Seoul High Court 2008Nu22367 ( December 24, 2008)

National High Court Decision 2007J 1011 (Law No. 29, 2007)

The legitimacy of the assertion that the disposition of bonus on the omission in sale is the return of the claim for provisional payment

It is difficult to believe that there exists a claim for provisional payments, as alleged by the Plaintiff, and even if there is a claim for provisional payments, there is no evidence to prove that the Plaintiff repaid the claim for provisional payments at KRW 380,000,000 for the purchase price for the facilities and equipment, etc.

The contents of the decision shall be the same as attached.

Article 67 (Disposition of Income)

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal by the appellant are not included in the grounds provided for in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed in accordance with Article 5 of the same Act. It is so decided as per Disposition by the assent

[Seoul High Court Decision 2008Nu22367 ( December 24, 2008)]

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

The Defendant’s disposition of imposing KRW 129,683,270 on the Plaintiff on February 8, 2007 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: "The 5th of the 5th of the grounds for the judgment of the court of first instance" and "the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 1st of the 2th of the 2th of the 2th of the 2th of

2. The addition;

"The sales contract of this case is stipulated as the object of sale and purchase, and the buyer Kim Il-soo prepared a stamp contract stating the real estate price of 680,000,000 won at the request of the representative director of the plaintiff's representative director, and 380,000,000 won is determined as the price of the equipment including the right of permission" (Evidence No. 29-3) to the tax official, and the husband of Kim Il-soo stated that he purchased the factory and machinery in an investigation agency for KRW 1,060,000 in total (Evidence No. 4), and that he stated that the wastewater treatment business had the value of 3,50,000 won even with the right of permission at the time of the conclusion of the above sales contract (Evidence No. 60-4).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Insuwon District Court 2007Guhap8578 (2008.02)]

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 KRW 129,683,270 on February 8, 2007 against the Plaintiff was revoked.

1. Details of the disposition;

The following facts may be admitted by each entry in Gap evidence 1, 2, 29 (including each number), and Eul evidence 1 through 6 (including each number):

A. On February 12, 2003, the Plaintiff and New ○○○ (the Plaintiff’s representative director, Kim ○○) sold 1,060,000 E. (hereinafter referred to as “the instant sales contract”). On February 12, 200, the Plaintiff and New ○ ○ ○○ ○○ ○○○○ dong 223-236, and 223-518, owned by New ○ ○ ○○ ○○ dong 223-518, respectively, land and its ground, and facilities, excluding land, buildings, vehicles, and permission rights (hereinafter referred to as “facilities, etc.”) were sold to 1,060,000 won (hereinafter referred to as “instant sales contract”).

B. The defendant deemed 380,000,000 won out of the above purchase price of KRW 1,060,000 as the price for the facilities owned by the plaintiff and determined that the plaintiff omitted sales equivalent to the above amount. On February 1, 2006, the defendant notified the plaintiff, the representative director of the plaintiff, of the change in the amount of income that he disposes of the above amount of bonus, on the ground that the amount of KRW 380,000,000 was out of the company and the attribution is unclear, and on February 8, 2007, notified the plaintiff of the change in the amount of income that he disposes of the above amount of bonus, and on February 8, 2007, he corrected and notified the amount of KRW 129,683,270 (hereinafter referred to as the "disposition of this case").

C. On March 27, 2007, the plaintiff filed an appeal with the National Tax Tribunal on March 27, 2007, but was filed on June 29, 2007.

2. Determination of legality of disposition

A. The plaintiff's assertion

This case’s disposition based on the premise that the Plaintiff failed to sell 380,000,000 won for the facilities and equipment, etc. out of the above purchase price, is unlawful, and the above amount is recognized as 380,000,000 won for the facilities and equipment, etc. owned by the Plaintiff, even if it is deemed that it was reverted to Kim Il-ro, the representative director of the Plaintiff, and the above amount is not paid as bonus, and thus, it is unlawful to make the disposition of this case. Thus, the disposition of this case is unlawful, on the premise that the Plaintiff’s failure to sell 380,000,000 won for the facilities and equipment, etc. owned by the Plaintiff.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings as a whole in the entries in Gap evidence 2, 18, 61, Gap evidence 3-1 through 3, Gap evidence 29-5, and Eul evidence 6:

(1) On December 30, 1998, ○○○○○-dong 223-236, and 223-518 under the name of ○○○○-gu ○○○○-dong 223-236, and the above ground buildings, which are the representative director of the Plaintiff, was awarded a successful bid for each land (total of 550 square meters) and its ground buildings, and operated the treatment business, such as wastewater, at that place, and made a report on the closure of June 26, 2003.

(2) The sales contract of this case dated February 12, 2003 states that "1: the plaintiff, the seller 2: the buyer : the buyer 2: the buyer : the ○○○-dong 223-236, and the seller 223-518 stated that "the buyer shall enter into a sales contract for the seller 2's land and building, such as the permit and facility related to the wastewater treatment business, and the seller 223-518," and Article 1 states that "the sale price shall be KRW 1,00,000,000 (including the waste treatment facilities, and the expenses related to the transfer of the name, such as vehicles, shall be borne by the buyer."

(3) The real estate approval agreement for each of the lands and buildings on ○○○-si ○○○○○○○○-dong 223-236, and 223-518 and its ground buildings on ○○-si ○○○-si ○○-si 23-236 and 223-518 is based on the ○○-○○, which is the registration titleholder of the land and building, and the buyer’s wife’s wife’s wife, and

(4) At the time of the instant sales contract, the officially assessed individual land price of each land was 323,000/m2, respectively, at ○○○○-dong 223-236, and 223-518 at the time of the instant sales contract. On November 2005, the officially assessed individual land price was 298,000/m2,000 per square meter, and the market price was 1,200/1,300,000 per square meter.

(5) According to the Plaintiff’s settlement of accounts in 2002 and 2003, each of the assets of KRW 137,000,000 for mechanical devices in 2002, KRW 125,000 for vehicle transport equipment, KRW 125,000 for vehicle transport equipment, KRW 280,000 for industrial property rights, KRW 00 for vehicle transport equipment in 2003, KRW 13,000 for vehicle transport equipment in 203, KRW 16,000 for vehicle transport equipment in 200 for industrial property rights, KRW 16,000,000 for industrial property rights.

D. Determination

(1) As to the plaintiff's assertion that the contract of this case was concluded that the plaintiff transferred facilities, equipment, etc. to this ○○○ without compensation, the plaintiff also stated in the sales contract of this case as the seller in addition to new ○○, the owner of the land and building on the register. The approval seal contract for real estate registration on land and building stated that only the plaintiff representative director, Kim○, the wife of the plaintiff, is the seller, and the sale price amount is 680,000,000 won. The plaintiff's settlement of accounts in 2002 was included in the total amount of 280,00,000,000 won including machinery, equipment, etc., but it is difficult to acknowledge that only 29,00,000 won including vehicle transport equipment, etc., but only 20,000,000 won were included in the above 20,000 or 50,000 won including each of the above 20,000 or 5,000 won.

(2) Next, even if the value of the facilities and equipment owned by the Plaintiff for household affairs is recognized as KRW 380,00,000 and the above amount is deemed to have been reverted to Kim○, the representative director of the Plaintiff, the above, it is difficult to believe that the Plaintiff’s assertion that Kim○ has a claim for household affairs as alleged by the Plaintiff, on the part of the Plaintiff’s assertion that the claim for household affairs against the Plaintiff should not be deemed to have been paid as bonus, but shall be deemed to have been returned. It is difficult to believe that the Plaintiff had a claim for household affairs solely based on the evidence No. 18.

3. Conclusion

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