Examination Income 2011-117 ( June 22, 2011)

A disposition of a representative of the provisional payment made on the balance sheet at the time of closure shall be justified;

It is reasonable to see that the special relationship has ceased to exist on the date of closedown because the corporation could not find any substantial business trace after the date of closedown even if it did not go through dissolution procedures, and that the representative has the burden of proof for the claimant who is not the actual operator.

Article 67 of the Corporate Tax Act, Article 106 of the Enforcement Decree of the Corporate Tax Act / [Disposition of Disposition

2012Guhap3399 global income and revocation of disposition

EAA

The Director of the North Korean Tax Office

August 14, 2013

October 23, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition to impose the global income tax on the Plaintiff on February 1, 2011 is revoked.

1. Details of the disposition;

" 가. 전기공사업 등을 목적으로 하는 주식회사 BB기업(2005. 9. 14.주식회사 CC'으로 상호가 변경등기 되었다. 이하소외 회사'라 한다)은 2001. 12. 4. 원고가 대표이사로 있던 유한회사 DD전력을 합병하였는데, 소외 회사의 법인등기부상 원고는 위 합병 당시부터 2003. 10. 30.까지는 박EE와 공동대표이사로, 2003. 10. 30.부터는 단독대표이사로 각 등재되어 있고, 2001사업연도 이후 원고 및 원고의 배우자인 유FF, 원고의 자인 유GG은 소외 회사의 발행주식총수의 50% 이상을 소유하고 있다.", " 나. 소외 회사는 2006. 12. 28. 폐업하였는데, 피고는 소외 회사가 2006년도 대차대조표에 계상한 단기대여금 OOOO원(이하이 사건 당초가지급금'이라 한다)을 폐업일이 속하는 2006년도에 회수하지 아니한 것으로 보아 위 금액을 2006년도 익금에 산입하고, 위 익금이 사외유출되어 대표이사인 원고에게 귀속된 것으로 보아 원고에 대한 상여로 처분하여 2011. 2. 1. 원고에게 2006년 귀속 종합소득세 OOOO원을 경정・고지하였다(이하이 사건 종전처분'이라 한다).", " 다. 원고는 2011. 4. 29. 이 사건 종전처분에 불복하여 피고에게 이의신청을 제기하였고, 피고는 소외 회사가 주식회사 부시똘전기, 재건 주식회사 등으로부터 전기공사업 영업을 분할합병하는 과정에서 원고가 OOOO원의 비용을 지출함에 따라 소외 회사가 원고에 대하여 이 사건 당초가지급금채권과 상계 가능한 채무를 보유하고 있다고 판단하여, 이 사건 당초가지급금에서 원고가 지출한 비용인 OOOO원을 제외하고 남은 OOOO원(이하이 사건 쟁점가지급금'이라 한다)을 원고에 대한 상여로 처분한 후 2011. 5. 27. 원고에 대한 2006년 귀속 종합소득세를 OOOO원으로 감액경정하였다(이하 이 사건 종전처분 중 감액경정으로 인하여 취소되고 남은 나머지 처분을이 사건 처분'이라 한다).", 라. 원고는 이 사건 처분에 불복하여 2011. 8. 23. 국세청장에게 심사청구를 하였으나, 국세청장은 2012. 6. 22. 원고의 심사청구를 기각하였다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3 (including branch numbers in case of a natural disaster; hereinafter the same shall apply), Gap evidence Nos. 6, Eul evidence Nos. 1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Deficiency of legal basis for bonus disposition

The tax office may dispose of the income in a case where the corporate tax base is determined or corrected, and the defendant did not determine or correct the corporate tax base for the non-party company, and disposed of the bonus without any basis for the provisional payment of the non-party company. The non-party company still remains in existence and the special relationship between the non-party company and the plaintiff cannot be deemed to have ceased, but the defendant disposed

2) Violation of substance over form principle

The plaintiff did not actually operate the non-party company as the representative director in the name of the non-party company, and because the FF, the spouse, is the actual representative of the non-party company, the disposition of this case, which the plaintiff deemed the actual representative of the non-party company, is unlawful.

3) Reversion of part of the provisional payments to others

The provisional payment of DDR paid by the non-party company, the representative director of which was the non-party company, at the time of the merger of DDR by the non-party company, is the OO member of the non-party company prior to the merger, and the provisional payment of DDR was the OO member of the non-party company prior to the merger. The OOO member of the issue of this case should be attributed to ParkE, the shareholder of the non-party company before the merger

B. Relevant statutes

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

C. Determination

1) As to the assertion of lack of legal basis on bonus disposition

In light of the purport of the entire argument in the statement No. 3 of the evidence No. 3, the defendant can be acknowledged that the non-party company passed a resolution to determine the corporate tax base and tax amount for the business year 2006 to the non-party company twice. Thus, the plaintiff's assertion that the defendant made a disposition of bonus against the non-party company's provisional payment without determining or revising the corporate tax base for the non-party company's company

Meanwhile, it is reasonable to view that the company’s provisional payment was based on the premise that it would be possible to recover the provisional payment from the person with a special relationship. Thus, if the company did not intend to recover the provisional payment from the time it pays to the person with a special relationship, or if it was placed in a situation where it is impossible to recover its claims, it shall be deemed that the provisional payment was ultimately reverted to the person with a special relationship. In such a case, it is reasonable to view that the office of tax payment was based on the 20th anniversary of the fact that the company’s provisional payment was closed by the 20th anniversary of the fact that it was impossible to discontinue its business, and that the company did not actually dispose of the company’s provisional payment under the provisions of Article 106(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19891, Feb. 28, 207; Presidential Decree No. 20120, Feb. 26, 200).

Therefore, the plaintiff's assertion that the special relationship between the plaintiff and the non-party company did not exist on the premise that the non-party company exists is without merit.

2) As to the assertion of violation of substance over form principle

According to the substance over form principle, if the ownership of the income, profit, property, act or transaction subject to taxation is nominal, and there is another person to whom it actually belongs, the person to whom it actually belongs shall be the taxpayer. However, when applying the substance over form principle under Article 14(1) of the Framework Act on National Taxes, the ownership of the transaction subject to taxation is merely nominal, and there is another person to whom the transaction actually belongs.

The plaintiff argues that he was registered as the representative director on the corporate register of the non-party company and was not the actual operator of the non-party company. However, the above evidence and evidence Nos. 5 and No. 5 can be considered as a whole in light of the overall purport of the pleadings, namely, the following circumstances: ① the plaintiff, other than the non-party company, has engaged in the business of construction, accommodation, etc. with the trade names of DD Electric Fire Fighting Corporation, limited liability company, DD power, HH, and II from January 209; ② The minutes of temporary general shareholders' meeting, minutes of board of directors, etc. of the non-party company, the plaintiff, a joint representative director of the non-party company, was recorded as the representative director on Nov. 4, 200; ③ the representative of the non-party company, on Oct. 30, 2003, the non-party company's temporary general shareholders' meeting was recorded as the chairperson; ③ The plaintiff did not receive some evidence from the non-party company No. 9 to 2006.

Therefore, the plaintiff's above assertion is without merit.

3) As to the assertion that part of the provisional payment reverts to others

The plaintiff argued to the effect that the non-party company held the claim for provisional payment of OOOO members against the non-party company's shareholders and the representative director before the merger, based on the substitute table (Evidence No. 8-3) and the non-party company's merger, and that the above amount belongs to OE because the plaintiff did not take over the above debt against the non-party company of OE. However, in this case where there is no objective data, such as the limited company prior to the merger or the financial statements of the non-party company, it is unclear when and when and when the non-party company was prepared, it is insufficient to recognize that part of the issue of this case was reverted to OE only by the statement of the above evidence No. 8-3 of the above evidence No. 8 of this case, and there is no other evidence to acknowledge otherwise.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.