early 209west3384 ( December 09, 2009)

It is reasonable to view that the provisional payment belongs to the representative director at the time of closure of business.

It is reasonable to deem that the provisional payment was not recovered by waiver or exemption of the claim for provisional payment, and it is reasonable to deem that the provisional payment was reverted to the representative director at the time of closure of business.

2010Guhap11313 global income and revocation of disposition

[Plaintiff-Appellee]

Defendant ○ Head of tax office

December 10, 201

January 28, 201

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of global income tax of KRW 303,433,590 for the Plaintiff on May 21, 2009 shall be revoked.

1. Circumstances of dispositions;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1-2, Gap evidence 2-6, Eul evidence Nos. 1-2, 1-2, and 1,2-3.

A. The head of △△ Tax Office confirmed the closure of the business without permission by △△ Special Co., Ltd. (hereinafter “△△ Special”) and closed down the business ex officio on October 30, 2006.

B. On October 2007, the director of the Central District Tax Office confirmed that the short-term loan amount of KRW 804,639,556 (hereinafter “the provisional loan amount of this case”) appropriated on the balance sheet at the time of the declaration of corporate tax for the business year 2005 was not collected by the closing date of the business, and that it was disposed of as the bonus for the plaintiff who is the representative director at the time of the closure of the business and notified the change in the amount of income.

C. Accordingly, on May 21, 2009, the Defendant notified the Plaintiff of KRW 303,43,590 of global income tax for the year 2006 (hereinafter “instant disposition”).

2. Whether a disposition is lawful

A. The plaintiff's assertion

The provisional payments of this case are nothing more than 713,453,840 won of the provisional payments received by the presentA, the former representative director, from the 1998 theory, which had been counted in the balance sheet of the 1998 business year of the 1998 theory, and they continued to remain in the account subject of the "representative director" or "short-term loans" as the annual increase or decrease in the amount of the principal payment due to recognized interest calculation, Plaintiff's investment of funds, etc., on the balance sheet of the △△△ prior theory. Even in the standard balance sheet of △△ Construction 203 to 2005 business year 203 to 2005, there is no indication in the short-term loans account subject to the "shareholders, executives, and related companies", and is entered in the short-term loans account subject to the "shareholders, executives, and persons other than related companies.

Therefore, since the actual owner of the provisional payment of this case is only the presentA, the provisional payment of this case does not belong to the Plaintiff. Nevertheless, the disposition of this case that deemed the provisional payment of this case to belong to the Plaintiff is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts may be acknowledged in the absence of dispute between the parties, or in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1-2, Gap evidence 2, Eul evidence 3-1, 2, Gap evidence 12-1, 12-4, and Eul evidence 5-1, 5-7.

1) On August 198, 198, the Plaintiff and three other parties purchased the entire shares from the presentA and eight existing shareholders, and acquired the △△ exclusive theory from October 16, 1992 to August 23, 1998. As the representative director of the △△ exclusive theory, the presentA held office from August 24, 1998 to November 1, 1998, respectively by the Plaintiff from November 2, 1998 to June 30, 2006.

2) The details of the provisional and short-term loan account items included in the annual balance sheet (based on December 31 of each year, as of December 31 of each year) from 1998 to 2006 of the △△△△△ Year are as follows:

D. Determination

1) Comprehensively taking into account the facts recognized as above and the following circumstances revealed in the argument of this case, it is reasonable to view that the provisional payment of this case belongs to the Plaintiff, who is the representative director at the time of the closure of △△ Jeon

○○ Plaintiff is not fully able to submit a written agreement related to the lending of △△○○, details of transactions, and other direct materials related to the lending of △△○○. Each statement of KRW 713,453,840 as stated in the balance sheet of the business year 1998, is insufficient to recognize that the provisional payment of KRW 713,453,840 on the balance sheet of the 1998 △△△△○○ was released from the presentA. Moreover, there is no evidence to deem that the provisional payment in this case is identical to the provisional payment of KRW 713,453,840 on the balance sheet of the business year 198 △△△△△△△△△○.

Since ○○○○○○○ was appropriated on the balance sheet in the business year 1998 for the provisional payment of KRW 713,453,840, the representative director of the balance sheet or the short-term loan account, reflecting the increase or decrease in the amount. Considering the fact that the Plaintiff claims that it was based on recognized interest calculation, Plaintiff’s financial input, etc., and that the special relationship between the current AA and the present △△△ prior theory was extinguished as the representative director of the present △△ prior theory around August 1998, it is reasonable to deem that such accounting was conducted on the premise that the provisional payment or short-term loan stated on the balance sheet in the △△ prior theory was against the Plaintiff.

Unless there are special circumstances such as the assumption of the obligation to pay the provisional payment claim against the present △△△△, it is ordinarily reasonable to keep the accounts separately. Therefore, the Plaintiff’s assertion that the present △△△△△△△△△ prior to the retirement of the representative director, even after the retirement of the representative director of the present △△△, has continued to keep the accounts of the current △△△ as the provisional payment. There is no evidence to deem that the Plaintiff had taken over the obligation to the present △△△ prior theory.

In light of the above circumstances, it is not clear that the provisional payment in this case belonged to the presentA or to other third parties.

2) In this case, where the provisional payment of this case was not recovered by the date of the closure of the △△ Relocation, it is reasonable to deem that the △△ Relocation decided not to recover the provisional payment of this case by abandoning or exempting the claims for the provisional payment of this case, and as seen earlier, the provisional payment of this case should be reverted to the Plaintiff. Thus, the disposition of this case is legitimate.

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.