Cho High Court Decision 2009Du4205 (O. 25, 2010)

propriety of the assertion that it is a nominal representative for a case disposed of by the representative

It can be recognized that it was in a position to claim it as a nominal representative but to have been engaged in the business of the corporation or to have fulfilled the legal responsibilities and obligations as a representative.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of global income tax of KRW 34,808,610 for the Plaintiff on September 1, 2009 shall be revoked.

1. Details of the disposition;

The following facts do not conflict between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the descriptions of Gap evidence 1-1, Gap evidence 2, Eul evidence 1-9, Eul evidence 2-1-12, Eul evidence 3-6.

A. On October 24, 2007, when the steel processing and reinforced concrete construction business company BB development (hereinafter “non-party company”) discontinued on October 24, 2007, it did not report the corporate tax base and tax amount for the business year 2007.

B. On May 22, 2007, the director of the tax office, who is the competent tax office, calculated the estimated income amount for the non-party company and imposed corporate tax on the non-party company. On May 22, 2007, the director of the tax office, who retired from the representative director of the non-party company, disposed of KRW 112,887,410, which is the estimated income amount, as bonus and notified the change of income

C. However, upon the Plaintiff’s failure to file a revised return and pay the global income tax, the Defendant, the tax office having jurisdiction over the Plaintiff, included the above amount in total income and imposed global income tax of KRW 34,808,610 on the Plaintiff in September 1, 2009 (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The fact that the plaintiff was the representative director of the non-party company, who was the representative director of the non-party company, was recorded separately as the representative director of the non-party company, is that the non-party company's representative director, who was the non-party company, requested the plaintiff to make an investment in order to obtain a successful bid on the non-party company's building and its her husband, and the plaintiff requested the plaintiff to register as the representative director on the corporate register form in order to recover the auction price of 510 million won. The non-party company actually operated the non-party company. The non-party company is the right A and ES that was registered as the joint representative director, not the plaintiff. The non-party company was registered as the non-party company's representative director, and the non-party company did not receive any salary, dividend, etc. from the non-party company. Thus, the disposition of this case that was imposed

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) On the other hand, the system of recognition and contribution to the representative under the Corporate Tax Act does not put the representative on the basis of the fact that such income was generated, but rather requires the representative to be considered as a bonus to a unconditional representative regardless of its substance. In such a case, the representative of a corporation subject to disposition as a bonus must be strictly interpreted as a matter of course. Thus, even if the representative of a corporation was registered on the corporate register, if the corporation was not actually operated, it shall not be deemed that such estimated income belongs to the representative and shall not be imposed with comprehensive income tax (see, e.g., Supreme Court Decisions 87Nu1238, Apr. 12, 198; 92Nu3120, Jul. 14, 1992). Meanwhile, since the representative of a corporation is presumed to have been operated by the representative director on the corporate register, the representative director must prove that he did not actually operate the corporation and thus, he did not have any legal liability as a representative director on the corporate register.

(2) According to the evidence Nos. 4 and 8-11, the plaintiff's 50 million won was invested in the non-party company established and operated by ChoE around October 203, and the 16.10 million won was again invested in the non-party company around October 2004, and the non-party company's 10 million won was paid monthly interest to the non-party company and the 10% of the shares of the non-party company were transferred to the non-party company's representative director, and the plaintiff agreed that the 50 billion won of the shares of the non-party company were the 70 billion won of the company's 50 billion won of the company's 100 billion won of the company's 50 billion won of the company's 100 billion won of the company's 100 billion won of the company's 1000 won of the company's 100 billion won of the company's 500 billion won of the company's shares issued to the non-party representative director's 28.

3. Conclusion

Therefore, the plaintiff's claim is decided as per the Disposition because of the lack of reason.