Seocho-2015- Busan District Court-5033 (29 March 2016)

It is difficult to regard that a corporation's liability for provisional payments has been transferred.

It is difficult to regard that the obligation for provisional payments has been transferred, and since the provisional payments have not been recovered at the time of termination of the special relationship and thus have been de facto renounced or disposed of in a situation in which it is impossible to recover it, it is reasonable to view that the provisional payments not recovered have been reverted to a person who was in a special relationship with the company.

Article 11 of the Enforcement Decree of the Corporate Tax Act

2016Guhap2231 Revocation of Disposition of Imposing global income tax, etc.

Hyo

△△△ Director

1, 2017.05

2, 2017.06

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of global income tax of KRW 2,095,870 for the year 2009, global income tax of KRW 3,111,350 for the year 2010, global income tax of KRW 3,111,350 for the year 201, global income tax of KRW 2,019,680 for the year 201, global income tax of KRW 2,019,680 for the year 2012, and global income tax of KRW 45,686,740 for the year 2013 is revoked.

1. Details of the disposition;

(a) △△△△△△ (hereinafter referred to as the “△△△△△△△△△”) is a corporation that engages in the business of cleaning sewage purification facilities and excreta septic tanks, the business of cleaning underground and exposed pipes, and the business of cleaning sewage purification facilities and excreta septic tanks, the business of cleaning septic tanks, the business of cleaning septic tanks, and the business of cleaning sewage and excreta septic tanks, the business of cleaning septic tanks and repairing pipes.

B. From July 23, 2007 to October 29, 2013, the Plaintiff is a person who actually operates △△△△△△△ while serving as a director of the △△△△△△△△△, and the Plaintiff’s wife is a person who served as the representative director of △△△△△△△△△△△△△△△

C. At the time of June 11, 2007, the Plaintiff and Jung-AA entered into a comprehensive acquisition agreement with the head of Lee Dong-B and HongCC, who was the representative director of △△△△, and the head of △△△△, to acquire all of the assets including the above company’s shares and business rights in KRW 050 million.

D. On October 9, 2013, the Plaintiff and Jung-AE entered into a comprehensive acquisition agreement (hereinafter “instant agreement”) with respect to the transfer of all assets, including the shares and goodwill, to △△△△△ and △△△△△△△○○ billion (hereinafter “instant agreement”).

E. From October 13, 2014 to October 31, 2014, the head of ○○ Tax Office investigated corporate tax on △△△△△△△, the Plaintiff: (a) was the actual company owner who owns 80% of the total issued shares of △△△△△△, from July 23, 2007 to October 31, 2013; (b) was notified the Defendant of KRW 28,634,810 (the date of the settlement of the Plaintiff’s transfer of shares, KRW 568,634,810, KRW 208, KRW 2015, KRW 30, KRW 410, KRW 205, KRW 208, KRW 2015, KRW 308, KRW 10, KRW 208, KRW 2015, KRW 10, KRW 208, KRW 2015, KRW 200, KRW 145,2019.25.

F. On June 23, 2015, the Plaintiff appealed, and filed an objection on June 23, 2015. On July 23, 2015, the Director of the Regional Tax Office of Seoul Special Self-Governing City, the Director of the Regional Tax Office decided to rectify the tax base and tax amount for the taxable year 2013 by using KRW 116,103,167, which was obtained by subtracting the amount of provisional payment not succeeded by the Plaintiff from KRW 568,634,810, the balance of provisional payment that was not disposed of at the time of the instant contract from KRW 568,634,810, and the amount of provisional payment, which was 172,531,643, as the amount of bonus disposal, and the tax base and tax amount for the taxable year from 2009 to 2012.

G. Accordingly, the Defendant corrected the Plaintiff’s additional global income tax amount of KRW 2,095,870 for the year 2009, KRW 3,143,450 for the year 2010, KRW 3,111,350 for the year 201, KRW 2,019,680 for the year 2012, and KRW 45,686,740 for the year 2013 (hereinafter “instant disposition”).

H. The Plaintiff filed an appeal with the Tax Tribunal on October 15, 2015, but was dismissed on March 29, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 1, 2, 5 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff transferred the shares, etc. to KimD and KimE, and the Plaintiff transferred all of the Plaintiff’s provisional payment obligations to △△△△△△△. However, the Defendant accepted only the statement that the above transferee did not take over the provisional payment obligations from the Plaintiff without properly verifying whether or not the provisional payment obligations were transferred. The instant disposition was unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

As alleged by the Plaintiff, in light of the following circumstances, as to whether KimD or KimE acquired the Plaintiff’s debt owed to △△△△△△△△△, the Plaintiff’s assertion is rejected on the ground that the evidence submitted by the Plaintiff alone is difficult to deem that KimD or KimE took over the Plaintiff’s debt owed to △△△△△△△△△, and there is no other evidence to acknowledge otherwise.

1) According to Article 67 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010) and Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22035, Feb. 18, 2010) where it is evident that the amount included in the calculation of earnings has been leaked out of the company, in cases where it is obvious that the person to whom the amount included in the calculation of earnings has been distributed out of the company has been distributed out of the company, it shall be treated as dividends, bonuses, other income, and other outflow from the company to whom

On the other hand, since the provisional payment is based on the premise of its original recovery, when a stock company virtually waives its recovery or leaves the provisional payment in a situation where it is impossible to recover due to the failure to recover the provisional payment to a person with a special relationship, the provisional payment should be deemed to have been finally reverted to the recipient or the person with a special relationship.

2) The amount of the provisional payment stated in the account book of △△△△△△ was KRW 280 million as of July 23, 2007, and KRW 568,634,810 as of October 31, 2013. △△△△△△△△△△△△ was an additional account for the principal after calculating the interest rate on the provisional payment accrued from 2007 to 2012 as the provisional payment for the following business year. Therefore, it cannot be readily concluded that the said provisional payment was KRW 28,634,810 as of October 31, 2013 to KRW 568,634,810 as of July 23, 2007 and KRW 172,531,643 as of October 31, 2013 after deducting the interest rate on the provisional payment, KRW 16,1081,716,716,716,7167, etc. of the Plaintiff’s shares were not acquired.

3) The settlement standard attached to the instant contract states, “The provisional payment is a book-keeping part, and there is no obligation to repay the provisional payment on the account books, so that the Plaintiff shall succeed to this part without considering the issue.” The content of the provisional payment is the same as the settlement standard attached to the contract when the Plaintiff acquires shares of △△△△△ on June 11, 2007. The purpose of this contract is to clarify the fact that the above provisional payment obligation exists only on the account books, and the transferee shall succeed to the above provisional payment obligation only on the assumption that there is no actual obligation to repay. Therefore, the content of the contract alone does not deem that the transferee exempted the Plaintiff from the obligation to pay the provisional payment.

4) As of November 1, 2013, the instant contract had to pay the Plaintiff’s debt (such as labor cost, tax and public charges, partnership cost, vehicle installment, insurance premium, oil cost, etc.) by settling the amount of the Plaintiff’s debt from KRW 3.1 billion to KRW 3.1 billion. The instant contract did not have any settlement, including the deduction of the total provisional payment amount from KRW 568,634,810,00, and the said comprehensive acquisition amount is not set on the premise that the Plaintiff’s debt is discharged to the assignee.

5) Under the settlement criteria attached to the instant contract, there is no obligation to repay the provisional payment, and in fact, in light of all circumstances such as that in the lawsuit for confirmation of the existence of the provisional payment and the existence of the obligation against △△△△△△ and △△△△△△△△△△ in the lawsuit brought against the Plaintiff and △△△△△△△△△△△, it is reasonable to deem that the said provisional payment was reverted to the Plaintiff as a person who was out of the special relationship with the Plaintiff, because the said provisional payment was not recovered at the time when the special relationship with the Plaintiff was extinguished, and thus the said provisional payment was de facto renounced or impossible to recover it.

3. Conclusion

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