Seocho 2012west 3743 ( October 24, 2012)

No disposition can be made by recognizing the representative on the registration because it is merely a nominal representative.

The representative of a corporation subject to the recognition and disposition shall be the representative who actually operates the corporation, and even if it was registered as the representative director in the corporate register of the company, if it was not actually operated by the company, such recognition income shall belong to the representative and shall not be subject to the comprehensive income tax.

2012Guhap4063 global income and revocation of disposition

AA

Gangwon-gu Director of the District Office

June 21, 2013

August 14, 2013

1. The imposition of OOO (including additional taxes) on the Plaintiff on February 10, 2012 by the Defendant shall be 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. From October 18, 2006 to April 9, 2007, the Plaintiff was registered as the representative director in the corporate register of BB stock companies (trade name after the modification:CC stock companies, and hereinafter “B”).

B. In 2006, the director of the three-dimensional tax office discovered that “B omitted the report of sales of the OOO of the funeral hall (hereinafter “the instant construction”) located in OO-dong 377-4 from the sales of the OO-dong 377-4.”

C. The director of the Seomancheon Tax Office included the omitted sales in the calculation of the income, and disposed of the income as a bonus to the plaintiff who is the representative director BB, and notified the defendant of the taxation data.

D. Accordingly, on February 10, 2012, the Defendant decided and notified the Plaintiff of the global income tax OO (including additional tax) in 2006 (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an objection on May 3, 2012, and received a decision of dismissal from the Defendant on May 25, 2012. In addition, the Plaintiff filed an appeal on August 28, 2012, but received a decision of dismissal from the Tax Tribunal on October 24, 2012.

2. Whether the disposition in this case is legitimate

A. The plaintiff's assertion

(1) The actual representative of BB is DD, and the Plaintiff was registered as a nominal representative director upon the request of DD, and the instant disposition based on the premise that the Plaintiff is the representative of BB is unlawful.

(2) Since it is clear that EE paid the construction cost omitted in sales on behalf of BB toCC (hereinafter “CC”), a direct subcontractor, and the instant disposition based on the premise of attribution is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The instant construction project

(A) EE, the owner of the instant construction, sold the land and funeral hall at OO-dong 377-4 and the funeral hall at O-si, and made a final return on capital gains tax. In this case, EE is a evidence of the acquisition value, and is supplied: BB supplier: The tax invoice of “OOOO” was submitted.

(B) According to the construction contract of November 1, 2006 between EE and BB, and BB shall be determined by EE as “OOO for the construction cost,” and from November 3, 2006 to March 31, 2007, the instant construction was contracted. BB subcontracted the steel frame construction work to the FF (hereinafter “F”) Co., Ltd. for the construction cost to the OOO for the construction cost.

CC and F have received direct construction cost from EE, and issued tax invoices to B.

(2) Operation, etc. of BB

(A) Directors of BB immediately before the Plaintiff was registered as the representative director of BB were DD, GG, and HH.

(B)DDD used the name "IAC Co., Ltd.,CC Co., Ltd, representative director, and Chairperson DDD." DD has also integrated management of BB, JJ Co., Ltd., KCC, KK and BTNT Co., Ltd. in the office of III I Co., Ltd. (hereinafter referred to as "II").

(C) On June 2006, the Plaintiff became a member of II (DD) (Representative Director: DD). The Plaintiff received benefits from II and B as follows:

Date of Payment

Drawee

Benefits

1

July 24, 2006

II

OOOE

2

August 25, 2006

〃 4

OOOE

3

September 25, 2006

〃 4

OOOE

4

October 25, 2006

BB

OOOE

5

November 24, 2006

〃 4

OOOE

6

December 25, 2006

〃 4

OOOE

7

January 25, 2007

II

OOOE

8

February 26, 2007

BB

OOOE

9

March 26, 2007

〃 4

OOOE

10

April 25, 2007

〃 4

OOOE

(D) Around April 2007, GG entered into a comprehensive transfer and acquisition contract with LL and BB on behalf of DD. DD received the transfer price OO members. The representative director of BB changed BB to GG and MM (LL’s husband) on April 9, 2007.

(e) The details of BB’s 2006 and 2007’s stock fluctuations are as follows:

Name

September 4, 2006

December 31, 2006

December 31, 2007

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

NN

39,703

19.85%

39,70.

19.85%

-

-

MM

-

-

-

-

97,802

48.9%

GG

42,693

21.35%

42,693

21.35%

102,198

51.1% by mass

PPP

2,257

1.13%

2,257

1.13%

-

-

DD

75,545

37.77%

75,545

37.77%

-

-

QQQ

19,802

9.9% by mass

19,802

9.9% by mass

-

-

guidance.

200,000

100%

200,000

100%

200,000

100%

(3) Details of tax returns by BB

BB submitted tax invoices received fromCC and F in 2006, and reported as input tax at the first value-added tax return in 2007, but did not report the sales details related thereto.

(4) Other

In the work book of the plaintiff's preparation, "O funeral hall construction contract (tax + 2%), the funeral home contract consultation, the funeral home contract consultation, the business owner: RR (office worker), and the construction cost: approximately 3% (tax gold) of the contract amount + additional tax + 3% of the contract amount + the burden of employee dispatch equipment, the Chairperson's telephone, and the Kim Vice-General: The registration information of the company, the construction performance confirmation request(s) and the construction performance confirmation document preparation(s) and the OO funeral home contract(s) : the employee reduction and value-added tax + 10% of the contract amount + 3% of the contract amount, and the chairperson : the chairperson : the labor cost is the labor cost indication on the Young-jin market."

[Based on Recognition] The respective indications in Gap's 1, 3, 4, 7, 8, 9, 13, 17, 17, 18 (including household numbers), 5 of evidence 22, Eul 3 through 6, and 10 of evidence (including household numbers), and the purpose of the entire testimony and arguments of witnesses SS and D.

D. Determination

(1) Under the Corporate Tax Act, the system for recognition of a representative is not based on the fact that such a representative has generated income, but it is intended to consider a certain fact that can be recognized as such act in order to prevent an unfair act under the tax law by a corporation as a bonus to a non-conditional representative regardless of its substance. In such a case, the representative of a corporation subject to bonus disposal should be interpreted strictly (see Supreme Court Decision 93Nu1176, Mar. 8, 1994). In this case, the representative is a de facto operating representative of the corporation, and even if the representative was registered as a corporate registry, if the company was not actually operated, such income shall be attributed to the representative and shall not be imposed on the company. However, since a person registered as a representative on the corporate registry can be presumed to have actually operated the company, and the fact that the representative director was not actually operated on the corporate registry must be proved by the claimant.

(2) Dud's work instruction: DD used the instant construction contract at will without reporting, and DD used the input tax amount for the second time in 2006, and the first time in 2007, based on the tax invoice received fromCCF, and it is difficult to believe the testimony as it is. According to the Plaintiff's work pocket book, the Plaintiff was in contact with the officers and employees of BB, and it appears that the Plaintiff was in charge of BB's work in the Gangwon area upon instructions from D (the term "the Chairperson"), and that the conclusion of the instant construction contract seems to have been subject to DB's instructions, and that DB's management for BB was only 0, and that it was not illegal for BB's representative director, and that there was no difference between B0 and B20, under the premise that the Plaintiff was in charge of BB's work, and that it was 10,000,0000 won from 20,000 won.

3. Conclusion

Thus, the claim of this case is reasonable, and it is decided as per Disposition.