Seocho 2014west 4390 (Law No. 15, 28 August 2015)

The special relationship between the corporation and the representative and the shareholders is extinguished by transferring the shares and the management right.

It is reasonable to view that the Plaintiff terminated the status as a person with a special relationship with the corporation due to the transfer of shares and the transfer of management rights, and so long as it is difficult to view that the special relationship between the Plaintiff and the instant company was maintained until the merger date of the instant company, the disposition of this case where the Plaintiff imposed a comprehensive income tax for 09 years on different premise

Article 52 of the Corporate Tax Act § 67 of the Corporate Tax Act to deny wrongful calculation

Seoul Administrative Court 2015Guhap80154 global income and revocation of disposition

AA

○ Head of tax office

2016.05.13

2016.06.15

1. The Defendant’s disposition of imposing global income tax of KRW 000 (including additional tax) on the Plaintiff on May 8, 2014 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. BB (Co., Ltd. incorporated PP into a wholly owned subsidiary on August 2, 2005 through an all-inclusive share swap, and changed its trade name to BB on Oct. 0, 2006, and hereinafter “instant company”) was established on Oct. 00, 2008 x 199 x 200 x 00 x 00 x 00 x 00 m., and the Plaintiff was listed to the KOSDAQ market on Oct. 00, 2005. The Plaintiff held office as the director of the instant company from Oct. 00 to Oct. 00, 2005, and the representative director of the instant company from Oct. 00 to Oct. 0, 2006.

B. From April 201 to June 201 of the same year, the director of the Seoul Regional Tax Office conducted an integrated investigation into corporate taxes with respect to the instant company, and then withdrawn from Oct. 0, 2005 to Oct. 0, 2006 under the name of short-term loans and advance payments from Oct. 31, 2006 to Dec. 31, 2006 to Dec. 31, 2007, the Plaintiff notified the Defendant of the disposition of income of the instant company’s business year (i.e., January 1, 2009 to Oct. 31, 2006) that the amount of 00 won and the amount of 00 won (hereinafter “unrepaid claim”) among the company’s funds that were used for personal purpose, was not repaid until Jan. 0, 2009 when the special relationship between the Plaintiff and the instant company ceased to exist.

C. Accordingly, on May 8, 2014, the Defendant decided and notified the Plaintiff of KRW 000 of global income tax (including additional tax) for the year 2009 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 4, 2014, but the Tax Tribunal dismissed the Plaintiff’s appeal on August 28, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5 through 9, Eul evidence Nos. 1, 2 and 4, the purport of the whole pleadings

2. The plaintiff's assertion

A. The Plaintiff’s obligation to the instant company was extinguished by a management transfer agreement on October 00, 2008, and the special relationship between the Plaintiff and the instant company had already been extinguished by the Plaintiff’s transfer of shares and the resignation of directors in 2008. In 2009, the Plaintiff was not an officer or employee of the instant company, and thus, the instant disposition that imposed the Plaintiff’s comprehensive income tax for which the Plaintiff imposed the global income tax for 2009 by applying the wrongful calculation denial provision on different premise is unlawful.

B. In order to dispose of the unpaid claim of this case as the "contribution against the plaintiff" under the Corporate Tax Act, the defendant should be recognized as "amount included in the calculation of gross income". The defendant cited Article 11 subparagraph 9-2 (a) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302 of Feb. 4, 2009) and the general rules of the Corporate Tax Act (amended by Presidential Decree No. 21302 of Feb. 4, 2009) as the legal basis of the disposition of this case, however, the above

The above basic rules also violate the principle of no taxation without law. In addition, since the company of this case cannot be deemed to have avoided tax burden by withdrawing profits equivalent to the amount of the unpaid claim or exempting the debt to the plaintiff, the provision of denial of wrongful calculation under Article 52 (1) of the former Corporate Tax Act (amended by Act No. 9346 of Jan. 30, 2009) alleged by the defendant cannot be applied. Therefore, the disposition of this case is unlawful because it lacks legitimate legal basis.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

(a) Facts of recognition;

1) From January 00, 2005 to June 00, 2006, the Plaintiff entered into a contract to transfer 000 won of the shares of the instant company held by the Plaintiff on August 00, 2008 (17.6% of the shares of the instant company (hereinafter referred to as “DD”) to EE and LABD (hereinafter referred to as “share transfer contract”) among the 000 won borrowed from the instant company as of August 00, 2006.

2) On September 00, 2008, the Plaintiff received KRW 000 out of the transfer price under the said stock transfer contract on the date of the contract, and agreed that the said transferee shall pay the unpaid bonds to the instant company by way of redemption on September 0, 2008.

3) The above transferee entered into a stock acquisition agreement with the Plaintiff as well as the Plaintiff, F and GG, the largest shareholder of the instant company, and the F and major shareholder. The transferee failed to pay the acquisition price agreed by September 00, 2008. Accordingly, on September 00, 2008, the instant company announced that the stock acquisition agreement entered into between the Plaintiff and the Plaintiff, F and GG was terminated as of September 00, 2008 through the electronic publication system of the Financial Supervisory Service.

4) On October 00, 2008, the Plaintiff and the instant company and the instant company and the instant company for the management of HH (hereinafter referred to as “H”) agreed to prepare a “agreement on the transfer of management rights” (hereinafter referred to as “Agreement on the transfer of management rights by October 00, 2008”) and transfer the management rights to HH. In lieu of the instant unclaimed claim, the Plaintiff agreed to transfer the damage claim owned by the JJ (the transferee of the stock transfer contract by August 00, 2008), E, and DD to the instant company.

5) On November 00, 2008, H acquired the entirety of F’s shareholding, and became the largest shareholder of the instant company. On December 00, 2008, H changed the trade name to “BB of the instant company” and merged H on January 00, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 9, Eul evidence Nos. 7, 10, and 11, the purport of the whole pleadings

B. Whether the instant disposition is lawful

1) The Defendant had a special relationship with the Plaintiff as a major shareholder of the instant company by January 00, 2009, which was the date of the merger between H and the instant company. The instant company did not recover the instant unrecovered claim by January 00, 2009, and did not have any justifiable reason to recover, and issued the instant disposition by applying the unfair act of calculation on the ground that the instant disposition was lawful.

2) Article 52 (1) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter referred to as the "former Corporate Tax Act") provides that "where it is deemed that the tax burden of a domestic corporation on the corporation's income is unjustly reduced due to transactions with a person with a special relationship prescribed by the Presidential Decree (hereinafter referred to as a "specially related person"), the head of the district tax office having jurisdiction over the place of tax payment or the head of the district tax office having jurisdiction over the place of tax payment may calculate the corporation's income for each business year regardless of the corporation's act or calculation of the income amount (hereinafter referred to as "Calculation by wrongful act")." Article 67 of the former Corporate Tax Act provides that "in filing a report on the tax base of corporate tax on the income for each business year under the provisions of Article 60, or determining or revising the corporate tax base under the provisions of Article 66 or 69, the amount included in gross income shall be disposed of as prescribed by the Presidential Decree, such as bonus,

In addition, Article 87 (1) 1 through 3 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22951, Jun. 3, 201; hereinafter "former Enforcement Decree") provides that "a person who has a special relationship as prescribed by Presidential Decree" under Article 52 (1) of the former Enforcement Decree of the Corporate Tax Act refers to a person who is recognized as exercising a de facto influence on the management of the corporation (including a person who is deemed a director under Article 401-2 (1) of the Commercial Act) such as exercising the right to appoint and dismiss officers of the corporation, determining the business policy, etc. (including a person who is deemed a director under Article 401-2 (1) of the Commercial Act), a shareholder, etc. (excluding a minority shareholder), a relative (excluding a minority shareholder), or a person other than an employee or employee of the corporation, etc., who maintains his livelihood by means of money or other assets of the corporation or stockholder, and a relative (a related person) who makes his livelihood with such person.

According to the above provisions, the calculation of wrongful calculation under the Corporate Tax Act must meet the requirements such as ① a transaction with a corporation and a person with a special relationship, ② an improper act or calculation of income amount of a corporation, ③ such act or calculation of income amount should reduce the tax burden on the corporation’s income.

3) As seen earlier, the Defendant: (a) deemed that the special relationship between the Plaintiff and the instant company ceased to exist on January 00, 2009; and (b) deemed that the special relationship between the Plaintiff and the instant company ceased to exist on the same day; and (c) accordingly, the Plaintiff asserts that the special relationship between the Plaintiff and the instant company was extinguished as of December 31, 2008, because all of the shares of the instant company were transferred in 2008 and resigned as an executive officer; (d) on the other hand, the Defendant asserted that the special relationship between the Plaintiff and the instant company was extinguished as of August 00, 208, as the contract was terminated, the Plaintiff still held 17.6% of the shares issued by the instant company; and (e) the Plaintiff exercised de facto influence on the management of the instant company even after resignation from the position of the director of the instant company, and thus, the special relationship between the Plaintiff and H was extinguished on January 0, 2009.

A) First of all, as to whether the Plaintiff was in the shareholder status of the instant company by January 0, 2009, the following circumstances, namely, ① the audit report on the business year (from January 1, 2008 to December 31, 2008) of the instant company, as of the end of 2007, the Plaintiff held 00 shares of the instant company as of the date of 2007 business year, but the Plaintiff did not hold all the shares of the instant company at the end of 2008 business year, ② the Plaintiff appears to have sold all shares of the instant company to the Plaintiff on August 0, 2008, based on the Plaintiff’s report on the merger with the electronic public disclosure system of the Financial Supervisory Service, and the Plaintiff appears to have purchased shares of the instant company at the time of 200 days after the Plaintiff’s failure to return the shares to its original state.

B) Next, as to whether the Plaintiff is deemed to exercise de facto influence over the management of the pertinent corporation by January 0, 200, including exercising the right to appoint and dismiss executives until January 0, 2009, and determining business policies, according to the health records of Eul and Eul evidence, in the case where the instant company filed a complaint for occupational embezzlement, etc. on January 0, 2010, MM present at the ○○○ Provincial Police Agency as the representative of LL (the instant company’s representative director at the time of the instant complaint) was primarily responsible for the management of the instant company’s funds, and the Plaintiff was also in charge of the management of the instant company’s funds. The Plaintiff, on the corporate register of the instant company, stated that the Plaintiff was retired from the representative director and the director’s position on March 00 and July 008, 2008, while performing a de facto business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-related business-.

그러나, 앞서 든 증거들 및 갑 제2호증의 기재에 의하여 인정되는 다음과 같은 사정들, 즉 ① 위 MM은 위와 같은 진술을 하면서 HH가 2008. 10. 00.자 경영권양도 합의서에 따라 그날로 이 사건 회사의 경영권을 인수하였고, 원고는 'HH에서 경영권을 인수하기 전까지' 실질적 경영자 역할을 하였다고 진술한 점, ② 위 형사사건은 원고가 2006. 2. 00.부터 2006. 6. 00.까지 이 사건 회사의 자금을 개인적인 용도로 사용한 것이 업무상횡령에 해당하는지 여부를 판단하면서 원고가 2006. 7. 00.까지 이 사건 회사를 실질적으로 경영하였다는 사실을 인정한 것에 불과한 점, ③ 위 분기보고서 및 합병신고서의 기준일은 모두 위 합의서 작성일 이전이고, 그 이후에도 원고가 이 사건 회사의 임원으로 재직하였음을 인정할 자료는 없는 점, ④ 2008. 10. 00.자 경영권양도 합의서상 원고와 이 사건 회사의 의무사항으로 '2008. 12. 00. 임시주주총회에서 HH가 지정하는 자가 이사, 감사로 선임되는 건과 정관변경의 건이 통과될 수 있도록 하여 실질적으로 경영권이 HH에게 이전되도록 하고, 위 합의일로부터 3일 이내에 기존 임원들의 사임서와 사임등기에 필요한 제반서류 일체를 HH에게 교부하며, HH가 지정하는 NN을 합병등기일까지 고문으로 위촉하고, NN의 지시와 동의를 얻어 업무 및 경영계획을 처리한다'는 내용이 기재되어 있으며, 이에 따라 실제 2008. 12. 00.자로 이 사건 회사의 기존 대표이사, 이사, 감사 등이 사임하고 새로운 임원들이 취임하였으며, 같은 날짜에 이 사건 회사의 상호 역시 '주식회사 BB'로 변경된 점. ⑤ 원고가 2006. 3. 00. 및 2008. 7. 00. 각각 이 사건 회사의 대표이사 및 이사의 직위에서 퇴임하였음은 앞서 본 바와 같고, 이후 원고는 2008. 10. 00. QQ(2008. 8. 00. ○○프로그램 제작, ○○제작 및 ○○수입 등을 사업목적으로 하여 설립된 회사로서 2009. 2. 00. PP로 상호 변경)의 대표이사로 취임한 점 등을 종합해보면, 앞서 인정한 사실만으로는 원고가 2008. 10. 00.자 경영권양도 합의서에 따라 HH에 경영권을 양도한 이후에도 2009. 1. 00.까지 이 사건 회사의 경영에 사실상 영향력을 행사하였다는 점을 인정하기에 부족하고, 달리 이를 인정할 증거가 없다.

4) Therefore, it is reasonable to view that the Plaintiff’s status as a specially related person to the instant company was extinguished by the Plaintiff’s transfer of shares and the transfer of management right in 2008. As alleged by the Defendant, insofar as it is difficult to view that the special relationship between the Plaintiff and the instant company was maintained until January 009, 2009, as alleged by the Defendant, the instant disposition imposing the Plaintiff’s comprehensive income tax for the year 2009 on different premise is unlawful (as long as the instant disposition was revoked by accepting the Plaintiff’s assertion on this part, the remaining assertion by the Plaintiff is

5. Conclusion

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