(영문) 광주지방법원 2017. 05. 11. 선고 2014구합12161 판결

According to the account details of account omitted and the statement of business registration holder, the sales omitted from each place of business of this case shall be attributed to the Plaintiff.

Summary

According to the account statement and the statement of the account holder omitted sales, the Plaintiff managed the omitted sales at each place of business of this case under the name of the Plaintiff himself/herself or a person in a family relationship or a person in a friendship relationship, and thus, the omitted sales at each place of business of this case

Related statutes

Article 14 of the Framework Act on National Taxes

Article 67 of the Corporate Tax Act

Cases

Gwangju District Court 2014Guhap12161 global income and revocation of disposition

Plaintiff

Defendant

○ Head of tax office

Conclusion of Pleadings

2017.27

Imposition of Judgment

1, 2017.05

Text

1. All of the plaintiff's claims are dismissed.

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

Purport of claim

The Defendant’s imposition of global income tax of KRW 42,757,420 for the year 2008 against the Plaintiff on October 1, 2013, global income tax of KRW 393,740,630 for the year 2009, and global income tax of KRW 726,205,640 for the year 2010 for the Plaintiff on November 1, 2013 shall be revoked.

Reasons

1. Details of the disposition;

A. On October 15, 2008, AA Co., Ltd. (the location: ○○○○-dong, 55, ○○-○○-dong, : ○○-○○○○-○○○○○○○) made the Plaintiff as its representative on October 15, 2008, BB (the location: ○○○○○-dong, 666, and the business registration number: ○○-○-○○○○○○○) made the representative of BB on July 1, 2009, as the representative of BB, and PP Co., Ltd. (the location: ○○○-dong, ○○-dong, 777, and the business registration number: ○○-○○-○○○○○) completed each of the above business establishments as the representative of CCC, and sold each of the above business establishments as 0 “OCC’s business establishment” (hereinafter referred to as “the above business establishment”).

B. From August 29, 2011 to December 31, 2011, the Defendant conducted an investigation into corporate and individual integration and value-added tax on each of the instant workplaces. As a result, the Defendant issued a notice of correction and corporate tax on the omitted sales at each of the instant workplaces. As a result, the Defendant: (a) deemed the actual person to whom the omitted sales accrue as the Plaintiff; and (b) deemed the Plaintiff as the Plaintiff on October 1, 2013; (c) imposed a disposition of imposition of global income tax of KRW 393,740,630, global income tax of KRW 393,740,630, global income tax of KRW 393,740,630, global income tax of KRW 209, global income tax of KRW 726,205,640, global income tax of KRW 2010 for each of the instant workplaces (hereinafter referred to as “each of the instant dispositions”).

Business Year

Places of business

Amount of authorized contributions (cost)

Global income tax (source)

208

AA Corporation

96,830,498

42,757,420

209

AA Corporation

285,482,697

393,740,630

BB Corporation

651,861,694

2010

BB Corporation

798,823,831

726,205,640

CC, Inc.

926,612,720

C. On January 20, 2014, the Plaintiff filed an objection seeking revocation of each of the instant dispositions with the ○○ Tax Office (each of the instant dispositions was served on October 21, 2013, November 8, 2013, and November 12, 2013) within the filing period, but the ○○ Tax Office dismissed the Plaintiff’s application on February 19, 2014. The Plaintiff appealed with the Tax Tribunal on May 1, 2014, but the Tax Tribunal decided to dismiss the request on September 18, 2014, and the Plaintiff filed the instant lawsuit on December 11, 2014, the filing period.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 15, 16, 17, 31 through 36, Eul evidence Nos. 1 through 4 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiff's assertion

1) BB actually operated each of the instant workplaces, and practically controlled and managed the property acquired thereby. Therefore, each of the instant dispositions based on the premise that the Plaintiff is the actual business operator of each of the instant workplaces is unlawful.

2) Even if the Plaintiff jointly operated each business of this case with BB, since the value of the BB real estate (951,958,000 won) acquired from the profit of each business of this case exceeds the value of the Plaintiff’s real estate (295,00,000 won) owned by the Plaintiff, the principal business proprietor of each business of this case is BB. Accordingly, the disposition of this case against the Plaintiff is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

1) Circumstances of the pertinent business establishment, etc.

A) Around October 1994, DB, the representative of BB, was ○○○○-dong 111 land and its ground storage (hereinafter referred to as “○○○-dong 111”) for the purpose of ecream distribution business. DB’s business registration was completed, and DB, the representative of BB, EE (hereinafter referred to as “E”) was established on July 2000 for the purpose of ○○○○-dong 3 real estate for the purpose of ○○○-dong 3,000 sales business. Upon the commencement of the tax investigation on EE around April 2006, EE was closed on October 2006, and the Plaintiff and BB, the couple of the Plaintiff, as well as the Plaintiff, completed the registration of ownership transfer on the land of ○○-dong 3, 2006 for the purpose of avoiding additional collection following the tax investigation.

B) On the other hand, on June 28, 1999, the service mark of "A" under the name of "A" was registered in BB, and its similar name was registered or applied until September 28, 2010 (hereinafter referred to as "related service mark, etc."). On August 25, 2006, the service mark of "A" was first used in the name of "OOOOOOOOOOOOOOOOOOOOOOOO" and "OOOOOOOOOOOOOOOOOOOOOOOOOO" and "OOOOOOOOOOO-5" and "OOOOOOOOOOOOO-5" and "OOOOOOOOOOOO-5" and "OOOOOOOOOOO-5" and "5'OOOOOOOOOOO-5".

2) Progress of divorce action between the Plaintiff and BB

A) On July 21, 1993, the Plaintiff and BB maintained their marital life. On November 2, 2006, the Plaintiff and BB filed a divorce report under the pretending to divorce for the purpose of evading the collection of additional tax as a result of the tax investigation on EE, and continued to file a divorce report on April 10, 2009. BB filed a lawsuit seeking divorce, consolation money, division of property, parental authority, child care, and child care against the Plaintiff on July 14, 2011. On October 21, 2011, the Plaintiff filed a lawsuit seeking the designation of divorce, consolation money, child care, and child care (hereinafter the aforementioned principal lawsuit and counterclaim together), and the 00 family court rendered a judgment on May 15, 2012, the Plaintiff and BB (the Plaintiff and BB Family Court) were dismissed as the Plaintiff and BB 9B Family Court’s counterclaim (the Plaintiff and BB 9B Family Court’s counterclaim).

B) Although ○ High Court appealed against BB, on June 13, 2014, rendered a judgment that “the part of the claim for division of property among the principal claim shall be dismissed, the counterclaim shall be dismissed, and the remainder of the appeal by BB shall be dismissed,” and the appeal by BB on November 27, 2014 was dismissed (○○ High Court 2013Red 2013Red 666 (principal lawsuit), divorce, etc.).”

[Reasons for Recognition] Facts without dispute, Gap's entries in Gap's 2 through 5, 8, 10, 12 through 17, 29, 30, 37, and the purport of the whole pleadings

D. Determination

1) Article 67 of the Corporate Tax Act provides that when filing a report on the corporate tax base on the income for each business year or determining or revising the corporate tax base, the amount included in the calculation of earnings shall be disposed of to the person to whom it belongs, as prescribed by Presidential Decree, such as bonus, dividend, outflow from the company, and internal reservation. Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 26981, Feb. 12, 2016; hereinafter referred to as the "former Enforcement Decree of the Corporate Tax Act") provides that where it is clear that the amount included in the calculation of earnings has been leaked out of the company, the person to whom it reverts shall be distributed, if the person to whom it belongs is a stockholder (excluding a stockholder who is an officer or employee). If the person to whom it is an officer or employee, the bonus for the person to whom it reverts, if the person to whom it is a corporation or an individual operating the business, or if it is unclear, it shall be deemed that it belongs to the representative (proviso).

2) As to whether the sales omitted from each of the instant places of business belonged to the Plaintiff, it is reasonable to deem that the sales omitted from each of the instant places of business was reverted to the Plaintiff in full view of the following circumstances, comprehensively taking into account the following circumstances, which are acknowledged by comprehensively taking account of the aforementioned evidence, the evidence as seen earlier, the evidence as well as the overall purport of the statements and arguments as indicated in subparagraphs A, B, 2, 3

A) In light of the account details of account omitted in sales and the statement of the account holder in the name of the business operator, the Plaintiff appears to have managed the omitted sales amount of each business establishment of this case by using an account from the Plaintiff himself/herself or a person in a relationship of family or friendship.

(1) The Plaintiff’s place of business (AA)

(1) The account (name of borrowed person) in which the amount of sales omitted is deposited.

Deposit Shares

Financial Institutions

Account Number

Period

Deposits (number of deposits)

Admission Amount (,000 won)

○ Bank

○○-○○

October 16, 2008

Above December 3, 2008

61,113

AB Bank

○○-○○

November 3, 2008

Above June 30, 2009

178,819

○ Bank

○○-○○

October 16, 2008

Above June 30, 2009

35,726

H H H

○ Bank

○○-○○

October 27, 2008

Above June 30, 2009

362

1,062,876

○ Bank

○○-○○

April 7, 2009

Above June 30, 2009

156,900

Total

1,795,434

(2) The plaintiff's statement

The sales of the Plaintiff’s place of business was made through the purchase cost under the franchise agreement using the “A 000” trade name, the interior cost, and the distribution supply. The profits therefrom were deposited into each account in the name of the Plaintiff, GG (Plaintiff), HH (Plaintiff’s speech), and JJ (Plaintiff’s omission), and the Plaintiff managed each of the above accounts.

(2) BB business name (B)

(1) The account (name of borrowed person) in which the amount of sales omitted is deposited.

Deposit Shares

Financial Institutions

Account Number

Period

Deposits (number of deposits)

Admission Amount (,000 won)

○ Bank

○○-○○

September 21, 2009

Above January 20, 2010

474

1,333,470

AB Bank

○○-○○

July 1, 2009

Above June 30, 2010

275

56,558

○ Bank

○○-○○

July 1, 2009

Above November 1, 2010

658,765

H H H

○ Bank

○○-○○

July 1, 2009

Above September 21, 2009

186

571,249

○ Bank

○○-○○

April 7, 2009

Above July 14, 2010

119

1,129,740

○ Bank

○○-○○

May 4, 2010

Above June 30, 2010

313

842,552

Total

5,092,334

(2) BB’s statement

In addition, the Plaintiff managed the corporate account in the name of BB. In addition, the Plaintiff did not know that the revenue from the business place in the name of BB was deposited in the name of the borrowed account through the expenses for subscription under the franchise store agreement using BB 00's trade name, the interior expenses, the distribution supply, etc. In fact, the Plaintiff, KK (the mother of the Plaintiff), HH (the Plaintiff's name), JJJ (the Plaintiff's omission), LLL (the Plaintiff's internal son's father), and the persons in a family relationship or relationship with the Plaintiff.

(3) The place of business in the name of the CCC (CC)

(1) The account (name of borrowed person) in which the amount of sales omitted is deposited.

Deposit Shares

Financial Institutions

Account Number

Period

Deposits (number of deposits)

Admission Amount (,000 won)

AB Bank

○○-○○

July 1, 2010

Above November 19, 2010

925

160,320

○ Bank

○○-○○

July 1, 2010

Above June 30, 2011

474,165

○ Bank

○○-○○

July 1, 2010

Above December 31, 2010

64,400

○ Bank

○○-○○

July 1, 2010

Above June 30, 2011

676

1,625,973

AB Bank

○○-○○

April 19, 2011

Above June 30, 2011

101,662

Total

2,426,520

2. Statement of CCC

The Plaintiff was in charge of logistics supply and new franchise consultation. The Plaintiff did not know that the CCC’s sales revenue was deposited into the borrowed-name account through the cost of subscription under the franchise agreement of the store using the 000's trade name, the test cost, and the distribution supply.

B) Details, etc. of financial transactions and real estate purchase related to each workplace of the instant case

(1) From May 10, 2010 to November 1, 2010 during the business period of each of the instant workplaces, the amount deposited from the customer to the account in the name of ○○ Bank in the name of MO’s father’s wife was returned in cash again, and most of the money was deposited into the account in the name of ○○ Bank in the name of the Plaintiff, a business account. A part of the money was used as business expenses or insurance premium, and the remainder was deposited into the account in the name of the Plaintiff, a non-business account, or ○○ Bank Fund Account in the name of the Plaintiff, a non-business account, and the money deposited into the said fund account was again deposited into the said business account or used for business expenses. However, the remainder was transferred to the ○○ Bank account in the name of the Plaintiff or the Plaintiff’s apartment bank in the name of ○○ Bank in the name of the Plaintiff, or most of the money transferred to the Plaintiff’s account in the name of ○○ Bank in the name of the Plaintiff or another account.

(2) While there is no real estate registered under BB’s name during the business period of each of the instant workplaces (i) while BB acquired subparagraph 9 of ○○○○○○ Dong 555 on August 13, 2008, it was before October 15, 2008, the Plaintiff’s place of business opened under the Plaintiff’s name, and thus, it is not related to the omitted sales amount of each of the instant workplaces. ② The Plaintiff asserted that the Plaintiff was under a title trust from BB with respect to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 777, which acquired ownership on March 24, 2011. However, there is insufficient evidence to acknowledge it differently, the Plaintiff acquired 17 buildings and land during the pertinent business period, and the confirmed value exceeds KRW 670,000,000, and each of the instant workplaces purchased real estate or all of the instant real estate in its name.

(3) If the Plaintiff, as described in paragraphs (1) and (2), was operating a franchise store business with BB using a trade name “A 000,” and managed the business income by depositing it in a borrowed account, etc., it is reasonable to deem that the omitted sales amount belongs to the Plaintiff, unless there is any circumstance that BB or corporation was returned. However, there is no presentation that BB managed or disposed of the omitted sales amount.

C) Results of investigation into accusation cases, such as tax evasion against the Plaintiff, BB, etc.

(1) Facts of accusation against the Plaintiff, BB, etc.

The plaintiff filed a complaint with the purport that "the plaintiff operates each FF in the name of the plaintiff and FF, and that "AA representative director, BB, andCC's financing officer, BB representative director, and the plaintiff's misleading CCC representative director. ① The plaintiff did not issue a tax invoice while operating each of the above businesses, and the above businesses and AA-related global income tax and corporate tax were evaded, ② the plaintiff and BB evaded the value-added tax and corporate tax related to the BB, and ③ the plaintiff and CCC violated the Punishment of Tax Evaders by evading the value-added tax and corporate tax related to theCC."

(2) Each statement during the investigation process

The Plaintiff, as stated in the above accusation, stated that BB was well aware of the fact that he had led to the act of tax evasion, but the BB was involved in the external business, etc., and stated that BB was only involved in the fund management by means of transfer from the customer using a borrowed account. CCC only borrowed the name upon the Plaintiff’s request, but it was immediately known that CCC was the Plaintiff and the actual operator of CCC was the Plaintiff, and that the money was deposited into its borrowed account, and then it was right to use the corporate account to the Plaintiff.

(3) On October 26, 2012, the prosecutor prosecuted the Plaintiff as a violation of the Punishment of Tax Evaders Act (at present, ○○ District Court 2012 high-ranking2233, continuing to proceed in trial). On the Plaintiff’s business establishment whose statute of limitations has expired, the prosecutor accepted each of the changes and issued a non-prosecution disposition against BB and CCC (suspect).

3) Therefore, regardless of whether the Plaintiff is a real business operator or a principal business owner, each of the dispositions in this case based on the premise that the omitted amount of sales at each of the instant places of business belongs to the Plaintiff is just and the Plaintiff’s assertion on the different premise is not accepted.

3. Conclusion

Since the plaintiff's claim is not correct, all of them are dismissed. It is so decided as per Disposition.

Site of separate sheet

Relevant Provisions

▣ 국세기본법 제14조(실질과세)

(1) If the title to the income, profit, property, act or transaction subject to taxation is merely nominal, and a person to whom such title belongs exists, tax-related Acts shall apply to such person to whom such title belongs as a taxpayer.

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply to the actual income, profit, property, act or transaction, regardless of its title or form.

▣ 법인세법 제67조(소득 처분)

When filing a report on the tax base of corporate tax on income for each business year pursuant to Article 60 or determining or correcting the tax base of corporate tax pursuant to Article 66 or 69, the amount included in the calculation of earnings shall be disposed of, as prescribed by Presidential Decree, such as bonus, dividends, other outflows, internal reserve, etc. to the person to whom the income belongs, etc.

▣ 법인세법 시행령 제106조(소득처분) (2016. 2. 12. 대통령령 제26981호로 개정되기 전의 것)

(1) The amount included in the calculation of earnings under Article 67 of the Act shall be disposed of in accordance with the provisions of the following subparagraphs. The same shall also apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed that it has been reverted to the representative (where an executive who is not a minority shareholder, etc. and persons with a special relationship under Article 43 (8) holds at least 30/100 of the total number of stocks issued or total amount invested in the relevant corporation and actually controls the operation of the corporation, he/she shall be deemed the representative, and where there are at least two representatives, de facto representative shall be the representative;

(a) Where the person of accrual is a stockholder (not including stockholders who are officers or employees), the dividends of the person of accrual;

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

(c) Other outflow from the company, if the person to whom it belongs is a corporation or an individual operating the business: Provided, That it shall be limited to cases where the dividend profit constitutes the income of a domestic corporation or a domestic business place of a foreign corporation for each business year, or the business income of a resident or a non-resident

(d) Other income of the person to whom the income belongs, in cases where the person to whom the income accrues falls.

▣ 소득세법 제20조(근로소득) (2016. 12. 20. 법률 제14389호로 개정되기 전의 것)

(1) Earned income shall be the following income, generated in the relevant taxable period:

3. The amount treated as a bonus under the Corporate Tax Act;