2001Du7268, Sep. 4, 2002; 7194>

The court below held on January 8, 199 that the reorganization company AA (DD company changed its trade name to AA on July 23, 2002; hereinafter referred to as "A") commenced the company reorganization procedure for the reorganization company of AA (DD company was changed to AA on July 23, 2002; hereinafter referred to as "A"), and subsequently, on April 2, 2005, the defendant issued a notice of change in the amount of income (hereinafter referred to as "the disposition of this case") to AA on April 4, 2005 as a bonus to the KimCC and accordingly, rejected the plaintiff's assertion that the defendant did not report the forfeiture of the claim in the company reorganization procedure under the former Company Reorganization Act on the premise that the claim for withholding withholding tax on the embezzlement of this case was established and finalized after the commencement of the company reorganization procedure, which constitutes a reorganization claim under the former Company Reorganization Act.

In light of the above legal principles and records, the fact-finding and decision of the court below is just, and there is no error in the misapprehension of legal principles as to reorganization claims under the former Company Reorganization Act, as otherwise alleged in the

3. As to the third ground for appeal

In accordance with the provisions of the Corporate Tax Act, the amount of income disposed of as bonus for the representative is deemed to have been paid on the date when the relevant corporation received the notice of change in the amount of income. This does not mean the payment to the representative in reality, but merely means the legal fiction of the payment of the amount of income. In order to establish the withholding obligation of the corporation in receipt of the above notice of change in amount of income, it must be deemed that the source taxpayer received the income tax at the time of receipt of the above notice of change in amount of income. If the source taxpayer’s liability to pay income expires due to the lapse of the exclusion period of imposition of the income tax, the withholding obligation cannot be established (see, e.g., Supreme Court Decisions 85Nu451, Mar. 14, 1989; 91Da40931, Sept. 22, 1992).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and rejected the plaintiff's assertion that the notice of change in the income amount was made before the expiration of the exclusion period for taxation on the income tax of the Embezzlement, the source of which was extinguished on April 4, 2005, on the ground that the exclusion period for taxation under Article 26-2 (1) 1 or 2 of the Framework Act on National Taxes was unlawful since the act of accounting as a loan or designated donation of the D company in order to conceal the fact that the embezzlement amount of this case was reverted to it, etc., was evaded by fraud or other unlawful act, since the exclusion period for taxation on the income tax under Article 26-2 (1) 1 or 2 of the Framework Act on National Taxes was 7 or 10 years.

However, we cannot accept the above determination by the court below for the following reasons.

It is reasonable to view that the act of KimCC's act of manipulating the account books of the DD company in the course of deducting the amount of the embezzlement of this case from the DD company is merely to conceal the fact that the amount of the embezzlement of this case was deducted from the previous and previous circumstances. It is difficult to view that the taxpayer under Article 26-2 (1) 1 of the Framework Act on National Taxes does not constitute "the case where the taxpayer evades the national tax by fraud or other unlawful act," and at least, in case where the KimCC submitted the tax base return of global income tax for the taxable year of 198 taxable year in which the amount of the embezzlement of this case was reverted to its income by the disposal of this case, even though the amount of the embezzlement of this case was not included in the global income on the tax base return, the taxpayer under Article 26-2 (1) 2 of the Framework Act on National Taxes cannot be deemed as a case where the taxpayer fails to submit the tax base return within the statutory reporting period.

Nevertheless, the court below determined that the collection disposition of this case was legitimate on the ground that the notice of change in the income amount of this case was made before the expiration of the exclusion period for imposition of income tax of KimCC, the source taxpayer, before the exclusion period for imposition of income tax of KimCC, was expired, since it was concluded that the act of KimCC, etc. of manipulating the accounting books of the D company with respect to the embezzlement amount of this case, was an act to evade income tax of this case, and that the exclusion period for imposition of income tax of this case was ten years or that KimCC did not submit a tax base return for the embezzlement amount of this case. Thus, the court below erred in the misapprehension of legal principles as to the exclusion period for imposition of national tax, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.