Seoul High Court 2006Nu27313 (Law No. 11, 2008)

National High Court Decision 2003west 3859

Whether it is legitimate to dispose of the outflow amount as bonus or bonus.

Unless there is any evidence that a person who resigns from the office of representative of a corporation and has taken office as a new representative is a formal representative under the direction of the plaintiff, the actual amount reported as the outflow from the company shall not

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

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The appeal is dismissed.

The costs of appeal are assessed against the defendant.

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The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 67 of the former Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007) and Article 106 (1) 1 (b) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008; hereinafter referred to as the "Enforcement Decree") provide that "in reporting, determining or revising the corporate tax base, it is clear that the amount included in the calculation of the income has been leaked out of the company, and if the person to whom it belongs is an executive or employee, it shall be disposed of as a bonus for the person to whom it belongs."

The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the adopted evidence. The plaintiff already resigned from the office of representative director of the AA industry at the time when the plaintiff was paid the 1 to 3 amount from the AA industry Co., Ltd. (hereinafter referred to as the "A industry"), and otherwise did not constitute an officer under Article 43 (6) of the Enforcement Decree. Unless there is no evidence that the KimCC, who was appointed by BB from the plaintiff et al. who acquired the entire shares of the AA industry, was a professional representative director under the direction of the plaintiff, was a new representative director under the direction of the plaintiff, the court below determined that the disposition of this case based on the premise that the plaintiff was an executive officer of the AA industry, was unlawful.

In light of the above provisions and relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the disposition of income as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

The court below recognized the fact that the real estate transaction of this case was conducted in the form of sale between AA industry and new type in the process of acquiring the real estate from AA industry as stipulated in the agreement after the Plaintiff transferred the stocks of AA industry. The court below held that the disposition of this case based on the premise that the real estate transaction of this case constitutes an act between a person with a special relationship in the AA industry and constitutes an object of wrongful calculation, since the Plaintiff still holds the major shareholder in the AA industry before the execution of the share transfer contract, and there is no reason to receive transfer of the real estate of this case. Thus, the real estate transaction of this case was conducted on August 23, 1999 after the Plaintiff transferred all the stocks of AA industry, notwithstanding the date of registration ( August 1, 199).

In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable. In so doing, it did not err by misapprehending the legal principles as to the wrongful calculation omission in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

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