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The fictitious payment of stock price is a realistic payment due to the transfer of money, and there is no reference to the transfer of provisional payment, a representative director, under the stock transfer contract.

Although the issue is that the provisional payment was appropriated in the process of making a lump sum payment, it cannot be deemed that the non-party corporation did not hold the provisional payment of this case, and since there is no evidence to deem that the provisional payment was succeeded, it is reasonable to view that the provisional payment was reverted to the plaintiff, who is a specially related person, because it is in the de facto waiver of the collection

Article 67 of the former Corporate Tax Act, Article 106 (1) of the former Enforcement Decree of the same Act

2014Guhap8247 Global income and revocation of disposition

AA

Seoul OOO17-LO17-Lo-gu, HOO-O-O apartment(O-dong, OO-O-O apartment)

Law Firm OO

Attorney OOO

O Head of tax office

Litigation Performers OO

X.x.x.x.x. x.

x.x.x.x.x. x.

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Xx.x.x.x.x. The disposition of imposition of KRW 0,00,000,000 on the Plaintiff shall be revoked.

1. Details of the disposition;

A. From x.x.x.x.x.x.x.x. to run a major shareholder and representative director of DNA Engineering Co., Ltd. (hereinafter referred to as "DD Engineering"), the Plaintiff was holding office as a major shareholder and representative director, and transferred the whole and the management right of D Engineering stocks to CCC (hereinafter referred to as "transfer of this case").

B. The D engineering settlement of the xx business year prior to the transfer of the instant case was included in the sum of KRW 0,000,000,000 and the provisional payment of KRW 0,000,000,000, including the provisional payment of KRW 000,000,000 for the Plaintiff and the provisional payment of KRW 0,000 for short-term loans (hereinafter “instant provisional payment”). Since CCC appointed the representative director of D Engineering as the representative director, the provisional payment of the instant case was replaced with the long-term outstanding amount for the Plaintiff.

C. While conducting a partial investigation of corporate tax on X.x.x.x.x.x. D engineering, the director of the EE Tax Office deemed that the instant provisional payment against the Plaintiff was not recovered until the transfer of the instant case at the time when the special relationship between the Plaintiff and D engineering was extinguished, and disposed of it as bonus and notified the Defendant of such taxation data.

D. According to the above notification, the Defendant issued a correction and notification of KRW 0,000,000 as global income tax for the yearx year to the Plaintiff (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an objection, thereby making a request for trial to the Tax Tribunal for X.x.x.x.x.x.x.x.x.x.x. were dismissed.

Facts without any dispute, Gap's 1, 3 through 7, Eul's 1, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The provisional payment of this case is a processed asset generated in the process of the fictitious payment of stock price and merely a formal claim, and thus, it cannot be disposed of as bonus on the ground that it was not recovered until the special relationship is extinguished.

Even if it is not so, the obligation to pay the provisional payment of this case shall be deemed to have been succeeded to the CCC in view of the contents, etc. of the share acquisition agreement or agreement prepared between the plaintiff and CCC containing the content that “all rights of the company are included in the amount of transfer.”

Therefore, even though the provisional payment of this case was not attributable to the plaintiff as a result of the outflow from the company in any aspect, the disposition of this case was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) According to Article 67 of the former Corporate Tax Act and Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act, where it is obvious that the amount included in the calculation of earnings has been leaked out of the company, if the person to whom the amount of outflow out of the company belongs is clear, it shall be treated as dividends, bonuses, other income, and other outflow from the company to whom it belongs, and it shall

On the other hand, since the provisional payment is based on the premise of its original recovery, when a stock company virtually waives its recovery or leaves the provisional payment in a situation where it is impossible to recover it due to the failure to recover the provisional payment from a person with a special relationship, the provisional payment should be deemed to have been finally reverted to the recipient or the person with a special relationship.

(2) First, the Plaintiff’s statutory capital requirements for acquiring qualifications for D Engineering’s specialized construction business type

In order to satisfy this, the capital of D Engineering was finally increased by up to 0 billion won by means of making payments of stock price to D Engineering and withdrawing it by the next day as provisional payments. The interest on the provisional payments withdrawn as above shall be treated as a provisional payment in the form of short-term loans by employees, and as a result, the fact that the provisional payments in this case are appropriated in the xx year settlement of accounts does not conflict between the parties.

However, even in the case of a temporary loan of capital and the so-called lump sum payment of the capital to repay the borrowed money by withdrawing the paid-in capital immediately after the incorporation or capital increase, it is not a subjective intention of the promoters, directors, and directors who make the payment, even if it is used as the best method of payment of the paid-in capital, and such in-depth circumstance cannot affect the effectiveness of the payment of the stock amount, which constitutes a collective procedure such as the incorporation or capital increase of the company, (see, e.g., Supreme Court Decisions 82Nu522, May 24, 1983; 9Du8039, Mar. 27, 2001). Therefore, in the case where a director of a stock company and a shareholder of the company borrowed money from a third party and received the paid-in capital from the paid-in capital from the paid-in capital, and then paid-in capital to a third party, the company should be deemed as having the most paid-in capital to the shareholders or directors, or 205Du27575, etc.

Therefore, even if the provisional payment of this case was appropriated by the Plaintiff in the process of making a disguised payment of the stock price, it cannot be deemed that DDR did not hold the claim for provisional payment of this case.

(3) Furthermore, considering whether the obligation to pay the provisional payment of this case was succeeded to CCC from the Plaintiff at the time of the transfer of this case, the aforementioned evidence and evidence Nos. 2, and Eul Nos. 3 through 5, the stock acquisition agreement, etc. prepared among them based on the overall purport of pleadings is comprehensively transferred or taken over by a corporation. However, there is no content about the representative director's individual taking over the obligation to pay the provisional payment of the corporation. CCC, in the process of taking over DNA engineering, was aware of the assets formed in the process of the transfer of the company's property and excluded from the subject of evaluation. CCC cannot be deemed to have taken over the obligation to pay the provisional payment of this case to CCC. Accordingly, it cannot be deemed that the obligation to pay the provisional payment of this case was acquired by transfer to CCC.

(4) Ultimately, when the special relationship with the Plaintiff is extinguished, D Engineering failed to recover the instant provisional payment until the transfer date of the instant case, that is, it would have been in fact renounced or left in a situation where it is impossible to recover the instant provisional payment. Therefore, it is reasonable to deem that the instant provisional payment was reverted to the Plaintiff as a person who was in a special relationship with the Plaintiff who was out of the company. Accordingly, the instant disposition taken under Article 67 of the former Corporate Tax Act and Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.