Appropriateness as to the actual reversion of the amount that the processing purchase amount was out of the company

The burden of proof that the plaintiff was not the actual representative of the non-party company is the plaintiff, and so long as the amount of the processed amount was leaked out and the ownership is unclear, it is legitimate to regard it as belonging to the representative of the corporation and dispose of it as a bonus.

Article 67 of the Corporate Tax Act

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the assertion on the grounds of appeal by the appellant constitutes Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed pursuant to Article 5 of the above Act. It is so decided as per Disposition

[Seoul High Court Decision 2007Nu18064, Dec. 26, 2007]

1. The part of the judgment of the first instance against the plaintiff falling under the subsequent part of the order of revocation shall be revoked.

The Defendant’s disposition of imposing global income tax of KRW 98,347,820 for the Plaintiff on July 1, 2005 exceeds KRW 91,122,370 for the imposition of global income tax for the year 200.

2. The plaintiff's remaining appeal is dismissed.

3. The costs of the lawsuit shall be borne by the Defendant, while the remainder shall be borne by the Plaintiff, respectively.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of global income tax of KRW 98,347,820 for the plaintiff on July 1, 2005.

1. Details of the imposition;

The following facts may be acknowledged in light of the overall purport of the pleadings in the descriptions of Gap evidence Nos. 1, 3, 7, Eul evidence No. 8-2, 3, Eul evidence No. 1-2, and Eul evidence No. 2:

A. From October 31, 1999, the Plaintiff was appointed as a co-representative of ○ Information Technology Co., Ltd. (hereinafter referred to as a "non-party company") who operates the sales business of telecommunications equipment and materials, and then resigned on December 8, 200, and thereafter, ○○ became the sole representative director of the non-party company from around that time.

B. Of the taxable period of the value-added tax for January 200 (from January 1, 200 to June 30, 2000), the non-party company received three copies of the false tax invoice (hereinafter referred to as the "tax invoice of this case") which is the total value of supply from ○○com Co., Ltd. (hereinafter referred to as "the supply price of this case") without real transaction, and included it in the calculation of losses in filing a return of the corporate tax base and tax amount for the year 2000.

C. On January 13, 2005, the director of the ○○ Tax Office imposed a notice of change in the amount of income on the Plaintiff, the joint representative director of the non-party company, and on January 13, 2005, 156,750,000 won, divided in proportion to the total amount of the value-added tax and the value-added tax (hereinafter “the amount of income of this case”) as bonus income and treated it as bonus income.

D. On January 20, 2005, the Defendant notified the above taxation data from the head of ○○ Tax Office to correct and notify the Plaintiff of the global income tax amounting to KRW 98,347,820, July 1, 2005.

E. The plaintiff appealed and filed an appeal with the National Tax Tribunal on January 17, 2006, but was dismissed on November 6, 2006.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant tax invoice is the purchase of the Plaintiff, which is the other co-representative, and the actual representative of the non-party company, and the Plaintiff was merely the team leader of the network business team, and this is also recognized that ○○ is responsible for taxes, etc. under the instant tax invoice. Thus, the Defendant’s disposition of this case, even though it is obvious that the actual owner of the income equivalent to the value of supply of this case is the ○○○, and thus, was unlawful.

(2) Even if income is recognized to have accrued to the Plaintiff, the Plaintiff’s resignation from the representative director on December 8, 200 in the tax period of the global income tax of this case is deemed to have accrued only the amount calculated in proportion to the Plaintiff’s tenure of office, and the global income tax shall be calculated.

(b) Related statutes;

Article 14 of the Framework Act on National Taxes

(1) If the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such ownership belongs exists, the tax-related Acts shall apply to such person to whom such person actually belongs as a taxpayer.

Article 67 of the Corporate Tax Act

In filing a report on the corporate tax base on the income for each business year under the provisions of Article 60 or in determining or revising the corporate tax base under the provisions of Article 66 or 69, the amount included in gross income shall be disposed of as bonus, dividend, other outflow from the company, internal reserve, etc. from the person to whom it belongs,

Article 106 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17033 of Dec. 29, 2000) disposes of disposal of income

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of under the provisions of the following subparagraphs. The same shall apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed as accrual to the representative (where the total number of stocks held by an officer who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30% or more of the total number of stocks issued or total investment amount of the concerned corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation which has been exempted from withholding taxes under the provisions of Article 46 (12) of the Restriction of Special Taxation Act reports that there is a separate representative among the officers who are stockholders, the reported person shall be the representative, and where there are 2

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

C. Determination

(1) Article 106(1)1 (proviso) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17033, Dec. 29, 200; hereinafter the same) provides that the bonus system for the representative of the disposal of income pursuant to the proviso of Article 106(1)1 of the Enforcement Decree of the Corporate Tax Act shall not be based on the fact that such income has accrued to the representative, but shall be deemed as bonus for the representative without due consideration to a specific fact that can be recognized as such act in order to prevent unfair conduct under tax law by the corporation (see Supreme Court Decision 92Nu3120, Jul. 14, 1992; 92Nu3120, Jun. 14, 1992; 200; hereinafter the same). In this case, if a corporation fails to enter its sales in its account book or counted the cost of processing in its account book, it is necessary to prove that the representative is not actually distributed to the representative director who asserts that the amount of bonus system should be proved.

(2) As alleged by the Plaintiff in this case, the Plaintiff was not the actual representative of the non-party company, and the actual owner of the income amount of this case is the Plaintiff bears the burden of proof. However, in light of the following facts, it is difficult to believe that the Plaintiff’s statements Nos. 2 and 5 and the testimony of the non-party company Nos. 2 and 4 by the non-party company, which correspond to the Plaintiff’s assertion, are insufficient to recognize this differently. However, in full view of the statements Nos. 4 and 5 and the testimony of the non-party company Nos. 4 and the witness of the first instance court, the non-party company was a small number of employees including the Plaintiff and the non-party No. 2 and the non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s share and non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party.

(3) Whether to calculate the income amount

The amount to be considered as a bonus in the recognition and contribution system for the representative under the Corporate Tax Act shall be deemed to have occurred during the entire period of each business year. If the representative is changed during a business year, the amount calculated by dividing the amount according to the number of days of the changed representative’s service period shall be deemed to have been reverted to the representative (see Supreme Court Decision 82Nu229, Dec. 28, 1982).

On December 8, 200, the plaintiff resigned from the representative director of the non-party company as seen earlier. Although the issue date of each tax invoice of this case is written as the date between January 1, 2000 and June 30, 200, the plaintiff's office of representative director, even though the issue date of each tax invoice of this case was written as the date between June 1, 200 and June 30, 200, it is difficult to conclude that there was outflow of the value of supply and the amount of value of the corporate property equivalent to the value of the corporate property equivalent to the value of the corporate property at the time of the corporate accounting. Thus, the disposition of the total amount of the tax invoice in this case to the plaintiff, who was the representative of the above period, cannot be deemed lawful,

Accordingly, when calculating the amount of income to be reverted to the Plaintiff, the total amount of KRW 285,00,000 in each of the tax invoices of this case and the total of KRW 313,50,000 in total, including the total of KRW 28,50,000,000, and the value-added tax thereon, shall be pro rata to ○○, a joint representative director, and again, it shall be 146,471,311 [285,00,000 + 28,50,000 + 342/366] calculated in proportion to the period of office of the Plaintiff’s representative director (342 days from January 1, 200 to December 7, 200).

(4) Calculation of a legitimate tax amount

As seen above, when calculating a legitimate global income tax amount with the amount of income reverted to the Plaintiff as KRW 146,471,311, the amount of income is calculated as KRW 91,122,370, such as the entry in the “political tax amount sheet” in the attached tax calculation sheet. As such, the exceeding part of the disposition in this case should be revoked as it

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is accepted in part of the plaintiff's appeal and ordered revocation of the disposition of imposition exceeding the above legitimate amount, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

Table of Tax Calculation

(global income tax on 200)

(unit: Won)

Classification

Original revised tax amount;

Amount of legitimate tax;

Revenue amount

201,050,000

190,771,311

Global income amount;

189,120,000

178,771,311 note 1)

Income Deduction

4,151,800

4,151,800

Tax Base

184,968,200

174,619,511

Tax Rate

40%

40%

calculated tax amount

60,987,280

56,847,805

Tax Credit

600,000

600,000

Amount of final tax

60,387,280

56,247,805

Additional Dues

42,004,183

38,918,205 Note 2)

Total determined tax amount

102,391,463

95,166,010

Tax amount already paid

4,043,640

4,043,640

Additional Notice Tax Amount

98,347,823

91,122,370

(1) Amount calculated by deducting 12 million won from earned income deduction;

In the case of earned income exceeding 15 million won (9 million won + 10 percent of the amount exceeding 15 million won) or 12 million won, whichever is smaller.

Note 2) (56,247,805 - 4,043,640 Won) X 5/10,000 end on 1,491.

[Seoul Administrative Court 2007Guhap4551 (26 June 2007)]

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing global income tax of KRW 98,347,820 on the Plaintiff on July 1, 2005 shall be revoked.

1. Details of the imposition;

A. From October 31, 1999, the Plaintiff was appointed as a joint representative director of the O-Information Technology Co., Ltd. (hereinafter referred to as the “O-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-

B. The non-party company received three false tax invoices (hereinafter referred to as the "tax invoices of this case") in total amount of KRW 285,000,000 (hereinafter referred to as the "value of supply of this case") from the supply value of OOE Co., Ltd. without real transaction during the 1st taxable period of the value-added tax (from January 1, 2000 to June 30, 200) and included them in the calculation of losses in filing a return of the corporate tax base and tax amount for the year 200.

C. On January 13, 2005, the head of the OO head of the tax office added the supply value of this case to deductible expenses and added it to corporate income, and then disposed of 156,750,000 won, each of which is divided in proportion to the total amount of the supply value and the value-added tax, as bonus, to the Plaintiff and OO, who is the joint representative director of the non-party company, and notified the changes in the amount of income.

D. On January 20, 2005, the Defendant received the notice from the head of the OO tax office on the taxation data, and notified the Plaintiff of KRW 98,347,820, global income tax for the year 2005, and notified the Plaintiff of KRW 98,347,820, uf0, uf09.

E. The plaintiff appealed and filed an appeal with the National Tax Tribunal on January 17, 2006, but was dismissed on November 6, 2006.

[Reasons for Recognition] Gap 1, 3, 7, Eul 1-2, Eul 2-2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The tax invoice of this case was purchased by thisO, the other co-representative of this case, the plaintiff, and the actual representative of the non-party company, and the plaintiff was merely the team leader of the network business team. The O prepared a confirmation document (Evidence A2) that the plaintiff is responsible for taxes, etc. under the tax invoice of this case, and thus the actual owner of the income equivalent to the value of supply of this case is obvious as the OO, and thus, the defendant's disposition of this case, which reported otherwise, is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 106(1)1 (proviso) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17033, Dec. 29, 200; hereinafter the same) provides that the payment system for the recognition of the representative of the disposal of income pursuant to the disposal of income pursuant to the proviso of Article 106(1)1 of the Enforcement Decree of the Corporate Tax Act shall not be based on the fact that such income has accrued to the representative, but shall be deemed as a bonus to the representative without any conditions, regardless of substance, for a specific fact that can be recognized as such act in order to prevent unfair acts under tax law by the corporation (see Supreme Court Decision 92Nu3120, Jul. 14, 1992; 200; hereinafter the same shall apply). If a corporation fails to enter its sales in the account book or appropriates the cost of processing in the account book, it is necessary to establish the special circumstance that the representative representative of the corporation who asserts that the amount of the disposal of income should not be actually distributed to the representative (see Supreme Court Decision 2010Du1676, etc.).

(2) As the Plaintiff asserts in this case, the Plaintiff was not the actual representative of the non-party company, and the actual owner of the income amount of this case is the Plaintiff bears the burden of proof. The Plaintiff’s testimony of the non-party company Nos. 2 and 5 and part of the witness testimony of the non-party company Nos. 4 is not sufficient to acknowledge it, and there is no other evidence to acknowledge it. However, considering the following facts, the non-party company’s statement Nos. 4 and 5 and the witness testimony of the non-party company Nos. 4 and the whole purport of the arguments, the non-party company is a small number of employees, including the Plaintiff who are the joint representative director and the non-indicted No. 25 million won, and the Plaintiff and the non-party Nos. 25 million won invested in the non-party company’s investment of the non-party company and the non-party company’s representative director of the business network team and the non-party No. 4 were the joint representative director of the non-party company and the non-party company No. O's.

(3) Therefore, the instant disposition against the Plaintiff is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be rejected as it is without merit, and it shall be decided as per Disposition.

public official law, order of law,

Article 14 (Basic Taxation to National Tax)

(1) Where uf09e property uf09e property uf09e property belongs to uf09e act or transaction, and there is another person to whom such income belongs, uf09e property belongs, uf09e property shall be the person to whom such income belongs as a taxpayer

Article 67 (Disposal of Income)

In filing a report on the tax base of corporate tax on the income for each business year under the provisions of Article 60 or in determining or revising the tax base of corporate tax under the provisions of Article 66 or 69, the amount included in the calculation of earnings shall be disposed of as bonus, dividends, and other outflow from the company, retained reserves, etc. according to the person to

Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17033 of Dec. 29, 2000)

Article 106 (Disposition of Income)

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of pursuant to the provisions of the following subparagraphs. The same shall also apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed to have been reverted to the representative (where the total number of stocks held by an officer who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30% or more of the total number of stocks issued or total investment amount of the relevant corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation which has been exempted from withholding taxes under the provisions of Article 46 (12) of the Restriction of Special Taxation Act reports that there is a separate representative among the officers who are stockholders, the reported person shall be the representative, and where there

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

Enforcement Rule of Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 307 of March 26, 2003)

Article 54 (Representative bonus Disposal Method)

In the application of the proviso to Article 106 (1) 1 of the Decree, where the representative is changed during a business year, where it is clear that the amount reverted to each representative is divided into representatives and disposed of to each representative, and where the reversion is unclear, it shall be calculated by dividing it according to the number of days of service period and disposed as bonus