Cho High Court Decision 2010Du2598 ( December 02, 2010)

bonus disposal is lawful for the representative of the processing service fee.

It cannot be deemed that the purchase of a golf course or the acquisition of a business is substantially mediating or working as a broker and the service fee is paid, and since the corporation's funds are leaked out outside the company to belong to the representative director or used without relation to the corporation's business, the disposition imposing Gap tax on the rehabilitation company is legitimate.

2011Guhap1093 Revocation of Disposition of Imposing income tax

XX

O Head of tax office

June 10, 201

July 8, 2011

1. The plaintiffs' primary claims to revoke the disposition imposing value-added tax are dismissed.

2. Each of the plaintiffs' remaining primary claims and conjunctive claims is dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

The primary purpose of claim is to revoke each disposition of Defendant Eastern Tax Office's value added tax of KRW 20,00,000 and KRW 678,464,620 on April 7, 2010, which was rendered by Defendant Eastern Tax Office to Debtor XX club Co., Ltd. on December 7, 2009.

Preliminary claim: Defendant Republic of Korea shall pay to the plaintiffs 20 million won with 5% interest per annum from January 1, 2007 to the sentencing day of this judgment, and 20% interest per annum from the next day to the day of full payment.

1. Circumstances of dispositions;

A. On July 15, 2004, 2004, ○○ Construction Co., Ltd. (the representative director AA, hereinafter referred to as ○○ Construction, hereinafter referred to as '○○ Construction', and from the time of the second decision of other Co., Ltd., the Plaintiff omitted the indication of the Co., Ltd.) drafted and issued to △△ Construction Co., Ltd. a letter of commitment to pay KRW 2 billion at the service fee in the event of sexual intercourse with the acquisition of the golf course site at 630,745 or the acquisition of the △ Development itself, which is owned

B. On December 24, 2004, a private golf club was established for the purpose of running the golf club business (hereinafter referred to as the "business in this case") through the purchase of the above golf club site or the acquisition by transfer of △△ Development, and on December 7, 2005, a private golf club was wholly taken over the shares of △△△ Development on December 7, 2005, and on December 21, 2005, △△ Development changed the company into a XX club (hereinafter referred to as a "corporate rehabilitation company"), which is the party who has made a sacrifice (not clear the process that ○○ Construction transferred the business right to the business in this case to △△ entrusted club).

C. On December 1, 2005, △△ Construction issued a service tax invoice of KRW 2 billion (excluding value-added tax of KRW 200 million) with the supply value as a person being supplied with a rehabilitation company. On December 7, 2005, the rehabilitation company remitted the tax invoice of KRW 2.2 billion to the deposit account of the National Bank of Korea in △△ Construction on December 7, 2005. The sacrifice company reported the value-added tax for the second period of 2005 and the corporate tax for 2005 business year with the said tax invoice as input

D. On December 7, 2009, the chief director of the Korea Tax Office: (a) deemed that the service transaction under the said tax invoice (hereinafter “instant service transaction”) was processed; (b) deemed that the representative director A used the above 2 billion won as useful; (c) imposed the value-added tax of KRW 20 billion on the false entry in the list of the total tax invoices by seller at the rehabilitation company; and (d) recognized the amount of KRW 2 billion as a bonus for the representative AA; and (c) imposed the tax amount of KRW 678,464,620 on April 7, 2010, including the penalty tax pursuant to the failure to withhold the tax on earned income.

E. On October 15, 2010, Busan District Court commenced rehabilitation procedures as the above court 2010 hap17 against the sacrifice company, and appointed the plaintiffs as joint managers of the rehabilitation company.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 1-3, 4, Gap evidence 2-5, Eul evidence 1-1, Eul evidence 2, Eul evidence 3, and the purport of the whole pleadings

2. Judgment on the main claim

A. Whether revocation of the disposition imposing value-added tax is legitimate

We examine the legitimacy of the claim for revocation of the imposition of value-added tax in the primary claim.

According to Articles 56(2), 56(3), and 68 of the Framework Act on National Taxes, any administrative litigation against any illegal disposition under tax-related Acts shall not be instituted without undergoing a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon; any request for adjudication shall be filed within 90 days from the date (where a notice of disposition is received, the date on which the notice of disposition is received) on which the relevant disposition is known; and any administrative litigation shall be filed within 90 days from the date on which a decision on a request for adjudication is notified.

If the purport of Gap evidence 4-1 and Gap evidence 5-2 is added to the whole purport of the pleadings, it is evident that the rehabilitation company, at the latest, was aware of the existence of the disposition of imposition on December 31, 2009, which is the date of the payment of value-added tax, and filed a request for a trial with the Tax Tribunal on July 5, 2010. Meanwhile, it is evident that the lawsuit of this case was filed on February 24, 2011.

According to the above facts, a request for a trial on the imposition of value-added tax is illegal because it is filed after the lapse of 90 days from the date on which the existence of the disposition is known. As such, the part seeking the revocation of the imposition of value-added tax among the main claims of this case is not a legitimate pre-trial procedure, and it is unlawful (the objection filed by the rehabilitation company on March 9, 2010 is limited to the notification of change in income and it cannot be deemed that the objection is filed concurrently with the notification of change in income amount).

B. Whether a disposition imposing tax on earned income is lawful

(1) The plaintiffs' assertion

Although the service transaction of this case is normal transaction, the imposition disposition of Class A wage and salary income tax of KRW 678,464,620 (hereinafter "the imposition disposition of tax on wage and salary income of this case") which the head of the defendant Eastern Tax Office recognized as a bonus to the privateA on the premise that it is processed is illegal.

(2) Relevant statutes

(3) Determination

The legality of the imposition disposition of wage and salary income tax in this case depends on whether the service transaction in this case is actual transaction or, that is, △△ Construction performed actual brokerage and practical processing services in connection with the business in this case, and whether 2 billion won has been paid as the price. As such, this is examined.

앞서 든 각 증거와 갑 6, 7호증, 을 5 내지 9호증의 각 기재에 변론 전체의 취지를 더하면, ① 민AA은 ○○건설, 합병 전 ◇◇컨트리클럽, 회생회사의 대표이사이고, △△건설, 주식회사 ▽▽건설, 주식회사 ☆☆건설, 주식회사 ▲▲에이치의 실질적 운영자로서 각 법인의 주식을 처외삼촌인 신BB 등의 명의로 보유 하고 있으면서, 각 법인의 자금조달 및 집행 등 업무 전반을 총괄한 사실, ② △△건설은 2003. 1. 13. 주택건설사업을 사업목적으로 하여 설립된 뒤 2003년 동안 매출이 없었고, 2004년 제1기 6,176,000원, 2004년 제2기 22,490,000원, 2005년 제1기 9,045,000원의 매출을, 이 사건 용역거래가 있은 2005년 제2기에는 이 사건 용역거래 수수료 20억 원을 포함하여 2,009,874,000원의 매출을 과세관청에 신고하였고, 2006년 제1기에는 매출이 없는 사실, ③ 이 사건 용역거래와 관련한 세금계산서는 △△ 건설의 관리과장으로 근무하던 황CC이 민AA의 지시를 받고 회생회사에 교부한 것으로서, 황CC은 회생회사에 그와 관련한 용역을 제공한 적이 없다고 진술한 바 있고, 황CC의 제안으로 △△건설의 대표이사를 맡게 된 김DD은 민AA 및 위 세금 계산서의 발행 ・ 교부에 관하여 전혀 알지 못하는 사실, ④ △△건설 예금계좌로 입금된 22억 원은 민AA에 의하여 입금 당일 5억 원짜리 수표 1장, 2억 원짜리 수표 1장, 1억 원짜리 수표 15장으로 전액 발행되었는데, 같은 날부터 2006년 2월경까지 위 22억 원의 사용내역을 보면, 3억 원은 ☆☆건설의 설립자본금(3억 원)으로 납입(민AA의 처외삼촌 신BB와 장모 신EE이 발행주식의 70% 보유)되었고, 1억 8,500만 원은 ▲▲에이의 직원인 서FF와 김GG에 의해 ▽▽건설의 예금계좌로 송금되었으며, 1억 5,300만 원은 민AA 개인이 ●●자동차 주식회사로부터 구입한 자동차대금으로 지급되었고, 2억 원은 민AA이 2006. 2. 20. 문모씨의 국민은행 예금계좌 로 송금하는 방법으로 사적으로 대여하였다가 이후 변제받았으며, 1억 원은 민AA이 수표를 제시하여 사용하였으나 전표는 확인되지 않고 있고, 1억 원은 2005. 12. 20. 1,000만 원짜리 수표 10매로 교환되어 ○○건설의 대여금고에 보관 중이며, 1억 2,400 만 원은 서FF나 김GG 또는 민AA에 의해 주HH 등 개인에게 송금(서FF에게 1,000만 원, 주HH에게 7,500만 원, 이KK에게 3,000만 원, 민AA에게 900만 원)되었고, 6억 6,200만 원은 소액권 수표(3,000만 원짜리 1장, 1,000만 원짜리 21장, 100만 원짜리 122장 등)로 인출되었으나 그 뒤 수표 제시 여부나 사용처는 확인되지 않고 있으며, 1억 원은 최MM이라는 사람이 배서 후 자신의 계좌로 9,000만 원을 입금하였고, 1억 원은 이 사건 용역거래에 관한 부가가치세로 납부된 사실이 인정된다.

According to the above facts, the service transaction in this case was conducted between the two different companies, and the size of the transaction was 2 billion won or more. The officers and employees of △△△ Construction did not know about the content of the service transaction in this case and the fact that there was no provision of the service. Rather, in light of the sales performance of △△ Construction, it is doubtful whether △△ Construction was capable of performing the service in this case, and there was no material about how to play any specific role, and there was no money from 2 billion won in the name of the service commission, and in particular, there was no money from △△ Construction in relation to the △△△△△ Construction in the name of the service commission, and there was no money from 2 billion won in the name of the service commission, and in addition, it can be known that 80 billion won in the transaction amount was personally used by △△ Construction in the account book, or that △△△△ Construction had not been used by △△ Construction in the account book, and there was no evidence as to the above facts of the service payment in this case.

Thus, 2 billion won for the service transaction of this case is attributed to the privateA, which was the representative director of the rehabilitation company, by taking advantage of his status to leak the corporation's funds out of the company's company, or used them for other purposes without connection with the business of the corporation. Thus, the act of using the corporation's funds by the representative director, etc., who is the actual manager of the corporation, is not conducted on the premise of early recovery, barring special circumstances, and it is not done on the premise of early recovery, and thus it constitutes the outflow as an expenditure itself (Supreme Court Decision 2008Du1009 Decided November 13, 2008). Since there are no other circumstances to view the above different in this case, it is legitimate that the head of the Dong Tax Office recognizes the 2 billion won as a bonus for the privateA and imposes the income tax on the rehabilitation company Gap.

3. Determination on the conjunctive claim

A. The plaintiffs' assertion

Since there is no supply of services subject to the imposition of value-added tax when the service transaction of this case is processed, there is no room for establishing the liability for value-added tax, Defendant Republic of Korea shall return the reported value-added tax amounting to 200 million won and damages for delay after the date of payment

B. Determination

(1) As a matter of principle, the right to claim the return of the tax overpaid or erroneously paid is the person liable to pay the tax, and Article 2(1)1 of the Value-Added Tax Act provides that the person who supplies the service is the person liable to pay the value-added tax. The person who is the other party to the transaction is not the person liable to pay the tax, but is not the person liable to pay the value-added tax under the tax law. Thus, the individual who is not the person liable

(2) Furthermore, in the case of taxes for which a taxpayer voluntarily determines their tax base and tax amount and for which a specific tax obligation is determined by filing a return, the State and local governments shall hold the tax amount paid based on such finalized tax claim. As such, insofar as the taxpayer’s filing of a return does not automatically become null and void due to a significant and apparent defect, it cannot be said that it constitutes unjust enrichment. Here, whether the filing of a return constitutes null and void as a matter of course due to a significant and apparent defect, shall be determined reasonably by considering the purpose, meaning, function, and legal remedies for the declaration of defective defects, etc. of laws and regulations, which serve as the basis for the filing of a return, as well as by individually identifying the specific circumstances that result in the filing of a return (see Supreme Court Decision 94Da60363, Dec.

However, in the instant case, if the privateA pretends to conduct business with △△ Construction by using the company’s funds, and as a part of it, paid value-added tax of KRW 200 million to △△ Construction separate from the transaction price, it cannot be readily concluded that the defect in the reporting act of △△ Construction is significant and apparent under such circumstances.

(3) Therefore, the plaintiffs' above assertion also seems to have no grounds.

4. Conclusion

Therefore, the revocation of the disposition imposing value-added tax among the plaintiffs' primary claims is illegal, and the remaining main claims and preliminary claims are dismissed as they are without merit.