National Tax Service Review Income 201-0094 ( November 08, 2011)

According to various circumstances, since the Plaintiff appears to be a nominal representative, the initial taxation disposition is unlawful.

In light of the organization of officers of the company, the statements of related persons, and the fact that the corporation is established to evade compulsory execution of taxes in arrears, and the representative director is registered in the form of a representative director and is engaged in the planning real estate business, and the plaintiff is paid wages as the business employee and personnel director, the plaintiff is illegal in taxation disposition as the representative of

2012Guhap6698 Global Income and Revocation of Disposition

Park XX

Head of the Do Tax Office

September 28, 2012

October 12, 2012

1. The Defendant’s disposition of imposition of KRW 000 of the global income tax for the year 2008 against the Plaintiff on December 2, 2010 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On December 20, 2007, the Plaintiff was registered as the representative director of XX Construction Co., Ltd. (hereinafter “Nonindicted Company”) in the corporate register.

B. On August 19, 2010, the Defendant imposed KRW 000 of the global income tax for the year 2008 on the non-party company (hereinafter “instant disposition”). On December 2, 2012, the Defendant imposed 00 of the global income tax for the year 2008 on the non-party company on the non-party company on the ground that the amount omitted from sales for the business year 2008 (hereinafter “the instant disposition”).

C. The Plaintiff filed a request for examination on June 29, 201, but was dismissed by the Commissioner of the National Tax Service on November 11, 2011.

[Recognizing Facts] Gap evidence Nos. 1, 5, 19, 20, Eul evidence No. 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff is a nominal representative of the non-party company, and since the omitted amount of the sales of this case reverts to KimA, the actual manager, it is unlawful to make the disposition of this case different from this premise.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) According to the fact-finding with respect to Gap evidence Nos. 22 and Eul evidence Nos. 22 and 5 (including virtual number), and the fact-finding with respect to the head of the National Bank XX Dong branch of this Court on December 20, 2007, the plaintiff was appointed as representative director of the non-party company's general meeting of shareholders, affixed a certificate of personal seal impression and a resident registration abstract. The plaintiff prepared a share transfer contract with the KimB on December 24, 2007 and the non-party company's shares 4,900 won per share. KimB reported the above shares transfer income tax to the director of the non-party tax office on January 10, 2008, the plaintiff was registered as holding 49% shares out of the total issued shares of the non-party company during the taxable period of this case to 208, the plaintiff's total account deposit with the non-party company's account No. 980, Jun. 28, 2007 to 208.

(2) However, the following facts can be acknowledged in light of the overall purport of the arguments in the video images of Gap evidence Nos. 2 through 11, 21, 22, and 24, and the purport of Gap evidence No. 12 and 13.

(A) The confirmation document drawn up by KimD on September 2010 contains the following contents:

(B) The current status of executives of XX is as listed below in the table 1. The head office of the non-party company was dissolved under the resolution of the general meeting of temporary shareholders on April 1, 2005. The non-party company was established on April 4, 2005 at its head office as its head office, and closed on September 3, 2008. The current status of executives of the non-party company is as listed below:

The current status of officers of Table 1 and Rule XX

(3) The following table 1 omitted:

The status of officers of the non-party company

(2) The following Table 2 omitted:

(C) ① The confirmation document written by the E and ParkF around September 2010 entered into by the E and ParkF, stating that “self-satisf purchased land from the Plaintiff working for the non-party company. The Plaintiff introduced sales goods at the customer counseling room like other business employees and entered into a sales contract after the teaching.

② The confirmation document prepared by this GG, Kim H, HaJ, Lee K, Lee K, and Lee L, around September 2010, “at the time when the believers worked in the non-party company, the Plaintiff was in charge of the duties such as commuting to and from work of the employee as the personnel head, and was paid the same as the general employees or other heads of departments. The actual operator of the non-party company is KimA, and KimA was almost every day sent to the non-party company, and he was in charge of the council of officers and employees, and was in charge of the council of officers and employees. The management of all funds of the non-party company of KimA was worked to Kimm, the relatives of the non-party company, and he was paid benefits from KimM.

The fact finding that the KimA operated the non-party company was known to all the employees.

③ The Plaintiff prepared a work log at the time of serving as the head of the personnel affairs of the non-party company, and received the written application for employment from the GangwonO.

④ On February 2, 2008, at a level above the head of the department taken in Japan around February 2008, KimA and his spouse’s images are contained in the top of the staff’s group photographs.

(D) According to the inquiry into the integrated national tax computer network, the Plaintiff’s wage and salary income in the year 2007, 2008 are as indicated in the table 3 below. The Plaintiff reported global income amount of KRW 000 and the amount of tax payable to KRW -00 upon filing a comprehensive income tax return in the year 2008.

Table 3: Wage and salary income status

(3) Table 3 omitted:

(E) In the course of investigation, KimA stated that “A was a de facto manager of a company outside the country.” The Plaintiff was under the name of the representative director on the ground that he was unable to operate the company under his own name due to the accumulated taxes of OO, which he operated. Before borrowing the name of the representative director from the Plaintiff, he was operating the non-party company under the name of KimB. He was in charge of managing the money of the non-party company, and KimM was in charge of the accounting affairs of the non-party company. KimM was in charge of the non-party company’s accounting affairs at the request of KimA around 2007 in the course of investigation. KimA and KimP were co-manager of the non-party company. The Plaintiff was the representative director in the name of the non-party company.

(f) The actual owner of the shares of the non-party company that the KimB transferred to the Plaintiff is KimA.

The KimA and KimB did not receive the transfer proceeds from the Plaintiff. On September 18, 2012, the Seoul Central District Court (2012DaDa47126), sentenced the Plaintiff to “the ownership of KimB,” and appealed by KimB. KimB, in the examination of the case, he requested that the Plaintiff operate the business in a foreign country, as it is not good that the Plaintiff would operate the business in a foreign country, and not good health.The decision to change the Plaintiff recommended by KimP to the representative director, and that the Plaintiff was asked to ask the Plaintiff whether the Plaintiff would have been responsible for the representative director. If the Plaintiff borrowed the name of the representative director, the Plaintiff was asked whether there was any damage not to be an oligopolistic shareholder. From KimB, there was no problem about the transfer of shares from KimB, by finding out the shares to process them, and did not participate in the process of transferring the shares.

(사) 김AA은 2008. 9.경 주식회사 YY를 설립하고 기획부동산업을 영위 하면서 조QQ 등을 대표이사로 등기하였다. 김AA은 주식회사 YY로부터 부동산을 매입한 상대방으로부터 사기죄 등으로 고소당하여 2012. 4. 26. 서울동부지방법원{2011노1001, 2012노90(병합)}에서 징역 3년을 선고받았고, 위 판결은 2012. 5. 4. 확정되었다.

(h) As of June 28, 2012, the national tax in arrears in the year 2007 by Nonparty Company is KRW 000, and the local tax in arrears in the year 2007 is KRW 000.

(3) Article 14(1) of the Framework Act on National Taxes provides that "if the ownership of the income, profit, property, act or transaction subject to taxation is nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment, and the recognition of the representative under the Corporate Tax Act shall not be based on the fact that such income occurred to the representative, but shall be deemed as a bonus to the representative regardless of the substance of the specific fact that can be recognized as such act in order to prevent unfair conduct under the tax law by the corporation (see Supreme Court Decision 2006Da49789, Sept. 18, 2008). Thus, the representative whose ownership is considered as a bonus to the representative shall be the representative who actually operates the company, and even if it is registered as the representative director in the corporate register of the company, if the company has not actually been operated, such recognition shall not be integrated and imposed on the representative.

In this case, even if there are circumstances in which the plaintiff can be seen as the representative director of the non-party company, ① the composition, etc. of officers of the non-party company; the director of the director of the XX prior to the change of the non-party company; the auditor is KimM, a student of the KimA; the former representative director of the non-party company, KimB, a representative director of the non-party company, managed all of the funds of the non-party company; ② the statements of the relevant persons; ② the statements of the relevant persons; ③ the employees working in the non-party company; ③ the KimA's business revenue law; ③ the KimAA's business revenue law; and the composition of the non-party company; ④ the director of the non-party company before the change of the non-party company; and the auditor is KimM, a student of the non-party company; the former representative director of the non-party company; and ② the employees working in the non-party company; and ③ the management of the non-party company's business revenue.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.