Cho Gyeong 2014 Deputy 4504

The disposition imposing a comprehensive income tax on the plaintiff who is the representative director on the registry shall be paid in full.

In light of the fact that the plaintiff is the representative of a corporation under the name of the plaintiff and has a separate representative, but is registered as the representative director on the corporate register, the disposition of income as bonus and the disposition of imposing the comprehensive income tax is legitimate.

Article 67 of the Corporate Tax Act

Article 106 of the Enforcement Decree of Corporate Tax Act

2015Guhap213 Global Income and Revocation of Disposition

AA

○ Head of tax office

November 18, 2015

December 16, 2015

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the Plaintiff

Cheong-gu Office

The imposition of global income tax of KRW 0,000,000 on the Plaintiff on June 11, 2014 shall be revoked.

1. Basic facts

A. The plaintiff was registered as the representative director of the company of △△△ (hereinafter referred to as the "company of this case") established on October 0, 000 and closed on October 00, 2000, as the representative director of the company of △△ (hereinafter referred to as the "company of this case").

B. As a result of the investigation following the occurrence of non-conforming data on the tax invoice of the instant company, the Defendant deemed the supply price of KRW 00,000,000,000 received from another company in the second quarter of year 201 as the processing tax invoice received from the other company without real transaction and corrected corporate tax by including the amount of KRW 00,000,000 in the gross income. Furthermore, the Defendant disposed of the amount included in the above gross income as the bonus to the Plaintiff who was the representative director who was the representative director, and notified the change in the amount of income. However, upon receiving the notice of change in the amount of income, the Plaintiff did not file a comprehensive income tax return for the year 201. On October 0, 2000, the Defendant determined the amount of KRW 0,000,000 for global income tax for the year 20,000 as the total amount of the Plaintiff’s global income (hereinafter “instant disposition”).

C. The plaintiff was dissatisfied with the disposition of this case and filed an appeal with the Tax Tribunal on October 0, 000, but the Tax Tribunal dismissed it on October 0, 000.

2. Whether the lawsuit of this case is lawful

A. The plaintiff's assertion

The actual representative director of the instant company, who actually operates the said company, is BB. The Plaintiff lent his name to BB and was registered as the representative director, and did not participate in the management of the said company. Therefore, the instant disposition imposing the general income tax on the Plaintiff, who is not BB, is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) The Plaintiff was registered as the representative director of the instant company from Oct. 0, 000 to Oct. 00, 000. Meanwhile, the instant company was registered as the representative director on Oct. 00, 000 and retired on Oct. 00, 000, and thereafter, the Plaintiff was registered as the representative director, and thereafter, DD was appointed as the representative director from Oct. 00, 000 to Oct. 00. BB did not have any registration as the executive officer of the instant company.

2) According to the shareholders status of the instant company in 000, the CCC held 00,000 shares (0.00%) among the total shares of 00,000 shares, EE held 0,000 shares (0.00%), FF’s 0,000 shares (0.00%), GG’s 0,000 shares (0%), and HH’s 0,000 shares (0%). BB did not have been registered as shareholders of the instant company from 000 to 000 shares.

3) According to the integrated national tax computer network data, BB is confirmed to have no earned income, dividends, interest income, etc. in the instant company.

4) The JJ, the ASEAN of BB, received a considerable amount of money from the instant company from around October 0, 000 to around October 00, 000. In addition, the instant company confirmed on October 0, 000 the details of remitting KRW 00,000 to the Plaintiff.

D. Determination

1) Even if a person is registered as a representative director on the corporate register of a company, if the company does not actually operate the company, no comprehensive income tax shall be imposed on such person by devolving upon the income of which the company is missing (see Supreme Court Decision 88Nu3802, Apr. 11, 1989). Meanwhile, since a person who is registered as the representative director on the corporate register can be presumed to have actually been operating the company, the fact that the representative director on the corporate register actually failed to operate the company must be proved by the party asserting that he/she was actually operating the company (see, e.g., Supreme Court Decisions 2010Du1816, Dec. 23, 2010; 2006Du187, Apr. 24, 2008).

2) The circumstances shown in the above facts are as follows.

① The Plaintiff asserts that BB could not become the representative director of the company due to personal reasons. However, there is no evidence to verify the reasons why BB could not be registered as the representative director (it can be confirmed that BB is registered as the representative director of the company ○○○○).

② According to the statement (No. 3) of KK as shown in the Plaintiff’s assertion, the person who made the statement (KK) was employed in the company of this case at the recommendation of BB in October, 000. At the time, the representative of the company was employed as LL, BB was the actual manager of the company of this case from the time when the departure was recommended, and the payment relationship after the departure was determined through BB, and LL was the representative, but was not involved in the actual management. However, according to the wage and salary payment statement (No. 3-1 and 2) of the company of this case in 00 and 000, it is difficult for KK to believe that it was difficult for KK to deem it as its employee.

③ According to the CCC’s statement (Evidence A No. 4), the person who was the representative director of the instant company (CCC) entered into a contract for transfer and acquisition of the instant company with BB on October 00, 000, and as BB becomes unable to take office as the representative director due to the credit problem, BB was appointed to the representative director of the instant company. However, CCC did not report the change of shares, and CCC did not have registered as a continuous shareholder, it is difficult to believe the above statement of CCC as it is.

④ The Plaintiff asserts that, in light of the fact that the JJ, the ASEAN of the BB, received a considerable amount of money from the instant company, BB used the account of the JJ while substantially operating the instant company. However, it cannot be readily concluded that the Plaintiff’s above assertion is true solely on the basis of the fact that such a certain transaction details are confirmed, and as seen earlier, as long as not only the details of remittance from the instant company, but also the fact that the JJ transferred money to ○○○, Inc., and that ○○○○ again transferred money to the instant company, it is difficult to understand the meaning of the said transaction.

(5) In addition, the content of MM’s written statements (Evidence A) and DD statements (Evidence A9) shall also contain the Plaintiff’s assertion unilaterally or voluntarily, and it is difficult to believe the content thereof.

3) In full view of the above circumstances, the evidence submitted by the Plaintiff alone is insufficient to recognize that BB was practically operating the instant company, and there is no evidence to acknowledge otherwise.

4) Therefore, according to the legal principles as seen earlier, it is presumed that the Plaintiff, registered as the representative director of the instant company, was operating the instant company, and thus, the instant disposition imposing the global income tax on the Plaintiff is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.