Early High Court Decision 201J 5128 (Law No. 104.05)

It is difficult to see that the gold in this case is a nominal processing obligation for which no anti-domination is scheduled.

As long as the representative director has been appropriated as the corporate debt of the corporation, the representative director of the plaintiff can withdraw and use the corporate fund at any time as a creditor against the plaintiff, etc., it is difficult to regard that the amount of the provisional payment of this case as a nominal processing debt for which no anti-regulative action is scheduled.

2012Guhap3303 Disposition of revocation of imposition of corporate tax, etc.

AA Information and Communications Company

The director of the North Incheon National Tax Office

February 28, 2013

March 21, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition disposition of KRW 000 of corporate tax for the business year 2007, July 4, 201, against the Plaintiff, exceeds KRW 000,000, and each disposition of KRW 000,000,000,000,000,000,000 shall be revoked.

1. Details of the disposition;

A. From October 9, 2007 to December 24, 2007, the Plaintiff received a purchase tax invoice (hereinafter “tax invoice of this case”) of KRW 000,000 in total from five enterprises, such as BB information and communications, Co., Ltd. (hereinafter “the transaction parties of this case”), and filed a return of value-added tax for the second period of 2007, after deducting the relevant input tax amount, and including the said supply value in deductible expenses for the business year of 2007.

B. From March 7, 2011 to May 13, 2011, the Defendant confirmed that the instant tax invoice was a false tax invoice received without real transaction, and denied the sales cost corresponding to the amount, and notified the Plaintiff on July 1, 2011 that he corrected and notified the Plaintiff of KRW 000 of the corporate tax for the business year 2007 (hereinafter “instant disposition imposing corporate tax”), and KRW 000 as a bonus for the representative director.

C. After the Plaintiff’s filing of objection, the portion of value-added tax equivalent to the bonus disposal amount was excluded, and the Defendant, on August 23, 201, notified the Plaintiff of the change of income amount of 00 won (hereinafter “the notice of the change of income amount corrected in the initial notice of change of income amount,” and “the notice of the change of income amount” in the instant disposition of imposition of corporate tax in addition to the instant disposition of imposition of corporate tax in arrears, filed a request for a trial with the Tax Tribunal on November 17, 201, but was rejected on April 5, 2012.

[Based on Recognition] The non-contentious facts, Gap evidence 1, 2, and 3, and Eul evidence 1 to 4 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff paid KRW 000 as a brokerage fee to Does who performed the analysis and business of the order through the Plaintiff’s employee account in order to receive “CC Horse Park Information and Communications Facilities and Management Services,” which was ordered by the Korean Racing Association around 2007, and paid KRW 00 as welfare expenses and entertainment expenses using the representative director’s personal credit card, and each of the above amounts should be included in deductible expenses for the business year of 2007, but was omitted in the process of imposing the corporate tax of this case.

2) The Plaintiff paid 000 won in total to the instant transaction parties, but collected 000 won in the Plaintiff’s account in the name of its executives and employees, and deposited 00 won in the Plaintiff’s account in the name of the representative director again in the form of provisional receipts by the representative director. Since the balance on the account of the representative director at the end of the business year 2008, 2009, and 2010 exceeds the above 00 won, the above amount of provisional receipts equivalent to the above 00 won is merely a processed debt under the name of which the anti-domination is not planned, and thus, it should be excluded from the bonus disposition amount for the representative director.

B. Relevant statutes

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

C. Determination

1) Whether the disposition of the instant corporate tax was lawful

A) The burden of proof of the tax base, which is the basis of taxation in a lawsuit seeking revocation of corporate tax disposition, is in the tax authority, and the tax base is deducted necessary expenses from income, so the burden of proof of revenue and necessary expenses shall be imposed on the tax authority, but most of the facts which generated expenses are favorable to the taxpayer and are in the territory under the control of the taxpayer, and it is easy to prove them. Considering that it is easy to prove them, it is also consistent with the concept of fairness to recognize the necessity of proof by allowing the presumption of non-existence with respect to necessary expenses for which the taxpayer does not perform the duty of proof (see, e.g., Supreme Court Decision 2002Du1588, Sept. 23, 2004).

B) In light of the above legal principles, first of all, it is difficult to recognize that 00 won was transferred from the account under the name of EE, the representative of FF Information and Communications Corporation, to the account under the name of EF Information and Communications Corporation, on December 24, 2007, and that the above 00 won was paid to EF, and there is no other evidence to support that the above 00 won was paid to EF as intermediary fees. Next, according to the above evidence, it is difficult to recognize that the personal credit card of the representative director was paid to EF, from January 1, 2007 to December 31, 2007, the Plaintiff’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company’s personal credit card company, pharmacy sports center, and hotel restaurant’s total amount of 900 won, and there is no evidence to recognize that the Plaintiff’s welfare payment of the above 200 won.

2) Whether the instant disposition of notifying the change in income amount was legitimate

A) According to Article 67 of the Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007) and Article 106 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008), and if it is clear that the amount included in the calculation of earnings has been leaked out of the company due to the omission of taxable income by appropriating the expenses for the processing of the corporation, the tax authority shall have the person to whom the expense belongs dispose of the earnings through bonus, dividend, and other outflow from the company, barring any special circumstance, if the corporation appropriates the cost of processing in its account in its account, the corporation's income equivalent to the processing cost should be deemed to have been leaked out of the company, and in this case, there is a need to prove the special circumstance that the total amount of the processing cost is not leaked outside the company (see, e.g., Supreme Court Decision 200Du3726, Jan. 11, 2002).

B) According to the above legal principles, the plaintiff's 2 to 4, and 8 to 11, while the plaintiff's 20G number of 0 are merely 00 won and 20G number of 20, and the plaintiff's 20G number of 20 and 8 to 24, it is hard to view that the above 20G number of 0 and 00 won were transferred to the personal account under the name of the representative director, including the representative director and 20G number of 0, and that the above 20G number of 0 and 200 are no other than the above 0G number of 20, and the plaintiff's 20,000 won was no other than the above 0G number of 20 and the 70G number of 20,000 were no other than the above 20, and there is no special evidence that the above 20G number of 20,000 won was no other than the plaintiff's 20.

3. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.