Review Other 2008-0017 (Law No. 8.15, 2008)

If the omission of sales was appropriated in the provisional account after such inclusion, it shall be deemed to fall under the outflow of the company.

Where it is found that the omission of sales by a corporation is an obligation against the representative director after it was appropriated in the provisional payment account, the omission of sales due to the transactions of provisional payment shall be deemed to have been reverted to the representative of the company.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

On September 3, 2007, the Defendant revoked the portion exceeding KRW 12,000,000, out of the loan disposal of the Korea-Japan Magsan (Korean) on September 3, 2007.

1. Circumstances of the disposition;

A. As a result of the Daegu Regional Tax Office’s tax investigation conducted on the Plaintiff, it was confirmed that the Plaintiff included the processed expenses of KRW 12,984,00,00 that were not proven by the Plaintiff’s filing of the corporate tax return on December 1, 2005 to November 30, 2006, while receiving the subsidy of KRW 177,552,850 (hereinafter “the amount of the instant revenue”) from the dives market from the Plaintiff on December 30, 2005.

B. On September 3, 2007, the defendant added 12,984,00 won to the gross income and added 12,984,00 won to the deductible expenses, and at the time, the defendant notified the plaintiff of the change in the amount of income to the non-party Kim Jong-hwan, the representative director of the plaintiff (hereinafter referred to as "the bonus disposition for KRW 177,552,850, which is the revenue amount of the case in which the plaintiff argued," and on September 4, 2007, the defendant imposed corporate tax of KRW 11,046,670 for the business year from December 1, 2005 to November 30, 2006 on the plaintiff.

C. The Plaintiff filed a request for examination with the Commissioner of the National Tax Service on April 21, 2008 upon filing an objection on December 3, 2007, but the Commissioner of the National Tax Service dismissed the request for examination on July 15, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On December 30, 2005, the Plaintiff deposited the amount of the instant revenue from the Plaintiff’s account from the knives viewing on December 30, 2005, and then withdrawn KRW 202,00,000 from the same account on January 2, 2006, and used the instant revenue amount as the repayment fund for the cash cash of the current account at the Industrial Bank of Korea, and did not leak it out to the private company. Thus, the instant disposition based on the premise that the instant revenue amount was leaked to the private company is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On November 28, 2005, the Plaintiff deposited KRW 288,805,000 from the bus transport business association into its ordinary agricultural cooperative account, and received KRW 290,00,000 from the representative and deposited KRW 288,805,00 among them, and deposited KRW 1,195,000 in cash, and the amount of the above financial support was kept as the outstanding amount.

(2) Thereafter, on December 30, 2005, the Plaintiff deposited the amount of 177,552,850 won, which is the revenue amount of the instant case, from the knives knives viewing on December 30, 2005 to the instant ordinary deposit account. The Plaintiff’s account was calculated by withdrawing the outstanding amount for the financial subsidy from November 28, 2005 and omitting the revenue amount of the instant case, thereby calculating the processed amount of 177,552,850 won.

(3) The Plaintiff treated the outstanding amount of the financial subsidy processed as the total of 111,252,150 won (28,805,00 won - 17,52,850 won) on January 9, 2006 as the total of 34,308,440 won and 76,943,710 won, and as the total of 111,252,150 won from the outstanding amount of the financial subsidy collected.

4) After that, the Plaintiff entered into accounts on February 28, 2006 that the balance of the provisional payment would be zero.

[Reasons for Recognition] Evidence, Evidence Nos. 3 through 7, Evidence Nos. 3 through 6, and the purport of the whole pleadings

D. Determination

In a case where a corporation fails to enter its sales in an account book despite the fact of sales, the total amount omitted in sales shall be deemed to have been leaked out of the company, barring any special circumstance. In this case, the special circumstance that the amount omitted in sales shall be proved by the corporation claiming it, and even if the amount received by the corporation through sales is not finalized and the cash, which is the counterpart account, was entered once into the account, was entered into the temporary account, which is a temporary deposit account. If the contents of the provisional deposit account, were to enter the short-term loan transactions from the representative director, and it is proved that it was an obligation against the representative director in the future, such transactions are unrelated to the corporation's profits or expenses, and thus, such transactions do not entail the change or increase in the net assets of the corporation, and thus, the amount which should have been entered in the account book as revenue of the corporation should be deemed to have already been leaked to the representative director and thus, it shall be deemed to have been reverted to the other party (see, e.g., Supreme Court Decision 2002Du3601.

In light of the above legal principles, as seen earlier, insofar as the Plaintiff did not enter the amount of the instant revenue in the account as the sales revenue, barring any special circumstance, it shall be deemed that the full amount omitted sales revenue was leaked out to private areas, and special circumstances should be proved that the Plaintiff did not leak out to private areas. As the Plaintiff claims, the Plaintiff’s “Plaintiff’s ordinary deposit account” withdrawal of KRW 202,00,000 from the same account on January 2, 2006, which was after the deposit of the instant revenue amount, was made, and used for repayment of the Plaintiff’s current loan amount. The Plaintiff’s assertion that the processed amount of the instant financial subsidy was leaked to private areas on December 5, 2005, and that the Defendant’s processed amount of KRW 288,805,00,000 from the processed amount of the instant financial subsidy to 290,000,000 won cannot be deemed as being leaked to private areas on account of the following reasons.

3. Conclusion

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