Daegu District Court 201Guhap3489 (21 March 2012)

Cho High-depth 201Gu0450 ( October 13, 2011)

income tax shall be revoked for a portion verified as an employee's retirement allowance out of the provisional payment

The provisional payment, appropriated at the time of the closure of the business, must be disposed of as bonus to the representative director, but the global income tax on a part of the amount verified as the employee retirement allowance shall be partially cancelled.

2012Nu820 global income and revocation of disposition

- Appellants

KimA

Head of the Tax Office

Daegu District Court Decision 201Guhap3489 Decided March 21, 2012

January 11, 2013

February 1, 2013

1. The plaintiff's appeal is dismissed.

2. The defendant's appeal is dismissed.

3. The costs of appeal shall be borne respectively by each party.

1. Purport of claim and plaintiff's purport of appeal

The decision of the first instance court is revoked. On August 1, 2010, the defendant revoked the disposition of imposition of global income tax of 000 won for the plaintiff for the year 2007 (the plaintiff reduced the purport of the claim by ex officio revocation of the disposition of imposition of 00 won for the defendant, including the part in favor of the plaintiff for the first instance judgment (00 won) in the trial).

2. The defendant's purport of appeal

The part against the defendant in the judgment of the first instance that dismissed the plaintiff's claim corresponding to that part shall be revoked.

1. Details of the disposition;

A. From August 11, 2003 to November 22, 2007, the Plaintiff, as the representative director of DDR (hereinafter referred to as "DD"), actually managed DD, and DD closed on or around November 22, 2007.B. The Defendant: (a) considered DD was not recovered in the year 2007 where the date of closedown falls; (b) considered that DD was not recovered in the year 2007 where the date of closedown was the short-term loan amount of 000 won (hereinafter referred to as "the provisional payment") for the Plaintiff, as a bonus for the Plaintiff on August 1, 201, 207; and (c) disposed of DD as a bonus for the Plaintiff on August 1, 2010, by deeming that DD was included in the gross income industry, and that the above gross income was reverted to the representative director; and (d) imposed the amount of tax payable for global income tax (hereinafter the same shall apply) for the Plaintiff.

C. The Plaintiff is dissatisfied with the foregoing disposition on September 20, 2010 and filed an objection against the said disposition on September 20, 2011.

1.2. On June 13, 201, the Tax Tribunal filed a request for a trial with the Tax Tribunal, and on June 13, 2011, the Tax Tribunal excluded KRW 000 from the provisional payment that was disposed of as bonus to the Plaintiff (=00 won in the repayment amount of loans + cost of dismantling a ship +00 won), made a partial decision to dismiss the request.

D. On September 30, 201, according to the decision of the Tax Tribunal, the Defendant adjusted the amount of 000 won for the Plaintiff on September 30, 201 to KRW 000, while continuing the trial on October 29, 2012, and paid KRW 00 out of the provisional payment of this case to DD employees and the Plaintiff as retirement pay, and the said comprehensive income tax was corrected to KRW 00,000 again (hereinafter “instant disposition”).

[Grounds for Recognition] The whole purport of the statements and arguments in the non-spe, Gap evidence 1, 3, and 8, evidence 1 to 7, evidence 2, Eul evidence 1-2, and evidence 2, 3, 15, 16, and 17, evidence 14-2, and evidence 14-2, and evidence 17, and evidence 14-2, and evidence 14-2

2. Determination on the legitimacy of the defendant's appeal

Ex officio, the first instance court, and the first instance court, on August 1, 2010, reverts to the plaintiff on August 1, 201, 207.

The judgment of partial acceptance of the plaintiff's claim was defective in the imposition of global income tax amounting to more than KRW 000, and the defendant appealed on the part against it. However, as seen earlier, the defendant, at the trial of the court of first instance, reduced or corrected ex officio the imposition of the above income tax on the plaintiff by the amount which is less than KRW 000,000, which is less than the reasonable tax amount recognized at the trial of the court of first instance. As a result, the appeal on the part of the imposition disposition exceeding KRW 00,000, which is the part against the defendant's loss, is against the un extinguished disposition

3. Summary of the plaintiff's assertion

DD is a corporate capital of each DD, and to Kim E, from August 11, 2003 to April 30, 2005, to be the personnel of each DD.

The disposition of this case that recognized that the above amount was leaked out of the provisional payment of this case to the plaintiff and the total amount of KRW 000,000 per month from July 1, 2006 to June 30, 2007 was paid to HaHH as each salary, and that the above amount was paid to the plaintiff as the provisional payment in light of the circumstances such as the obligation relationship of the employees, and that the above amount was not actually paid to the plaintiff. In other words, the above 00 won was not the provisional payment paid to DoD to the plaintiff, and even though the above amount was not out of the defendant, the above amount was illegal.

4. Related Acts;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

5. Determination

A. Article 67 of the Corporate Tax Act, the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act, and Article 106 (1) 1 of the Corporate Tax Act provide that the amount which was released from the company among the amount of gross income industry shall be deemed to have been attributed to the representative in determining or revising the corporate tax base, and it is not based on the fact that such income was accrued to the representative, but its purpose is to make certain facts recognized as such act to prevent unfair conduct under the Corporate Tax Act be deemed to be a bonus to the representative without actual condition regardless of its substance. In this case, unless the representative proves that the amount which belongs to the above gross income is clearly included in the gross income, he is liable to pay the Class 7 income tax regardless of whether the amount is actually attributed to himself (see, e.g., Supreme Court en banc Decision 2006Da49789, Sept. 18, 200). D and D are deemed to have been not recovered for 20 years since it appears to belong to the Plaintiff 207D from the balance sheet.

B. In the instant case, as alleged by the Plaintiff, whether the DNA paid a total of 000 won to KimE, and HaHH as remuneration to the Plaintiff, the amount equivalent to the above amount was calculated as the provisional payment to the Plaintiff on the account book, according to the health stand, and according to the evidence Nos. 11-1, No. 11-2, and No. 3, and DD were calculated as the provisional payment.

From 5th 205 to 0th 0th 205, the tax authorities reported the payment of the benefits to 0th 0th H, and the 2th H 0th 0th 0th H was working for the Plaintiff’s testimony, and the reasons why the Plaintiff did not report the fact to the National Tax Service are difficult to believe that the Plaintiff concealed the fact of HaE and HaH H’s work and salary receipt during the period for which the Plaintiff asserted that the amount of the benefits would be excluded from the provisional payment procedure. According to 0th 0th 1st 0th 1st 0th 1st 1st 1st 1st 1st 1st 2st 2st 2st 1st 2st 2st 2st 2st 2st 2st 2st 2st 3st 2st 2st 2st 2st 2st 2st 2st 2st 2st 2st 3st H 2st 3st H 2st 3st 1st 3.

6. Conclusion

Then, the plaintiff's claim of this case is dismissed without reason, and this part is applicable.

The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed, and the defendant's appeal is illegal, and it is so decided as per Disposition.