Cho High 2013 Jeon 1718 (24. 2013)

The Plaintiff’s act of discharging the borrowed debt constitutes an outflow from the company.

It is reasonable to view that the act of discharging the above loan obligation against the plaintiff as an act of appropriating the plaintiff's property or funds as an act of useful the plaintiff's property or funds as an act of outflow from the beginning, not as a premise of recovery.

Article 106 (Disposition of Income)

2013Guhap101257 Notice of Change in Amount of Income

○○○○ Corporation

○ Head of tax office

March 20, 2014

April 17, 2014

1. The claim of this case is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On January 16, 2013, the notice of change in the income amount of ○○○○○○○○ that the Defendant rendered to the Plaintiff is revoked.

1. Details of the disposition;

The following facts may be acknowledged if there is no dispute between the parties, or if the whole purport of the pleadings is added to the statements in Gap evidence Nos. 1, 2, 5, 8, 9, and Eul evidence Nos. 1 through 3 (including the number of branches).

(a) Possession, etc. of art works by plaintiffs, etc.;

(1) On January 8, 1988, the Plaintiff was established mainly for the wholesale and retail business of drugs, and on December 26, 2008.

In addition, Aa, a representative director, owns 100% shares (91.63% shares in the account book). In addition, Aaa owns and operates ○ Drugs Co., Ltd. (aa and its specially related persons hold 100% shares; hereinafter referred to as '○ drugs'), △△ drugs Co., Ltd. (aa holds 100% shares, hereinafter referred to as 'the 100% shares of 10% shares, hereinafter referred to as 'the △△△△ drugs').

(2) On the other hand, the above Aa purchased and possessed a large number of domestic and foreign luxious artists under the name of the company, the plaintiff, and the above ○○ drugs. On September 15, 2010, the above Aa purchased and possessed art works in its own name. On the other hand, as of September 15, 2010, the plaintiff company: ① the 16th art works including BB's natural law- spring; ② the ○ drugs contain bB's 'bb' 'the 'the 'the 'the 'the 'bb's 'the 'the 'the 'the 'bb's 'the 'the 'the 'b'.

(b)the disposal of some of the art works and the accounting management related to the proceeds therefrom;

(1) On September 15, 2010, the above Aa sold cccc’s work “eis” (hereinafter referred to as “art of this case”) to 1.85 billion won among the art works owned by the Plaintiff through an enterprise acting as a broker for the sale and purchase of art works. At the time of the above Acc’s sale, the above Aa deemed that the art of this case is not the Plaintiff’s ownership, but the work owned by the Plaintiff, and had been sold, and received the full payment (hereinafter referred to as “the money of this case”) from the bank account in its personal name on the day.

(2) On the other hand, around that time, Aa was liable to the Plaintiff for a loan exceeding 6 billion won (short-term loan), but was treated as partly repaying the loan with the funds procured as above. In other words, Aa remitted the instant money to the Plaintiff on September 17, 2010 as the repayment of the loan amount of KRW 1,850,000,000,000,000,000 to the Plaintiff. Accordingly, the Plaintiff completed accounting as the repayment of the loan amount of KRW 1,855,00,000 for Aa on the same day.

C. Defendant’s notice of change in income amount

(1) From August 9, 2012 to November 6, 2012, the director of the regional tax office of ○○○○ (hereinafter “the instant tax investigation”) conducted a corporate tax integration investigation against the Plaintiff (hereinafter “the instant tax investigation”). In the course of the investigation, it was revealed that the instant art works owned by the Plaintiff were deemed as art works owned by the Plaintiff as the representative director aaaaa and sold, and that the said accounting was conducted as above at the proceeds of the sale.

(2) Upon confirmation of the foregoing facts, the Plaintiff recovered short-term loans prior to October 1, 2012.

In other words, the Plaintiff, by disposing of the art of this case, the acquisition value or book value of which is 2 billion won, shall be deemed to have incurred a loss of 150 million won by disposing of the art of this case, and on the other hand, entered the claim amounting to KRW 1.85 million against a short-term loan of KRW 1.85 billion against a Aa is still remaining (the restored loan of KRW 1.85 billion was recovered on March 29, 2013).

(3) On the other hand, the director of ○○ Regional Tax Office notified of the facts relating to the art of this case

As of January 16, 2013, the Defendant included the instant money in the Plaintiff’s gross income for the business year of 2010 and deemed that the amount was out of the company, the Defendant disposed of the amount as bonus to the above Aa as the representative director, and issued a notice of change in income amount corresponding thereto (hereinafter “instant disposition”) to the Plaintiff.

2. The assertion and judgment

A. Summary of the plaintiff's assertion

(1) Aaa misleads the Plaintiff as to the ownership of the art of this case.

In the instant case, (a) accounting was conducted for the repayment of the above loan debt to the Plaintiff, but this is identical to the Plaintiff’s sales proceeds by directly selling the art products owned by the Plaintiff, so it cannot be deemed that the repayment of the above loan debt under Aa takes effect due to the above accounting performance. Accordingly, the instant money is retained in the form of the loan bond against the Plaintiff (aa).

(2) Even if the effect of the repayment of the above loan obligation under Aa has occurred,

In light of the fact that the Plaintiff not only has a damage claim equivalent to the amount of the instant money to Aa but also has an intention to waive or not to recover the said damage claim against Aa in the course of selling the receipts and disbursements of art works owned by Aa to repay the loan obligation to the Plaintiff, etc., it cannot be deemed that the Plaintiff has objectively expressed its intention to avoid the waiver or not to recover the said damage claim against Aa, and therefore, the amount of the instant money is reserved in the form of the damage claim.

B. Relevant statutes

Attached Form 3 is the same as the entry of the relevant statutes.

C. The judgment of this Court

(1) As to the assertion that the internal reserve is made in the form of loan bonds

As seen earlier, Aaa sells the instant art product owned by the Plaintiff as an individual rather than the Plaintiff’s representative and received the instant money in return for the sales of the said product by the Plaintiff.

The ownership of the instant money is deemed to have been transferred to Aa even though the Plaintiff had the claim for damages or the claim for return of unjust enrichment against Aa, as seen earlier, insofar as Aa has delivered the instant money to the Plaintiff with the repayment of the said loan owed to the Plaintiff under Aaa, the effect of repayment becomes effective and the said loan obligation becomes extinct, and as alleged otherwise by the Plaintiff, it does not change even if Aa sells the instant art property by mistake that it was its own ownership, or aa sells it by mistake as to such error, or if it was discovered that the relevant loan obligation was in default.

Therefore, the Plaintiff’s assertion that the instant money is retained in the form of loans cannot be accepted.

(2) As to the assertion that it is retained in the form of damage claim

(A) Facts of recognition

The following facts do not conflict between the parties, or evidence A, No. 1 to 4, No. 10

The evidence No. B may be admitted if it shows the overall purport of the pleading in the statement No. B, No. 1, and No. 23.

① On or before December 26, 2008, the Plaintiff began to purchase a number of art works of this case, which had been added to the sales business for the purpose of business, and around September 15, 2010, the Plaintiff collected the art works of this case, much more than 9.9 billion won on the basis of the acquisition value. Among them, the acquisition value of e’s works of this case, e’s art works of this case, e’s art works of this case, ’s art works of this case, ’s art works’ and ’s works’ offff’ respectively, exceeds 3.687 billion won and 2 billion won and 1.9 billion won, which is a sum of 7.587 billion won and 1.9 billion won, which is a sum of their acquisition value, shall reach about 77 percent of the total acquisition value (9.9 billion won).

② The instant art works are works purchased by the Plaintiff on October 2, 2008 through a company called a gallongal gallon, and registered and stored in the company’s art works list.

"Third, in the name of the plaintiff company, about 59 points of art (the total acquisition value is about 4.64 billion won) that the plaintiff company owned and controlled. Among them, "La Fenir value" and "Sbur2" are the highest price of the goods of the shower, the acquisition value of which is 1.1 billion won, and the "Sbur2" of which are 250 million won. The collection of goods does not include only one of the art goods purchased in the name of the plaintiff, such as this case, and also one of the art goods purchased in the name of the plaintiff, such as this case."

⑤ On the site of 13,000 square meters in a lot of 13,000 square meters, which is a tangible cultural property of ○○-dong, Seoul Metropolitan City prior to several years, aa has deep arts and knowledge in art works, etc. to operate a three-story underground and a third-story Seoul art gallery on the ground. In relation to the above management of the purchase of art works, a separate department in charge of the company is established, or a person directly purchases and manages all the affairs, such as the selection of works to be purchased by himself/herself without employing a professional staff.

④ In the Plaintiff’s art management ledger of December 31, 201, it is written that art works purchased at the price of 2 billion won through the gallongal gallon on October 2, 2008 are not the art works of this case, but the “gallon’s works” as the “gallon’s works, aa individual’s collection.

㈏ 판단

Unless there exist special circumstances, the act of using corporate funds by the representative director, etc., who is the actual manager of the corporation, is not based on the premise of early recovery, and thus, constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be seen as not premised on recovery from the utilization time, the determination shall be made individually and specifically by taking into account all the circumstances, such as the actual status within the corporation of the representative director, etc., the subject of the embezzlement, the degree of control over the corporation, the circumstances leading to the embezzlement and the measures taken by the corporation after the embezzlement, etc., such as 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. Such special circumstances must be proved by the corporation asserting it (see, e.g., Supreme Court Decisions 2012Du2382, Feb. 28, 2013; 2007Du2323, Nov. 13, 2008

6. On the premise that the Plaintiff’s act of selling this case’s art assets by way of the Plaintiff’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this non-existent assets or sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this case’s sales of this 1 or 10’s sales of this by the Plaintiff’s sales of this case’s sales of this case’s sales of this case’s properties.

(3) Sub-decisions

Therefore, the instant disposition based on the premise that the instant money was out of the company is legitimate.

3. Conclusion

The claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.