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서울고등법원 2014. 10. 15. 선고 2014누44269 판결
매출누락으로 과세한 처분은 정당하고 법인등기부등본에 등재되어 있지 아니하더라도 사실상의 대표자로 볼 수 있음[국승]
Case Number of the immediately preceding lawsuit

Seoul Administrative Court 2013Guhap52193 (02.07)

Title

It is just that a disposition which was imposed by omission of sale can be deemed a de facto representative even if it is not registered in the certified transcript of register.

Summary

It is reasonable to impose tax on the omission of sale, and even if it is not registered in the certified transcript of register, the bonus disposal is just and the taxpayer bears the burden of proof of the cost which is omitted.

Cases

2014Nu4269 Disposition of revocation of disposition of imposing corporate tax, etc.

Plaintiff and appellant

AAAAAAA, the respondent

Defendant, Appellant

1. The director of the Gangnam Tax Office;

Defendant, appellant and appellant

2. Seoul Regional Tax Office;

Judgment of the first instance court

Seoul Administrative Court Decision 2013Guhap52193 decided February 7, 2014

Conclusion of Pleadings

September 24, 2014

Imposition of Judgment

October 15, 2014

Text

1. Of the judgment of the court of first instance, the part against the defendant is revoked, and the plaintiff's claim against the above defendant is dismissed.

2. The plaintiff's appeal against the defendant Gangnam-gu director of the tax office is dismissed.

3. The costs of appeal arising between the Plaintiff and the Defendant Gangnam Tax Office and the total costs of the lawsuit arising between the Plaintiff and the Seoul District Tax Office are all borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

On July 23, 2012, the head of the Seoul Regional Tax Office revoked both the notification of changes in the amount of income listed in the separate sheet No. 2 attached hereto and the imposition of corporate tax and value-added tax on August 1, 2012 against the Plaintiff by the director of the Seoul Regional Tax Office.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the defendant Gangnam-gu director of the tax office shall be revoked. The imposition of corporate tax and value-added tax on August 1, 2012 by the director of the tax office of Gangnam-gu against the plaintiff shall be revoked.

B. Article 1(1) of the Seoul Regional Tax Office

Reasons

1. cite the judgment of the first instance;

The reasoning of the judgment of this court is as follows, except for the part that revises or additionally determines the relevant part of the judgment of the court of first instance as follows, and thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Revised parts

The " August 31, 2012." in the column of the notification date of the 3th judgment of the first instance court shall be " August 1, 2012."

Pursuant to the decision of the first instance court, the "Gangnam" of the defendant column 3 shall be deemed to be the "Seoul Regional Tax Office", and the "Gangnam on August 31, 2012" shall be deemed to be the "Seoul Regional Tax Office", and the "Gangnam on August 31, 2012" shall be deemed to be the "

○ The following provisions shall be added to the 5th judgment of the first instance court “3. related laws and regulations.”

Article 20 (Scope of Piece Rates, etc.)

� 법 제20조 제1호 단서에서 대통령령으로 정하는 성과급 이란 다음 각 호의 어느 하나에 해당하는 것을 말한다

4. The performance-based bonus paid by a domestic corporation to its workers (excluding those who engage in any of the following duties (hereinafter referred to as the "executives) according to a written agreement concluded between them in advance and their employees on the performance assessment index and its goals, method of measuring and allocating their achievements, etc.:

(a) All members of the corporate president, president, vice president, chief director, representative director, managing director and board of directors such as managing director, and liquidator;

(b) Executive partners or directors of unlimited partnerships, limited partnerships and limited companies;

(c) Auditor;

(d) Other persons performing duties similar to those under items (a) through (c).

○○, “O. 13, 2009. 13, 2009. 13,” and “BB,” respectively, shall be read as “CCC”.

○ The following shall be added under the 9th Judgment of the first instance court:

7) In the course of the investigation by the director of the Seoul Regional Tax Office, DD stated that it owned all shares (10,000 shares issued by the Plaintiff) as the Plaintiff’s actual shareholder, received dividends OOOO on March 25, 2010 from the Plaintiff. On April 23, 2010, DD instructed the Defendant FF to close the E-game site and arrange the game business after being detained under suspicion of gambling opening.

8) The FF stated that the Plaintiff closed the office on July 10, 2010 of the Seoul Regional Tax Office in the course of the investigation by the Seoul Regional Tax Office, and then deposited all of the Plaintiff’s balance of the passbook in cash in preparation for the seizure of the additional collection charge by the prosecution, and used it as DD’s attorney’s fee, the establishment and operation fund of GGGGG.

○ From the 9th judgment of the first instance court to add 10, 11, 12, 23 'the grounds for recognition' to the 6th judgment.

○ The 9th judgment of the first instance court is the "Plaintiff", which is the second part of the 9th judgment, as the "DD".

○ From the 12th seventh to the 13th end of the judgment of the first instance court is as follows:

4) Determination as to Section 4

A) Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 24357, Feb. 15, 2013; hereinafter “former Enforcement Decree of the Corporate Tax Act”) provides that where the accrual of the amount of outflow from the company is unclear, it shall be deemed that it belongs to the representative in cases where an officer, who is not a minority shareholder, and a person with a special relationship, holds 30/10 or more of the total number of outstanding stocks or total amount of investment in the relevant corporation and actually controls the management of the corporation, such officer shall be the representative.

Generally, a person registered as a shareholder in the register of shareholders is presumed to be a shareholder of the company, but the presumption is reversed if the party denying the shareholder's right proves it (see, e.g., Supreme Court Decision 2007Da51505, Mar. 11, 2010). In order to recognize a certain person as a shareholder, the person is not necessarily required to be registered in the register of shareholders. Such a legal doctrine is difficult to be deemed as having special grounds for not applying the income disposal system under Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act. This is also true in view of the principle of no taxation without law that prevents the requirements for taxation or tax exemption under the principle of no taxation without law, and the interpretation of tax law is not allowed to be expanded or analogically interpreted without reasonable grounds. Therefore, a person who actually owns another person's shares in the name of a third person shall be construed as "shareholders" under the said provision.

Meanwhile, Article 20(1)4 of the former Enforcement Decree of the Corporate Tax Act provides that "the scope of performance-based bonuses included in deductible expenses shall be limited to "employee (excluding any executive who is engaged in any of the following duties (hereinafter referred to as "executive)" and performance-based bonuses paid to the employee by a domestic corporation in advance agreed on performance-based calculation index and goals thereof, performance measurement and distribution method, etc., and accordingly, "performance-based bonuses paid to the employee" shall be limited to "all members of the board of directors, such as the chairperson, president, vice president, president, representative director, managing director, managing director, managing director and managing director, etc. of the corporation, partnership companies, partnership companies, limited partnership companies, managing partners or directors of the limited company, and other persons engaged in the duties corresponding to items (a) through (c)". The scope of "executive officers" defined in the above provision shall also apply as it is, in light of the purport of item (d) above, to a person who actually participates in the registration of a corporation or the articles of incorporation and actively exercises the right of supervision and supervision over the affairs".

B) The following circumstances acknowledged based on the aforementioned evidence and factual relations, i.e., DD was not recorded as the Plaintiff’s corporate register, representative director, and shareholder in the Plaintiff’s shareholder registry, but H et al. established with HH et al. and owned all outstanding shares under the Plaintiff’s name, and transferred J as the Plaintiff’s officer, and the Plaintiff’s actual management, such as the operation and management of the E-game website, was D; DD instructed the Plaintiff to close the Plaintiff’s most import cause E-game site for release and appropriated for the Plaintiff’s attorney’s expenses after being detained at the KK’s account managed by the Plaintiff, based on the premise that it constitutes “the Plaintiff’s de facto shareholder, such as the Plaintiff’s management shareholder, etc.” as the Plaintiff’s income under the proviso of Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act. Accordingly, D’s assertion on the premise that the Plaintiff’s change in the amount of income is lawful.

3. Additional determination

A. The plaintiff asserts that the omitted sales amount of this case also falls under the sales of pre-paid card total sales, which is the plaintiff and separate business operators, and that the sales amount of this case does not belong to the plaintiff since the pre-paid card total sales amount independently sold ecoophone free of charge.

The following circumstances found in the evidence and evidence Nos. 4 and 21 as seen earlier, namely, (i) DD began to gather a pre-paid card store as soon as possible; (ii) DD stated that it was used to purchase cyber money; (iii) it is reasonable to deem that the purchase of cyber money was used for the Plaintiff rather than for the Plaintiff’s own business; and (iv) it seems inevitable to use the same name account as the bank account in the name of KK for the purchase of the game money in order to legally maintain the Plaintiff’s business as planned by DD, and (iii) DD or the reasons why D or Plaintiff’s relevant transaction details were only revealed in the account in the name of KK, such as tax authorities, etc. were omitted to trace the payment of the pre-paid card; and (iv) D or Plaintiff’s relevant transaction details were also omitted from the account in the name of the Plaintiff’s account in order to avoid deposit in cash; and (iii) the Plaintiff’s assertion that it was not the nominal owner of the account in the name of KK.

B. In addition, the Plaintiff asserts that even if the omission of sales in the instant case belongs to the Plaintiff, the details of the KK account transfer prior to September 23, 2009, which was the date of the conclusion of the sales contract, should be excluded, and the OOOOO personnel, including the cost of part-time trainees, spent on the board, should be recognized as deductible expenses.

According to the above evidence, the head of Gangnam District Tax Office, after October 1, 2009 of the KK account, found that the amount of money deposited was taxed as an omission in sales. Moreover, as stated in the evidence No. 10, it is difficult to recognize the expenses incurred by DD in relation thereto as deductible expenses incurred by the Plaintiff solely on the ground that DD had placed a part-time user for attracting oil storage in the total market office, as indicated in the evidence No. 10, on the ground that DD was placed in the total market office. Furthermore, if DD was to obtain such deduction on the ground that it was omitted from the report on the expenses corresponding to the omitted income, the taxpayer who seeks to include the expenses in deductible expenses should assert and prove the omission himself/herself, and the evidence submitted by the Plaintiff is insufficient to prove the omission.

4. Conclusion

The plaintiff's claim shall be dismissed in entirety for lack of good cause. The part against the director of the Seoul Regional Tax Office who concluded otherwise among the judgment of the court of first instance against the defendant, and the part against the director of the Gangnam District Tax Office who concluded the same shall be dismissed.