The propriety of the assertion that the representative is the nominal representative against the bonus disposition based on the corporate tax estimate.

Since it can be known that the representative director actually exercises his authority on a certain portion and actually participated in the management, it is difficult to regard him as a nominal representative director solely for the reason of a separate

Article 106 of the Enforcement Decree of the Corporate Tax Act, Article 20 of the Income Tax Act, Article 14 of the Framework Act on

[Seoul High Court Decision 2004Nu10564, 2005)]

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's each disposition of imposition of KRW 40,213,290 on global income tax in 2000 against the plaintiff on January 1, 200 and KRW 4,021,320 on global income tax in 200, KRW 1,612,030 on global income tax in 201 and KRW 679,220 on resident tax shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as stated in the reasoning column for the judgment of the court of first instance, in addition to using the 11 to 15th of the judgment of the court of first instance as follows. Thus, it is citing it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts to be dried;

According to the above facts, the plaintiff could be aware that he actually exercised his authority as the representative director of the ○○○ Relocation and actually participated in the management of the ○○○○ Relocation.

It is difficult to see the Plaintiff as a representative director on the pretext of the ○○○○ Relocation, solely on the ground that there exists a separate controlling shareholder of the former theory. In particular, the former ○○○ appears to have been in a position to act as a representative director on the pretext of the former ○○○○○○○○○○○’s theory, and the provisions on joint representative director with the former ○○○○○○○○○, the wife of the former ○○○○○○○, was temporarily closed on December 15, 1999, but the Plaintiff was temporarily appointed as the representative director, even though it was not easy to work as a representative director on the part of the former ○○○○○○○, solely because the Plaintiff was in a position to act as a representative director on the part of the former ○○○○○○○○○○’s representative director, who is in a de facto controlling shareholder, or in a position to act on the part of the latter ○○○○, and the Plaintiff could not be deemed to have actually performed the administrative affairs related to the use of new building.

Therefore, the instant disposition that deemed the Plaintiff as the representative of the ○○○○ Relocation is lawful.

Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17457, Dec. 31, 2001; hereinafter the same) provides that “If an officer who is not a minority shareholder under Article 87(2) and another person with a special relationship owns 30/10 or more of the total number of shares issued or total investment amount of the pertinent corporation, the officer shall be his/her representative if he/she actually controls the operation of the corporation” (see, e.g., Supreme Court Decision 200Da1060, Sept. 16, 200). Thus, the Plaintiff’s assertion that “○○○○○ and ○○○○○○○ is not a 6th executive officer’s representative director’s position, but rather a 30-year representative director’s total number of shares held or held by the said person with a special relationship, and thus, the Plaintiff’s assertion that the above 2000 ex officio shares cannot be interpreted through the former director’s position.

In addition, the plaintiff argues to the effect that ○○○○ or Gab○○ is a representative in conformity with the provisions of the Enforcement Decree of the former Corporate Tax Act because ○○○ or Gab○○ was not an officer, and therefore, Gab○○ or Gab○○ cannot be a representative under the provisions of the former Enforcement Decree of the Corporate Tax Act, since Gab○○ or Gab○, who was a director, was in a position of a representative in line with the provisions of the former Enforcement Decree of the Corporate Tax Act. However, as seen in the provisions of the former Enforcement Decree of the Corporate Tax Act, the plaintiff asserts that the plaintiff was a nominal representative director. However, as long as Ga○○ or Gab○○ does not have such managerial status, the plaintiff's assertion

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2003Guhap3926, May 14, 2004]

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 40,213,290 of global income tax in 2000 against the Plaintiff on January 1, 2003 and KRW 4,021,320 of global income tax in 200, and KRW 1,612,030 of global income tax in 201 and KRW 679,220 of resident tax shall be revoked.

1. Details of the disposition;

A. From January 22, 2000 to April 16, 2001, the Plaintiff was registered as the representative director on the corporate register of ○○○ Special Corporation (hereinafter “○○ Special Corporation”).

B. The head of Sungnam District Tax Office having jurisdiction over the location of the ○○○ Relocation did not report the corporate tax base for the business year 2000 and 2001, but determined the corporate tax base and the tax amount for the business year 2000 and 2001 of the ○○○ Relocation, he deemed that the amount of KRW 102,571,971 and the amount of KRW 45,640,516 for the year 200 among the income of the ○○○○○ Relocation shall be reverted to the Plaintiff, who is the representative of the ○○○○○ Relocation Relocation, was disposed of as a bonus for the Plaintiff, and then notified the Defendant having jurisdiction over the Plaintiff’s domicile of the total amount of income tax on each of the above recognized commercial incomes.

C. Accordingly, on January 1, 2003, the Defendant imposed on the Plaintiff KRW 20,213,290 of global income tax in 200 and KRW 4,021,320 of resident tax in 200, and KRW 6,79,270 of global income tax in 201 and KRW 679,220 of resident tax in 201 respectively.

D. Afterwards, the Defendant notified from the head of Sung-Nam District Tax Office on May 6, 2003 that the amount of the ordinary income for the year 2001 was less than KRW 23,624,686, less than the initially notified amount of KRW 45,604,516, and on June 30, 2003, the Defendant reduced the amount of the global income tax for the year 2001 to KRW 1,612,034 for the Plaintiff (hereinafter above part of the global income tax and the resident tax imposition disposition on January 1, 2003).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2; Eul evidence Nos. 1, 2; Eul evidence Nos. 1 and 2-1, 2, 3-1, 3-3; all the arguments

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case against the plaintiff, who is not the actual representative of the ○○○○○ Relocation, was unlawful since it was registered only on the corporate register as the representative director, and there was no actual exercise of authority as the representative director or any participation in the management of the ○○○○○○ Relocation, and there was no income such as salary, etc. as the representative director.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Article 106 (1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17457 of Dec. 31, 2001) does not provide for the representative based on the fact that such income has accrued to the representative, but provides that a certain fact which can be recognized as such act in order to prevent unfair conduct under tax law by a corporation shall be deemed as a bonus to a de facto representative regardless of its substance. The representative shall be the de facto representative of the company. Thus, even if the company was registered as the representative director of the company, if there is no actual operation of the company, the estimated income shall not be imposed on the representative, nor shall the comprehensive income tax be imposed on the representative, or because the person who is registered as the representative director on the corporate register shall be presumed to actually operate the company. Thus, the fact that the representative director failed to substantially operate the company under the corporate register shall be proved by the person who asserts it.

Therefore, according to each description of evidence No. 3-2, No. 9, and No. 10-4 as to whether the Plaintiff’s nominal representative director who did not participate in the management of the ○○○○○○○ Relocation was seriously involved in the decision-making of the said apartment building as the de facto controlling shareholder of the ○○○○○○○○○○○○○○○, but in full view of the purport of the oral argument in the statement No. 10-6 of the evidence No. 10-1, No. 80-1, No. 80-3, No. 80-4, and No. 80-4, No. 80-4, the Plaintiff may recognize the fact that he was appointed by the representative director to conduct the administrative affairs related to the completion inspection of the said apartment building, and received KRW 10,000 as remuneration.

According to the above facts, the plaintiff actually exercised the authority of the representative director of the ○○ Relocation and actually participated in the management of the ○○○ Relocation. Therefore, it is difficult to view the plaintiff as the representative director of the ○○○○ Relocation on the sole basis of the existence of a separate controlling shareholder of the ○○○ Relocation.

Therefore, the instant disposition that deemed the Plaintiff as the representative of the ○○○○ Relocation is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation on the premise that the disposition of this case is unlawful is dismissed as it is without merit. It is so decided as per Disposition.

[Supreme Court Decision 2005Du8030 (No. 18, 2008)]

The appeal is dismissed.

Costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

원심은 그 채택증거에 의하여 원고가 ◯◯◯◯주식회사(이하'◯◯◯◯'이라 한다)의 사실상 지배주주들인 전◯◯와 박◯◯의 이해관계를 조정하고, ◯◯◯◯ 소유의 원심판시 신축건물의 준공검사 등 행정업무를 수행하기 위하여 ◯◯◯◯의 대표이사로 취임한 후, 위 전◯◯와 박◯◯ 사이의 이해관계를 조정· 중재하는 역할과 원심판시 신축건물 준공검사에 관련된 행정적 업무를 실제 수행하였고, 그 대가로 약정한 보수의 일부를 받은 사실을 인정한 다음, 원고는 ◯◯◯◯의 대표이사로서의 권한을 일정부분 실제로 행사하고 ◯◯◯◯의 경영에 실질적으로 관여한 자로서 대표자 인정상여처분의 대상이 되는 대표자에 해당하고, ◯◯◯◯의 지배주주가 따로 있다는 이유만으로 원고를 ◯◯◯◯의 명목상의 대표이사라고 보기 어렵다고 판단하였다. 관련 법령과 기록에 비추어 살펴보면, 위와 같은 원심의 사실인정과 판단에 상고이유로 주장하는 바와 같은 채증법칙 위배 등의 위법이 없다.

2. As to ground of appeal No. 2

The purpose of the Corporate Tax Act is not to provide the representative with the basis of the fact that such income has been generated, but to allow the representative to consider a certain fact that can be recognized as such in order to prevent unfair conduct under tax laws by a corporation as a bonus to a de facto representative regardless of its substance (see, e.g., Supreme Court Decision 92Nu3120, Jul. 14, 1992). In particular, in cases where a bonus is disposed of to the representative after calculating the tax base by the method of estimated investigation and determination, whether the difference between the net income on the tax base determined by the method of estimated investigation and determination and the balance between the net income on the balance sheet of the corporation and the corporation (referring to the amount which has not been deducted as corporate tax) has been leaked out of the company, or if it was leaked outside of the company, whether it actually reverts to anyone (see, e.g., Supreme Court Decision

원심판결 이유와 기록에 의하면,◯◯◯◯이 2000 및 2001 사업연도 귀속 법인세를 신고하지 아니하자, ◯◯세무서장이 법인세 과세표준을 추계조사·결정 방법에 의하여 산정한 후 법인세를 부과하면서, 위 법인세 과세표준에 해당하는 금액(◯◯◯◯의 대차대조표에 의한 당기순이익은 자료를 제출하지 아니하여 공제하지 아니하였다)을 당시 법인등기부상 대표이사인 원고에게 상여로 처분하였고, 이에 따라 피고가 이 사건 종합소득세 부과처분을 한 사실을 알 수 있는바, 위와 같은 사정을 앞서 본 법리에 비추어 보면, 원고에게 상여로 처분된 금액이 실제 누구에게 귀속되었는지 여부는 이사건 대표자 인정사여 처분 및 종합소득세 부과처분의 위법 여부와 상관이 없다고 할 것이다.

따라서 원고에게 상여로 처분된 금액이 전◯◯나 박◯◯에 귀속되었음을 전제로 이 사건 종합소득세 부과처분이 실질과세의 원칙에 위배되는 것으로서 위법하다는 원고의 상고이유에 관한 주장은 더 나아가 살펴볼 필요 없이 받아들일 수 없다.

3. As to ground of appeal No. 3

The main text of Article 106 (2) of the Enforcement Decree of the Corporate Tax Act provides that the difference between the net income per books and the net income on the tax base and the balance sheet of the corporation determined by the estimate investigation and determination (referring to the amount equivalent to the corporate tax not deducted) shall be the bonus from the disposal of profits to the representative, and the proviso of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17457 of Dec. 31, 201; hereinafter referred to as the "former Enforcement Decree") which provides for the representative under Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17457 of Dec. 31, 201) shall be the representative if the total number of stocks owned by a stockholder who is not a minority stockholder under Article 87 (2) of the former Enforcement Decree and a person with a special relationship under paragraph (4) of the same Article owns more than 30

원심판결 이유와 기록에 나타난 사실관계에 의하면, 원고가 위 특례규정 소정의 대표자에 해당된다고 주장하는 전◯◯, 박◯◯는 ◯◯◯◯의 법인등기부상 대표이사나 이사로 등재되지 아니한 자들로서 대표이사나 이사의 업무를 실제 행하였다고 볼 수 없어 위 특례규정 소정의 '주주 등인 임원'이 아니라고 할 것이고, 같은 정◯◯나 박◯◯은 ◯◯◯◯의 주주 겸 이사이나 ◯◯◯◯의 경영을 사실상 지배하고 있는 경우'라고 볼 수 없어 위 특례규정 소정의 인정상여 처분의 상대방이 되는 대표자에 해당되지 아니한다고 할 것이다.

Although the reasoning of the court below on this part is inappropriate, the conclusion that rejected the plaintiff's assertion is just, and there is no error in the misapprehension of legal principles as to the representative prescribed by the special provisions of the court below.

4.In conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.