Whether the actual representative of the corporation of this case is the plaintiff

There is no fact that the Plaintiff received monthly certain amount of wages from the corporation of this case, nor did the Plaintiff directly raised the establishment fund at the time of incorporation of the corporation. Thus, the Plaintiff cannot be deemed as the actual representative of the corporation of

Article 106 of the Enforcement Decree of Corporate Tax Act

2016Guhap68268

KimA

BB Director of the Tax Office

November 15, 2017

January 17, 2018

1. The Defendant’s disposition of imposing global income tax of KRW 283,714,690 (including additional tax on unfaithful return, KRW 18,827,037, and additional tax on unfaithful return, KRW 77,117,290) for the Plaintiff on March 26, 2016 shall be revoked.

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

The same shall apply to the order of the Gu office.

1. Basic facts

A. On August 28, 200, the Special Occupation Co., Ltd. (hereinafter referred to as “○○ Electric Business”) established electrical construction business, etc. as its business objective, and closed its business on August 9, 201. The Plaintiff was registered as the representative director of each Special Occupation from the date of establishment of the Special Occupation to April 12, 201. The Plaintiff was solely and jointly with ParkA from the date following that to February 17, 2003, and jointly with the date following that to November 24, 2009 (Evidence 6) by November 24, 2009.

B. On February 20, 2012, the Defendant issued a notice of correction and determination of corporate tax to include the above short-term loans in the tax base of corporate tax in 2010 for the ○○ Electric Business, on the ground that “○○ Electric Business was closed on August 9, 2011 and omitted the report on short-term loans 59,876,000 won (hereinafter “short-term loans”) that were not recovered in the business year of 2010, and notified the change in the amount of income to be disposed of as bonus to the Plaintiff who is the full-time representative. In addition, on March 26, 2016, the Defendant issued a notice of change in the amount of income to be disposed of as a bonus to the Plaintiff who is the full-time representative. The Defendant issued a notice of change in the amount of income tax on March 26, 2016 by service by public notice to the Plaintiff, which imposes a global income tax amount of KRW 283,714,690 (including a notice of additional tax on additional tax).

D. On April 11, 2016, the Plaintiff filed an appeal seeking revocation of the instant disposition, and the Tax Tribunal dismissed the said appeal on July 21, 2016 (Evidence A 12) (Evidence A)

2. The assertion and judgment

A. The plaintiff's assertion

In the business year 2010 where the ○ Electric Complex Business did not recover the short-term loans in this case, the Plaintiff was the representative director in the name of the ○ Electric Complex Business that had been subcontracted part of the construction work, and the actual representative of the ○ Electric Complex Business is the Plaintiff’s external third village Park Park, and the affairs such as accounting of the ○○ Electric Complex Business and tax reports were processed by the Plaintiff, one of the joint representative directors on the registration of the ○ Electric Complex Business, around 2010. The instant disposition based on the premise that the Plaintiff was the representative who actually operated the ○ Electric Complex Business is unlawful.

B. Relevant statutes

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

C. Whether the instant disposition is lawful

1) Relevant legal principles

A) Article 66(2)1 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same) provides that "if there is any error or omission in the details of a return, the tax base and the amount of corporate tax on income for each business year of the pertinent corporation shall be corrected." Article 67 of the same Act provides that "in revising the corporate tax base pursuant to Article 66, the amount included in the calculation of earnings shall be disposed of as prescribed by Presidential Decree, such as bonus, dividend, other outflow from company and internal reservation to the person to whom such income belongs, etc." In addition, Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22812, Mar. 31, 2011; hereinafter the same) shall apply.

Each item provides that "where it is clear that the amount included in the calculation of gross income has leaked out of the company, it shall be treated as a dividend to the person to whom it reverts in cases where the person to whom it reverts is a shareholder, or as a bonus to the person to whom it reverts in cases where the person to whom it reverts is an executive or employee," and the proviso to the same subparagraph provides that "where it is unclear that it shall revert" (where the total number of stocks owned by an executive who is not a minority shareholder, etc. and persons with a special relationship under Article 43 (8) is 30/100 or more of the total number of stocks issued or total amount of investment in the relevant corporation and actually controls the management of the corporation, such executive shall be deemed the representative, and where there are two or more representatives, the actual representative

B) The above former Corporate Tax Act’s purport is not to put the representative on the basis of the fact that such income was generated, but to have certain facts that can be recognized as such in order to prevent an unfair act under tax law by a corporation be considered as a bonus to a unconditional representative regardless of their substance. Thus, even if a representative is registered as a representative on the corporate register of the company, if a person is registered as a representative on the corporate register of the company, he/she does not actually operate the company, he/she cannot impose a comprehensive income tax on him/her (see Supreme Court Decision 87Nu1238, Apr. 12, 198). Meanwhile, the fact that it constitutes a representative of the corporation that is subject to disposal of income by recognition is proved by data such as the register of corporate register, etc., and the fact that it constitutes a representative of the corporation that is registered as the representative director on the corporate register, despite being registered as the representative director on the corporate register, must be attested by the party asserting it (see Supreme Court Decision 2010Du1216, Dec. 23, 2010).

A) The fact that the Plaintiff was registered as the full-time independent or joint representative director from the date of establishment of the ○○ Electric Complex ( August 28, 200) to the date of cessation of business ( August 9, 201), and the fact that the ○○ Electric Complex was omitted from the report of corporate tax on short-term loans of this case collected in the business year 2010 while closing its business on August 9, 2011 is as recognized in the preceding 1-A. B., the following facts can be acknowledged in light of the following facts: Gap evidence 2 through 5, Gap evidence 9, 11, 12, Gap evidence 13-1, Eul evidence 2-1, Eul evidence 2-3-1 through 11, Eul evidence 3-1, part of Eul evidence 3-1 through 3-10, witness testimony in this court, witness testimony in this court, and witness testimony in this court testimony in this court:

(1) On August 28, 200, Park Jong-chul, the Plaintiff’s external village, established a change of occupation by investing 100% of funds on August 28, 200, and entered it in the register of shareholders of the ○○ Electrical Business as the wife of Park Dong, the Plaintiff’s mother’s mother, 33.3% of each of the outstanding shares in the ○○○ Electrical Business, and 0.1% of the Plaintiff’s 0.1% of each of the outstanding shares in the ○○○ Electrical Business, and Park Jong-A was listed as the shares held by 0.1% (part of Park Jong-A’s testimony). Around that time, the annual share ownership ratio and ownership ratio of shareholders listed in the register of shareholders of the ○○ Electrical Business, as follows (No.

(2) From 2009 to 2009, ParkA had worked not less than three times a week at the ○○ Exclusive Business Office and had worked in the said office. The rest of the office was jointly used by the Plaintiff, the DefenseCC, and the accounting staff.

(3) Each written statement (Evidence No. 2 and 3) stating that “The actual representative director of the ○○ Electric Business at the time of delivery of the goods to the ○○ Electric Business” is written as follows: “EE on the representatives of △△ Electricity Co., Ltd., which supplied the goods to the ○○ Electric Business from around 2008 to 2010, and EE on the representatives of △△ Electrical Co., Ltd., which supplied the goods to the ○○ Electric Business from around 2007 to 2010.”

(4) On April 16, 2009, the official document (Evidence 4) stating that ○○ Electric Business was sent to △△ Electric Co., Ltd. on April 16, 2009, and that “○○ Electric Business shall pay in installments 50,000,000 won for the supply of goods in installments to △△ Electric Co., Ltd., and this shall be confirmed by the president of Park Jong-A and the competent person in charge of the work at ○○ Electric Business.” The document stating that “The balance confirmation and the payment agreement (Evidence 5) prepared by the special person in charge of the business as the receiver of △△ Electric Co., Ltd. on April 15, 2009,” also stipulates that “The representative of the actual representative of ○○ Electric Business” is “AAAA”.

(5) From Sep. 2003 to Feb. 2010, 200, the fact-finding confirmation letter (Evidence 11) of the preparation of Park Jong-dong in charge of construction work at the site of the head of ○○ Electric Complex was naturally aware of the actual owner of the job, and the plaintiff was in charge of the field work upon receiving a business order from the office, and Park Jong-A made a decision-making and a work order from Feb. 2008. In addition, the fact-finding confirmation letter (Evidence 9), which takes charge of the field work at the ○ Electric Complex for three months from Feb. 2008, '○○ Electric Complex' was written by the head of YA president, while working at the ○○ Electric Complex, and the plaintiff was in charge of the field director's work at the site and the CC's duty and accounting work at the public office, respectively.

(6) The statement of wage and salary income payment for the ○○ Electric Business stated that the Plaintiff received KRW 30,000,000 annually from the ○○ Electric Business in 2009 and 2010 (Evidence 3-1 through 10). However, the details of deposit and withdrawal from the corporate account for the ○○ Electric Business include only the details that the full-time transfer of the amount between KRW 100,000 and KRW 30,656,812 to the Plaintiff during the said period (the Plaintiff asserts that the Plaintiff received each of the above amounts as the subcontract consideration) while not including the details that the Plaintiff paid the monthly specified amount (Evidence 13-1).

B) This is: (a) from 2002 to 25, the Plaintiff worked for the ○○ Electrical Business; (b) from April 13, 2006 to November 2009, the ○○○○○ Electrical Business’s auditor was registered as the joint representative director of the ○○ Electrical Business; (c) from the following day, the ○○○○○ Electrical Business’s actual representative is ParkA; (d) the ○○ Electrical Business’s practice was carried out under the direction of Park Sang-A; (e) the Plaintiff was an employee who received monthly wages until 2006; and (e) the Plaintiff was merely a so-called ○○○○ Electrical Business’s employee who received partial subcontracting; and (e) the Plaintiff did not directly participate in the management of the ○○○ Electrical Business; and (e) the Plaintiff’s signature or seal appears to have been registered in the name of the ○○○○ Electrical Business’s name at the time of the establishment of the ○○○ Electrical Business’s name.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.