[1] Whether the Constitutional Court’s decision of unconstitutionality as to Article 32(5) of the former Corporate Tax Act, which lost its effect, asserts that the income amount was attributed to real income separate from the disposition of income based on Article 94-2 of the Enforcement Decree of the same Act, and that only the source of income is different within the scope of global income subject to cumulative taxation, constitutes a change in the grounds for disposition

[2] Whether the representative director of a corporation constitutes earned income where it is unclear that he/she used the corporation's business among the amounts which he/she acquired by taking advantage of his/her status to leak the corporation's profits to others (affirmative)

[3] Criteria for determining "a person in a special relationship with a corporation" under Article 25 (1) 12 of the former Income Tax Act

[4] In the case of taxation on the constructive income accrued from the disposal of income, not taxation on the constructive income, the burden of proving whether the amount leaked from the corporation belongs to the officer's actual income (=the taxation authority)

[1] In a lawsuit seeking revocation of a tax disposition, the subject matter of the lawsuit is objective existence of the tax base and amount of tax recognized by the tax authority. As such, the tax authority may exchange and change the grounds for disposition within the scope that maintains the identity of the disposition in order to support the legitimacy of the tax base and amount of tax recognized by the relevant disposition even during the lawsuit, and as such, in revising the corporate tax base pursuant to Article 32 (5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994) and Article 94-2 (1) 1 (b) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13195 of Dec. 31, 190), the grounds for disposition should be determined differently within the scope of the scope of the grounds for taxation that actually accrue within the scope of the scope of the scope of the income subject to comprehensive taxation, on the grounds that the amount included in the gross income was disposed of to the person to whom the income belongs.

[2] If the representative director, etc. of a corporation did not borrow money in the name of a corporation and did not keep it in the book and used it to manage it as off-the-counter debts, the cash, which is the counterpart account of the off-the-counter debts, shall be deemed to have been distributed out of the company, unless there are special circumstances, unless the cash is recorded in the corporation's account book. The act of appropriating the corporation's funds by the representative director, etc. is not conducted under the premise of early recovery, and it constitutes an outflow from the company as an expenditure itself, and it shall not affect the tax liability even if the person to whom it belongs after the income tax liability is established for the portion belonging to the representative director, etc. of the out-of-the-off fund, and the amount which is not clear that the representative director, etc. of a corporation has been used for the corporation's business through the disclosure of corporation's profits out of the corporation's own account to him/her constitutes bonus or temporary benefits, barring special circumstances.

[3] Article 25 (1) 12 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) shall be determined in accordance with each subparagraph of Article 111 (1) of the former Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994).

[4] In general, since the tax authorities have the responsibility to prove the facts of taxation requirements in tax litigation, the burden of proving whether the amount leaked from the corporation is actual income to the officers, etc. is attributed to the tax authorities, not the taxation on the constructive income from the disposal of income.

[1] Article 32 (5) (see current Article 67), Article 94-2 (1) 1 (b) (see current Article 106 (1) 1 (b) of the former Corporate Tax Act (Amended by Presidential Decree No. 13195, Dec. 31, 1990); Article 1 [general administrative disposition] and Article 19 of the Administrative Litigation Act / [2] Article 21 (see current Article 20), Article 142 (1) (see current Article 127 (1) of the Enforcement Decree of the Corporate Tax Act) of the former Corporate Tax Act (Amended by Act No. 4804, Dec. 22, 1994); Article 142 (1) of the former Income Tax Act (Amended by Act No. 4803, Dec. 194); Article 94-2 (1) 1 (b) of the former Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No. 14814, Dec. 13, 1994) / [3] Article 194 of the former Income Tax Act

[1] [2] [3] Supreme Court Decision 97Nu9666 delivered on September 17, 199 (Gong199Ha, 2241) / [1] Supreme Court Decision 97Nu4456 delivered on December 26, 1997 (Gong1998Sang, 539) / [1] Constitutional Court Order 93Hun-Ba32 delivered on November 30, 1995 (Hun-Ba13, 54) / [2] Supreme Court Decision 89Nu233 delivered on October 10, 199 (Gong190, 2308) / Supreme Court Decision 91Nu5303 delivered on December 10, 199 (Gong1992, 594) / [199Nu9539959 delivered on May 19595) 1995.

Plaintiff (Attorney Kim Jae-chul, Counsel for plaintiff-appellant)

The head of the Dobong Tax Office (Attorney Yoon Young-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 93Gu27170 delivered on March 13, 1998

The part of the judgment of the court below against the plaintiff regarding the imposition of global income tax and defense tax for 1988 shall be reversed, and that part of the case shall be remanded to the Seoul High Court. The remaining grounds of appeal by the plaintiff and the defendant shall be dismissed.

The grounds of appeal are examined.

1. 원심판결 이유에 의하면, 원심은 그 판결에서 채용하고 있는 증거들을 종합하여, 원고의 동생인 소외인이 1971.경부터 소외 주식회사(이하 ' 소외 회사'라고 한다)를 실질적으로 운영하면서 부금 또는 차입금의 일부를 장부에 기장하지 아니하고 비밀장부에 기장한 채 관리하면서 이를 어음할인 등 부외거래에 사용하던 중, 할인해 준 합계 금 4,290,000,000원 상당 어음들의 부도로 손실이 발생하고 이를 만회하려는 과정에서 부외의 부금 또는 차입금(이하 '부외예탁금'이라고 한다)의 규모가 더욱 늘어나 부외부채가 누적된 상태에서 1983. 4.경 사임한 사실, 그 이후 원고가 회장이라는 직함으로 소외 회사의 경영을 맡아 사실상 지배해 오면서 같은 방법으로 부외예탁금 거래를 계속하여 그 자금을 부외예탁금의 원리금 반환, 관리비용 지출, 기존의 부외부채 상환 등에 사용하여 오다가, 1985. 12.경부터 1987. 9.경까지 사이에 부외예탁금 중 도합 금 15,315,000,000원을 유용하여 자신이나 친지 등의 명의로 원심판결 별지 2. 기재 순번 제1 내지 제15 부동산(이하 '이 사건 부동산'이라고 한다) 등을 매입하는 데 사용한 것을 비롯하여 합계 금 16,415,000,000원을 원고의 개인적 용도에 사용한 사실, 1987. 9.경 은행감독원의 감사에 의하여 소외 회사의 위와 같은 부외거래가 적발되었고, 그 때까지의 부외예탁금 거래 중 1987. 9. 현재 예탁자 등에게 반환되지 아니한 부외예탁금의 잔액이 금 63,920,214,651원으로 밝혀졌으며, 원고는 1987. 9. 23. 업무상횡령 혐의로 구속되면서 경영에서 배제된 사실, 한편 1988. 5. 10. 상호신용금고법에 따라 소외 회사에 대하여 계약이전받을 자를 소외 주식회사 부국상호신용금고(이하 '부국금고'라고 한다)로 하는 재무부장관의 계약이전결정이 있었고, 계약이전을 받은 부국금고가 1988. 6. 15.경까지 이 사건 부동산 및 유가증권 등 부외자산을 금 13,216,873,590원으로 평가하여 환수한 사실, 소외 동대문세무서장은 1990. 10. 10.경 소외 회사의 1987 사업연도(1986. 7. 1.∼1987. 6. 30.) 및 1988 사업연도(1987. 7. 1.∼1988. 6. 30.)의 법인세 과세표준을 경정함에 있어서 위 부외예탁금 63,920,214,651원 중 환수자산의 평가액 13,216,873,590원을 제외한 나머지 금 50,703,341,061원 등을 1988 사업연도의 익금에 산입함과 아울러, 위 환수자산의 평가액 13,216,873,590원에 대한 이 사건 부동산 취득일로부터 환수일까지의 인정이자를 연도별로 1987 사업연도 및 1988 사업연도의 익금에 산입한 다음, 위 금액 전부가 사외유출된 것으로 보아 그 귀속자인 원고에 대한 1987년 및 1988년 귀속분 상여로 소득처분하였고, 피고는 위 소득처분을 근거로 1993. 3. 10. 원고에 대하여 1987년 귀속분 종합소득세 241,173,700원 및 방위세 48,234,740원, 1988년 귀속분 종합소득세 34,821,967,400원 및 방위세 6,964,393,480원의 부과처분을 한 사실을 인정한 다음, 피고의 변경된 처분사유에 관하여 판단함에 있어서, 위 부외예탁금은 그 상대계정인 현금이 일단 소외 회사의 수익으로 들어왔다가 원고에게 가지급금으로 무상대여된 것으로 보아야 하는 것이지 그것이 입금과 동시에 사외로 유출되어 원고의 소득으로 확정적으로 귀속된 것으로 볼 수는 없다는 전제하에, 위 부외예탁금 63,920,214,651원 중 위 환수자산의 평가액 13,216,873,590원을 제외한 나머지 금 50,703,341,061원 등에 관하여는, 그 가지급금반환채무가 남아있는 이상 그것이 원고에게 1988년 귀속분 근로소득 또는 기타소득으로 귀속된 것이라고 볼 수 없고, 이 사건 부동산 등이 환수됨으로써 반환된 금 13,216,873,590원 부분에 관하여는, 각 부동산별 가액 상당의 금원을 각 취득일로부터 환수일(1988. 6. 15.)까지의 기간 동안 무상이용함으로써 얻게 되는 통상 지급하여야 할 이자 상당의 경제적 이익이 구 소득세법(1994. 12. 22. 법률 제4803호로 전문 개정되기 전의 것, 이하 '소득세법'이라고 한다) 제25조 제1항 제12호 소정의 기타소득으로 원고에게 귀속된 것이고, 그 소득금액을 소득세의 과세기간(해당 연도의 1. 1.∼12. 31.)별로 계산하면 1987년 귀속분이 금 682,408,567원, 1988년 귀속분이 금 400,907,533원이 되는데, 피고는 이 사건 처분 중 1987년 귀속분 종합소득세에 관하여는 위 금액보다 적은 인정이자 385,031,075원을, 1988년 귀속분 종합소득세에 관하여는 인정이자 816,971,768원 및 위 부외예탁금 중 환수자산 가액을 제외한 금 50,703,341,061원 등을 각 과세표준에 산입하여 세액을 산정하였으므로, 이 사건 처분 중 1987년 귀속분 종합소득세 및 방위세의 부과처분 부분은 결과적으로 적법하고, 1988년 귀속분 종합소득세 및 방위세의 부과처분 부분은 위에서 본 금 400,907,533원을 과세표준으로 한 정당 세액의 범위를 초과하는 한도에서 위법하다고 판단하였다.

2. Plaintiff’s ground of appeal

A. As to the alteration of the ground for disposition among the first point

In a lawsuit seeking revocation of a taxation, the subject matter of the lawsuit is objective existence of the tax base and tax amount recognized by the tax authority. As such, the tax authority may exchange and change the grounds for the disposition within the scope that maintains the identity of the disposition in order to support the legitimacy of the tax base and tax amount recognized in the pertinent disposition, even during the lawsuit, until the closing of arguments in the court of fact-finding proceedings. However, since Article 32(5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994; hereinafter “Corporate Tax Act”) and Article 94-2(1)1(b) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195 of Dec. 31, 190; hereinafter “Enforcement Decree of the Corporate Tax Act”), the subject matter of the lawsuit can be seen as having been permitted to change the amount of the tax base of global income within the scope of 97 years of comprehensive taxation based on the grounds that the amount included in gross income was imposed on the person to whom the income accrued.

In the same purport, the court below is just in holding that the disposition in this case where the defendant imposed a comprehensive income tax on the constructive income on the ground that the amount included in gross income was disposed of as bonus in revising the corporate tax base of the non-party company, and that the claim that a considerable amount of income was actually reverted to the plaintiff as earned income or other income constitutes a change in the grounds for disposition within the scope that maintains the identity of the disposition, and it is not erroneous in the misapprehension of legal principles as to the limit of the change in the grounds for disposition. The grounds for appeal

B. As to the misapprehension of legal principle on other income among the first point

If a representative director, etc. of a corporation borrows money in the name of a corporation without keeping it in a book and uses it as a secret debt, the cash, which is the counterpart account for the extra debt, shall be deemed as profits accrued from a corporation. Unless the cash is recorded in a corporation’s book, it shall be deemed that it was leaked to a private company, barring special circumstances (see Supreme Court Decisions 91Nu5303, Dec. 10, 1991; 9Nu5303, Oct. 12, 1995). Since the act of using the corporation’s funds by the representative director, etc. is not conducted on the premise of the early recovery, it constitutes an outflow from the company as its own expenditure. Once the income tax liability is established on the part belonging to the representative director, etc., even if the person who has accrued it later returned to the corporation, it shall not affect the tax liability (see, e.g., Supreme Court Decisions 89Nu233, Oct. 10, 1990; 209Nu965365, etc.).

However, according to the facts established by the court below, the plaintiff used 16,415,00,000 won out of the non-performing deposits from December 1985 to September 2, 1987 as the repayment of principal and interest on the non-performing deposits, and used 16,415,00,000 won from the non-party company's deposit to the non-party company's transfer of contracts from the non-party company to the non-party company's non-party company's non-party company's non-indicted 63,920,214,651 won which were not repaid as of September 19, 1987 to the non-party company's non-party company's transfer of contracts to the non-party company's non-indicted 97,563,02,157 won which were accrued from the non-party company's transfer of contracts to the plaintiff's non-party company's non-party company's non-party funds from 1987, which the non-party funds were collected.

However, separate from the assertion that the economic profit from the use of the above amount of KRW 13,216,873,590 is attributed to the plaintiff as other income, it is evident that the plaintiff did not enter in the account book and distributed out outside deposits useful for the acquisition fund of real estate, etc. belongs to the plaintiff as bonus to the plaintiff, and even if the amount of the income is returned to the corporation thereafter, the tax liability already incurred is not affected, so the disposition of this case should be maintained even in that it does not affect the tax liability. According to the records, the plaintiff purchased part of the real estate of KRW 6,95,00 by using the non-deposit deposit of KRW 13,216,873,590,000 before September 23, 1987, the amount equivalent to the above amount was attributed to the plaintiff's income attributed to the plaintiff in 1987 as bonus or temporary income. Thus, it shall be deemed that the above amount falls short of the above amount as bonus, tax base for global income tax year 385, 170.7 years.

As a result, regarding the disposition of imposition of global income tax and defense tax for the tax year 1987 among the disposition of this case, the reasoning of the judgment below is different, and the conclusion that the above disposition is not unlawful is eventually justifiable, and there is no error in the misapprehension of legal principles as to other income, which affected the conclusion of the judgment. The grounds of appeal as to this point are not acceptable.

However, regarding the disposition of imposition of global income tax and defense tax on the portion of the disposition of this case for the year 1988, as long as it did not perform extra deposit transactions in the year 1988, and it cannot be deemed that the plaintiff actually accrued income, the court below erred in the misapprehension of legal principles as to the attribution of income and other income, which affected the conclusion of the judgment, on the ground that the economic profit equivalent to KRW 400,907,533 of the above disposition was reverted to the plaintiff's other income for the year 1988, on the ground that the economic profit equivalent to the interest of KRW 400,907,533 of the above disposition was attributed to the plaintiff's other income for the year 1988. The part of the grounds of appeal assigning this error is with merit.

C. On the second ground for appeal

The gist of the grounds of appeal is that the plaintiff does not fall under the "person having a special relationship" under Article 46 (1) of the Enforcement Decree of the Corporate Tax Act, and therefore the income accrued to the plaintiff cannot be deemed to fall under other income under Article 25 (1) 12 of the Income Tax Act. However, the "person having a special relationship with the corporation" under Article 25 (1) 12 of the Income Tax Act shall be determined in accordance with each subparagraph of Article 111 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) (see Supreme Court Decision 97Nu9666 of Sept. 17, 199), and as seen above, as long as the economic interest accrued to the interest party is attributed to the plaintiff as other income under Article 25 (1) 12 of the Income Tax Act, the grounds of appeal cannot be accepted.

3. As to the Defendant’s ground of appeal

A. On the third ground for appeal

Examining the reasoning of the judgment below in light of the records, it is acceptable that the court below recognized that the above non-party used 16,415,000,000 won for personal purposes, such as purchase of real estate, while managing the non-party company as the non-party company and managing funds continuously created by the non-party company's management by taking charge of the non-party company's business in the position of the president by taking charge of the non-party company's management. Accordingly, it cannot be said that the court below erred by violating the rules of evidence.

In addition, since the tax authorities have the responsibility to prove the facts of taxation requirements in tax litigation, in case of taxation on the constructive income accrued from the disposal of income rather than taxation on the constructive income by the disposal of income, the burden of proof as to whether the amount leaked from the corporation belongs to the actual income to the executives such as the plaintiff is imposed on the tax authorities. The decision of the court below to the same purport is just, and there is no error in the misapprehension of the legal principle of burden of proof. The grounds of appeal on this point are

B. As to the first and second points

According to the reasoning of the judgment of the court below, while managing non-party company's non-performing deposits from around 1983 to September 23, 1987, the plaintiff used 16,415,00,00 won for personal purposes, such as the purchase of real estate during the period from December 1985 to September 198, while using the non-party company's non-performing deposits in return of principal and interest of the non-performing deposits, management expenses, and existing non-performing debts, etc., the plaintiff's non-performing deposits were used for the non-indicted 16,415,00 won. The plaintiff's non-performing deposits from around 1983 to September 23, 1987 cannot be viewed as 63,920,214,651 won, excluding the non-performing deposits from the non-party company's non-performing loans from around 197 to 198, 196, 200 won to the plaintiff's non-indicted 163,58198.

Therefore, the court below erred in holding that the above amount of KRW 50,703,341,061, which was not returned by the court below constitutes a provisional payment. However, the court below's determination that the above amount of KRW 50,703,341,061, which was not deemed to have been reverted to the plaintiff's earned income in the year 198 was unlawful in the part included in the global income tax base in the year 1988 is just in its conclusion, and there is no error of law by misunderstanding the legal principles as to the exemption profit from provisional payment obligation and the reversion of earned income, which affected the conclusion

In addition, the defendant's remaining grounds of appeal that the judgment of the court below did not recognize that the economic interest equivalent to the interest accrued from the gratuitous use was included in the global income tax base for the portion reverted to 1988, even though the court below viewed the above provisional payment amounting to KRW 50,703,341,061, is the provisional payment amount, is unlawful, and thus, it cannot be accepted as it assumes that the above additional payment constitutes the provisional payment amount.

The grounds of appeal on this point and the supplemental appellate brief submitted after the expiration of the submission period are without merit.

4. Therefore, the part of the judgment of the court below against the plaintiff regarding the imposition of global income tax and defense tax for the year 1988 shall be reversed, and that part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the plaintiff and the defendant shall be dismissed. It is so decided as per Disposition with the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)