Whether the income omitted from sales of a corporation belongs to the representative under the name of the corporation

The fact that the representative director in the corporate register actually failed to operate the company must be proved by the person who asserts it, but is not alleged, so that the income omitted from the corporate sales is deemed as the representative in the name of the name of the party is legitimate

Article 67 of the Corporate Tax Act

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of global income tax of KRW 621,983,230 on April 1, 2004 against the Plaintiff and KRW 109,062,280 on global income for the year 2001 shall be revoked.

1. Details of the disposition;

A. From March 26, 2001 to March 11, 2002, the Plaintiff was registered as a representative director in the corporate register of ○○○○○○ (hereinafter “non-party company”).

B. As a result of the tax investigation on the non-party company, the director of the regional tax office of 00 head of the regional tax office discovered that the non-party company omitted sales of KRW 1,094,061,00 in the business year 2001 and KRW 277,266,00 in the business year 202 and included it in the gross income, and then disposed of the non-party company as the representative director in the corporate register of the non-party company for the above period, considering it as unclear income

C. On April 1, 2004, the Defendant notified the Commissioner of ○○ Regional Tax Office of the foregoing taxation data as above, issued the instant disposition imposing and notifying the Plaintiff of global income tax of KRW 621,983,230, and global income tax of KRW 109,062,280 for the year 202.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 4 evidence, Eul 1-1, 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The non-party company is a company in which Kim○-○ actually operated, and the plaintiff temporarily lent its name upon the request of Kim○-○, and did not have engaged in the management of the non-party company at all, and merely dealt with the business, such as formally accounting and tax reports according to the direction of Kim○-○. Thus, the disposition of this case against the plaintiff who is merely a representative in the name of the non-party company was unlawful since

(b) Related statutes;

Article 14 of the Framework Act on National Taxes

(1) If the ownership of the income, profit, property, act or transaction subject to taxation is nominal and there is another person to whom it actually belongs, the tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.

○ Article 66 of the Corporate Tax Act, Decision and Correction

(2) Where a domestic corporation makes a report under Article 60 falls under any of the following subparagraphs, the superintendent of the district tax office having jurisdiction over the place of tax payment or the Commissioner of the competent Regional Tax Office shall correct the tax base and

1. Where there are errors or omissions in the contents of the report;

In filing a report on the tax base of corporate tax on income for each business year under the provisions of Article 60 or in determining or revising the tax base of corporate tax under the provisions of Article 66 or 69, the amount included in gross income shall be disposed of as bonus, dividend, other outflow from the company, internal reserve, etc. according to the person to whom it belongs as prescribed by the Presidential Decree.

Article 106 of the Enforcement Decree of the Corporate Tax Act

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of under the provisions of the following subparagraphs. The same shall 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 each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed as accrual to the representative (where the total number of stocks held by an officer who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30% or more of the total number of stocks issued or total investment amount of the relevant corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation which has been exempted from withholding taxes under the provisions of Article 46 (12) of the Restriction of Special Taxation Act reports that there is a separate representative among the officers who are stockholders, etc., the reported person shall be the representative, and where there are

C. Determination

(1) The recognition contribution system for a representative under Article 106(1) of the Enforcement Decree of the Corporate Tax Act does not provide that such a representative shall not be based on the facts that the representative has generated such income, but shall be deemed as a bonus for a non-conditional representative regardless of its substance with respect to certain facts recognized as such in order to prevent an unfair act under tax laws by a corporation. The representative shall be a de facto representative operating the company. Thus, even if the representative is registered on the corporate register, if there is no actual operation of the company, such recognition income shall not be levied on the representative, unless it is actually operated by the company. However, since it can be presumed that the representative director is actually operating the company, the representative director shall be presumed to have actually operated the company, and therefore, the fact that the representative director failed to actually operate the company in the corporate register must be proved by

(2) It is insufficient to conclude that the Plaintiff was the de facto representative director of the non-party company by entering the above ○○○○○○○○○ Construction Co., Ltd.’s 10 and 17-34 (including serial number) and testimony of the non-party company 2, 3, 4-1, 5-2, and 12 on the following grounds: (a) the Plaintiff acquired the clothing manufacturer Co., Ltd.’s ○○○○○○ Construction Co., Ltd.’s 10 and 70 million won and transferred its shares to the non-party company as its representative director on March 26, 201; and (b) the Plaintiff did not have any reasonable ground for signing a lease agreement with the non-party company’s 400 and 737-32, 3000,000,000 won on the non-party company’s 1’s ○○○ Construction Co., Ltd.’s 200.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.