Incheon District Court 2006Guhap3227 ( October 18, 2007)

Since the actual representative director is a child, the propriety of the assertion that the bonus disposition is null and void to the representative in the registration

As long as registered as the representative director of a corporation, it can be revealed whether only the fact-finding should be accurately examined is the actual representative. Thus, even if the actual representative was not the actual representative, it cannot be viewed that the defect is apparent from appearance, and therefore, it cannot be viewed that it

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

Article 145 of the Framework Act on National Taxes

1. The part of the judgment of the first instance against the plaintiff that confirms the invalidation below shall be revoked.

2. The Defendant’s imposition disposition of global income tax of KRW 40,711,920 on March 1, 2001 exceeds KRW 19,20,108 among the imposition disposition of KRW 40,71,920 on global income tax for the year 199; the imposition disposition of KRW 1,845,360 on global income tax for the year 199; the imposition disposition of KRW 830,412 among the imposition disposition of KRW 1,845,360 on global income tax for the year 199; the imposition disposition of KRW 48,05,380 on global income tax for the year 199; the imposition disposition of KRW 2,722,200 on global income tax for the year 198; and the imposition disposition of KRW 48,380 on global income tax for the year 199; the imposition disposition of KRW 59,646,385,205; the imposition disposition on global income tax for the year 198.

3. The plaintiff's remaining appeal is dismissed.

4. The total costs of the lawsuit shall be divided into two parts, and one part shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The judgment of the court of first instance is revoked. The defendant's disposition of imposition of global income tax of 4,087,10 won on August 1, 1996, global income tax of 1999, global income tax of 40,711,920 won on March 1, 2001, global income tax of 1999, global income tax of 1,845,360 won on July 1, 2001, global income tax of 48,05,380 won on global income tax of 1999, global income tax of 1999, global income tax of 2,722,200 won on October 1, 202, and global income tax of 559,64,720 won on global income of 199, global income tax of 199, global income tax of 195,720 won on April 1, 195, and global income tax of 195.

1. Details of taxation; and

A. From May 27, 1999 to December 2, 2004, the Plaintiff was registered as the representative director of ○○○-dong ○○○○○-dong, Seoul, as ○○○-dong ○○○○-dong ○○○-dong Co., Ltd. (hereinafter referred to as “○○-dong ○○ Construction Machinery”).

B. After the head of Yeongdeungpo-gu Tax Office included ○ Construction Machinery’s purchase amount in the deductible expenses for the business year of 1998 and the business year of 1999 and discovered the fact that the amount was leaked out of the company, on the premise that the Plaintiff is the actual representative of ○ Construction Machinery, and on the ground that the person to whom the above processing purchase amount was leaked out of the company is unclear, he deemed the Plaintiff as the Plaintiff, and notified the Plaintiff of the change in the amount of income as follows and notified the Defendant of the data

Date and time of notification

Taxation Period

Amount of income;

Types of disposal of income;

Jinay

October 200

199

11,225,500 won

Bonuses

○ Concerning gas stations

March 2001

199

3,300,000 won

Bonuses

○ Energy-Related

December 2001

1998

16,470,300 won

Bonuses

July 2001

199

847,028,600 won

Bonuses

January 2002

199

78,266,100 won

Bonuses

July 2002

199

13,200,000

Bonuses

December 2002

1998

51,865,00 won

Bonuses

C. Accordingly, the defendant decided 40,711,920 won as global income for the year 199 on March 1, 2001, and 1,845,360 won as global income for the year 1999, and 48,05,380 won as global income for the year 1999 as global income for the year 1999, and 2,722,200 won as global income for the year 198 as well as 559,64,720 won as global income for the year 1999, and 16,5120 won as global income for the year 198 as well as 196,5120 won as global income for the year 198 as well as 198 as global income for the year 199, respectively (hereinafter referred to as the "instant disposition imposing global income tax").

D. Meanwhile, on August 1, 1996, the Defendant decided and notified the Plaintiff of KRW 4,087,110 as capital gains tax (hereinafter “instant disposition of imposition of capital gains tax”), and together with the disposition of imposition of capital gains tax and the disposition of imposition of global income tax in this case (hereinafter “instant disposition of taxation”).

[Ground of recognition] Facts without dispute, entry of Eul's evidence Nos. 1 through 7, purport of the whole pleadings

2. Whether the taxation disposition is invalid

A. The plaintiff's assertion

It was true that the Plaintiff was registered as the representative director of ○ Construction Machinery from May 1999. However, this was voluntarily conducted by Kim○, the Plaintiff’s children, and the actual operator of ○○ Construction Machinery was Kim○, and thus, the Defendant’s taxation based on the premise that the Plaintiff was the actual representative of ○ Construction Machinery, which was based on the premise that the Plaintiff was the actual representative of ○○ Construction Machinery, is in violation of the principle of substantial taxation

B. Determination

(1) As to the imposition of transfer income tax of this case

In a lawsuit seeking the invalidation of an administrative disposition, the plaintiff has the responsibility to prove that the defects existing in the administrative disposition are significant and apparent, and it is not sufficient to recognize that there are significant and apparent defects in the disposition imposing the transfer income tax of this case only with the entries in the evidence Nos. 4 and 5, and there is no other evidence to acknowledge them. Thus, the plaintiff's assertion on this part cannot be

(2) On the instant disposition imposing global income tax

(A) Generally, a taxation disposition made on a person who does not have any factual basis, such as the legal relation or income or act subject to taxation, shall be deemed to be significant and apparent, but in a case where there are objective circumstances that could mislead him to believe that it is subject to taxation with respect to certain legal relations or factual relations which are not subject to taxation, if it is possible to accurately investigate the factual basis, then it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed to be an unlawful taxation disposition that misleads the fact subject to taxation cannot be deemed to be void as a matter of course (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4, 2002

(B) However, according to the above facts, since the Plaintiff’s name as the representative director of ○○ Construction Machinery was on May 27, 1999, the part that deemed ○○ Construction Machinery to belong to the Plaintiff as to the processed purchase amount leaked before the instant global income tax disposition is a tax disposition imposed on a person who does not have any factual relation which is subject to taxation, and its defect is significant and obvious, and thus, is deemed to be null and void a year. However, as long as the Plaintiff was registered as the representative director of ○○ Construction Machinery for the said period, the part regarding the processed purchase amount after May 27, 1999 among the disposition imposing global income tax in this case, it can be clearly found that the Plaintiff was the actual representative only after the Plaintiff was registered as the representative director of ○○ Construction Machinery for the said period. Thus, even if the Plaintiff was not the actual representative, it cannot be deemed null and void a year since its defect cannot be deemed to be apparent.

(C) Furthermore, it is reasonable to view that the scope of the disposition imposing global income tax of this case, which is automatically null and void, is specifically examined; the amount of income to be disposed of as bonus of the representative, which is deemed to have accrued during the entire period of the pertinent business year; and the amount calculated proportionally according to the number of days of the changed representative’s tenure of office (Supreme Court Decision 82Nu229 delivered on December 28, 1982). If the amount of income to be deemed to have accrued to the Plaintiff in the year 1999 is calculated proportionally according to the number of days of the Plaintiff’s tenure of office (the part of global income tax belonging to the year 1998 is null and void as the whole is null and void, and it is not separately calculated); in the case of the disposition imposing global income tax of March 1, 200, as indicated in the attached tax calculation table, the amount exceeding 19,200,108 won,412 won, and in the case of the disposition imposing global income tax of this case, 36.386.

3. Conclusion

Therefore, since the portion of the instant tax assessment pertaining to global income tax for 198 and the portion exceeding the above reasonable tax amount among the global income tax for 1999, the Plaintiff’s claim seeking the confirmation is null and void as it is reasonable within the above scope of recognition, and the remainder of the claim is dismissed as it is without merit. As such, the judgment of the court of first instance is unfair based on a different conclusion, and the part against the Plaintiff, which constitutes the part seeking nullification under the judgment of the court of first instance, is partially accepted by the Plaintiff’s appeal and the part against the Plaintiff’s claim for nullification under the judgment of the court of first instance, is revoked, and the part exceeding the above legitimate tax amount among the global income tax for 198 and the global income tax for 199, which belongs to the global income tax for

[Attachmentcheon District Court 2006Guhap3227 ( October 18, 2007)]

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 4,087,10 as of August 1, 1996 against the Plaintiff and KRW 40,71,920 as of March 1, 2001, global income tax of KRW 1,845,360 as of July 1, 2001, global income tax of KRW 48,05,380 as of April 1, 2002, global income tax of KRW 2,72,200 as of October 1, 1998, and global income tax of KRW 559,64,720,720 as of August 1, 199, and KRW 199 as of April 1, 200, is null and void, respectively.

1. Details of the disposition;

가. 원고는 1999. 5. 27.부터 2004. 12. 2.까지 ◯◯ ◯◯◯구 ◯◯◯동 8가 57에 있는 ◯◯건설기계 주식회사(이하'◯◯건설기계'라고만 한다)의 대표이사로 등재되어 있었다.

나. ◯◯◯세무서장은 ◯◯건설기계의 대표이사로 등재되어 있는 원고에 대한 소득금액변동통지자료를 피고에게 통보하였고, 피고는 원고에 대하여 1996. 8. 1. 양도소득세 4,087,110원을 결정고지하였으며, ◯◯◯세무서장이 통보한 과세자료에 따라 2001. 3. 1. 1999년 귀속 종합소득세 금 40,711,920원, 2001. 7. 1. 1999년 귀속 종합소득세 금 1,845,360원, 2002. 4. 1. 1999년 귀속 종합소득세 금 48,055,380원, 2002. 10. 1. 1998년 귀속 종합소득세 2,722,200원 및 1999년 귀속 종합소득세 559,664,720원, 2003. 4. 1. 1998년 귀속 종합소득세 16,515,120원을 각 결정고지하였다(이하 '이 사건 처분'이라고 한다).

[Evidence Evidence] Uncontentious Facts, Entry B in Evidence Nos. 1 to 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고가 ◯◯건설기계의 법인등기부상 대표이사로 등재되어 있었던 것은 사실이나, 이는 원고가 알지 못하는 사이 원고의 아들인 ◯◯◯이 원고를 위 회사의 대표이사로 등재하여 둔 것이고, 실질적으로 ◯◯건설기계를 운영한 자는 위 ◯◯◯이므로, 원고가 ◯◯건설기계의 실질적인 대표자였음을 전제로 한 피고의 이 사건 처분은 실질과세의 원칙에 위배되는 것으로서 중대하고 명백한 하자가 있어 무효이다. 특히 원고가 ◯◯건설기계의 대표이사로 등재된 1999. 5. 27. 이전 사실을 근거로 한 1998년 귀속 종합소득세 및 1996. 8. 1.자 양도소득세 부과처분은 위 ◯◯건설기계와 전혀 관계가 없는 원고를 납세의무자로 한 것으로 그 하자가 중대하고 명백하다 할 것이다.

B. Determination

(1) As to the disposition of imposition of capital gains tax on August 1, 1996

In a lawsuit seeking the invalidation of an administrative disposition, the plaintiff has the responsibility to prove that the defects existing in the administrative disposition are significant and apparent, and it is not sufficient to recognize that the entries in the evidence Nos. 4 and 5 alone are significant and apparent in the disposition imposing the transfer income tax of this case, and there is no other evidence to prove this otherwise, the plaintiff's claim seeking the invalidity of the disposition imposing the transfer income tax of this

(2) On each disposition imposing global income tax

(A) In order for a taxation to be null and void as a matter of course, the mere fact that there is an illegality in the taxation disposition is insufficient. It is objectively clear that the defect is in violation of important laws and regulations, and it is necessary to determine whether the defect is significant and obvious. At the same time, it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the taxation disposition, and at the same time, about the specificity of the specific case itself. From this perspective, a taxation disposition by a person who does not have any factual basis for the taxation, is significant and obvious, but if there is objective circumstance that makes it possible to find that the legal relation or factual basis, which is not subject to taxation, is subject to taxation, and it is not clear that the factual basis is apparent even if the defect is serious, and thus it cannot be said that the taxation disposition that misleads the fact, cannot be deemed null and void as a matter of course (see, e.g., Supreme Court Decisions 201Du7268, Sep. 4, 2002>

(나) 이 사건에 관하여 살피건대, 원고의 주장과 같이 원고가 ◯◯건설기계의 실질적인 대표가 아님에도 불구하고 피고가 명의상의 대표이사인 원고에 대하여 종합 소득세를 부과하고, 원고가 법인등기부등본에 대표이사로 등재되지 아니한 기간에 대하여까지 과세를 한 위법이 있다 하더라도, 원고가 ◯◯건설기계의 대표이사로 일정기간 등재되어 있었던 사실은 앞서 본 바와 같은바, 이는 피고가 원고에 대한 이 사건 처분을 함에 있어 그 전제가 되는 법률관계나 사실관계에 대하여 과세대상이 되는 것으로 오인할 만한 객관적인 사정이 있어 그 사실관계를 조사하여야 비로소 밝혀질 수 있었던 경우라고 볼 수 있으므로, 그 하자가 외관상 명백하다고는 할 수 없다. 그러므로 이 사건 처분이 당연무효라고는 할 수 없다.

3. Conclusion

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