Early High Court Decision 201J 2646 ( October 28, 2011)

The argument that part of the amount leaked out of the private company was returned is legitimate because it is not reliable.

The assertion that part of the goods was actually returned out of the amount that was leaked out of the private capital is not reliable, and there is no evidence to prove that the omitted amount was not leaked out of the private capital, and thus a disposition to recognize the omitted amount of sales is legitimate.

2012Guhap1226 For the purpose of revoking the imposition of the income tax, if the representative director is recognized

XX

Head of the District Tax Office

September 7, 2012

October 19, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of rectification of KRW 000 of the global income tax for the year 2005 against the Plaintiff on September 9, 2010 shall be revoked.

1. Details of the disposition;

A. On January 2005, the Plaintiff, while working as the representative director of the XX 17-4 company at the south of the wife population in Chungcheongnam-si, supplied 00 won (the unit price of 00 won, 68,030 won, value-added tax 00 won, and hereinafter referred to as the “instant goods”) with the 4-type sets, etc. of automobile hand-free goods to the XX Energy Co., Ltd. (hereinafter referred to as “P Energy”), but omitted in the sales declaration in 2005, even though the Plaintiff supplied 00 won (the unit price of 00 won, 68,030 won, and 00 won of value-added tax).

B. On April 6, 2007, the Plaintiff closed the instant company on August 31, 2007 without reporting and paying the representative labor income tax, when filing a revised corporate tax return with respect to the omitted sales return for the year 2005 of the sales revenue (hereinafter “the instant omitted sales amount”). However, the Plaintiff disposed of the instant amount as the bonus as the representative’s bonus after filing a revised tax return on corporate tax for the omitted sales return for the year 2005.

C. On December 2, 2008, the Defendant issued a disposition to correct the Plaintiff’s global income tax amounting to KRW 000,000. However, the Defendant revoked the disposition of the above decision of correction in accordance with the mediation recommendation order issued by the Suwon District Court (No. 2010Guhap1072) that a tax notice by public notice is unlawful, and re-determined and notified the Plaintiff on September 9, 2010 (hereinafter “instant disposition”).

D. The Plaintiff filed an appeal on July 18, 201 upon filing an objection, but the Tax Tribunal dismissed the Plaintiff’s claim on October 28, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence No. 1 (including numbers for a natural disaster; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff only lost the supplier’s tax invoice due to negligence and omitted the declaration, thereby voluntarily filing a revised return, and received KRW 000 as the price for the instant goods supplied to XX energy, and the sales claim is extinguished due to the return of the goods equivalent to the remainder of KRW 000. As such, the instant disposition of this case, which was imposed by disposing of the omitted amount as a representative bonus, is unlawful.

B. Relevant statutes

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

C. Determination

If a juristic person fails to enter its sales in the books despite the fact of sales, the total amount omitted from sales shall be deemed to have been leaked out of the books, barring any special circumstance. In such cases, the special circumstance that the amount omitted from sales shall be proved by the juristic person claiming it, and even if the amount received by the juristic person as a profit of the juristic person is not finalized and the cash, which is the counterpart account, was entered in the provisional account, was entered once into the juristic person, and thus, the other party account was entered. Thus, if the contents of the provisional account were to enter the short-term loan transactions from the representative director, and it is proved that it was an obligation against the representative director in the future, such transactions are unrelated to the profits or expenses of the juristic person, and thus, such transactions do not entail the change or increase of the net assets of the juristic person, and thus, it shall be deemed that the amount omitted from sales as profit of the juristic person was already leaked to the above representative director and thus, should be deemed to have been reverted to the other party (see, e.g., Supreme Court Decision 2002Du3612.

In light of the fact that the issue date of the tax invoice for return of the goods of this case in amount of KRW 9,10,14, and 15 was 10 days before the date of return of the Plaintiff’s assertion, and that there was no content of return in the settlement of accounts in 2005, it is difficult to believe that the Plaintiff received KRW 000 as part of the price of the goods of this case, and there is insufficient evidence to acknowledge any special circumstance to deem that the omitted amount of the sales of this case was not leaked out of the price of the goods of this case. The Plaintiff’s assertion is without merit, since there is no evidence to acknowledge otherwise.

3. Conclusion

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