Seocho 2009west0106 (2009.04.09)

If it is unclear that the provisional payment due to the outflow from the company belongs to the representative, the bonus disposition;

Although it is alleged that a representative disposition is unfair because the provisional payment that was released from the company belongs to a creditor, etc., it is difficult to believe that there is no evidence to recognize it.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of global income tax of KRW 264,122,912 against the Plaintiff on May 8, 2008 shall be revoked.

1. Details of the disposition;

A. AAAA (hereinafter “AAA”) is a corporation established on October 16, 200 for the purpose of the alternative energy technology provision service business, and the Plaintiff was performing the representative director of AAA from May 19, 2004 to October 20, 2006.

B. On September 2, 2005, AAA entered into a contract with BB engineering Co., Ltd. (hereinafter referred to as “EE” to sell land and buildings owned by EAA for KRW 36-20,50,000,000, EA to EE for the sale of 36-20 and 6 parcels of land and buildings owned by EAA, EA, and on December 30, 2005, a contract was entered into to sell EE for KRW 9,80,000,000,000,000,000,000,000,000.

C. AAA withdraws KRW 400 million from a bank account under the name of the company on September 5, 2005, and withdraws KRW 300 million from a bank account under the name of the company on October 14, 2005.

D. AAA declared corporate tax by appropriating KRW 105,565,530,394, out of the sales amount received from EE to the head of E on March 31, 2006, as provisional payment on the balance sheet.

E. Of KRW 105,565,530,394, which was appropriated as the above provisional payment, the director of the tax office deemed that the amount of KRW 700,000 as stated in the above sub-paragraph (c) was leaked out of the company and its ownership is unclear, and thus, he notified the AAA of the change in the amount of income. On May 8, 2008, the defendant imposed on the plaintiff the tax amount of KRW 264,122,912 for the same reason (hereinafter referred to as the "disposition of this case").

F. On December 3, 2008, the Plaintiff filed a petition for a trial with the Tax Tribunal on an objection, but the Tax Tribunal dismissed the petition on April 9, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Of the amount of KRW 70,000,000 out of the amount of KRW 300,000,000,000,000, out of the amount of KRW 700,000,00 to loan creditors, the remainder of the amount shall be repaid to loan creditors, and the actual substance over form is confirmed through financial investigations, and the actual substance over form should be confirmed, and thus, the disposition of this case to the Plaintiff is deemed unclear, and thus, it is unlawful in violation of the principle of substantial taxation. Thus, the disposition

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) The defect that AAA did not report the tax base and amount of corporate tax for the business year of 2004, the director of the tax office of this thousandth has cancelled the business registration of AAAA on December 31, 2004 on the ground that the location and location of the place of business after the on-site verification was unknown.

2) On March 31, 2006, AA reported the tax base and amount of corporate tax for the business year 2004 and 2005 business year, AA reported corporate tax by 105,565,530,394 won for the business year 2005 business year as the payment amount and 105,565,530,394 won.

3) The director of the tax office of Leecheon-do requested the submission of relevant data to AAA on several occasions to verify the actual owner of the provisional payment, while conducting an integrated investigation into the corporate tax of AA from March 12, 2007 to September 28, 2007. However, AAA did not comply with the request.

Facts without dispute over the basis of recognition, entry of Eul in the evidence of subparagraphs 2 through 5, the purport of the whole pleadings

D. Determination

1) According to Article 20 (1) 1 (c) of the Income Tax Act, the amount treated as a bonus pursuant to the Corporate Tax Act constitutes earned income. In addition, 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 "where the corporate tax base is determined or corrected, it is clear that the amount included in the calculation of earnings has been flown out of the company, but it is unclear to whom it is not attributed, shall be deemed to have been reverted to the representative." Thus, the representative standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing standing being a bonus for the representative to prevent unfair acts under the tax law (Article 206Da49789, Sept. 18, 2008).

2) With respect to the amount of KRW 400 million withdrawn on September 5, 2005 by AA.

According to the overall purport of the statements and arguments in Eul evidence Nos. 2 through 5, AAA may recognize the fact that out of the above KRW 400 million deposited on September 5, 2005, KRW 300 million deposited as one check, the remainder of KRW 100 million deposited by account transfer, cash transfer, etc. on August 5, 2005, Hah loaned KRW 300 million to both K on September 5, 2005, which was repaid at a face value of KRW 300 million from both K on September 5, 2005, and that the amount of KRW 100 million out of the above KRW 400 million was not verified to anyone due to the account number errors and cash withdrawal.

According to the above facts, it is unclear that the ownership of KRW 100,000 out of KRW 400,000, and both K own the remaining amount of KRW 300,000,00,000, but it is not clear whether AAAA has paid it to both K. Accordingly, this part of the Plaintiff’s assertion is without merit.

3) AAA is deemed to have been withdrawn on October 14, 2005 for KRW 300 million.

According to the purport of Gap evidence No. 5 and the arguments, grandchildren may recognize the fact that on October 17, 2005, AAA has used three copies of the check of KRW 100 million at par value deposited on October 14, 2005. Furthermore, as to whether the above KRW 300 million belongs directly to grandchildren in AAA, the Minister of Health and Welfare asserts that the plaintiff has repaid the loan of KRW 300 million with respect to the purpose of payment of KRW 300 million.

In light of the following circumstances, evidence that conform to the above assertion as evidence, there were Gap's evidence Nos. 3 through 5 and witness grandchildren's testimony. However, in light of the following circumstances acknowledged by Eul's evidence Nos. 2 through 5, it is difficult to believe it and there is no other evidence to acknowledge it. In addition, other reasons to deem that the above KRW 300 million belongs to grandchildren in AAA does not exist. Accordingly, it is unclear that the ownership of the above KRW 300 million out of the company is unclear, and thus, the plaintiff's assertion on this part cannot be accepted.

1. At the time of the investigation into the corporate tax of 2005 with respect to the AAA by the director of the tax office of thischeon, the AAAA made an explanation to the effect that the The AAA would have repaid the loan by filing a loan claim lawsuit, which is not in accord with the lessee as alleged by

② The Plaintiff asserted to the Tax Tribunal that EE deposited part of the transfer amount in the process of managing passbooks in the name of AAA, and used it for other purposes. The Plaintiff’s assertion is inconsistent with the Plaintiff’s assertion that the DamageG lent KRW 400 million to AAA, other than EE, to the effect that the DamageG lent KRW 400 million to the other AAA.

③ The grandchildren lent KRW 400 million on several occasions, and received KRW 80 million from AAA, on three occasions, but did not submit any financial data.

④ On February 24, 2005, the certificate No. 3 (money borrowed) stated that the handG paid KRW 400 million in cash or checks over several times, and that the handG was also remitted to the account designated by AAA.

In addition, if a loan was paid in cash or by check or transferred it to another account in another name, it is difficult to believe that the statement by the grandchildrenG was prepared after the settlement of the loan certificate even though it may be unclear who the borrower is the lender.

⑤ In light of the following: (a) although it was not verified whether there was a separate income at the time of the loan, the grandchildren lent a large amount of KRW 400 million to the AA; (b) it is an exceptional fact that the grandchildren lent a large amount of interest without being provided with any security to the AAA; and (c) there is no accounting books prepared by the AAAA in relation to the lending relationship to the DamageG; and (d) it is difficult to believe that the DamageG lent a large amount of KRW 400 million to the AA.

6. Furthermore, it is not recognized that the DamageG lending KRW 400 million to the AA due to the foregoing circumstances. The circumstances in which the company’s funds will be paid to the DamageG regardless of the Plaintiff’s intent, the representative director, do not appear to exist.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.