외국법인에서 지급된 금액을 배당소득으로 과세하기 위해서는 배당가능이익, 출자지분에 따른 수익분배 등을 과세관청이 입증해야 함[국패]
Cho Jae-2017-west-279 ( November 17, 2016)
In order to impose the amount paid by a foreign corporation as dividend income, the tax authority should prove the distributable profit, the distribution of profits from equity shares, etc.
In order to impose income paid from a foreign corporation as a "dividend income", the tax authority must prove whether the amount was withdrawn within the scope of the distributable dividend income of the foreign corporation or paid under the consideration of the ratio of investment shares.
Article 17 (1) (dividend Income) of the former Income Tax Act
2017Guhap6371 global income and revocation of such disposition
EO and 1
○ Head of tax office
April 13, 2018
June 15, 2018
1. The Defendant:
A. Plaintiff EO: global income tax of 0,000,000,000, for the year 2005, as of May 16, 2016
Won (including additional taxes), global income tax of KRW 0,000,000 (including additional taxes), global income tax of KRW 0,000,000,000 (including additional taxes), global income tax of KRW 0,000,000,000 (including additional taxes) for the year 2007, 2008, global income tax of KRW 0,000,000,000 (including additional taxes);
B. Plaintiff UO’s global income tax amounting to KRW 000,000,000, for the year 2005, as of May 16, 2016
(including additional taxes), as of November 1, 2016, global income tax of 000,000,000 (additional taxes) for the year 2006, global income tax of 2007, global income tax of 00,000,000 (including additional taxes), global income tax of 2007, global income tax of 00,000,000 (including additional taxes) for the year 2008.
Each disposition of imposition shall be revoked.
2. The costs of the lawsuit are assessed against the defendant.
Cheong-gu Office
The same shall apply to the order.
1. Details of the disposition;
A. The Plaintiffs are three children as married couple. The Plaintiffs start their business in China since 1994, and establish and operate 0 corporations, including AAA Limited Liability Corporation (hereinafter “instant corporations”).
B. From 2005 to 2008, the Plaintiffs were transferred KRW 00,000,000 in total from China by means of a transfer transfer (i.e., a one-time transfer) via a foreign exchange hub (hereinafter “the dispute amount”).
C. A. From September 25, 2009 to December 4, 2009, the commissioner of a regional tax office conducted a tax investigation on the Plaintiffs (hereinafter referred to as “tax investigation on the source of funds”). At the time, the Plaintiffs submitted the accounting books of the instant corporation, the issues amount of which are included in the provisional payment amount against the Plaintiffs (hereinafter referred to as “the accounting books of the instant case”), and the key amount was not separately exempted from taxation because they asserted that the amount of issue was a debt against the instant corporation.
D. After July 6, 2016 to September 7, 2016, the commissioner of a regional tax office confirmed that the plaintiffs did not pay the issues to the corporation of this case in the tax investigation with respect to the plaintiffs (hereinafter referred to as "individual consolidated investigation") conducted from July 6, 2016 to September 7, 2016, and determined that the issues amount was "dividend income acquired from the corporation of this case" from the corporation of this case. A director of a regional tax office, from around 2004, was a resident under the tax law who is liable to pay for domestic and foreign source income from 2004 to 2008, notified the defendant of the taxation data by deeming that the plaintiffs did not pay the comprehensive income tax on the dividend income as the issues amount.
E. The Defendant applied the ten-year exclusion period for imposition of national taxes on the grounds that the Plaintiffs brought the key amount into the substitute remittance method, and that it was difficult for the Plaintiffs to impose and collect national taxes by ordering the provisional payment as the substitute remittance method, and then imposed the global income tax, etc. on the Plaintiffs by dividing the key amount from 2005 to 2008 in proportion to the drop number of provisional payment among the Plaintiffs stated in the account book of this case (hereinafter “instant disposition”).
2. Relevant statutes;
It is as shown in the attached Table related statutes.
3. Whether the instant disposition is lawful
A. The plaintiffs' assertion
1) As Plaintiff O constitutes a Chinese resident from 2005 to 2008, Plaintiff O is not liable to pay income tax on the issue amount of foreign source income.
2) The key issue amount is the time when the income of Plaintiff OO obtained from 1996 in China was reverted to the Plaintiffs’ income, and the time when the income was reverted to that of the Plaintiffs’ income is the time when the income was reverted to that of the Plaintiffs, and the domestic entry through the substitute remittance is merely an ex post facto situation. The key issue amount is the income belonging to the year 2005 to 200
3) The key amount is voluntarily leaked from the instant corporation, and thus, it does not amount to the dividend income under the Income Tax Act. The Defendant cannot impose tax on the amount equivalent to the key amount as the Plaintiffs’ dividend income without disposition of income to the instant corporation.
4) Since the preparation of false financial statements or transfer of substitute financial statements does not constitute fraud or other fraudulent acts to evade the plaintiffs' "income tax", the instant disposition was conducted after the expiration of the exclusion period for imposition.
B. Whether the plaintiff Lee OO's "resident" is a resident and the country of exercise of the right to impose taxes under the tax agreement
1) Facts of recognition
Any entry in Gap’s Evidence 5 through 8, Eul’s Evidence 4, 6, and 12, unless there is a dispute between the parties or
In full view of the overall purport of the pleadings, the following facts can be acknowledged.
A) Place where the plaintiffs' families reside in Korea
(1) Since the departure of Plaintiff EO from China for its business purpose around 1994, Plaintiff EO resided in China. Plaintiff EO is residing in Korea, China is moving to China along with his children around 1996, and resided together with Plaintiff EO.O. for the purpose of permanent residence in Korea. On June 2003, Plaintiff EO returned to Korea with his children for permanent residence in Korea.
(2) On June 28, 2003, Plaintiff UO acquired F apartment located in Seoul DDA EEdong, and on July 18, 2009, purchased HH located in Seoul DDAdong located in Seoul as of the Plaintiffs’ domicile. Plaintiff UO returned with their children in 2003 and resided in the said FES apartment. Plaintiff UO also was registered as the head of the said apartment.
B) The status of the Plaintiffs’ families’ domestic property and economic activity details
(1) 원고 이OO은 2003년 국내 법인인 주식회사 ㅁㅁㅁ(이하 'ㅁㅁㅁ'라고 하고 다른 회사에 대해서도 '주식회사'는 생략한다)를 인수하였는데, ㅁㅁㅁ는 2008. 1. 14. ㄴㄴ운영 사업부를 인적분할하여 ㅅㅅㅅ를 설립하였다. 원고들과 그 자녀들은 ㅁㅁㅁ와 ㅅㅅㅅ의 100% 지분을 보유하고 있는데, ㅁㅁㅁ는 2005년 12월말을 기준으로 000억 원, 2008년 12월말을 기준으로 000억 원, ㅅㅅㅅ는 2008년 12월말을 기준으로 000억 원에 달하는 부동산을 소유하고 있었다.
(2) 원고 유OO은 2003. 6. 4. ㅁㅁㅁ의 대표이사로 취임한 이래 현재까지 대표이사직을 맡고 있다. ㅅㅅㅅ 역시 원고 유OO이 대표이사직을 맡고 있다가 2011. 1. 26. 원고 이OO으로 대표이사가 변경되었다. 원고 유OO은 ㅁㅁㅁ 등으로부터 2005년 00,00 0,000원, 2006년 00,000,000원, 2007년 000,000,000원, 2008년 000,000,000원의 근로소득을 얻었다.
(3) On the other hand, on July 15, 2008, the Plaintiff’s UO stated at the time of the police investigation that “IO was not aware of the content or punishment of Plaintiff EO’s business other than domestic affairs” in the case of violation of the Foreign Exchange Transactions Act against Plaintiff EOO.
D) Economic activities, etc. of the plaintiffs in China
(1) On September 13, 2004, Plaintiff EO entered into a golf membership agreement in China, and entered in the contract as a domestic main lawsuit in China. On February 2, 2005, Plaintiff EO leased an apartment located in China RR SS city from March 1, 2005 to March 1, 2010.
(2) The Plaintiffs established the instant legal entity from around 1997 to run a business in China. The Plaintiffs are likely to be forced from China in the event of tax issues, and the Plaintiffs owned the shares of the instant legal entity as a borrowed name or as a local representative director. However, the actual owners and operators of the instant legal entity are all the Plaintiffs.
2) Determination as to whether the plaintiff Lee O's "resident" is "resident"
A) According to the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) and the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010); a resident is liable to pay income tax on overseas source income. In full view of the definitions of the resident, domicile and residence under the former Income Tax Act (Article 1(1)1 and Articles 2 and 4 of the Act), the distinction between a resident and a nonresident under the former Income Tax Act and the former Income Tax Act shall be determined by comprehensively taking into account the living relations between the resident and a nonresident within the country, such as family oil, domestic occupation and income, current status of assets located in Korea, domestic economic and legal relations, etc., and it shall not be determined by taking into account the activities outside the country and the living relations, such as asset possession, etc. (see Supreme Court Decision 92Nu1695, May 27, 1993).
B) In light of the following circumstances that can be comprehensively seen in the evidence Nos. 10 and 13 as seen earlier, the period of stay in China of Plaintiff OO from 2005 to 2008 is equal to the period of stay in China, and PlaintiffO operated the instant legal entity in China, it is deemed that PlaintiffO had a basis for living in Korea, such as having family members living together in Korea.
① Family members of the Plaintiff OO returned permanently on June 2003 and acquired the apartment house, and resided in the AP. Since 2003, Plaintiff O also formed a basis of living in Korea, such as household residents, etc., who reside in the said apartment house after having registered as a principal resident with his family members.
② At the time of returning to Korea, the Plaintiffs’ children are considered to have been living with high school students or university students, especially with Plaintiff OO. As such, from 2005 to 2008, Plaintiff O would have resided with their families living together with them at the place of residence as seen earlier.
③ 원고들은 2003년경부터 국내에서 부동산을 취득하고 ㅁㅁㅁ를 인수하여 ㅁㅁㅁ 명의로 거액의 부동산을 취득하는 등 원고들이 국내에서 보유하는 자산이 급격하게 늘었다.
④ 원고 이OO은 2009년경 자금출처조사 당시 쟁점금액을 채무(가지급금)로 소명한 이유를 '자금의 임의유출 사실이 밝혀지면 중국에서 형사처벌 당하거나 중국 세무당국 으로부터 막대한 세금을 부과할까 봐 두려웠고, 그렇게 되면 원고들이 중국에서 벌어 들인 수익을 더 이상 국내로 들여올 수 없어 원고 이OO이 당초 계획하고 있던 국내 사업들을 추진할 수 없을까 봐 우려되었기 때문'이라고 진술하였다. 한편 이 사건 법 인 중 2004. 10. 9. 설립된 AA유한공사는 ㅁㅁㅁ가 그 100% 지분을 소유하고 있다. 이에 앞서 '원고들 가족의 국내 재산현황 및 경제활동 내역 등'에서 본 원고 유OO의 진술 내용[3. 나. 1) 다) (3)] 등을 더하여 보면, 이 사건 법인과 AAA는 모두 원고 이OO이 주도적으로 운영한 것으로서 원고 이OO은 늦어도 2003년경부터는 중국은 물론 국내에서도 활발히 사업을 하여 온 것으로 보인다.
C) Therefore, the plaintiff Lee O constitutes "resident" under the former Income Tax Act from 2005 to 2008, and this part of the plaintiffs' assertion is without merit.
3) Determination as to whether Plaintiff O’s dual residents and the exercising State of taxation pursuant to the tax agreement
A) According to the Chinese Private Income Tax and its implementing Ordinance, a resident under the Central Tax Act refers to a "individual who has a domicile in the border of China or has no domicile in the border of China, and even if the resident has a domicile in the border of China, the period of residence in the border of China shall be one year. The meaning that he/she has resided in China for one year in the border of China means that he/she has resided in China for one taxable period (from January 1, to December 31, 365) and that he/she has resided in China for one year in calculating the above residential period, i.e., "temporary travel days" in calculating the above residential period, i., a temporary departure period for which the annual departure period exceeds 30 days or the annual departure period does not exceed 90
According to the above facts, it is difficult to view the Plaintiff’s O as a Chinese resident because it did not constitute an individual who had been staying in the border of China for more than 90 days since 2006, because it had been staying in Korea for more than 90 days.
B) Furthermore, inasmuch as an individual is both a domestic resident under the Income Tax Act and a resident under the foreign tax law may be subject to double taxation on one income in Korea and abroad, separate provisions are established through the conclusion of a tax treaty among countries to prevent this. The tax treaty applicable to this case is the Korea-China Tax Convention signed on March 28, 1994 between the Republic of Korea and China and entered into force on September 28, 1994. If an individual becomes a resident of both countries, the Korea-China Tax Convention provides that (i) the country having a permanent residence, (ii) the country having a permanent domicile, (iii) the country having a permanent domicile, and (iv) the country having a permanent domicile, and (iv) the country having a residential domicile, but if it is impossible to determine a residence based on any of the criteria, the country having a tax liability shall be determined through mutual agreement (Article 4(2)).
설사 원고 이OO이 2005년부터 2008년까지 중국 소득세법 등에서 정한 거주자에 해당 하더라도, 앞서 본 인정사실에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정들, 즉 한ㆍ중 조세협약에서 말하는 '항구적 주거'란 그 문언의 의미상 단기체류 목 적이 아니라 항구적으로 사용하려는 의도로 개인이 언제든지 계속 사용될 수 있는 주 거의 형태를 갖춘 곳으로서 생계를 같이하는 가족이 있는 경우라면 그 가족이 생활을 형성하고 있는 근거지를 의미한다고 할 것인데, 2003년부터는 원고 이OO과 생계를 같이하는 가족인 원고 유OO과 자녀들은 모두 국내에서 거주한 점, 원고들 가족은 20 03년경부터 국내에서 본인들 명의 혹은 ㅁㅁㅁ 명의로 거액의 부동산을 취득하고 사업 을 확장하는 등 국내에서 계속적으로 적극적인 경제활동을 하여 자산을 증식하였는데 그 자산 증식에 있어서 원고 이OO이 주도적 역할을 담당한 것으로 보이는 점, 원고 이OO이 중국에서 벌어들인 돈은 모두 국내에서 자산을 증식하고 새로이 사업을 시작 하는 재원으로 사용된 것으로 보이는 점, 원고들은 계속하여 대한민국 국적을 보유하 고 있으며 원고 이OO 역시 결국은 귀국하여 2009년 무렵부터는 국내에서 주로 거주 하고 있는 점, 그 밖에 앞서 본 원고들 가족의 이 사건 각 처분의 귀속기간 전후의 국내재산 소유 및 그 취득관계, 원고들 가족의 경제적 활동 등을 종합하여 보면, 한ㆍ중 조세협약이 정한 원고 이OO의 '항구적 주소지' 내지 '인적ㆍ경제적 관계가 가장 밀접한 국가(중대한 이해관계의 중심지)'는 대한민국으로 봄이 타당하다.
C) Therefore, even according to the Korea-China Tax Convention, since the residential country in which the Plaintiff OO is liable for tax payment from 2005 to 2008 is the Republic of Korea, the Plaintiffs’ assertion on this part is without merit.
4) Sub-committee
As a result, the plaintiff Lee O bears a domestic tax liability for overseas source income from 2005 to 2008.
C. Whether the issue amount falls under the Plaintiffs’ income devolving from 2005 to 2008
1) Generally, the burden of proving the facts of taxation requirements in a lawsuit seeking the revocation of disposition imposing tax shall be imposed on the person imposing tax, but if it is found that the facts of taxation requirements are presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent taxation disposition is an unlawful disposition that fails to meet the taxation requirements unless the other party proves the circumstances that the pertinent facts in question are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decisions 2003Du14284, Apr. 27, 2004; 97Nu13894, Jul. 10, 1998).
2) According to the following facts or circumstances acknowledged prior to the 2005 208 2008 2008 2008 2008 2000, the pertinent disposition cannot be deemed as unlawful disposition based on the accounting books of this case.
① At the time of the individual consolidated investigation in 2016, Plaintiff O made a statement to the effect that: (a) the Plaintiffs were holding a part of the shares of the instant legal entity under the name of tea; (b) as the Plaintiff did not recover the investment amount by way of receiving regular dividends from the instant legal entity under the Chinese local circumstances where it is difficult to distribute dividends to foreign shareholders; (c) the instant legal entity disclosed funds from the instant legal entity; and (d) the account books submitted in 2009 were reflected in the slips and account books that the Plaintiffs had prepared and kept inside; and (e) the Plaintiffs stated that the account books of this case were reflected in the list and account books that were previously prepared and kept by the Plaintiffs. At the time of the tax investigation in 2009, the Plaintiffs stated that the account books of this case are the account books that were newly arranged by Plaintiff OO, which was composed of two to three (3) days before the date of the alternative remittance, and that the amount of voluntary withdrawal was retroactively reflected in the taxation data.
② As of the end of 2008, the Plaintiffs’ money withdrawn from the instant legal entity was equal to KRW 00 billion, and among which, from 2005 to 2008, were remitted to the Republic of Korea via a substitute remittance method from 2008. The Plaintiffs’ assertion that: (a) kept the money withdrawn from the instant legal entity in a bank depository, etc.; and (b) carried the money withdrawn from the said legal entity in the form of a substitute remittance method; and (c) it is consistent with the empirical rule to determine that the said amount was a substitute remittance from the time when the said legal entity was withdrawn. Accordingly, the realization of rights by setting the key amount under the Plaintiffs’ control and management around the date of the substitute remittance is mature and finalized.
③ The Plaintiffs asserted from around 1999 that the amount of issues may not be seen as the time when the amount of issues was withdrawn and the time when the substitute remittance was made. The Plaintiffs did not at all assert and prove the accuracy of the sources and the specific time of attribution.
3) Therefore, the plaintiffs' assertion that the time of attribution of the key amount can not be seen as from 2005 to 2008 is without merit.
D. Whether the issue amount can be taxed as "dividend income"
1) Whether disposal of income under the Corporate Tax Act is necessary
A) Article 67 of the Corporate Tax Act provides that when determining or correcting the tax base of corporate tax, the amount included in the calculation of earnings shall be disposed of as bonus, dividends, other outflows, internal reserves, etc. to the person to whom the income belongs as prescribed by Presidential Decree. Article 106 of the Enforcement Decree of the Corporate Tax Act provides that where the amount included in the calculation of earnings clearly flows out of the company, it shall be disposed of as dividends, bonuses, other income, and other outflow from the company according to the person to whom the income belongs, but where it is unclear, it shall be deemed that the amount included in the calculation of earnings has been reverted to the representative or the actual manager who actually controls the management of the corporation. As such, the disposal of earnings out of the company is a procedure under the tax law that determines the type, etc. of the person to whom the income belongs and the type of income without requiring the strict verification by the customs office. In cases where the accrual of the outflow income is unclear, it is merely a relaxation of the burden of proof by prescribing it to be reverted to the representative, etc. without relation to the substance (see, Supreme Court Decision 28.).
B) If so, the tax authority may impose taxes on the outflow income by mediating the disposition of income, as well as on the beneficial owner of the income and the type of income (income, allocated income, etc.) as prescribed by the Income Tax Act, and on the direct taxation of it by clarifying the time of attribution, so in order to impose taxes on the outflow income, the disposition of income is not always prior to the disposition of income in order to impose taxes on the outflow income. In particular, with respect to the overseas source income of a foreign corporation, the disposition of income by the tax authority under the Corporate Tax Act cannot be conducted on the overseas source income of a foreign corporation, and the tax authority is bound to impose taxes in person by clarifying the beneficial owner of the income, the type of income, and
C) However, in order to be lawful in imposing income tax, including income tax, by clarifying the beneficial owner and the type of income without disposition of income, the tax authority should assert and prove the fact that the income leaked to a third party is actually attributable to the representative, etc. and the type of such income (see, e.g., Supreme Court Decision 2003Du15300, May 12, 2005).
2) Whether the issue amount falls under "dividend income"
A) Determination of types of income from the income released from the corporation
(1) According to the above facts, the issue amount was leaked from the corporation of this case and belonged to the plaintiffs, the representative director and investors.
(2) If so, the tax authorities should impose taxes by further proving the "type of income" of the disputed amount. The issue of which type of income out of the company is basically a matter of fact-finding that could be determined by free evaluation of evidence. The issue of which type of income can be confirmed by considering the intent of the payer and the person to whom the income belongs, the basic legal relations between the person to whom the income accrues and the corporation, the amount of income, and the circumstances leading to the attribution of income (see, e.g., Supreme Court Decision 97Nu456, Jan. 26, 1997).
(3) While the Corporate Tax Act does not distinguish the source of income from the perspective of net asset increase, income for each business year of a corporation shall be deemed income subject to corporate tax without distinguishing it from the source of income (Article 3(1)), the Income Tax Act, from the perspective of income source theory, is imposed only on the following incomes, which are listed as a restrictive list of income by classifying them into interest income, dividend income, business income, neighboring log income, pension income, other income, retirement income, capital gains, etc. according to the source of income (Articles 3 and 4). Accordingly, income other than those specifically listed in the Income Tax Act, even if having the source of income, is excluded from taxation.
(4) Furthermore, the Income Tax Act has a different taxation method, such as calculation of the tax base and tax rate for each of the above types of income, and as it lists the types of income that may constitute dividend income, income not listed as dividend income subject to the income tax Act, interest, labor, other income, etc. cannot be deemed as dividend income and taxed accordingly.
B) Requirements for ‘dividend income' under the former Income Tax Act
"(1) 구 소득세법 제17조 제1항은 배당소득을 '내국법인으로부터 받은 이익이나 잉여금 의 배당 또는 분배금과 상법 제463조의 규정에 의한 건설이자의 배당'(제1호), '법인으 로 보는 단체로부터 받는 배당 또는 분배금'(제2호), '의제배당'(제3호),법인세법에 의 하여 배당으로 처분된 금액'(제4호), '국내 또는 국외에서 받는 대통령령으로 정하는 집합투자기구로부터의 이익'(제5호), '외국법인으로부터 받는 이익이나 잉여금의 배당 또는 분배금과 당해 외국의 법률에 의한 건설이자의 배당 및 이와 유사한 성질의 배 당'(제6호), '국제조세조정에 관한 법률 제17조의 규정에 따라 배당받은 것으로 간주된 금액'(제6호의2), '제43조의 규정에 따른 공동사업에서 발생한 소득금액 중 동조 제1항 의 규정에 따른 출자공동사업자에 대한 손익분배비율에 상당하는 금액'(6호의3)으로 구체적으로 규정하면서, 제7호에서 '제1호 내지 제6호의2의 소득과 유사한 소득으로서 수익분배의 성격이 있는 것' 또한 배당소득으로 규정하고 있다.",그렇다면 구 소득세법에 과세대상으로 열거된 '배당소득'에 해당하기 위해서는 구 소 득세법 제17조 제1항 제1호 내지 제6호의2 등에 규정되어 있거나 혹은 그와 '유사한' 소득으로서 '수익분배의 성격'이 있는 것이어야 하며, 그렇지 않음에도 이를 배당소득 세 과세대상이라고 확대해석하는 것은 조세법률주의의 원칙에 비추어 허용할 수없다 (대법원 2016. 10. 27. 선고 2015두1212 판결, 대법원 2011. 5. 13. 선고 2010두 3916 판결 참조).
(2) As to this, the Defendant asserts to the effect that, if an investor of a corporation has reverted the income of the corporation to himself/herself in a conclusive manner, it can be ratified as dividend income regardless of the resolution of the general meeting of shareholders, the existence of distributable profit, and the ratio of investment. However, the above purport of the above precedents (Supreme Court Decision 2003Du1059, 1066 Decided July 9, 2004) has become invalid as the Constitutional Court’s decision of unconstitutionality by the Act on the Grounds for Disposition of Income became invalid. Since the legal system of the time and the Corporate Tax Act were amended as to the disposal of income, in cases where the issue of outflow, such as embezzlement from a domestic corporation, etc. is at issue, taxation by the disposal of income without any exception, and the Supreme Court’s “banking” after the above decision was rendered, it is not appropriate to determine whether dividend income falls under the above provisions of Article 17(1) of the Income Tax Act and Article 17(2)15(2) of the same Act, 2017).
(3) Rather, Article 17 (1) of the former Income Tax Act, in principle, regards distribution of profits or surplus as elements of dividend income (Article 17 (1) of the same Act, and excludes only the portion corresponding to the "amount exceeding the amount required for acquiring stocks or investment," and the "amount of capital transfer of excess amount" as the "amount of dividend" (Article 17 (2) of the same Act). More fundamentally, the amount of interest is paid without consideration of profits or surplus in return for a loan, whereas the dividend is paid with the profits or surplus as the source of dividend income without consideration of profits or surplus. Accordingly, it cannot be taxed as "dividend income" without consideration of profits or surplus.
In addition, the size of the profit earned by an investor may be determined by his/her own independent intention, and the profit does not accrue in proportion to the investment and thus it cannot be deemed that there is a direct causal relationship between the profit earned by the investor and the investment, and where there are circumstances making it difficult to regard the pertinent income as the “price for investment”, such income cannot be deemed as having a “the nature of profit distribution”, and it is difficult to regard it as dividend income (see Supreme Court Decision 2015Du1212, Oct. 27, 2016).
(4) In cases where a representative director of a domestic corporation did not enter his/her sales in an account book but omitted, the tax authority imposed a tax on "income" as "income of the representative who actually controls the corporation's management" (see, e.g., Supreme Court Decisions 97Nu4456, Dec. 26, 1997; 2003Du15300, May 12, 2005) by deeming the amount of sales was out of the account book without the disposition of income under the Corporate Tax Act (see, e.g., Supreme Court Decision 2001Du7619, Jun. 27, 2003). If the tax authority imposes a tax on the above issue only on the ground that it actually belonged to the representative or shareholders, it is likely that the taxation authority would infringe on the taxpayer's income or dividend income without the disposition of income (see, e.g., Supreme Court Decision 2001Du7619, Jun. 27, 2003).
(5) If so, the tax authorities should consider the fact that there is a practical fear to conduct a tax investigation, etc. on a corporation located in a foreign country, and that it is difficult for the tax authorities to judge whether the dividend from a foreign corporation was lawfully made in accordance with the laws and regulations of the foreign country. However, the tax authorities must prove that there is a "profit distribution nature", such as that at least the income paid from the foreign corporation was paid as the "income or surplus" as the source of financial resources for the "income or surplus."
C) Determination
A) In full view of the following facts and circumstances that are acknowledged by comprehensively integrating the purport of the entire pleadings in the statements Nos. 5, 6, and 9 of the former Income Tax Act, the key amount is insufficient to deem that it constitutes a dividend income under the former Income Tax Act, and there is no other evidence to acknowledge it.
① The key issue amount is to be counted as “provisional payment on the account book of this case” in the account book of this case, which has been arbitrarily leaked from the corporation of this case.
② From 2005 to 2008, the Plaintiffs’ amount disbursed from the instant corporation shall be KRW 0 billion each year from KRW 0 billion to KRW 0 billion, and the cumulative amount shall reach KRW 00 billion as of the end of 2008. In addition, the annual number of deposits at issue amounts shall be 00 times in 2006, KRW 007, and KRW 000 in 2008. In light of the amount of provisional payments appropriated in the instant accounting book, the scale and number of deposits in the Republic of Korea, etc., the Plaintiffs appears to have determined the time and amount of withdrawal of the key amount from time to time without considering the distributable profits or surplus of the instant corporation.
③ There is no circumstance to see that the issue amount belonged to the Plaintiffs’ share ratio. The Defendant also imposed income tax, etc. on the Plaintiffs by allocating the issue amount in proportion to the drop number of provisional payment, which is stated in the account book of this case.
④ 이 사건 법인 중 AA유한공사는 2008년 말을 기준으로 하여 원고들이 아닌 ㅁㅁㅁ 가 100% 지분을 소유하고 있었다. 원고들 가족이 ㅁㅁㅁ의 100% 지분을 소유하고 있었더라도 법인과 개인의 인격이 구별되는 이상 원고들이 AA유한공사로부터의 인출 한 돈을 원고들의 출자에 대한 대가라고 보기 어렵다.
⑤ The Defendant does not have any assertion or proof as to whether the issue amount belongs to or is similar to any of the subparagraphs of Article 17(1) of the former Income Tax Act, or whether the amount withdrawn within the scope of distributable profits, etc. of the instant corporation or paid under the consideration of the ratio of equity shares, etc.
B) Therefore, the instant disposition based on the premise that the issue amount falls under the “dividend income” under the former Income Tax Act is unlawful.
E. Sub-committee
Thus, the disposition of this case is unlawful without any further determination on the plaintiffs' remaining arguments (the exclusion period limit).
4. Conclusion
Thus, since the plaintiffs' claims are well-grounded, all of them will be accepted and decided as per the disposition.