Daegu District Court 2015Guhap20253 ( February 5, 2016)

Cho High 2012Gu1995 ( October 22, 2014)

The Plaintiff, as a nonprofit corporation, is not in control of the president with the general corporation, but with the intent of the president.

(As in the judgment of the court of first instance), it is difficult to see that the plaintiff's chief director, a non-profit corporation, actually controls the plaintiff at the time of embezzlement, and the chief director and the plaintiff's intent are not the same, and it is difficult to see that the president's embezzlement was not premised on the recovery, and thus, disposition of change

Article 67 of the Corporate Tax Act

The exclusion period of the imposition of national taxes under Article 26-2 of the Framework Act on National Taxes

2016Nu4615 Revocation of notice of change in income amount, etc.

Daegu ○○○ Complex Management Corporation

1. ○○ director of regional tax office;

2. ○○ head of tax office.

○○ District Court Decision 2015Guhap20253 Decided February 5, 2016

October 14, 2016

November 11, 2016

1. All appeals by the Defendants against the Plaintiff are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

Defendant ○○○ Director of the Regional Tax Office’s initial disposition against the Plaintiff on December 5, 201, as indicated in attached Table 1 [Attachment 1] that the Plaintiff on December 5, 201, shall revoke the disposition of notification of change in income amount. Defendant ○○○ Head of the Regional Tax Office’s initial disposition against the Plaintiff on December 1, 201, attached Table 2 [Attachment 2] that Defendant ○○ Head of the Regional Tax Office issued on December 1, 201, revoked each disposition of imposition of value-added tax between the

2. Purport of appeal

The part of the judgment of the court of first instance against the Defendants shall be revoked, and all of the claims against the Defendants corresponding to the above revocation part shall be dismissed.

1. Details of the disposition;

(a) The relationship between the parties;

On January 27, 1981, the Plaintiff is a non-profit corporation established for the maintenance and management of ○○ Industrial Complex, the promotion and development of the modernized project of occupying enterprises pursuant to Article 31 of the former Industrial Cluster Development and Factory Establishment Act (hereinafter referred to as the “former Industrial Placement and Factory Establishment Act”), and Hab○ is a person working as the president from March 30, 192 to August 24, 2009.

B. Criminal judgment on ○○○

1) ○○○ was indicted on April 26, 201 due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) committed while in office as the president of the Plaintiff, and sentenced to the judgment of conviction (○○ District Court 201No. 64) for 4 years of imprisonment on September 29, 201. The main summary of the crime related to the instant case is as follows.

1. Embezzlements through the fraudulent and exaggerated appropriation of flexible coal transportation expenses;

(a) The method of paying false flexible coal transportation expenses to △△△△ Company, etc.;

Although slot transportation chain from January 2001 to August 2005, and three companies, including △△△△, did not actually transport the Plaintiff’s smoke, it shall prepare a written disbursement resolution, etc. as if the Plaintiff transported smoke and embezzled KRW 1,58, 617,265.

(b) The method of overappropriating the waste coal transport cost for △△ (the telegraph of ○○○○○ Co., Ltd.).

The expenditure resolution, etc. was prepared from November 2001 to August 2004, 344,758,902 won of the Plaintiff’s funds, as if he transported smoke more than that actually transported by △△ corporation.

(c) AA using an excessive appropriation of the transport cost of flexible coal for the corporation AA;

The expenditure resolution, etc. was prepared as if AA had transported smoke more than that actually transported by AA from November 2001 to November 2008, and the Plaintiff’s funds amounting to 2,400,703,939 won by embezzlement (hereinafter “transport expenses embezzled by ○○○ for criminal facts described in the above A.C.)

2. Embezzlements for sales proceeds of golf membership owned by the plaintiff;

The embezzlement of KRW 66,330,000, out of the proceeds from the sale of golf membership owned by the plaintiff on March 16, 2007 (hereinafter referred to as "the proceeds from the sale of golf membership in this case")

3. Breach of trust through sale of the Plaintiff-owned cargo at a low price

In violation of the duty from September 2003 to December 2008, 2108, the Plaintiff sold 21 trucking cars owned by the Plaintiff to four enterprises, including △△ Co., Ltd., at KRW 701,501,903, and let the above enterprises gain profit from the same amount of money and thereby causing loss equivalent to the Plaintiff (hereinafter “Plaintiff’s loss”).

2) On April 19, 2012, the appellate court, ○○○○○○○○○ case, which was the appellate court, changed the amount stated in paragraph (c) of the above criminal facts to KRW 2,323,278,591 according to the prosecutor’s amendment of indictment, and sentenced ○○○ to three years of imprisonment without prison labor, without accepting the argument of mistake of facts and misapprehension of legal principles. In the Supreme Court case of ○○○○○○○○○○, which was the appellate court, the appellate court reversed and remanded the lower court’s judgment on August 30, 2012, on the ground that there was insufficient deliberation on the fact that the instant amount of breach of trust was KRW 701,501,903, the amount of breach of trust was KRW 701,503. The appellate court, the appellate court, ○○○○○○○ case, which was the appellate court, sentenced the instant amount of trust to ○○○ on November 19, 2012.

The above judgment of the court of first instance was dismissed and became final and conclusive on the same day.

C. Circumstances of each of the dispositions of this case

1) From April 25, 2011 to November 30, 2011, the director of the regional tax office having jurisdiction over Defendant ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, after investigating the Plaintiff, confirmed the cost of processing and transportation of this case, golf membership sales, and the amount of wrongful calculation in relation to the amount of breach of trust, and notified the head of the regional tax office having jurisdiction over the correction of the corporate tax and the value-added tax for each business year.

2) As a result of the tax investigation above, the head of the Defendant ○○○○ Tax Office decided to revise corporate tax by not including the processing transportation expenses of this case in deductible expenses, the sales proceeds of this case in gross income, etc., and revise the value-added tax by not deducting the relevant input tax amount from deductible expenses, and notified each of the corporate tax from 2001 to 2010 and the value-added tax from 2001 to 2008 to 2008 as stated in the “the first disposition” column, and notified the Plaintiff of the change in the income amount from 2001 to 2008. The head of the Defendant ○○○○ Tax Office decided to dispose of the processing transportation expenses of this case and the sales proceeds of golf membership sales proceeds of this case as bonus to the representative, and notified the Plaintiff of the change in the income amount from 201 to 208.

3) On December 1, 2011, the Plaintiff filed an objection with the head of the tax office of ○○○○ Tax Office against the disposition authority as to the imposition disposition of each corporate tax and each value-added tax on December 1, 201, and the notice of change in the income amount on December 5, 201, and on January 31, 2012, the Defendant dismissed the objection on March 19, 2012. On April 24, 2012, the Plaintiff filed an appeal with the tax office of ○○○○○ Tax Office with the relevant disposition authority as the head of the tax office of ○○○○ Tax Office. On October 22, 2014, the Tax Tribunal determined that the error of wrongful calculation is unlawful, and dismissed the remainder of the Plaintiff’s claim (hereinafter collectively referred to as “instant procedure and tax appeals procedure”).

4) According to the above decision, the head of Defendant ○○○○ Tax Office corrected the part relating to the imposition of each corporate tax and each value-added tax on December 1, 201, as indicated in [Attachment 2] [Attachment 2] as of November 6, 2014, as indicated in the correction column as of November 6, 2014.

5) On June 1, 2015, after the judgment of ○○ Branch of ○○ Branch of ○○○○○○○○○○○○○○○○○ on which the instant lawsuit was pending, the Defendants reflected the amount of damages stated in paragraph 1-C of the said criminal facts that was changed and confirmed to KRW 2,323,278,591, and accordingly, Defendant ○○○○○○ Director corrected the relevant part of the notice of change of income on December 5, 2011, as indicated in [Attachment 1] [Attachment 1], and as indicated in [Attachment 2] and [Attachment 1], the head of the relevant tax office corrected each of the dispositions imposing corporate tax and value-added tax on December 1, 201 (hereinafter the Defendant”).

○○○ Director of the Regional Tax Office’s notice of change in the amount of income on December 5, 2011, the remaining part of the notice of change in the amount of income was reduced as above, and the remaining part of the notice of change in the amount of each income of the instant case is “the notice of change in the amount of income,” and Defendant ○○ Director’s notice of change in the amount of each value-added tax from December 1, 201 to December 2005, respectively, is “the disposition of imposition of each value-added tax of the instant case.”

[Reasons for Recognition] Class A 1, 2, 4 through 10, 12, 15, 16 (including various numbers; hereinafter the same shall apply),

each entry of evidence and the purport of the whole pleadings as set forth in sub-paragraph (1) to (24);

2. Whether a request for cancellation of the reduced amount of duty is legitimate.

Of the Plaintiff’s lawsuit against the Director of the Regional Tax Office of ○○○, the part exceeding KRW 209,56,568,550 of the Plaintiff’s notice of change in income amount of KRW 246,071,380 of the year 207; the part exceeding KRW 604,536,536,360 of the income amount of 208; the part exceeding KRW 570,652,510 of the Plaintiff’s notice of change in income amount of KRW 60; and the part exceeding KRW 105,998,130 of the imposition of value-added tax of KRW 107,177,760 of the Plaintiff’s lawsuit against the head of the Local Tax Office of ○○○○○; the part exceeding KRW 42,893,530 of the imposition of value-added tax of KRW 20,237,530 of the year 205; and the part exceeding KRW 6,52,7161.61 of the Plaintiff’s already unlawful.

3. Determination on the defense prior to the merits

A. Summary of the assertion by the director of regional tax office of defendant ○○

In regard to the notice of change in the income amount of this case, the defendant ○○○ Head of the Regional Tax Office has the standing to file an administrative appeal against the defendant ○○○○ Head of the District Tax Office, and the defendant ○○○ Head of the District Tax Office had the defendant ○○○○ Head of the District Tax Office made the defendant as the defendant. In addition, the plaintiff did not separately appeal the defendant ○○ Head of the Regional Tax Office prior to the filing of the lawsuit in this case, and the defendant did not have the right to file an administrative appeal, and in the administrative appeal, the defendant did not have the right to file

B. Determination

1) Despite the fact that the disposition office of the notice of change in the income amount of this case was the Director of the Regional Tax Office, the plaintiff raised an objection or a request for trial against the notice of change in each of the income amount of this case with the respondent or the disposition office as the defendant ○○○ Director.

2) However, inasmuch as the principle of administrative appeals, however, provides an administrative agency with an opportunity to reconsider and correct itself in light of the unique characteristics, expertise, etc. of administrative acts, it does not require citizens to take excessively strict procedures beyond that required, unless otherwise specifically provided for in law (see, e.g., Supreme Court Decisions 86Nu254, Sept. 9, 1986; 95Nu6328, Jul. 30, 1996). If a document seeking the cancellation or alteration of a disposition is submitted from a person whose rights or interests have been infringed due to an unlawful or unjust administrative disposition, the title and any of the submitting agencies.

Regardless of whether it is an administrative appeal claim under Article 18 of the Administrative Litigation Act (see, e.g., Supreme Court Decision 94Nu16250, Sept. 5, 195). In addition, where a pre-trial proceeding is conducted by stages, if the requirements of the pre-trial proceeding were properly corrected in the pre-trial proceeding, barring special circumstances, such as the absence of certain requirements and absence of defects, such errors may be deemed to have been cured and duly completed the pre-trial proceeding (see, e.g., Supreme Court Decision 85Nu528, Sept. 9, 1986). This legal doctrine likewise applies to cases where a pre-trial proceeding was conducted without any specific requirements such as designation of the respondent in a case subject to the pre-trial proceeding, and subsequent administrative litigation was subsequently revised and revised after the institution of the pre-trial proceeding without having been made.

3) The following circumstances revealed by the above facts were revealed, namely, ① the Plaintiff was subject to the prior trial procedure with regard to the notice of change of income amount of this case as the respondent, but Defendant ○○○○○ Tax Office was an administrative agency affiliated with the director of the regional tax office of ○○○○○ Tax Office. ② Defendant ○○○ Tax Office was also examined together with the disposition of imposition of value-added tax of this case, the disposition of imposition of corporate tax, and the disposition of imposition of corporate tax on the embezzlement of ○○○○○ Tax Office’s each disposition of disposition of change in income amount of this case on the grounds that the notice of change in income amount of this case was based on the embezzlement of ○○○○○○ Tax Office’s each disposition of disposition of imposition of corporate tax, and thus, Defendant ○○○○ Tax Office did not raise any objection against the disposition office of the notice of change in income amount of this case in the prior trial procedure, ③ Defendant ○○○ Tax Office and the Tax Tribunal did not have any error in the designation of the disposition office and the tax trial procedure of this case.

Therefore, the above argument by the director of the regional tax office of ○○ cannot be accepted.

4. Whether each of the dispositions in this case is legitimate

A. The plaintiff's assertion

1) Notice of changes in each of the instant income amounts

In addition, ○○○○ is a non-profit corporation’s chief executive officer who is merely a non-profit corporation’s chief executive officer who actually controls the Plaintiff, and is merely a person who was in the position of managing and supervising the execution of the matters resolved at the general meeting and the board of directors on behalf of the Plaintiff, and thus, it is difficult to deem that ○○○’s intent is identical to the Plaintiff’s intent. The act of ○○’s embezzlement causes enormous property loss to the Plaintiff and its members, and it is difficult to deem that ○○ and the Plaintiff’s economic interest coincide with ○○ and the Plaintiff. The Plaintiff dismissed ○○ on August 24, 2009, filed a complaint with the prosecution on September 10, 201, and completed the enforcement of the lawsuit claiming damages against ○○○○, and thus, it cannot be deemed that the amount embezzled by ○○○ was an outflow of the company. Accordingly, each of the instant change notice of income amount under different premise is unlawful.

2) The imposition of each of the imposition values of the instant case

Although the Plaintiff obtained input tax deduction through a false tax invoice, there was no awareness that the issuance of a false tax invoice would result in the reduction of national tax revenue by evading the liability for the payment of value-added tax on the tax invoice. Therefore, the period for exclusion of value-added tax under Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter the same shall apply) is not applicable 10 years. The imposition of each of the value-added tax in the instant case was made on December 1, 201, five years after the beginning date of each exclusion period for imposition of value-added tax. Thus, each of

B. Relevant statutes

Attached Form 3 is as shown in the relevant statutes.

C. Whether each of the instant reports on changes in income amount is legitimate

1) Facts of recognition

A) Operation and organization of the Plaintiff

(1) Pursuant to Articles 30 and 31 of the Industrial Cluster Development Act, the Plaintiff obtained authorization for the establishment of ○○ Industrial Complex Management Agency from the ○○ City Mayor, an administrative agency that authorized the establishment of 1980, and was entrusted with the management of ○○ Industrial Complex by the ○○ City Mayor, which was established on January 27, 1981.

The plaintiff is operated as the membership fees and usage fees of 120 occupant enterprises, and the plaintiff has a boiler 4,73,100 tons per steam production hour, which is equipped with power generation facilities of 665 tons per steam production and electricity provided to moving-in enterprises as major infrastructure, and a joint wastewater treatment plant capable of treating wastewater in 105,000 cubic meters per day for wastewater treatment discharged by the Corporation. The organization consists of the power generation headquarters (the duties of the consolidated power plant), the water quality headquarters (the duties of the wastewater treatment center), the management headquarters (other duties of the Corporation).

(2) A person who is designated to move into the ○○ Industrial Complex automatically becomes a member of the Plaintiff and has equal rights to the Plaintiff’s use, etc. of common facilities, and has one voting right, suffrage, and eligibility for election. The Plaintiff’s member is obligated to pay contributions, such as expenses for the operation of the Corporation, management expenses, and usage charges of common facilities (Articles 9 through 12).

(3) The Plaintiff shall be divided into non-standing officers and standing directors. Non-standing officers shall consist of one chief director, one vice chief director, one director, and one auditor. The general meeting is elected in consideration of the number of members by type of business among the representatives or officers of occupant enterprises, the contributions to common facilities, etc., and the standing directors shall be composed of standing directors, standing auditors, and professional managers, and the board of directors shall be elected at the recommendation of the chief director from among those who are not the representatives of occupant enterprises, and shall be appointed by the board of directors upon approval of the competent authority (Articles 17 and 18). The chief director shall take charge of the affairs of the Corporation on behalf of the Corporation, and matters concerning the affairs of the Corporation shall be deliberated and resolved by the board of directors (Articles 21). The Plaintiff’s officers except the standing directors and the standing auditors shall not be paid with the actual expenses within budgetary limits (Article

[Attachment]

(4) The Plaintiff has a general meeting, board of directors, executive organ, president, vice president, standing auditor, managing director, etc., and there are matters concerning the amendment of the articles of incorporation, the business plan for the business year, the compilation or amendment of the revenue and expenditure budget, approval of the settlement of accounts, etc. to be submitted to the general meeting by the resolution of the board of directors. There are bills, regulations and rules to be submitted to the general meeting by the board of directors.

B) Relationship between the Plaintiff and ○○ City Mayor

(1) The Plaintiff was entrusted with the management of an industrial complex pursuant to Articles 31(1) and 30(2)3 of the Industrial Cluster Development Activity Act by ○○ Metropolitan City Mayor, who is the authorized administrator of the industrial complex. Pursuant to Article 31(4) and (5) of the Industrial Cluster Development Act, the Plaintiff may not transfer or offer as security the property of the industrial complex without obtaining approval from ○○ Metropolitan City Mayor, who is the authorized administrator of the industrial complex, or may be subject to restrictions

(2) Furthermore, on February 1, 2001, the Plaintiff acquired the property, facilities, etc. in an industrial complex from the ○○ Metropolitan City Mayor, and entered into an agreement on the transfer and acquisition (hereinafter “transfer agreement”) with the ○○ Metropolitan City Mayor. According to the above transfer agreement, the Plaintiff approved, ordered, and ordered the business of the ○○ Metropolitan City Mayor.

An instruction and audit or a report to the ○○ Metropolitan City Mayor shall be made, and the contents thereof shall be as follows:

Article 8 (Approval) The plaintiff shall obtain approval for the following matters from the Daegu Metropolitan City Mayor:

(1) Amendment of corporations

(2) Appointment of chief and standing directors of a corporation

(3) Sale of property owned by the Foundation or provision of security.

(4) Methods of collecting and imposing common charges for installation, maintenance and repair of public facilities, which are not facilities to be maintained and managed by the State or local governments, among roads, wastewater treatment plants, street lamps, green areas and other public facilities within industrial complexes.

(5) No. 5

(8) A request for approval by ten days prior to the commencement of each year after formulating an industrial complex management implementation plan.

(a) A plan for installing, selling, or leasing a site or factory facility;

(b) An implementation plan for supporting projects, such as the installation and modification of support facilities, such as joint wastewater treatment facilities, heat cogenerations and industrial water supply facilities

(c) Manufacturing, export and use plans thereof;

(d) Revenues from management expenses and plans for using them;

(e) Matters necessary for the implementation of basic plans and other management affairs.

(9) and (9)

Article 9 (Orders and Instructionss) The Metropolitan City Mayor of ○○ may issue an order or instruction to improve the entrusted duties and overall management of industrial complexes for guidance and supervision.

(1) Orders to improve overall management affairs.

(2) The resolution of an illegal, unreasonable general meeting or board of directors shall be revoked.

(3) Where it falls under any of the following subparagraphs, permission for its establishment or approval for the appointment of an officer shall be cancelled:

(a) Where it engages in business other than its establishment purposes;

(b) Where the conditions for permission for establishment are violated;

(c) Where the corporation inflicts harm on the public interest;

(d) Where it is impossible to achieve the objectives of establishment;

(e) Where it violates any order issued pursuant to the Act on Industrial Placement and Factory Establishment and the Ministry of Trade, Industry and Energy and the guidelines for establishing and managing organizations;

(3) The annual business plan and the budget of revenue and expenditure (within two months after the commencement of each business year).

(4) The settlement of revenues and expenditures of each business year (within two months after the end of each business year).

(5) Major business reports and business performance records (within one month after the end of the first half of the year).

(6) Annual regular audits (not later than January 20 of the following year) and occasional audits (within seven days) shall be reported.

(7) Reporting on all the matters under jurisdiction of the Ministry of Government Administration and Home Affairs (Accusation, civil litigation, etc.)

(8) Where any of the following accidents has occurred or is likely to occur, an auditor shall investigate the circumstances and details thereof:

(a) Reports on criminal liability;

(b) Any accident constituting disciplinary action of salary reduction or higher.

(c) An accident falling under the liability for compensation of 50,000 won or more;

(d) Cash, securities, or other loss or damage in excess of 50,000 won;

(9) Report on the factory registration status.

(f) Where it fails to comply with an order to revoke a resolution;

(g) Where it has continuously suspended its business for six months without justifiable grounds;

(h) Where the existence of such policy is deemed unnecessary.

(i) Where it is impossible to manage the affairs normally due to disputes among officers;

(4) If the performance of entrusted affairs is deemed illegal and unfair, the disposition shall be revoked or suspended.

Article 10 (Report) The plaintiff shall report the following matters to the ○○ Metropolitan City Mayor:

(1) Matters resolved at a general meeting.

(2) Current industrial complex status.

(a) Occupancy status of an industrial complex;

(b) Contract conclusion and termination of occupancy;

(c) Operational situation of occupant enterprises;

(d) Matters on the production, export, import and employment of occupant enterprises;

(e) Other matters concerning industrial complex management deemed necessary by the Mayor.

(a) Current status of registration;

(b) Changes in registration of factories;

(c) Quarterly status of changes in factory registration;

(d) The above subparagraphs (a) through (c) shall be reported to the head of the competent authority.

(10) Sale price, lease price and method of the factory site and factory and other facilities;

(11) Establishment or amendment of regulations, such as the operating rules of public facilities.

(Obligation to perform the entire disposal facilities of individual companies with a maximum emission standard and high concentration discharge facilities)

Article 11 (Inspection and Measures) The Metropolitan City Mayor of ○○○ may, if deemed necessary, inspect or take measures concerning the overall management affairs.

(1) The results of performing entrusted affairs shall be at least once a year.

(2) Requests for corrective measures or personnel measures against illegal or unjust matters as a result of audit.

(3) Accordingly, during the period from March 30, 1992 to August 24, 2009, the Plaintiff reported the results of the annual meeting to ○○ Metropolitan City Mayor on April 19, 1999, and applied for approval of partial amendment of the articles of incorporation on January 19, 2001, and on February 13, 2001, applied for approval of the appointment of a full-time executive officer by ○○ Metropolitan City Mayor on February 13, 2001.

C) Status of ○○○ and the background of the embezzlement

(1) Since assuming office as the president of the Plaintiff on March 30, 1992, the ○○ continued to serve as the president on August 24, 2009. Since the fact that environmental pollution caused by wastes came to place as a social problem after the 1991 Huol emission incident, it made the Madles Round as the direct department of the president of the Madlese Agency in order to control the affairs related to the waste disposal site of the Madlese Agency and had the auditor take charge of waste disposal affairs in the audit room. Kim○-○ was instructed from around that time to September 2009 by the direction of the Madles○○ as the auditor. The Kim○-○ selected flexible and waste transportation companies, taking charge of the operation of the cargo vehicles belonging to the Corporation, the management of cargo vehicles belonging to the Corporation, and the management and supervision of the cargo vehicles belonging to the Corporation.

(2) From January 2001 to December 2008, 2008, ○○○, even though four companies, such as △△△△△, etc., were transported to Kim○, it was stated as if they were transported. The expenditure resolution, △△, etc., prepared a letter of goods and expenditure resolution, etc., in which the excessive amount of flexible coal transported by △, Inc., Ltd., and AAAA had the head of the power generation headquarters, the head of the planning and administration department, etc. approve it, and then arbitrarily withdrawn it and consumed it for personal purposes. On March 16, 2007, the sales proceeds of the instant golf membership was used as the purchase cost of the principal’s vehicle.

D) Plaintiff’s measure

(1) On August 24, 2009, the Secretary General, etc. of the ○○ Joint Organization filed a criminal charge of embezzlement, etc. On the same day, the Plaintiff dismissed ○○○ from the office of president, filed a criminal complaint with the ○○○○ Office of Public Prosecutor’s Office around September 2010, and thereafter, criminal proceedings against ○○○○ Office were conducted.

(2) The Plaintiff was fully compensated for the amount of damages that became final and conclusive in the relevant criminal and civil judgment by proceeding with the procedure of preserving the claim and the lawsuit claiming for damages for the recovery of the embezzlement by ○○○○ as follows.

○ On November 15, 2010, ○○ District Court Decision 2010Kadan10851 decided on the provisional seizure of immovables, the claim for the damage claim against ○○○○ as the claim, and the provisional seizure of the immovables owned by ○○○○.

○ After the judgment of the first instance court was rendered on September 29, 201, the instant processing and transportation expenses and the sales proceeds of golf membership, etc. on October 4, 201, shall be included in the accounts accounts accounts accounts accounts accounts accounts accounts accounts, and on November 3, 2011, the instant processing and transportation expenses and golf membership sales proceeds, etc. shall be sent to ○○○○ on November 3, 201.

○ After a criminal appellate court rendered a judgment on April 19, 2012, the Defendant filed a lawsuit claiming damages against the Plaintiff’s amount of damages recognized in the judgment on May 2, 2012 and May 3, 2012. On January 30, 2013, the Defendant rendered a favorable judgment on the claim for damages against the sales proceeds of the instant golf membership (○○ District Court ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on April 10, 2014, the Defendant’s final appeal was dismissed on April 21, 2014, ○○○○○○○○○○○○○○○○○○○○○○○○○○○”).

○ Each of the above judgments has become an executive title, and the compulsory auction procedure for each of the real estate owned by ○○○ was decided to commence (○○ District Court ○○○○○○, ○○○○○○○○, ○○○○○, 2014, ○○○○○, 2014, and ○○○○○○○○), from February 10, 2014 to March 27, 2014. From March 2015 to March 2015, each of the above rulings has been completed after receiving all of the damages recognized in each of the above rulings.

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 3, 11, 13 through 49, Eul evidence Nos. 25 through 36, and the purport of the whole pleadings

2) Determination

A) As the representative director, etc., who is the actual manager of a corporation, has not been subject to recovery at the beginning, barring special circumstances, the act of using the corporation's funds is not subject to recovery, and thus, it constitutes an outflow from the company. As to special circumstances, which cannot be viewed as not premised on recovery from the useful point of view, it shall be determined 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 embezzlement, the degree of control over the corporation, the circumstances leading to embezzlement, and whether it is difficult for the representative director, etc. to recognize that the intent of the representative director, etc. is identical to that of the corporation or that of the corporation is in fact consistent with the representative director, etc., and such special circumstances must be proved by the corporation asserting it (see Supreme Court Decision 2007Du2323, Nov. 13, 2008). Meanwhile, if a person who is in the position of an employee of a corporation has embezzled the corporation's funds to the corporation for personal interest regardless of the corporation's business, it shall not be objectively collected from the company (see Supreme Court Decision 9898.

B) From March 30, 1992 to August 24, 2009, ○○ served as the president of the Plaintiff for about 17 years from March 30, 1992, and from January 2001 to December 2008, embezzlement on the processing and transportation costs of this case took place repeatedly over a long period of time from January 2001 to December 2008, ○○ used part of the embezzled money as the advertising fund for the Plaintiff’s occupant enterprise and its officers as seen above. According to the above evidence, ○○ had already been investigated by the prosecution on the charge of embezzlement against ○○ around 2005, even though the investigation was conducted on the charge of embezzlement, ○○ had maintained the position of the Plaintiff’s president, and the Plaintiff had filed a complaint for ○○ after the lapse of one year from the retirement of ○○○.

However, in full view of the following circumstances revealed by the above facts, i.e., the actual status that ○○ was enjoyed in the Plaintiff as the president, the degree of control over the Plaintiff, the circumstances leading to the embezzlement, and the Plaintiff’s measures after embezzlement, etc., the chief executive officer does not seem to have expressed ○○’s intent as the Plaintiff’s intent or to have in fact coincide with ○○○ and the Plaintiff’s economic interest. Therefore, it is difficult to view that the assets equivalent to the embezzled money were out of the company, since the instant processing transportation expense, etc. was not immediately premised on recovery at the time of embezzlement by ○○○○’s embezzlement.

① The Plaintiff’s main decision-making process is conducted at a general meeting and the board of directors, and the president was given duties to manage and supervise the executive organ that executes the matters resolved. Although the president represents the Plaintiff or takes charge of the Plaintiff’s business, it is merely one voting right, election right, and election right as well as other members. In addition, while the president is elected from among the representatives or executive officers of an occupant enterprise without remuneration as non-standing executive officers, it is difficult to readily conclude that a standing member has a strong control over the Plaintiff than the president’s standing member in light of the fact that it is necessary to receive remuneration and approval of the competent administrative agency for the appointment thereof. At least, compared with the control right that the actual private owner of a stock company and the manager have against a corporation, the degree of governing ○○○

② The Plaintiff’s heat co-power plant is designed to jointly produce steam and electricity necessary for textile sponsing enterprises and supply them to occupant enterprises. If ○○○ receives and embezzled the difference by appropriating transportation expenses, etc., which are fueled, the Plaintiff’s member enterprises are provided with steam and electricity at increased prices, and thus, the Plaintiff’s economic interest does not coincide with the Plaintiff and ○○○○. Even if part of the amount embezzled by ○○○ as the Defendant’s assertion was used as the sales fund for the Plaintiff’s occupant enterprises and executives, it is nothing more than the part of the embezzled amount, and it cannot be deemed as for the interest of the Plaintiff’s employees or officers, rather than the personal interest of the Plaintiff’s employees, and it cannot be deemed as for the interest of the Plaintiff. The Plaintiff’s income decrease or lack of corporate tax due to the anti-private effect that causes damage to the Plaintiff by embezzlement.

③ Even if ○○○ embezzled the instant processing transport cost, etc., the Plaintiff had its damage claim against ○○○○, and that damage claim does not run short-term extinctive prescription period until the Plaintiff became aware of the existence of the damage claim to the extent that the newly elected president, etc. is able to properly exercise the Plaintiff’s interest. In view of the fact that ○○○ has a fixed term of office and is in direct possession only when elected at the following general meeting, the Plaintiff’s damage claim against ○○○○ is similar to the Plaintiff’s damage claim against his employee.

④ The Plaintiff’s embezzlement of the instant processing and transportation expenses, etc. was revealed, and then dismissed from the office of the president and appointed a new president. Around September 2010, 2010, the Plaintiff filed a complaint with the prosecution about ○○○○○ from the office of the president. Around that time, ○○○ filed a civil lawsuit to recover damages arising from the process of criminal judgment. The Plaintiff’s dismissal measures against ○○○○○○’s dismissal measures and filing a criminal complaint were all recovered. Even if it was somewhat late, certain time was required for the Plaintiff to investigate and confirm the details of ○○○○○’s embezzlement. In addition, the investigation was initiated by filing a complaint with the civil organization on August 24, 2009, and the ○○○ District Prosecutors’ Office had expressed its intent to suspend indictment due to unknown whereabouts of ○○○○○○○○○○ on March 29, 2010, the Plaintiff cannot be deemed as a matter of punishment for the Plaintiff’s waiver of his/her claim for damages.

⑤ Under the Industrial Cluster Development Act and the Transfer Agreement, the Plaintiff’s amendment of the articles of incorporation, appointment of chief and standing members, sale of property owned by the Foundation, provision of security, etc., shall be subject to the approval of the ○○○ Metropolitan City Mayor. The ○○○ City Mayor may issue an overall improvement order to the Plaintiff, or revoke the approval of the Plaintiff’s establishment or the appointment of an executive officer in an unlawful manner, or in certain cases, may revoke the approval of the Plaintiff’s establishment or the appointment of an executive officer. In addition, the Plaintiff shall also report to the ○○ Metropolitan City Mayor on the accidents related to criminal liability, including the matters to be resolved at the general meeting, industrial complex, annual business plan and revenue and expenditure budget, and settlement of accounts for each business year, and cash accidents exceeding KRW 50,000. As such, the matters to be approved, matters to be reported, and orders and instructions with respect to the Plaintiff’s duties are very specific and broad, as well as the Plaintiff’s permission of establishment or appointment of chief executive officer within the scope of ○○○○○.

C) Therefore, the Plaintiff’s assertion that ○○○ was not an outflow from the company even if he embezzled the processing and transportation costs of this case, is reasonable, and thus, the notice of change in each income amount of this case is unlawful.

D. Whether each disposition of value-added tax of this case is legitimate

1) Relevant legal principles

Article 26-2 (1) of the former Framework Act on National Taxes provides that, in principle, the exclusion period of imposition of national taxes other than inheritance tax and gift tax shall be five years from the date on which the relevant national tax may be imposed, while subparagraph 1 provides that "in cases where a taxpayer evades, receives a refund or deduction of national taxes by fraudulent or other unlawful means, it shall be ten years from the date on which the relevant national tax may be imposed. In cases where a taxpayer receives a deduction or refund of an input tax amount by fraudulent or other unlawful means, it shall be applied 10 years to the taxpayer because such an act constitutes "in cases where a national tax is evaded, refunded or deducted by fraudulent or other unlawful means" as provided in Article 26-2 (1) 1 of the former Framework Act on National Taxes. In addition to recognizing that a taxpayer is entitled to a deduction or refund of an input tax amount by fraudulent tax invoices, it shall be determined that the taxpayer is entitled to a deduction or refund of an input tax amount by reporting and paying the tax base and tax amount of value-added tax other than the amount of sales tax on the tax invoice or request for refund.

2) Determination

A) According to each of the above evidence, ○○○ issued a false tax invoice stating the processing transportation cost of this case from companies including △△△, △△, △△, and AAA, and the above companies paid 10% of the processing transportation cost of this case under the pretext of value added tax to the tax authorities. Accordingly, Defendant ○○○○○ Tax Office can recognize the fact that the total processing transportation cost of this case was deducted from the input tax amount, excluding the amount paid to the above companies as value added tax, and that each of the value added tax of this case was imposed.

According to the above facts, ○○○ issued a false tax invoice from a transport company for the purpose of embezzlement of the processing costs of this case, and deducted the relevant input tax amount from the head of Defendant ○○○○ Tax Office, but the transport company paid the amount equivalent to the value-added tax on the processing costs of this case to the transport company on the premise that the transport company would pay the amount of the output tax related to the false tax invoice. Thus, it is difficult to say that the Plaintiff was aware that the Plaintiff would receive the deduction of the input tax amount due to the evasion of the liability to pay the value-added tax on the tax invoice by filing a return and payment of the tax base and the amount of the tax amount other than the output tax on the tax invoice, or filing a request for correction after filing a return and payment on the entire amount of the output tax on the tax invoice, and thereby, evading the liability to pay the input tax on the tax invoice. Accordingly, each of the disposition imposing value-added tax in this case is invalid and invalid as the Plaintiff’s assertion seeking revocation of each of the dispositions in this case was justified.

B) As to this, the Defendant’s perception that the reduction of tax revenues would result in the reduction of tax revenues must be determined on the basis of the Plaintiff himself/herself, i.e., the Plaintiff received the processed tax invoices, and the Plaintiff was entitled to the deduction of the input tax amount up to the value-added tax to be duly paid by the Plaintiff as the input tax invoice, which is different from the fact provided by Article 39(1)1 of the Value-Added Tax Act, and the Plaintiff was aware of the reduction of tax revenues since the input tax amount was not deducted. In light of the legal principles as seen earlier, it is difficult to accept the Plaintiff’s assertion that, even if the Plaintiff was entitled to the deduction of the input tax on the processed tax invoice, a transport company that issued a false tax invoice other than the Plaintiff’s perceptions, either reported and paid the tax base and the amount of the value-added tax except for the input tax on the tax invoice or filed a request for correction by filing a refund of the entire amount of the input tax on the tax invoice, thereby undermining the Plaintiff’s duty to pay the input tax revenue on the tax invoice.

5. Conclusion

Therefore, among the plaintiff's lawsuit against the director of the regional tax office of ○○○, the part exceeding 209,56,568,550 won among the notice of change in the income amount of 207 246,071,380 won, the part exceeding 570,652,510 won among the notice of change in income amount of 208 604,536,360 won, and the part exceeding 107,17,760 won among the lawsuit against the defendant's director of the regional tax office of ○○○, 2003, the part exceeding 105,97,98,130 won among the disposition of imposition of value-added tax of 20,237,530 won for 205, and the part exceeding 37,415,520 won for 205,625,70 won for 200 won for 200 won for 20,00 won for 25.