Seoul Administrative Court 2017Guhap70052 ( August 23, 2018)

Unless there is no evidence to prove that there is a different person to whom income accrues, the initial disposition is legitimate.

If the ownership of income is nominal and there is another person to whom the income actually accrues, the tax law shall apply to the person to whom the income actually accrues as a taxpayer, but there is no evidence to prove that there is a different person to whom the income actually accrues, the initial disposition

Article 14 of the Income Tax Act Article 67 of the Corporate Tax Act

Seoul High Court 2018Nu61255 Revocation of Disposition imposing global income tax, etc.

AA

The Director of the Central Tax Office

on January 23, 2018

on October 23, 2019

on 14, 2010

1. The plaintiff's appeal is dismissed.

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

the Gu Office's place of service and place of service

The judgment of the first instance shall be revoked. The decision that the Defendant revoked the disposition of imposition of global income tax of 000 won (including additional tax of 000 won) for the Plaintiff on October 2016, 2016.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning of the judgment of the court on this case is as stated in the reasoning of the judgment of the court of first instance, except where the plaintiff emphasizes the plaintiff as the ground for appeal or adds a new judgment on the argument in the court of first instance pursuant to Paragraph (2) below, and thus, it is acceptable to accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and

2. Determination on the grounds for appeal

A. Summary of the plaintiff's grounds for appeal

The Plaintiff received KRW 150 million from CCC (hereinafter referred to as “CCC”) whose representative director is the Plaintiff, and then withdrawn the said amount as one check on the same day (hereinafter referred to as “instant check”) and delivered it to BB. BB on October 201 X. BB delivered KRW 200,000,000,000 in total, to DDD’s account after having deposited the said KRW 200,000,000 to the account of CCC (new bank 00,000). At the time of the deposit, BB transferred the said amount to CCC’s account in order to resolve claims and obligations between CCC and DD in a way that DCC 20,000,000 won was transferred.

Therefore, since the issue amount cannot be deemed to have been substantially reverted to the Plaintiff, the instant disposition is unlawful.

B. Determination

1) In full view of the following circumstances, it is reasonable to view that the issue amount was attributed to the Plaintiff, taking into account the evidence Nos. 2, 8, and 11, the respective evidence Nos. 2, 5, and 8 (including each number number), and the witness Nos. 2, 5, and 8 of the first instance court’s witness No. 2 and the entire purport of the testimony and arguments. Accordingly, the instant disposition is lawful, and the Plaintiff’s above assertion is groundless

A) The president of the loan account of the CCC stated that he/she lent KRW 150 million to the Plaintiff. In fact, CCC wired KRW 150 million from its bank account to the Plaintiff’s bank account on X. X. 201X. On the same day, the Plaintiff withdrawn KRW 150 million from its bank account.

B) At the time of filing a request for examination with the Commissioner of the National Tax Service, the Plaintiff specifically stated that “The Plaintiff borrowed KRW 150 million capital from CCC (Representative Director BB) through BB, which was well known to the Plaintiff, on the pretext of borrowing KRW 150,00,000,00, and the details of repayment thereof,” and that “the Plaintiff has repaid the relevant capital in whole to X. 201 X.” (Evidence 2).

However, the Plaintiff filed a lawsuit in this case, on the other hand, asserted that “BB borrowed money from CCC under the name of CCC and repaid it in the name of the Plaintiff, and that it was not aware of such fact,” and that it was inconsistent with the existing statement to the effect that “BB borrowed money from CCC” (the complaint on July 13, 2017).

After reaching the first instance court on October 2018, 2018, stating that “the dispute amount was transferred to the Plaintiff X. XX.”, the Plaintiff changed the cause of the claim to the effect that “after receiving the dispute amount from the CC, the Plaintiff paid the money directly to BB through the bank counter, but was not the money at the time of the transfer, and that the Plaintiff was immediately found to be used by BB,” that “after receiving the dispute amount, the Plaintiff paid the money to BB and actually repaid the money without actually using the money” (the preparatory brief of X. 2018).

The Plaintiff’s statement at the time of the request for examination against the Commissioner of the National Tax Service was made more than one year prior to the commencement of the instant lawsuit, and thereafter, the Plaintiff reversed the Plaintiff’s statement at the time of the request for examination in the instant lawsuit, and the results of the financial transaction information reply were presented to the court of first instance, and re-reconvened or modified the assertion. However, in light of the circumstances leading up to the reversal of the above continuous statement or assertion or the fact that it is difficult to clearly understand the re-recontestably, the credibility of the first statement that the Plaintiff made at the time of the request for examination to the Commissioner of the National Tax Service is higher than

C) The Plaintiff asserts to the effect that the issue amount substantially belongs to BB, not the Plaintiff, and that BB actually repaid the issue amount to CCC.

However, as seen earlier, insofar as it is determined that the issue amount was transferred from the CCC’s account to the Plaintiff, the circumstances that BB actually repaid the issue amount to CCC do not affect the validity of the instant disposition. However, in light of the Plaintiff’s assertion, the circumstance that BB paid the dispute amount to CCC, not the Plaintiff, we examine the argument that the actual issue amount was not the Plaintiff, but BBB, and therefore, the instant disposition was unlawful.

In light of the following circumstances, the Plaintiff’s assertion that BB actually repaid the key amount to the CCC even if all the evidence cited by the Plaintiff was comprehensively considered as follows, is insufficient to accept the Plaintiff’s assertion, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s above assertion premised on this cannot be accepted.

○○ and the witness BB of the first instance court specifically asserted to the effect that “CC was deposited as if the Plaintiff were repaid by the first instance court,” the Plaintiff and the witness BB made a specific statement to the effect that the amount of KRW 61,80,000,000, X. X. 50,000,00 was actually deposited by the EE, a CCC employee employed by BB, and that the amount was repaid by BB after using the key issue amount.”

However, the Plaintiff reversed the argument that “B” deposited 200 million won in the CCC account in the name of 201 X. X. XX. DD, including the key amount of KRW 1.5 billion, thereby repaying all the key amount.”

In light of the fact that the issue amount is a large amount of money, the Plaintiff’s assertion is reversed and new assertion is presented to this court even though it made a very concrete statement on the first issue amount, and that there is a difference of two years or more in the time of repayment when it was repaid. In light of the fact that there is a difference between the first argument and the reversal of the claim regarding the details of repayment at the time of repayment, it is difficult for the Plaintiff to easily understand the background leading up to the reversal of the claim regarding the details of payment in this court, and rather, it is difficult to view that the Plaintiff reverses

○ In full view of the fact that DD received the instant check through BB and deposited the instant check into the account of CCC at 000 points in Korea (Evidence A8), and the payment point of the check transaction certificate of this case is 000, respectively (Evidence A9), the Plaintiff asserts that DD may fully recognize the fact that DD received the instant check from the Plaintiff through BB and deposited it into its own account at 00 points in Korea, and then transferred it to the account of CCC.

However, even if there is room to view that the Plaintiff issued the instant check as the instant check and then transferred the instant check to the CCC account after depositing it into the DD account, in light of the following: (a) the relationship between the Plaintiff and BB; (b) the relationship between BB and CCC; (c) the place of use of the outstanding issue amount; (d) the timing and method of use; and (e) the timing and method of repayment; and (e) the Plaintiff’s statements or arguments made by the Plaintiff and BB on several occasions, etc., the circumstance alleged by the Plaintiff alone is difficult to recognize that the issue amount was attributed to BB from the CCC without the volume actually reverted to the Plaintiff; or (b) the details of remittance from the DD account to the CCC account constituted a repayment for the key amount.

According to the witness BB testimony of the first instance court, the key amount is the lease deposit of the office that BB newly obtained by BB and the expenses for the recovery of BB. However, even according to the testimony of BB, the lease contract of BB of the new office (000th 00th 2nd 000th 2nd 2nd 000) entered into around X. of 201 X and 201 X re-convening at the end of 201 X. In contrast, the date and time transferred from DD account to CCC account is X. of 200 million won. This is the date and time when the Plaintiff transferred the key amount from CCC account and three days after the date when the Plaintiff received the key amount from CCC. Thus, even in light of the title of the key amount claimed by the Plaintiff and BB, it cannot be viewed as the repayment of the deposit of the 200 million won from DD account.

Even in accordance with the short-term loan specification (No. 8-2, 3) of the CCC, the short-term loan amount of KRW 150,000,000 for the Plaintiff is currently counted in an unrecepted state, as it is currently 201 X. XX. and 200,000,000 for the short-term loan amount of the Plaintiff is not recovered. Thus, it cannot be deemed that KRW 200,000 deposited in the CCC under the name of X.DD is repayment for the key amount.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.