Daejeon District Court 2013Guhap2817 ( August 13, 2014)

The amount of outflow from the company due to a false invoice receipt shall be reverted to the representative director in the business year 2008.

It is reasonable to view that false construction cost based on the instant invoice remains in the credit purchase account, and it was leaked to the company during the business year of 2008. It is reasonable to view that the Plaintiff’s representative director’s income was generated during the 2008 fiscal year.

Article 21 of the Framework Act on National Taxes

2014Nu11432 and revocation of the detailed statement on Class A earned income and disposition thereof.

In February 7, 2012, which is the date of imposition, the exclusion period remains.

Therefore, this part of the prior plaintiff's assertion is without merit on different premises.

3) Sub-decisions

Therefore, the instant disposition is lawful, and the Plaintiff’s claim is without merit.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

A

○ Head of tax office

Daejeon District Court Decision 2013Guhap2817 Decided August 13, 2014

October 16, 2014

November 6, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court shall be revoked. The defendant's work for Class A belonging to the plaintiff on February 7, 2012 for the year 200.

The imposition of income tax of KRW 000,000 shall be revoked.

1. Details of the disposition;

A. On November 2, 2004, the Plaintiff entered into a contract with the contractor, contractor, 00 units, contract amount of KRW 8,768,00,00 with the △△△ Eup on a new apartment construction project (hereinafter “instant contract”).

B. On October 31, 2005, the 00-type case issued an invoice of KRW 600 million (hereinafter “instant invoice”) as the additional construction cost, and sent the amount of KRW 600 million as stated on the instant invoice to the Plaintiff, and there was no additional construction corresponding thereto. The Plaintiff reported the instant amount to be included in deductible expenses in the sales cost in the business year 2006, but the 00-type case did not report the instant amount as the sales amount.

D. On January 2, 2009, the Defendant: (a) deemed the instant invoice as a processing invoice; (b) deemed that the processed purchase amount equivalent to the instant amount was included in deductible expenses in the business year of 2006; and (c) notified the Plaintiff of the correction and notification of corporate tax of KRW 46,115,320; and (d) on December 1, 2011, deeming that the instant amount equivalent to the instant amount was leaked outside the company in 2008, but the ownership was unclear, and thus, disposed of as bonus to the representative director at the time, and notified the Plaintiff of the change in the amount of income; (c) on February 7, 2012, the Plaintiff did not withhold and pay the labor income tax, and (d) notified the Plaintiff of the imposition and notification of KRW 200,685,020, the Plaintiff filed for a tax judgment following an objection against the instant disposition, but was dismissed on June 28, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 4 through 6, Eul evidence Nos. 1, 2, 5, and 6 (including additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) No sales or purchase under the instant invoice did not occur. Since it was clearly confirmed that the instant amount was not out of the company, the instant disposition based on the premise of it is unlawful.

2) The Plaintiff wired KRW 600 million to 00 on October 31, 2005, on which the instant invoice was issued, via the bank account. Thus, even if the said amount was delivered to the Plaintiff’s representative director, the point at which the income accrued is not the business year of 2008 but the business year of 2005. Therefore, the instant disposition imposing the income tax on February 7, 2012, which was much more than five years after the exclusion period of imposition, is unlawful.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

(c) Fact of recognition;

1) With respect to the statement of purchase for the business year 2005, the Plaintiff: (a) paid the aggregate of the cost of external construction for the Class 00 households to KRW 9.368 billion (the sum of the cost of the instant contract and the amount of KRW 8.768 billion to the sum of the cost of the instant contract and the amount of KRW 600 million to the aggregate of the cost of the instant contract); and accordingly, (b) paid the remaining KRW 5.333 billion to the class 00 households on June 22, 2005, KRW 1.833 billion on August 31, 200, KRW 31,000 on August 31, 200, and KRW 5.38 billion on October 31, 200 on the credit purchase account (the sum of the paid cash and the purchase amount of external construction costs to the aggregate of the above external construction costs).

2) 5.338 billion won remaining in the credit purchase fund account after the end of 2006, accounting was performed as 967,811,430 won as of the end of 2006, 609,814,000 won as of the end of 2007, and as 0 won as of the end of 2008 by cash payment, etc.

[Reasons for Recognition] Each entry in the Evidence Nos. 1 through 4 (including paper numbers), the purport of the whole pleadings

D. Determination

1) As to the plaintiff's first argument, Article 67 of the Corporate Tax Act and the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act provide that "where it is clear that the amount included in the calculation of earnings has been released from the company in determining or correcting the corporate tax base, but it is unclear to whom the attribution has not been attributed, it shall be deemed to have been reverted to the representative." The representative recognition contribution system under the Corporate Tax Act is not based on the fact that such income has accrued to the representative, but its purpose is to make certain facts recognized as such act to prevent unfair act under the tax law be deemed as bonus to the representative without regard to the actual fact. In this case, unless it proves that the above amount included in the calculation of earnings clearly belongs to himself/herself, the representative is liable to pay Class A labor income tax regardless of whether it actually reverts to him/her (see, e.g., Supreme Court en banc Decision 2006Da49789, Apr. 18, 2008).

As seen in the above legal principles, paragraphs 1 and 2.c., the additional construction corresponding to the instant invoice was not conducted as seen in the facts of recognition, barring special circumstances, the instant amount is presumed to have been divulged as a processing expense. Therefore, the Plaintiff bears the burden of proving that the instant amount was not leaked out of the company, and there is no other evidence to acknowledge it.

Therefore, this part of the plaintiff's assertion that the amount of this case was not disclosed from the company is without merit.

2) If the Plaintiff’s second assertion that the withholding obligation is established, the income tax liability of the source taxpayer should be deemed to have been received at the time of receipt of the above notice of change in the income amount, which is the time of establishment. If the source taxpayer’s income tax liability has already ceased to exist due to the lapse of the exclusion period for imposition of income tax, etc., the corporate tax liability cannot be established. Thus, the notice of change in income amount issued thereafter shall be deemed unlawful (see Supreme Court Decision 2007Du1382, Apr. 29, 2010). In a case where the tax authority deemed that the gross income out of the tax office was reverted to an officer or employee and disposes of income as bonus, unlike the fact that the notice of change in income amount was delivered to the relevant corporation as the payer of income amount was established on the date of delivery of the said notice of change in income amount, it shall be deemed that the person liable for tax payment falls under 207(1)1(c) of the Framework Act on National Taxes and thus, it shall not be deemed that the same constitutes an amount subject to be deemed as bonus (see Supreme Court Decision 207Da160.

In light of the above legal principles, paragraphs 1 and 2.c., the facts revealed by adding the whole purport of the pleadings to the facts of recognition under the above legal principles, i.e., ① the 00 paper cases paid on October 31, 2005 without filing a sales report based on the statement of this case and the actual additional construction works were not actually carried out. The Plaintiff appears to have been paid as the repayment of construction costs under the contract of this case, not corresponding to the statement of this case. ② The amount of this case is continuously remaining in the accounts of accounts of accounts of accounts of accounts of accounts of accounts of accounts of accounts purchase even after 2006 in deductible expenses in 208. Since the amount of this case was received by the representative director on the date of receiving labor in 208, the liability to pay global income tax of the Plaintiff representative director is established as of December 31, 2008, ④ the period of exclusion from the period of exclusion from the imposition of global income tax can be calculated as of Article 26-2(1)3(1)5)1 of the Enforcement Decree of the Framework Act.