Examination Income 2013-0073 ( October 11, 2013)

The representative director shall dispose of the unpaid balance of the provisional payment to the representative at the time of the closure of the business and the disposition notified of the change in the amount of income is legitimate.

The disposition of bonus for provisional payment, etc. shall be deemed as a waiver of a claim by the representative director at the time when the special relationship is extinguished due to the closure of a corporation pursuant to the provisions of Article 11-9-2 of the Enforcement Decree of the Corporate Tax Act, and the disposition of bonus for provisional payment, etc. is deemed as a waiver of the claim.

Article 106 (Disposition of Income)

2014Guhap489 Revocation of Disposition of Imposing global income tax, etc.

The AA

head of Sung Dong Tax Office

April 16, 2015

May 14, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On May 18, 2013, the Defendant revoked the imposition of OO of global income tax (including additional tax) on the Plaintiff on May 18, 2013.

1. Details of the disposition;

A. Nonparty BB Co., Ltd. (hereinafter “Nonindicted Company”) is a company that had its place of business from October 1, 2002 to run the general construction business with its place of business located in Seoul OOO. The Plaintiff was registered as the representative director of the said company from the time of its incorporation to the time of its dissolution.

B. As the non-party company did not report corporate tax for the business year 2008 due to the business shortage, the head of Dongjak Tax Office closes down the non-party company ex officio as of December 31, 2008, and as of December 31, 2008, the representative director of the non-party company as of December 31, 2008, considered the balance of the paid amount as OOO and the recognized person as OOO, and disposed of the total amount of OO as bonus and notified the defendant of the above taxation data.

C. On May 18, 2013, the Defendant issued a correction and notification of the OO of global income tax (including additional tax) to the Plaintiff in 2008 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the Commissioner of the National Tax Service, but was dismissed on October 7, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 5, Gap evidence 8-2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff had already transferred the non-party company to CCC on January 2007, and had not completed the registration of change of the representative director. Thus, if the representative director incurred the provisional payment after the above point, it should be deemed that all it has been reverted to CCC.

B. Relevant statutes

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

C. Determination

1) Relevant legal principles

Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009) provides that where it is clear that the amount included in the calculation of gross income has leaked out of the company in determining or revising the corporate tax base, it shall be the bonus, dividend, other income, and other income from the disposal of profits according to the person to whom the income belongs, but if it is unclear, it shall be deemed to have been reverted to the representative. In full view of the relevant provisions, the representative shall be the actual operating representative of the company, and even if the company was registered on the corporate register as the representative director, such income shall not be attributed to the representative (see, e.g., Supreme Court Decision 2008Du10461, Dec. 23, 2010). On the other hand, since the person who was registered on the corporate register can be presumed to have actually been operating the company, the representative director in the corporate register shall be proved by his/her failure to actually operate the company.

2) In the instant case:

The following facts are acknowledged, comprehensively taking into account the following facts into account: Gap evidence 2, Gap evidence 3-1 to 16, Gap evidence 4-1 to 3, Gap evidence 8-1 to 3, Gap evidence 9-1 to 3, Gap evidence 10-1 to 3, Gap evidence 11-2, Gap evidence 12, Eul evidence 13-1 to 16, Gap evidence 13-1 to 16.

① Details of stock changes in the business year 2007 of the non-party company are as follows.

② On January 26, 2007, on the certified transcript of corporate register of the non-party company, the change of executive officers is as follows:

③ On April 26, 2007, Nonparty DD opened an agricultural bank account under the name of Nonparty DD. The details of financial transactions using the said account are as follows.

④ On July 25, 2008, Nonparty EE opened an account of a community credit cooperative under the name of Nonparty Company. The details of financial transactions using the above account are as follows. However, in light of the following circumstances, which can be acknowledged by comprehensively taking into account the overall purport of the pleadings in each statement in subparagraphs 2, 5, and 1 through 3, the above facts alone are insufficient to confirm that the Plaintiff did not actually operate the non-party company from January 2007, or that the amount managed by the representative director of the non-party company from December 31, 2007 was attributed to a third party (CC, etc.) who is not part of the amount, and there is no other evidence to prove otherwise.

① Even after January 2007, the Plaintiff continued the transaction of deposit and withdrawal through the corporate account of the said company until the non-party company closes its business.

② The registration of change on January 26, 2007 was completed with respect to the existing director and auditor of the non-party company, and the registration of change on the same day was made with respect to the plaintiff, but only the representative director was not implemented until the closure of the company.

③ Even after January 27, 2007, the Plaintiff left 4,000 shares, equivalent to 10% of the shares issued by Nonparty Company, as they were owned by the Plaintiff.

④ Nonparty FF and Nonparty GG, who were working for Nonparty Company in 2007 and 2008, stated that all of Nonparty FF and Nonparty GG, who were in charge of the settlement of accounts and preparation of a report at the time of filing a tax return for the business year 2007, are the representatives of Nonparty Company.

⑤ As above, the Plaintiff appears to have been continuously involved in the business operation of the non-party company even after January 2007. On the other hand, the head of Dongjak District Tax Office calculated the amount to be recognized based on the amount of KRW 516,80,000 as of December 31, 2007 as of December 31, 2007, stated in the balance sheet attached to the report on the tax base and amount of corporate tax submitted by the non-party company for the business year 2007 (hereinafter referred to as the "attached sheet"), and there is no special circumstance to deny the entry of the above attached statement prepared at the time of its operation

④ Moreover, on September 16, 2014, the Plaintiff appeared at an investigative agency and stated that the transfer of Nonparty Company to CCC was around May 2008. Moreover, even based on the above statement, the accompanying accompanying the report on corporate tax base and tax amount for the business year 2007 is below the Plaintiff’s responsibility.

7) Although the amount deposited from HH (hereinafter “HH”) operated by Nonparty CCC was immediately withdrawn, or part of it was remitted to DD or to a third party in the name of HH, considering the fact that DD was a director of the non-party company, and CCC stated that there was a subcontract agreement between H and the non-party company as follows (the relevant tax invoice was issued), it cannot be concluded that the above financial transaction was conducted against the Plaintiff’s will, and some of the above amount was remitted to the non-party company in the name of the non-party company. Accordingly, the Plaintiff’s assertion is without merit.

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.