Cho High-2017-Seoul Government-0543 (29 March 2017)

The disposal of the corporation's estimated income amount is legitimate for the person registered as the representative director on the corporate register and actually engaged in the operation of the company.

If a person registered as a representative director on the corporate register does not actually operate the company, he/she shall not be deemed a party to the disposition of recognition, and if the representative director on the corporate register actually did not operate the company, the fact that the representative director did not actually operate the company shall be proved by the party asserting such fact.

Article 67 of the Corporate Tax Act

Article 106 of the Enforcement Decree of Corporate Tax Act

Seoul Administrative Court-2017-Gu Partnership-68196

AA

aa

. 2018.14

November 02, 2018

1. AA’s claims are dismissed.

2. Litigation Costs shall be borne by AA.

Cheong-gu Office

The Defendant’s disposition of imposition of global income tax on June 29, 2016 against AA on the tax base for the year 2012 shall be revoked.

1. Details of the disposition;

A. BB (hereinafter referred to as “instant company”) was a corporation established on June 26, 2012 by making the ○○○○○-ro △△△△△△△△△, which was the location of its principal office, and the electrical and living parts processing business, etc. of the objective business, and was closed ex officio by the tax authority on October 31, 2013. AA was registered as the representative director of the instant company from the date of its establishment to the date of its ex officio closure.

B. The head of bbb Tax Office, the head of the tax office of the instant company, confirmed that the instant company failed to file a corporate tax return on KRW 00,00,00,00 on the tax base of value-added tax reported by the instant company during the business year 2012, and determined the tax base and tax amount of corporate tax for the instant company for the business year 2012 by including the estimated incomexx,xx,xx, andxxx (hereinafter “the instant income amount”) as the gross income pursuant to Article 66(1) and the proviso to Article 66(3) of the former Corporate Tax Act (amended by Act No. 11873, Jun. 7, 2013). After determining the tax base and tax amount of corporate tax for the instant company for the business year

C. Accordingly, on June 29, 2016, the Defendant imposed global income tax of KRW 163,186,470 (including additional tax) on June 29, 2016 (hereinafter “instant disposition”).

Facts that there is no basis for recognition, Gap evidence 1, Eul evidence 1 to 4, all pleadings, and arguments

Purport

2. Related statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Whether AA is a substantial representative of the instant company

1) AA’s assertion

A) AA had established the instant company, which is a human resources dispatch company, in practice with CCC, as a university motive. However, AA was appointed as a representative director due to the credit of CCC. AA performed only auxiliary work, such as vehicle operation and leaflet distribution, and the instant company (SP) did not work at work. The conclusion of a human resources supply contract, which is the main business of the instant company, was all in charge of CCC, and most purchase tax invoices was issued as the personal mail of CCC.

AAA verification of its operating relationship with CCC, from October 2012 to October 2012, it terminated the business relationship and did not participate in the business affairs of the instant company. AA requested the CCC to change the name of the representative director, but CCC continued to operate the instant company in the name of AAA without knowledge.

B) As such, AA only performed a very short-term auxiliary business at the instant company, the actual representative of the instant company at the time of its establishment is CCC. Therefore, the instant disposition based on the premise that AA was the representative of the instant company around 2012 is unlawful against the principle of substantial taxation.

2) Determination

A) Article 106(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 24357, Feb. 15, 2013; hereinafter the same) provides that the system is not based on the fact that such a representative has generated income, but rather on the fact that a certain amount of fact that can be recognized as such act in order to prevent an unfair act under tax law is deemed as a bonus to a de facto representative regardless of its substance. This is because the right to de facto control and disposal of income, the ownership of which is unclear, is deemed as a representative. Thus, even if a person is registered as a representative of a company in the corporate register, if there is no actual fact that a company was operated, it shall not be considered as the other party to such disposition.

On the other hand, since a person who is registered as the representative on the corporate register can be presumed to have actually been operating the company, the representative on the corporate register must be proved by the party asserting that the representative on the corporate register actually failed to operate the company.

B) In light of the aforementioned evidence and evidence, the evidence Nos. 4, 6, 8, and Eul Nos. 1, 6, and 17, the testimony of the witnessCC, the testimony of this court, and the overall purport of each order to submit financial transaction information to the ○○ Bank, △△ Bank, and the entire purport of the pleadings, the relationship between the parties acknowledged by comprehensively considering the overall purport of the arguments, the circumstances and process of the establishment and operation of the company of this case, the degree of involvement of the AA, etc., it is insufficient to find that the AA was actually involved in the operation of the company of this case. Other evidence submitted by the AA alone is insufficient to recognize that the AA was not a nominal representative without any participation in the operation of the company of this case. This part of the

(1) AA established the instant company in the form of creative CCC and the same business. At the time of the establishment of the instant company, 50% of the shares of the instant company were owned with EE, the spouse of CCC, together with 50%. AA entered itself as a representative director through consultation with CCC, the partner of the instant company, and the FF, the spouse of the instant company, was listed as the auditor. The FF was paid the benefits from the instant company. AA visited the PP, on July 5, 2012, and directly visited the PPP, thereby filing a report of establishment and registration of business. As above, AA had been actively involved in the process of the establishment of the instant company and exercised its authority as the representative of the instant company by applying for registration and registration of business.

(2) 직원들의 급여 지급이나 인력모집 등 이 사건 회사의 내부업무는 CCC이 주로 하였으나, 외부 업무는 AAA와 CCC이 함께 하였다. 이 사건 회사는 2012. 7.10. 국세청 전자세금계산서 시스템 가입 당시 CCC의 개인메일(the☆☆☆@naver.com)을 등록하였으나, 국세청 홈택스에 가입할 당시 등록한 이메일은 AAA의 개인메일 (g♡♡@naver.com)이다. 이 사건 회사는 AAA의 위 개인메일을 이용하여 2012. 7.31. 주식회사 ♧♧♧♧으로부터, 2012. 9. 20.경부터 2013. 3. 18.까지 사이에 7회에 걸쳐 ☆☆대학교로부터 매입세금계산서를 발급받았다. ☆☆대학교와 주식회사 △△글로벌 관련 업무는 모두 AAA가 주도하여 처리하였다. AAA는 2013. 4. 2. 및 2013. 4.26. ○○세무서를 방문하여 부가가치세 과세표준증명을 발급받기도 하였다. 이에 비추어 AAA가 이 사건 회사에서 보조적인 업무만 담당하였다거나 2012. 10.경 이후부터 이 사건 회사 업무에 더 이상 관여하지 않았다는 AAA의 주장은 믿을 수 없다.

(3) Unlike the address recorded in the corporate register, the address of the company posted by the company in the job offering advertisement is "△△△-dong, △△-dong, △△-dong, △△-dong, △△-si, Chungcheongnam-do, and the company is Seoul and the company bears almost all internal duties in the distance of Chungcheong Island," and the company's workplace in this case appears to have been in the astronomical Do. In light of the fact that AA used its credit cards in the Gu or in the △△-gu, △-si, the same as the above address from the time of the incorporation of the company in this case, the company in this case appears to have worked in the above workplace, and even though AA had not worked in the office, it is difficult to deny the fact of service in the company in this case.

(b) Whether it constitutes a case where the attribution is unclear;

1) AA’s assertion

The Defendant disposed of the instant disposition as a bonus to AA, a representative, on the ground that the ownership of the instant income amount is unclear, and then disposed of the instant disposition. However, the amount equivalent to the instant company’s property was leaked to DD, a representative of CCC, as HH (hereinafter “HH”). As such, the person to whom the instant income amount reverts is CCC. Therefore, the instant disposition based on the premise that the person to whom the instant income amount reverts is unclear is unlawful.

2) Determination

A) As long as the revenue of a corporation that was released from the company without being recorded in the account book is not clear, the tax authority is bound to dispose of it as a bonus for the representative pursuant to Article 67 of the Corporate Tax Act and the proviso of Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act, so long as the revenue of the corporation is not recorded in the account book, and in this case, the burden of proving that the ownership is clear exists on the taxpayer (see Supreme Court Decision 2010Du20805, Mar. 28,

B) In full view of the purport of the entire pleadings in the statement No. 17, the company of this case acknowledged that it did not report corporate tax for the business year 2012, and there is no other evidence to prove that the company of this case entered the instant income in the account book. Accordingly, AA must prove that the ownership of the instant income amount is apparent, but there is no evidence to prove that this is not.

Therefore, the argument of the AA on this part is without merit.

4. Conclusion

Thus, the claim of AA is without merit, and it is dismissed and it is so decided as per Disposition.

(c)