If the amount received and omitted in sales has been disposed of as bonus to the representative, it is legitimate to dispose of it.

The representative director has kept accounts for the amount received, and it is legitimate to dispose of the amount received and the amount omitted from sales to the representative director, such as that it constitutes a obligation to be deemed against the representative director, and it falls under a nominal processing obligation, unless there are other circumstances to regard it as a nominal processing obligation.

Article 67 of the Corporate Tax Act

2016Guhap58116 and revocation of disposition of global income

The number of lawsuits taken by the State, 000 et al.

BB Director of the Tax Office

on April 27, 2017

on October 25, 2017

1. The plaintiff's claims are all dismissed.

2. The plaintiffs shall bear the litigation costs.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 000,000,000 on global income tax for the year 2012, as against Na on January 12, 2015, shall be revoked.

1. Details of the disposition;

A. “CC” (hereinafter referred to as “instant corporation”) is a corporation established on May 3, 2012 for the purpose of soliciting consignment agents, management and construction and hosting business. The certified copy of the registry of the instant corporation is registered as the representative director of the said corporation on May 3, 2012, but he/she was registered as the resignation on May 1, 2013, and on January 14, 2013, KimD, who was appointed as the inside director of the said corporation, was registered as the latter representative director of the said corporation on May 1, 2013.

B. The instant corporation received KRW 694,50,000 from the above corporation and its affiliated agencies through the accounts in the name of BA in 2012. Of these, KRW 126,50,000, the sales amount of KRW 261,50,000, and KRW 189,000,000 (hereinafter “the instant provisional payment”) were appropriated in advance in advance, and the amount of KRW 189,00,000 (hereinafter “the instant provisional payment”) was transferred to the said corporation’s account through the accounts in BA, and the representative director was appropriated in the amount of KRW 17,50,000,000 (hereinafter “the instant omitted payment”).

C. From December 2, 2013 to February 24, 2014, the head of the EE Tax Office conducted a tax investigation on the instant corporation and confirmed the aforementioned facts. 261,50,000 won, which the said corporation appropriated as advance payment, is reserved, and the aggregate of KRW 306,50,000,00 (hereinafter “instant key amount”) was deemed to have been out of the country, and disposed of as bonus to BA with respect to BA, and notified the Defendant having jurisdiction over the place of tax payment of BA of the pertinent taxation data.

D. On November 20, 2014, the Defendant notified Na to impose KRW 120,703,346 of the global income tax for the year 2012, and Na requested the Defendant to pre-assessment review on December 18, 2014, but received non-adopted decision on January 5, 2015.

E. On January 12, 2015, the Defendant issued a correction and notification of KRW 120,703,340 of the global income tax for the year 2012 to Na (hereinafter “instant disposition”).

F. A. BA’s objection to the instant disposition was filed by the Board of Audit and Inspection on April 8, 2015, but was dismissed on December 24, 2015.

G. The AA died on January 1, 2017, and the Plaintiffs are the successors of the AA.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 5, Eul evidence 1 to 6, oral argument

The purport of the whole

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) All of the instant provisional receipts were deposited into the account of the instant legal entity and used as the operating fund of the said legal entity, and Na did not leak the instant provisional receipts out of the company and used them for personal purposes.

2) On November 2012, 2012, Na has resigned from the office of representative director of the instant corporation, but KimD, a succeeding representative director, was registered as representative director in the corporate register until May 2013 because it did not register the change of representative director, and even though KimD had not performed the office of representative director during the reporting period of the corporate tax for the business year 2012, it is unreasonable to impose Na on the 2012 liability incurred due to failure to report the corporate tax for the business year 2012 and liability for the amount carried over to the year 2013. Thus, it is unreasonable to impose on Na the responsibility for the instant amount carried over to 2013

3) The cost omitted at the time of filing a corporate tax return for the business year 2012 lies in KRW 165,198,305 (=28,198,305 for 5 other than the largestF + KRW 20,000,000 for the 2nd fee for the load for HaG + KRW 20,000,000 + KRW 15,000,000 for HaJ). Considering this, the key issue amount in this case was not out of the company.

4) Nevertheless, it is unlawful for the Defendant to consider the issue amount of the instant case as the outflow of the company from the company, and thus, the instant disposition should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the assertion that the instant provisional payment was not out of the company

A) Where a corporation fails to enter its sales in an account book despite a fact of sales, the total amount omitted from sales should be deemed to have been leaked out of the company, barring special circumstances. In this case, the special circumstance that the omission of sales should be proved by the corporation, and even if the corporation's account was recorded in the provisional account, which is a temporary account where the amount received by the corporation through sales is not finalized, and the cash, which is the counterpart account, was entered in the account of the corporation, once it was entered into the temporary loan account, the other party account. If the contents of the provisional account were to enter the short-term loan transaction from the representative director, and it is verified that it was an obligation against the representative director, such transactions are irrelevant to the corporation's profits or expenses, and thus, such transactions are not accompanied by the change or increase of corporate net assets, and thus, the amount of the provisional account should have been entered in the account book as profits and losses, barring special circumstances such as those of the corporation, and thus, should be deemed to have been leaked to the representative director (see, e.g., Supreme Court Decision 2001Du361.

B) We examine the following circumstances, which are acknowledged by the overall purport of the statement and pleading of Gap evidence Nos. 1 and 6, Eul evidence No. 5, and Eul evidence No. 1, i.e., 69,500,000 won received from the franchise agency during the 2012 business year through the plaintiff's account, etc., as the representative director's deposit account. ② The corporation of this case borrowed 2.48,000,000 won from the representative director's deposit account for the 2012 business year from the 59,000,000 won as the balance of the above business year was generated from the 59,000,000 won as the 189,000 won as the 5,000 won as the 5,000,000 won as the 5,000 won as the 5,000,000 won as the 1,000,000 won as the 1.

2) Determination as to the assertion that Ghana resigned from the office of representative director around November 2012

A) Even if a person is registered as a representative director on the corporate register of a company, if the company does not actually operate the company, the income of which the company is missing may not be imposed on him/her as comprehensive income tax (see, e.g., Supreme Court Decision 88Nu3802, Apr. 11, 1989). Meanwhile, since a person who is registered as the representative director on the corporate register can be presumed to have actually been operating the company, the fact that the representative director on the corporate register has actually failed to operate the company must be proved by the party asserting that he/she was actually operating the company (see, e.g., Supreme Court Decision 2006Du187, Apr.

B) On May 1, 2013, the facts that A.I.D has been registered as the representative director on the copy of the register of the instant corporation on the same day, and KimD had been appointed as the representative director are as seen earlier. As such, the facts that BA resigned from the representative director of the instant corporation on November 2012, 2012 should be proved by the plaintiffs who asserted that B had asserted that B had resigned from the office of the representative director of the instant corporation on the date of its transfer, and it is difficult to recognize the facts that B had only written evidence No. 7 (in addition, evidence No. 7, KimD was deemed to have reported corporate tax as the representative of the instant corporation on April 1, 2013, but this was not found to have been used in the next generation administrative integration system introduced by the National Tax Service on or around July 6, 2015. Rather, there is no evidence to acknowledge that BA had been submitted on the entire statement No. 101 to 212, 2015.

3) Determination as to the assertion that the cost omitted in the business year 2012 exists

The evidence No. 9 is unclear, and it is difficult to view that the cost equivalent to KRW 165,198,305 claimed by the Plaintiffs at the time of filing a corporate tax return for the business year 2012 was omitted, and there is no other evidence to acknowledge otherwise.

4) Sub-determination

Therefore, it is legitimate that the defendant's disposition of this case was rendered to Na, which was the representative director at the time, considering that the issue amount of this case was leaked out of the private company, and the above assertion of the prior plaintiffs is without merit.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.