District Court-2013-Gu Partnership-3141 (Law No. 23, 2015.06.23)

The amount of money which is unclear and which is not attributed to the outflow is disposed of as bonus to the representative director.

The plaintiff was the representative director of the company of this case and it is clear that the amount of outflow from the company is disposed of as bonus to the representative director.

Article 106 (Disposition of Income)

2015Nu51370 Revocation of Disposition of Imposing income tax

OO

O Head of tax office

Suwon District Court Decision 2013Guhap3141 Decided June 23, 2015

December 15, 2016

2017.012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The disposition taken by the defendant against the plaintiff 20O.O.O.O. shall be revoked.

1. Details of the disposition;

(a) AAA Co., Ltd (hereinafter referred to as "AA") is an OO.O.O.O.O. corporation established for the purpose of new construction, sale, lease, etc. of real estate;

B. From 20O.O.O. to 20O.O.O.O., the Plaintiff was registered as a representative director in the corporate register of AA.

(c) Upon reviewing AA’s corporate tax return for 200O, the BB National Tax Service provided a guidance to find any error in the inclusion of earnings and losses and to correct AA’s filing of a revised corporate tax return.

D. Accordingly, AA confirmed the fact that the sum of the short-term loans, attempted amounts, and failed amounts of OOO(hereinafter referred to as "the money in this case") for the specially related persons in the 200O business year through internal audit of the company was falsely included in the calculation of earnings and losses, and submitted a revised report to the director of the 200O.O.O.O.O.O.O. to the director of the 200O.O.O.O.O.O., at the time of the inclusion of earnings and losses, on the part of the plaintiff, the director of the 200O.O.O.A., notified the defendant of the change in the amount of income for the money in this case, and notified the defendant of the income data recognized by the plaintiff.

E. The Defendant deemed the instant monetary amount as a bonus for the Plaintiff, and determined and notified the Plaintiff’s global income tax OO for the year 200O (hereinafter “instant disposition”).

F. The Plaintiff filed an objection against the instant disposition. However, the Commissioner of the National Tax Service dismissed it 200O.O.O., on the ground that the Plaintiff filed an objection after the lapse of 90 days from the date of receipt of the notice of the instant disposition, and the Plaintiff filed a request for examination. The Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on the above grounds. The Commissioner of the National Tax Service rejected the request for examination on the grounds as above.

[Ground of recognition] Gap evidence Nos. 1, 3, Eul evidence Nos. 1 through 4, 11, and 14, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Plaintiff was registered as a representative director in the registry of AA from 20O.O.O. to 20O.O.O.O., but the actual representative director of AA was not DD, not the Plaintiff.

B. The Plaintiff did not embezzlement the instant money or received any bonus from AA.

3. Determination as to the defendant's defense prior to the merits

This Court's explanation is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act, since this part is the same as that of the corresponding part of the judgment of the court of first instance (Articles 9 through 420).

4. Judgment on the merits

(a) Relevant statutes;

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

B. Determination

1) According to Article 67 of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter referred to as the "former Corporate Tax Act"), Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009; hereinafter referred to as the "former Enforcement Decree of the Corporate Tax Act"), if it is obvious that the amount included in the corporate tax base was leaked out of the company, it shall be the bonus by the disposal of profits, other income, and other outflow from the company, and it shall be deemed that the representative was reverted to the Plaintiff if it is unclear that the amount would have been attributed to the Plaintiff. According to the above facts, the representative director of the AO 2000, listed on the corporate register of the 2010, and the representative director of the 204, respectively, could not be found to have been included in the corporate register of the 2010.

2) As seen earlier, in light of the fact that AAA, who was a representative director, submitted a report on the tax base and amount of corporate tax for 200O.O.O.O.O. on its own as to the assertion that the Plaintiff had embezzled the instant amount or not received as a bonus, the instant amount included in the gross income as stated in the income statement for each item (No. 7-3) shall be deemed clear. In this case, the amount, the ownership of which is unclear, shall not be treated as a bonus for the representative pursuant to the proviso of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act, and it shall be proved by the Plaintiff, the taxpayer, to deny it. Accordingly, the Plaintiff asserted that the instant amount was reverted to related companies such as LLLLL, MM, NM, and NN, and thus, the Plaintiff did not have any evidence to acknowledge it differently from the Plaintiff’s testimony and evidence No. 2, No. 1, 1, 1, 12, 1, 1, 1, and 1, E witness evidence.

5. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.