2015 Heavy242 (03.11)

Any disposition to recognize the representative director on his name shall be illegal.

The plaintiff who was registered as the representative director on the corporate register but did not actually participate in the management of the company is illegal.

Article 67 (Disposition of Income)

Article 106 (Disposition of Income)

2015-Gu Partnership-65088

AA

○ Head of tax office

. 2016.08

oly 21, 2016

1. On April 3, 2014, the Defendant revoked the disposition of imposition by the △△△△△△△△△△ for the Plaintiff in the year 2008.

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. DDD Co., Ltd. (hereinafter “instant company”) is a company established on July 25, 2007 for the purpose of electronic equipment and parts wholesale business, etc., and the Plaintiff was registered as the representative director of the instant company from November 28, 2007 to December 3, 2013.

B. The Defendant submitted a financial income statement by deeming that the instant company paid the interest expense for the year 2008 to Nonparty 2. However, the Defendant confirmed that there was no payment of interest as a result of the investigation, confirmed ○○○○○ won appropriated as the interest expense under the profit and loss statement, and notified the Plaintiff as the representative director at the time, and notified the Plaintiff of the disposition of income. On April 3, 2014, the Defendant issued a disposition of imposition of △△△△△△△△△△△△ in the taxable year 2008 (hereinafter “instant disposition”).

C. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection on July 10, 2014, but was dismissed on August 11, 2014, and filed a request for an inquiry with the Tax Tribunal, but was dismissed on March 11, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 8, and 9, the purport of the whole pleadings

2. The plaintiff's assertion

From November 28, 2007 to December 2, 2013, the Plaintiff was registered as the representative director on the corporate register of the instant company, but the Plaintiff was merely a representative director who lent only the name upon request by HH, and was not actually involved in the operation of the instant company. Thus, the instant disposition based on the premise that the Plaintiff was the actual representative director of the instant company was unlawful.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009) provides that "where it is clear that the amount included in gross income has leaked out of the company in determining or revising the corporate tax base, it shall be the bonus, dividend, other income, and other outflow from the company in the disposition of profits according to the person to whom the income belongs, but where it is unclear, it shall be deemed to have been reverted to the representative." In this context, the representative shall be the de facto operating representative of the company, and even if the company was registered as the representative in the corporate register, if the company had not been actually operated, such income shall not be attributed to the representative (see, e.g., Supreme Court Decision 2008Du10461, Dec. 23, 2010).

Meanwhile, since a person who is registered as a representative director on the corporate register can be presumed to have actually been operating the company, the representative director on the corporate register must prove the fact that he/she actually failed to operate the company (see, e.g., Supreme Court Decision 2006Du187, Apr. 24, 2008).

B. In light of the following facts and circumstances, the Plaintiff was registered as the representative director of the instant company in the form of corporate register and cannot be deemed to have actually operated the instant company. Thus, the instant disposition that deemed the Plaintiff as the representative director of the instant company and imposed the comprehensive income tax on the Plaintiff by devolving the income accrued to the Plaintiff, in light of the following facts and circumstances, without any dispute among the parties to the instant facts, or upon the testimony of Gap 3, 4, 10, 13, and 14, and the witness HH and SS comprehensively based on the overall purport of the pleadings.

① The Plaintiff did not receive benefits from the instant company for the period of registration as the representative director.

② A witness HH (the person who requested the Plaintiff to name) borrowed the name of the representative director from AA. The company of this case was to be established by the low, BB, and CCC, and the person who actually left for the account is BB. AA bears the testimony to the effect that only borrowed the name and has no connection with work. AAA bears the witness SS (the person who was registered as a director of the instant company) is the BB, HH, and CCC. The witness SS (the person who was registered as a director of the instant company) is the actual operator of BB, HH, and CCC. It also lends the name of the director upon request from BB. The Plaintiff is aware that there is no fact that the Plaintiff actually committed any act as a representative regardless of whether he was engaged in the (TTT) business or as a representative. In substance, the Plaintiff testified to the effect that the tax was 1/3 as the (1/3) person.

5. Conclusion

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