Seocho 2014west 032 (Law No. 15,05,08)

It is difficult to see that the assets of the amount equivalent to the embezzlement were out of the company at the time of the embezzlement.

It is difficult to see that the chairman of the embezzlement of this case actually controlled a non-profit incorporated association, and it is reasonable to see that the Plaintiff corporation has a damage claim in which the Plaintiff corporation actively made an effort to recover claims, and it is difficult to see that the assets equivalent to the embezzlement were immediately released from the company

Article 67 of the Corporate Tax Act

2015Guhap69751 Notice of Change in Income Amount

○○, an incorporated association

○ Head of tax office

July 22, 2016

August 26, 2016

1. On October 1, 2013, the Defendant’s respective disposition of notification of change in income amount of KRW 009, KRW 00, KRW 010, and KRW 00,00,00,000,000,000,000,000,000,000,000

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a non-profit incorporated association established with the permission of the Minister of Health and Welfare on July 6, 1964 with the aim of contributing to the protection and promotion of health of workers at the workplace and the creation of a pleasant working environment through academic research and technological promotion on industrial health. The largestA served as the Plaintiff’s president from February 6, 2005 to April 201, and led and supervised all the affairs of the Association, including financial affairs.

B. After conducting an integrated investigation into the corporate tax against the Plaintiff, the director of the regional tax office of ○○○○ (the director of the regional tax office) notified the Defendant of the taxation data to the effect that the Plaintiff would be excluded from deductible expenses and disposed of as bonus in relation to embezzlement of the Plaintiff’s funds. Accordingly, on October 1, 2013, the Defendant issued a disposition to notify the Plaintiff of the change in the amount of income for ○○○ in 2009, 2010, 2010, and ○○ in 2011 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on December 3, 2013, but was dismissed on May 8, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3 through 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff is a non-profit incorporated association established for the public interest purpose. The Plaintiff and the Plaintiff’s former president, the Plaintiff’s former president, are not in accord with their interests, and the Plaintiff filed a criminal complaint against the leastA, and collected part of the amount of embezzlement by filing a civil lawsuit, etc., the instant disposition is unlawful.

2) The instant disposition, which was based on the premise that the leastA embezzleds approximately KRW 00 billion, is unlawful, on the ground that the instant disposition was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The largestA was prosecuted for the following crimes (Seoul Central District Court 2013 High Court 2013 High Court Ma000, 2013) and the court of first instance sentenced the largestA to four years of imprisonment on October 18, 2013. The court of first instance appealed both the largestA and the prosecutor (Seoul High Court 2013No00, 2015). On July 16, 2015, the appellate court sentenced the largestA to four years of imprisonment again with prison labor on the ground that the amount of embezzlement against the largestA was additionally recognized as KRW 00,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000).

2) The Plaintiff’s measures to preserve claims against the leastA, the filing of criminal and civil lawsuits, and the recovery of money are as follows.

3) On the other hand, on August 29, 2012, the Plaintiff became aware of the embezzlement of the UCC, and dealt with the ○○○○○ billion won and ○○○○○○○○○ won in succession. On the other hand, on December 12, 2013, the Plaintiff, following the regular board of directors in December 2013, managed the ○○○○○ of the Embezzlement’s Embezzlement’s Embezzlement additionally.

[Ground of recognition] Facts without dispute, Gap's statements as to Gap's 8, 9, 11 through 25, 28, 29, 31 through 47, 49 through 64, 68, Eul's statements as to the evidence as to Gap's 4 through 7, the witness's testimony as to the presence of the witness, and the purport of the whole pleadings

D. Determination

1) The act of a representative director, etc., who is the actual manager of a corporation, uses the corporation’s funds on the premise of early recovery, and thus, constitutes an outflow from the company as an expenditure itself. As such, special circumstances, which cannot be deemed as not premised on recovery from the utilization time, should be determined individually and specifically by taking into account all the circumstances, including where the intent of the representative director, etc. is identical to the intent of the corporation or where it is difficult to see that the corporate economic interest with the representative director, etc. is in fact identical, through the representative director, etc., the subject of embezzlement, the degree of substantial status within the corporation, such as the representative director, etc., who is the principal manager of the embezzlement, the degree of control over the corporation, the circumstances leading to the embezzlement, and the measures taken by the corporation after embezzlement, etc.

2) The following circumstances revealed in light of the above facts, namely, ① the Plaintiff’s legal nature differs from a stock company, which can be controlled or privateized by the representative who owns a large number of stocks as a non-profit incorporated association. Although the Plaintiff held the position of the president, it cannot be deemed that the Plaintiff actually controlled the Plaintiff corporation. ② The Plaintiff immediately operated the Counterterrorism Commission upon the occurrence of a public fund embezzlement accident, immediately notified the Embezzlement of the embezzlement, and immediately filed a criminal complaint after the Plaintiff became aware of the Embezzlement’s embezzlement, and made a claim for civil damages based on the details revealed based on such criminal complaint following the counsel’s counsel’s consultation, and actively efforts to collect claims such as compulsory execution. ③ The first criminal judgment of the first instance court against the largestA was sentenced on October 18, 2013, the Plaintiff’s allegation that the ○○○ upon the regular board of directors in December 2013 constituted a tort, and thus, it is difficult to view the Plaintiff’s claim that the Plaintiff actually carried out the above embezzlement from the Plaintiff and the Plaintiff’s claim that it was reasonable.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.