Cho High Court Decision 2014Da4436 ( October 24, 2016)

It is true that sales proceeds have been reverted to the representative, unless there is a special reason that they are nominal debts, even if the accounts are accounted for in the provisional account.

If sales are not entered in the books, the whole amount of the sales shall be deemed to be the outflow from the company, and special circumstances to be deemed to be not the outflow from the company shall be proved by the claimant, and even if the sales amount is kept in cash as a provisional payment, it shall be deemed to have been reverted to the representative, barring special circumstances such as nominal processing obligation

Article 67 (Disposal of Income)

2017Guhap320 Revocation of Disposition of Bonuses

AA

BB Director of the Tax Office

June 29, 2017

September 7, 2017

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The notification of changes in each income amount stated in the attached disposition sheet issued by the defendant to the plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a direct agency of DNA Telecom Co., Ltd., and is engaged in mobile phone sales and attracting mobile phone subscribers through a direct sales store or consignment sales agency, and the E is its representative director.

B. The FF Director of the Regional Tax Office shall conduct a tax investigation with respect to the Plaintiff, and reported that the Plaintiff omitted sales amounting to KRW 11,140,656,670, which was not actually incurred during the business year from 2009 to 2013, and notified the Defendant to correct the corporate tax, etc. by adding the omitted sales amount to gross income, and adding the omitted sales amount to KRW 3,747,245,00,00, which was paid to the Plaintiff’s subscription fee to the mobile carrier, and the omitted amount corresponding to the omitted sales amount to KRW 5,029,546,339, which was paid to the Plaintiff’s subscription fee to the mobile carrier.

C. On July 1, 2014, the Defendant issued a revised and notified the Plaintiff of corporate tax and value-added tax, and notified the Plaintiff of the change in the amount of income by disposing of the Plaintiff’s income for the business year of 2009-2013 as a bonus to the representative E, as shown in the attached disposition sheet, as well as the amount equivalent to the value-added tax omitted for the business year as a bonus to E, on January 9, 2015, the amount equivalent to the value-added tax levied on the amount of income omitted for the business year as a representative’s bonus to E, and notified the change in the

D. On September 3, 2014 and April 9, 2015, the Plaintiff filed an appeal against the instant disposition, etc., but the Plaintiff was dismissed on October 24, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-6, Eul evidence Nos. 1, 2, and 6 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In order to attract mobile phone subscribers, the Plaintiff paid the subscription fee to the direct sales store and the consignment sales agency, or discounted the mobile phone price at a higher level, or discounted the mobile phone price. The Plaintiff’s payment of the subscription fee from sales discount to sales discount, etc. shall be reduced by 11,140,656,670 won in total from sales sales from 2009 to 2013; Provided, That the Plaintiff’s payment of the subscription fee, etc. shall be reduced by the total amount of KRW 11,140,656,670 in order to eliminate the inconsistency in the account book, and it is merely a nominal transaction that is not premised on a half-yearly system. The mobile phone sales price including the above amount remains in the form of inventory assets, bonds, and deposits, as it is used for the Plaintiff after all deposits into the Plaintiff’s account.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Where a corporation fails to enter its sales in an account book despite the fact of sales, the total amount omitted from sales should be deemed to have been leaked out of the company, barring special circumstances. In such a case, the special circumstance must be proved by the corporation asserting the omission of sales. Even if the amount received by the corporation through sales was included in the provisional account, which is a temporary account with no finalized amount, and thus, cash, the counterpart account, was entered in the account, and thus, entered into the account of the corporation, the representative director, was verified to have been liable against the representative director. Thus, if the contents of the provisional account were to enter the short-term loan transaction from the representative director, and it is proved that it was an obligation against the representative director, such transactions do not entail the change or increase of corporate net assets, and thus, such transactions are unrelated to corporate profits or expenses. Thus, barring special circumstances such as the processing obligation under the pretext that the amount of the provisional account should have already been entered in the account book, and thus, it shall be deemed that the amount has already been leaked to the representative director (see, 201.7.2.201).

(2) Comprehensively taking account of the overall purport of the statements and arguments as to Gap evidence Nos. 4-9, Eul evidence Nos. 3 and 4, it is recognized that the plaintiff did not enter the amount of sales in the account book, despite the fact that there was a fact of sales equivalent to KRW 11,140,656,670 for the period from 2009 to 2013 and did not enter the amount of sales in the account book, and thus, the total amount omitted sales can be deemed to have been leaked out of the company. In light of the following circumstances acknowledged by comprehensively taking into account the following circumstances, the evidence submitted by the plaintiff alone is difficult to acknowledge such special circumstance. Accordingly, the defendant's disposition that deemed the omission of sales to have been discharged out of the account book is legitimate.

(A) According to the Plaintiff’s ledger of provisional receipts, since 2002, from 2013 to 2013, the Plaintiff’s representative director and the Plaintiff’s director have continuously carried out provisional receipts and disbursements from time to time. However, in light of the Plaintiff’s statement of provisional receipts and disbursements and sales accumulated in the Plaintiff’s ledger of provisional receipts and disbursements, even if the Plaintiff’s claim was entered in the accounts of provisional receipts and disbursements, it appears that the representative director could withdraw and use the company’s funds at any time as long as the amount of provisional receipts and disbursements was appropriated as corporate liabilities, it is difficult to view it as a nominal processing liability that did not estimate the first half of provisional receipts and disbursements.

(B) The Plaintiff asserted that the amount equivalent to the omission of sale remains in the form of inventory assets, sales bonds, deposits, etc. by being used for the Plaintiff, but there is no specific data to recognize it.

(C) The Plaintiff paid the relevant tax after correcting the deposit account at the time of settlement of accounts for the business year 2014 to the deposit account. However, such ex post facto circumstances do not affect whether the outflow of the company is recognized.

(D) The Seoul High Court Decision 2011Nu26918 rendered that the disposition of this case was unlawful and the amount of the issue entered in the provisional account was separate from other provisional receipts and continues to be disposed of as a reservation through the revised corporate tax return. The Seoul High Court Decision 2009Nu1003 was found to have been used for the company, and the case is not applicable to this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.