Appropriateness of the bonus disposition taken by the construction cost as a representative pursuant to the processing system

A bonus disposal shall be made to the representative as long as the amount of the sales site cost, which is a asset account, is not disclosed as if it was actually paid more than the actual acquisition cost and has been leaked out out of the company.

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

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of value-added tax of KRW 69,50,000 on November 12, 2007 against the Plaintiff on the first half of 2006 and the imposition disposition of KRW 1,019,879,700 on earned income for the year 2005, and KRW 4,470,481,120 on earned income for the year 2006, and KRW 3,081,871,440 on earned income for the year 2007 (the claim of the Defendant stated that the revocation of the imposition disposition of earned income tax for the year 2007 is sought by the Defendant on January 8, 2008, but this appears to have been claimed by the Defendant on January 8, 2008).

1. Circumstances of the disposition;

(a) Notification of change in the income amount and notice of tax payment on employment income;

(1) The director of Busan Regional Tax Office conducted a consolidated investigation of corporate tax against the plaintiff in 2005 and confirmed the fact that ① 2,950,804,000 won was processed as a bonus from the land for sale in 2005; ② 8,649,242,00 won as the land for sale in 206; ③ 4,165,021,000 won as the land for sale in 206; ③ 8,146,312,000 won as the land for purchase by the representative director in 207; and ③ 732,006,006,00 won as the interest rate for the recognition of the provisional payment; and on November 12, 2007, the processed amount was disposed of as a bonus from the non-party ○○, the representative director, as the bonus for sale in 2005, the amount of income for sale in 205,80,207 won as the income amount for sale in 2087.

(2) On January 8, 2008, the Defendant issued a tax payment notice of KRW 1,019,879,700 on earned income for the year 2005, and KRW 4,470,481,120 on earned income for the year 2006, and KRW 3,081,871,440 on earned income for the year 2007 (hereinafter “instant tax payment notice”).

B. Imposition of Value-Added Tax

(1) 부산지방국세청장은 원고에 대한 법인세 통합조사에서 원고가 2006년 1기에 용역을 제공받지 않고 허위로 ☆☆건설 주식회사(이하 '☆☆건설'이라 한다)로부터 공급가액 3,000,000,000원의 세금계산서, ★★토건 주식회사(이하 '★★토건'이라 한다)로 부터 공급가액 3,950,000,000원의 세금계산서(이하 '이 사건 각 세금계산서'라 한다)를 각 교부받은 사실을 확인하고 이를 피고에게 통지하였다.

(2) Accordingly, on November 12, 2007, the Defendant imposed a value-added tax of KRW 69,500,000 on the Plaintiff on the first day of 2006 (hereinafter “instant disposition imposing value-added tax”).

C. The Plaintiff is virtually controlling the entire shares by holding them as an explanation or borrowed name.

[Ground of recognition] Private theory without dispute, Gap evidence 1-1, 2, 3, Gap evidence 2-2, Eul evidence 1-2, Eul evidence 1, 2, and 3-1, 2, and 3-2, and the purport of the whole pleadings

2. Legal nature of the disposition for the dismissal of this case.

A. The plaintiff's principal

(1) ① The Plaintiff did not pay the amount of outflow from the company in question to Kim○○, and Kim○ did not divert it for personal purposes, and the provisional payment was not determined as impossible, and ② even if the Plaintiff leaked to Kim○○○, he repaid to the Plaintiff during the fiscal year, so the instant notice of change in the income amount and the notice of tax payment are unlawful.

(2) 이 사건 각 세금계산서는 원고와 ☆☆건설, ★★토건 사이의 정당한 용역계약에 의해 교부받은 것이므로, 이 사건 부가가치세 부과처분은 위법하다.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination on the part of earned income tax

(1) The legal nature of the notice of the case in South Korea

Where the tax authority’s disposition of income and notice of change in the amount of income accrued therefrom are given, a corporation that is a withholding agent is deemed to have paid the relevant amount to the person to whom the income recorded in the notice was given on the date of receipt of the notice of change in the amount of income, and at the same time the liability to pay withholding income is established, and a corporation that is a withholding agent bears the obligation to pay withholding tax according to the details of the disposition of income recorded in the notice of change in the amount of income to the head of the competent tax office, etc. by the 10th day of the following month. No additional administrative disposition is necessary to enable the person to whom the obligation to collect income or to pay tax arises after the disposition of income and the notice of change in the amount of income accrued (see Supreme Court en banc Decision 20

Therefore, since the disposition of income and the subsequent notice of change in the amount of income have the nature of the taxation disposition that may cause a change in the existence or scope of the tax liability or the collection procedure, not the effective requirements, it is view that the Plaintiff seeks revocation of the disposition of collecting the amount of earned income tax as of January 2, 2008 against the Defendant (the Plaintiff is not the Director of the Busan Regional Tax Office who notified the change in the amount of income of this case). Since the Plaintiff seeks revocation of the disposition of imposing the amount of earned income tax as of January 2, 2008 against the Defendant, who is not the Director of the Busan Regional Tax Office, who was not the Director of the Busan Regional Tax Office, who made the notice of change in the amount of income

(2) The legality of the instant wage and salary income tax quota disposition

Since a disposition of imposition and a disposition of collection of tax are independent dispositions aimed at different effects, an appeal litigation filed against a disposition of collection can only contest the inherent defects of a water purification procedure in an appeal litigation, which is filed against a disposition of collection, and as long as a disposition of imposition, which is a preceding act, is not null and void, the validity of the disposition of collection, which is

On the other hand, there is no plaintiff's assertion or admission as to the fact that there is a defect unique to the tax quota of the wage and salary income of this case, and the disposition of tax imposition, which is a prior act, cannot be deemed as null and void as a matter of course on the sole ground of the plaintiff's assertion. Thus, the tax quota

(3) Family judgment

The plaintiff estimated that the director of Busan Regional Tax Office is legitimate to notify the change in the amount of income of this case and examined as follows.

(A) Determination as to the assertion

Article 67 of the Corporate Tax Act and the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act provide that when determining or revising the tax base other than corporate tax, the amount included in gross income for which it is clear that one of the amounts included in gross income is not attributed to the representative shall be deemed to be attributed to the representative. As long as the amount included in gross income is not verified clearly, a withholding agent is obligated to pay the labor income regardless of whether the amount actually belonged to the representative, and the representative director or actual manager of a corporation, etc., who known that it was used for the corporation's business, out of the tonnage of which the amount actually belonged to the representative, who used the corporation's income other than the company's profit, constitutes bonus or temporary salary (see, e.g., Supreme Court Decisions 9Du324, Sep. 14, 2001; 206Da49789, Sept. 18, 2008).

이 사건에 관하여 보컨대, 갑 제2호층의 2, 을 제9호증의 1 내지 8, 을 제10호증의 각 기재 및 변론 전체의 춰지를 종합하면, 원고는 2005년 자산계정인 분양용지비로 실제 취득가액보다 2,950,804,000원을 더 지출한 것처럼 계상하고 그 차액을 김○○이 사용하였고, 2006년 실제 소유자가 아닌 자와 허위계약서를 작성하는 등의 방법으로 자산계정인 분양용지비로 8,649,242,000원, 토지매입용역비로 4,165,021,000원을 더 지출한 것처럼 계상하고 그 차액을 김○○이 사용한 사실, 2007년 대표이사가 지급금으로 8,146,312,000원, 위 가지급금 인정이자로 732,006,000원으로 계상한 다음, 원고가 김○○에 대하여 가지고 있는 대여금 채권으로 이 사건 각 세금계산서에 관하여 ☆☆건설에 지급할 2,934,600,000원의 채무 및 ★★토건에 지급할 1,230,420,000원의 채무를 변제하는 것으로 처리하였는데, 실제로 이 사건 각 세금계산서에 관하여 원고가 ☆☆건설 내지 ★★토건에 지급할 채무는 없었던 사실을 인정할 수 있다.

The evidence presented by the plaintiff alone is not sufficient to prove that the representative director has used the specific amount for the plaintiff's business (in particular, whether it has been used for the plaintiff's business) and the other party has paid the amount equivalent to the processed amount, and that the above amount has not been clearly indicated, the defendant's disposal of it as a bonus is justifiable in the case of this case where the defendant was deemed to have been released from the company in 2005, 2,950,804,000 won, 12,814,263, 217 won in 206, 878,317,792 in 207, 67 of the Corporate Tax Act and the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act.

Therefore, this part of the plaintiff's assertion is without merit.

(B) Judgment on the argument

Since the representative director of a corporation's act of using funds of a corporation, such as embezzlement, was not conducted on the basis of the recovery of difficulties, it constitutes an outflow from the company as an expenditure itself, and once the income tax liability has been established on the portion belonging to the representative director or actual manager, etc. from among the outflow from the company, even if the person to whom the income tax belongs has returned the amount to the corporation, it shall not affect the tax liability already accrued (see, e.g., Supreme Court Decision 9Du3324, Sept. 14, 200

The plaintiff asserted that ○○○ has repaid the amount out of the company during the fiscal year, but according to the statements in Gap evidence 5-1 through 5, Gap evidence 6, Gap evidence 7-4, Gap evidence 8, 9, and Gap evidence 10-1 and 2, the plaintiff, not Kim○○, deposited KRW 94,452,589,257 with the Veterans Association on June 21, 2006, and the private theory that paid the loans out of the company by Korean bank and national bank on March 28, 2008, which was after the occurrence of tax liability, is insufficient to recognize that Kim○○ paid the amount out of the company during the fiscal year of the plaintiff.

Therefore, the plaintiff's assertion on this part is without merit.

D. Determination on the value-added tax portion

In the event that a tax invoice on some of the expenses reported by a taxpayer has been prepared in a false manner without real transactions, which is proved to a considerable extent by the tax authority as to whether it is an actual cost, and the purpose of the expenses claimed by the taxpayer and the other party to the payment thereof have been proved to a considerable extent, a taxpayer who is easy to present data, such as books and evidence, regarding the fact that such expenses have been actually paid, need to prove it (see, e.g., Supreme Court Decision 2007Du1439, Aug. 20, 200

살피건대, 갑 제2호증의 2, 을 제6호종의 1, 2, 3, 을 제9호중의 5, 6의 각 기재 및 변론 전체의 취지를 종합하면, 원고는 2006년도에 ☆☆건설로부터 공급가액 3,000,000,000원의 세금계산서, ★★토건으로부터 공급가액 3,950,000,000원의 세금계산서를 각 발행받았으나, 부산지방국세청장의 법인세 통합조사 당시 용역제공내역, 용역제공기간, 대금결제방법, 용역제공청구서 및 용역에 대한 검수내역 등 실제 용역이나 물품의 제공을 받았다는 점을 확인할 서류를 제출하지 못한 사실, 김○○은 2007. 6. 14. 검찰에서 조사를 받으면서 ☆☆건설과 ★★토건은 자신이 지분의 100%를 보유하고 있는 자신의 회사라고 진술한 사실, 김○○은 이 사건 각 세금계산서를 허위로 발행하는 등의 범죄사실로 사기죄, 조세범처벌법위반죄 등으로 이 법원에서 2008. 2. 15. 징역 6월 및 추징금 100,000,000원율 선고받았고, 이에 대한 항소심에서 2008. 8. 28. 정역 3년 6월 및 추징금 100,000,000원을 선고받았으며, 상고심에서 2008. 12. 11. 상고기각판결을 선고받아 그 무렵 위 판결이 확정된 사실을 인정할 수 있으므로, 이 사건 각 세금계산서가 실물거래 없이 허위로 작성되었다는 점이 상당한 정도로 증명되었다고 할 것이다.

Therefore, since the plaintiff should prove that such expenses have been actually paid, it is difficult to believe that each entry of Gap evidence 12 and No. 13-1 and No. 13-2, which seems consistent with the above, is insufficient to recognize them only with the descriptions of No. 7-1 through No. 4.

Therefore, it is reasonable for the Defendant to regard each of the instant tax invoices as false and to impose the value-added tax on the Plaintiff pursuant to Article 22 of the Value-Added Tax Act. Therefore, this part of the Plaintiff’s assertion

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit, and it is so decided as per Disposition.