Whether the plaintiff is a real representative of the non-party company (a judgment of non-party company rejection of hearing)

In light of the fact that the plaintiff was registered as the representative director of the non-party company, held the shares of the non-party company, received benefits from the non-party company, and traded funds with the non-party company, it is reasonable to deem the plaintiff as the actual representative of the non-party

Article 20 of the Income Tax Act

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

1. Basic facts

A. The Plaintiff, from July 7, 200 to July 31, 2003, served as the representative director of Korea Point Bank for the purpose of software development, consultation, sales business, etc. Meanwhile, from November 27, 2001 to November 27, 2001, is registered as the representative director in the corporate register of a corporation dedicated to the development, processing, and sales of software.

B. The non-party company purchased a false purchase tax invoice in the name of a business entity called △△△△△ without a real transaction, and submitted a profit and loss statement in 202, stating the sales amount of KRW 1,128,190,954 (hereinafter "the sales amount of this case"), the sales amount of KRW 432,30,000 (the total value of KRW 393,000,000 + the total value of value-added tax plus KRW 39,30,000,000 (hereinafter "non-taxation amount of this case"), and the net income amount of KRW 2,320,89 (hereinafter "the profit and loss statement of this case") at the tax office.

C. The head of the Geumcheon Tax Office did not include the non-deductible amount in the deductible expenses of the non-party company, but disposed of the amount as the bonus of the plaintiff pursuant to Article 67 of the Corporate Tax Act and Article 106 (1) 1 (b) of the Enforcement Decree of the same Act, and notified the plaintiff of the change in the amount of income on December 2, 2003, and notified the defendant of the above disposition as

D. The Defendant, based on the above taxation data, issued the notice of payment on August 24, 2004 to the Plaintiff on September 10, 2004 by public notice (hereinafter “instant disposition”) and on September 10 of the same year, issued the above notice of payment to the Plaintiff on the following grounds: (a) the Defendant intended to deliver the notice of payment of KRW 193,298,069, excluding the amount already paid, to the Plaintiff; (b) but did not serve the notice of payment of KRW 12,973,784, which was paid to the Plaintiff; and (c) the Defendant issued the notice of payment to the Plaintiff on September 10 of the same year.

E. On the other hand, on November 18, 2003, the head of the Geumcheon Tax Office confirmed that the non-party company was not operating the business and discontinued the business registration of the non-party company ex officio.

2. The legality of the instant disposition

A. The plaintiff's assertion

In the following respect, the instant disposition is unlawful.

(1) In order to obtain a loan from the Korea Technology Finance Corporation and the Bank, the non-party company purchased each false purchase tax invoice with respect to the so-called window dressing accounting; with respect to sales, the amount of supply price of at least 600,000,000 won including the tax invoice as listed below; and the non-party company prepared the instant income statement and submitted it to the tax office based on the above false tax invoice; and it was improper to dispose of the amount of this case as the plaintiff's bonus on the premise that the non-party company did not have any income equivalent to the sales amount of this case in 202.

Date of Preparation

Person in Charge of Preparation

Value of supply (cost)

Value-Added Tax (won)

July 22, 2002

주식회사 ♧♧♧플러스

132,300,000

13,230,000

August 8, 2002

○○ Pre-Electronic Co., Ltd.

160,550,000

16,055,000

September 5, 2002

150,550,000

15,055,000

(2) Even if there was an income equivalent to the amount of this case in the non-party company, the corporate tax should be imposed on the non-party company. However, the amount of this case is not holding the shares of the non-party company, and it is deemed that it belongs to the plaintiff's bonus that was not in charge of the non-party company's business, and it is unlawful to impose

(3) As the representative director of Korea Points Bank, the Plaintiff was registered as the representative director of the non-party company under the name of the non-party company from October 2001 to ○○○, a real representative of the non-party company, on the request of ○○○○○, and did not take part in the non-party company’s business in addition to giving the above advice. While the non-party company did not take part in the non-party company’s business, the non-party company did not take full charge of the non-party company’s business, the non-party company did not take full charge of the non-party company’s business. Thus, it is unreasonable to deem the Plaintiff as the actual representative of the non-party company.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) The facts that the non-party company filed a corporate tax return at the tax office, stating the sales of this case in the income statement of this case as above, and the non-party company purchased a false sales tax invoice of 600,000,000 won or more and prepared the income statement of this case based on it, it is reasonable to deem that the non-party company had income equivalent to the sales of this case in the year 2002. Further, the non-inclusion of this case is the cost of processing based on the false purchase tax invoice prepared without real transaction as mentioned above, and the cost of processing based on the false purchase tax invoice prepared without real transaction is recognized as mentioned above, and there is no assertion or proof as to special circumstances that the non-Inclusion of this case is reserved to the company that does not leak out of the company. Thus, the non-Inclusion of this case is excluded from the amount of this case.

(2) Next, we examine whether the Plaintiff is the actual representative of the non-party company.

(A) Comprehensively taking account of the whole purport of each statement in Gap evidence Nos. 14 through 18 (including each number), the plaintiff owned 46,000 shares out of the total shares of the non-party company 46,000 shares as of December 31, 2001, and 2,800 shares out of the total shares of the non-party company 69,000 shares as of December 31, 2002. The non-party company received benefits of KRW 3,750,000 from the non-party company in 201, and KRW 45,250,000 from the non-party company in 202. The financial transaction situation between the plaintiff and the non-party company can be acknowledged as follows, and there is no counter-proof evidence except the evidence rejected below.

Classification

September 30, 2002

November 15, 2002

December 31, 2002

Provisional Payment

4,109,280 won

4,109,280 won

0 won

2. Gain

2,117,720 won

8,115,639 won

6,125,639 won

(B) As recognized above, it is reasonable to view the Plaintiff as the actual representative of the non-party company in light of the fact that the Plaintiff registered as the representative director of the non-party company, owned the shares of the non-party company, received benefits from the non-party company, and traded funds with the non-party company

(C) On the other hand, a person who was involved in the management as a substantial representative of the non-party company is not the defendant, but the testimony of the principal school as stated in the evidence Nos. 8 and 13, which corresponds to the fact that the non-party company is the s

(3) According to Article 67 of the Corporate Tax Act and Article 106 (1) 1 (b) of the Enforcement Decree of the Corporate Tax Act, where it is clear that the amount included in the calculation of earnings has leaked out of the company, but it is unclear to whom it belongs, the amount of bonus shall be disposed of as the bonus of the representative, and Article 20 of the Income Tax Act provides that the amount treated as bonus under the Corporate Tax Act shall be subject to income tax, and it is legitimate to impose a comprehensive income tax on the plaintiff, who is the actual representative of the non-party company, as bonus for the non-deductible of this case and

(4) Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.