early 208 Heavy3266 (209.03.09)

Appropriateness of a representative bonus disposition following the notice of change in income amount

If it is impossible to serve a notice of change in the amount of income on the corporation, the corporation shall be notified directly to the income earner and provided an opportunity to voluntarily pay the tax base of global income tax. The corporation shall not be deemed to be a tax administrative disposition against the plaintiff unless the plaintiff

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

1. The part of the lawsuit in this case seeking cancellation of notice of change in income amount shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

The defendant's disposition of correction and notification of KRW 28,58,190 for corporate tax of the business year 2002 against the plaintiff on February 11, 2008 and the disposition of notification of change of income amount of KRW 1,487,420,952 for the plaintiff shall be revoked.

1. Circumstances of the disposition;

가. 원고는 1999. 6. 18. 대표이사를 박☆☆로 하여 운동설비운영 서비스업으로 사업자등록을 하였다가 2002. 12. 31. 폐업한 법인사업자로서, 2000. 1. 14. 임의경매로 취득한 성남시 ★★구 ○○동 923-1 소재 건물(B101호, B102호, B201호, B202호, B203호, B1층)과 부속토지 및 ○○동 산 25 임야 3,769㎡ 외 9필지의 토지 102,972㎡(이하 '이 사건 부동산'이라 한다)를 2002. 7. 2. 황◎◎ 등 3인에게 양도하고 양도가액을 37억 3,000만 원으로 하여 법인세를 신고하였다.

B. After conducting a tax investigation on the plaintiff, the defendant confirmed that the transfer value of the real estate of this case is KRW 5,217,420,952 (including value-added tax); and at the same time, the defendant notified the plaintiff (the representative director at the time of the closure of business) of the transfer value of the real estate of KRW 1,487,420,952 (including value-added tax of KRW 77,573,290; hereinafter referred to as "in this case's omitted return amount"), which is the difference between the reported value of KRW 3,730,00,000,000, and notified the plaintiff (the plaintiff, the representative director at the time of the closure of business), of the disposition of imposition of KRW 28,558,190,00 for the bonus of this case, which is the actual representative director at the time of establishment of the plaintiff, 208, 300,000,000 from the return value of 1,00.28.

C. On May 7, 2008, the Plaintiff sought revocation of the instant disposition imposed on the Plaintiff on the Plaintiff, and at the same time, filed an objection to seek revocation of the instant bonus disposition by means of a notice on change of the amount of income directly notified to Park-ri, △, but was dismissed. However, the Plaintiff filed an appeal on September 4, 2008, but was dismissed on March 9, 2009, the Plaintiff filed the instant lawsuit on May 4, 2009.

D. Meanwhile, on the other hand, on May 14, 2008, the head of the Goyang Tax Office rendered a disposition of correcting the omitted amount of the return in this case, which was disposed of as an income by deeming it to be an earned income and imposed the total income tax of KRW 596,464,910 for the year 2002, but the period of filing a lawsuit was exceeded since the Plaintiff did not take a separate remedy procedure on the grounds that the Plaintiff is disputing the bonus disposition in this case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 17 (including partial numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 10, the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. Judgment on the bonus disposition in this case

(1) The plaintiff's assertion

원고의 실질적인 대표이사는 박☆☆의 아들인 박����로서, 박☆☆는 원고의 운영이나 의사결정에 전혀 참여한 사실이 없으나 원고의 원활한 운영을 위하여 박����에게 그 명의만을 대여하였을 뿐이다. 따라서 이 사건 상여처분은 실질적 대표이사인 박����에 대하여 하여야 하고, 박☆☆에 대하여 한 이 사건 상여처분은 실질과세의 원칙에 반하여 위법하다.

(2) Relevant statutes

It is as shown in the attached Form.

(3) Determination

In cases where the tax authority’s disposition of income and the notice of change in the amount of income accrued therefrom are given, the corporation that is the withholding agent shall be deemed to have paid the relevant amount to the person to whom the income recorded in the notice was given on the date of receipt of the notice of change in the amount of income, and at the same time the liability to pay withholding income is established, and the corporation that is the withholding agent bears the obligation to pay withholding tax according to the details of the disposition of income recorded in the notice of change in the amount of income to the head of the competent tax office by the 10th day of the following month. If the person fails to pay it, it shall be subject to penalty and criminal punishment as well. In light of the above, it is reasonable to deem that the notice of change in the amount of income is a tax disposition directly affecting the corporate tax liability and is subject to appeal (see Supreme Court en banc Decision 20

However, Article 192 of the Enforcement Decree of the Income Tax Act provides that the tax authority shall notify the relevant corporation of any dividend, bonus and other income disposed of in the determination or correction of corporate income within 15 days from the date of such determination or correction by the notice of change in the income amount as prescribed by Ordinance of the Ministry of Strategy and Finance: Provided, That in cases where the location of the relevant corporation is unclear or it is impossible to serve the notice, or where it is deemed that there is no possibility to collect the notice from the relevant corporation, the said proviso provides that the relevant stockholder and the resident who received the disposition of the relevant bonus or other income shall be directly notified of the relevant corporation. The said proviso provides that if the corporation is unable to serve the notice of change in income amount, the said provision provides that the corporation shall not be subject to the obligation to withhold taxes by performing the supplementary service to the person to whom the relevant income belongs, but shall provide the person

On the other hand, the case was returned to this case, and the defendant sent a notice of change in income amount directly to the individual Dok-won, who received income disposal as bonus in accordance with the form of notice of change in income amount for notification of the income earner under Article 100 subparagraph 24 (2) of the Enforcement Rule of the Income Tax Act, and there was no separate notification to the plaintiff who is a juristic person, and as long as the notification of change in income amount was not given to the plaintiff, the plaintiff cannot be deemed to bear withholding tax liability. Thus, the notice of this case's bonus disposition cannot be deemed to be a tax administrative disposition against the plaintiff, which is the object of appeal

Therefore, among the lawsuit in this case, the part on which the plaintiff seeks the cancellation of the bonus disposition in this case is unlawful (in relation to the bonus disposition in this case, it should be directly disputed by the Do governor)

B. Determination on the instant disposition

(1) The plaintiff's assertion

Although the Plaintiff was found to have underreported the transfer value, the problem occurred as the Plaintiff did not properly arrange the corporate books, and the under-reported amount was used as interest on borrowings, not as the outflow from the company, and when this portion was added to deductible expenses, the instant disposition was unlawful since it did not actually generate any income to the corporation.

즉, 이 사건 부동산 매각대금 5,230,000,000원의 사용내역을 살펴보면, 2001. 12. 14. 박☆☆, 박����, 민◇◇, 이◆◆ 명의로 차입한 □□차입금 55억 원 중 40억 원을 상환하였고, 2001. 12. 14. 이전에 박☆☆, 박����, 이■■, 한△△ 명의로 차입한 □□ 차입금 991,000,000원을 상환하고 이에 대한 중도상환수수료 50,000,000원을 지출하였으며, 나머지 매각대금 잔액 459,000,000원(주장자체로 계산이 맞지 않음)은 건물매입 및 법인 투자자산 손실보전 충당 등 회사경리의 일부로 지출된 것이다(갑 제2호증 이의신청에서의 원고의 주장 참조).

(2) Determination

Where a corporation fails to record the transfer price in its account book even after transferring its assets, barring any special circumstance, it shall be deemed that the amount equivalent to the transfer price not entered in the account book was leaked out of the company, and the special circumstance to deem that the transfer price was not leaked out of the company shall be proved by the legal entity asserting it (see Supreme Court Decision 2005Du2049, Dec. 21, 2006).

원고는 박☆☆, 박����, 민◇◇, 이◆◆, 이■■, 한△△이 개인 명의로 대출받은 금액을 가수금으로 계상하였다고 주장하나, 대출일자와 가수금 계상일이 일치하지 아니하고 대출금 전액이 실제 원고에게 입금되었는지 여부도 불분명하며, 결손금 발생, 가수금 계상, 부외경비의 발생 등 막연한 정황에 의한 주장만 할 뿐 갑 제4 내지 21호 증의 각 기재만으로는 원고가 주장하는 비용들이 이미 신고한 비용에 포함되어 있지 않다는 점을 인정하기 부족하고 달리 이를 인정할만한 증거가 없으므로 원고의 이 부분 주장도 이유 없다.

3. Conclusion

Therefore, the part that seeks revocation of the notice of change in income amount among the lawsuit of this case is unlawful and dismissed, and the part that seeks revocation of the notice of change in corporate tax is dismissed as it is without merit. It is so decided as per