Omission of the relevant sales by means of management using a borrowed account shall be deemed to constitute an unlawful evasion of corporate tax;

If the sales were omitted in the tax return by means of managing the borrowed account, it is reasonable to see that the act of illegally evading corporate tax by concealing the plaintiff's income.

Article 40 (Business Year of Profit and Loss in Corporate Tax Act)

2015Guhap22880 Revocation of Disposition of Imposing corporate tax, etc.

AA

The Director of the PPP Tax Office

on January 30, 2016

October 11, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s corporate tax of 89,523,440 won for the Plaintiff on June 5, 2014, and the corporate tax of 2008 for the Plaintiff.

48,352,490 won and each disposition of imposition and notice of change in the amount of income shall be revoked.

1. Details of the disposition;

A. Plaintiff 1) is a corporation established on March 16, 2006 for the purpose of manufacturing and selling vessel structures.

B. The Defendant conducted an integrated investigation on the Plaintiff from April 14, 2014, and investigated and confirmed the fact that the Plaintiff’s failure to report KRW 674,440,00 (hereinafter “the omitted sales amount”) out of the sales amount of by-products (in scrap metal) generated in the process of manufacturing vessel structures from 2006 to 2008 and the omission amount was attributed to theqqq of the Plaintiff’s representative director.

C. On June 5, 2014, the Defendant issued a disposition to correct and notify the Plaintiff of the omitted sales amount of KRW 1,464,60 in the business year of 206, KRW 89,523,440 in the business year of 207, and KRW 48,352,490 in the business year of 208 (hereinafter “instant disposition to impose corporate tax”).

D. The Defendant notified each change in income amount of KRW 1,206,00 for income for the year 2006, KRW 487,324,100 for income for the year 2007, and KRW 171,83,90 for income for the year 2008 (hereinafter referred to as the “instant notice of change in income amount,” and the “the instant disposition in total”).

E. On August 29, 2014, the Plaintiff filed a claim with the Tax Tribunal for the revocation of the instant disposition.

1) The first trade name was sexually Co., Ltd., but was changed to the current trade name on March 1, 2015.

On June 19, 2015, the Tax Tribunal rendered a decision that "the measure of this case is to review whether the qq waives the amount for the purpose of returning the omitted amount of high iron sales, and to correct the notification amount of changes in the tax base, amount of duty and amount of income according to the results of the review."

F. According to the above decision, the Defendant conducted a reinvestigation from June 29, 2015 to July 17, 2015, and did not rectify the notice amount of change in the tax base, amount of tax, and amount of income, and did not impose the same disposition on the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 8 (including Serial number; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

A. Disposition of imposition of corporate tax of this case

1) At the time of the establishment of the Plaintiff, the qqqq, the representative director of the Plaintiff, was deposited into the borrowed name account without appropriating part of the turnover generated in the process of manufacturing vessel structures in the corporate book with the implied consent of the officers and employees, and was distributed to the officers and employees for the remaining amount as piece rates.

2) The Plaintiff’s shareholder and auditor’s www pressured the qq to file a criminal charge on the charge of raising funds in relation to the omission of high steel sales. The qq with outside experts, etc., decided to return the instant amount of sales omitted by offsetting the amount of funds that the qq has against the Plaintiff by waiver of the claim against the Plaintiff. On April 1, 2008, 200, 160,364,000 won were waived, respectively.

3) As such, the qq waived the instant provisional payment twice for the purpose of returning the omitted sales amount, and the Plaintiff was included in the profit from debt exemption. As such, 660,364,00 won, an amount equivalent to the instant provisional payment, which was included in the omitted sales amount, should be deducted from the Plaintiff’s income amount. Nevertheless, the Defendant was found to have committed the instant corporate tax disposition without deducting it.

B. Notice of the change in the income amount of this case

1) As long as the instant disposition of imposing corporate tax is unlawful, the notice of the change in the amount of the instant income premised on it is also unlawful. In addition, KRW 171,833,90 equivalent to the amount omitted in scrap metal in 2008 was included in gross income as the exemption profit from the Plaintiff’s obligation under the Plaintiff’s settlement of accounts in 2008 and was not flown out of the company. Therefore, this portion should be

2) The disposition of income by recognizing the qq that is the subject of the instant notice of change in the income amount was based on the amount reverted to the year 2006, 2007, and 2008, and the exclusion period of imposition of income tax due to the recognition and contribution shall be five years pursuant to Article 26-2(1)3 of the Framework Act on National Taxes. As such, the exclusion period of imposition of income tax due to theqq’s income should be extended to June 1, 2014 at the latest. However, the notice of change in income amount was made on June 5, 2014, and thus, the exclusion period of imposition was imposed.

3. Relevant statutes;

It is as shown in the attached Form.

4. Facts of recognition;

A. The Plaintiff was established on March 16, 2006, and the composition of shareholders and executive officers at the time are as listed below.

B.qq used part of the turnover from the company’s initial financial resources, etc. to manage it in a separate account without appropriating it in the corporate account book and used it as business expenses for officers and employees.

C. From June 29, 2006 to May 31, 2007, the amount omitted in sales was approximately KRW 181,000,000, and thereafter, the amount omitted in sales was approximately KRW 307,000,000.

(d)qs shall be 100,000,000 in the name of the principal on June 1, 2007 and e in the name of e as spouse(s).

400,000,000 won and 100,000,000 won were deposited in the Plaintiff’s account in the name of rr, which is a child.

E. The plaintiff's letter of disbursement includes that the qq is received from the plaintiff from June 29, 2007 to September 30, 2008 in the amount of KRW 5 million to 6 million per month as interest for provisional receipts.

(f) The letter of waiver of a provisional loan prepared by theqq on April 1, 2008 contains the following: "qq shall waive the plaintiff's claim 660,364,00 won of the provisional debt amount to the plaintiff until December 31, 2008. Where the plaintiff waives the provisional debt amount, the plaintiff shall waive the plaintiff's claim for the q's voluntary use from the proceeds of scrap metal sales after the opening date of business and the equivalent amount. If the q waives the provisional debt amount, the plaintiff shall waive his claim for the payment of the equivalent amount. The plaintiff shall not be held liable for any civil criminal liability for the q." The plaintiff's qq is stated as the point of time when the plaintiff renounced the provisional debt amount to the plaintiff on April 1, 2008 and September 160, 2008, 364,000 won on September 164, 2008, each of the above statements and the balance are as follows.

The balance of the provisional deposit;

From December 29, 2006 to April 1, 2008 716,614,000 won 500,000 won

From April 2, 2008 to September 1, 2008 160,364,000 won 160,364,00 won

Above September 2, 2008 to December 31, 2008 KRW 36,138,700

Total 674,44,00 won 660,364,000

G. The Plaintiff reported the amount of waiver of the above provisional collection to the gross income with the profit from debt exemption in 2008. In the audit report of the corporation in 2008, the Plaintiff stated that “a major shareholder renounced the claim of KRW 660,364,00 for the amount of the provisional collection that he/she had held in the corporation in order to improve the financial structure of the Plaintiff, and the Plaintiff shall include it as the profit from debt exemption.”

H. qq was subject to a tax investigation on April 2014, and “from 2006 to 2013, the sales of scrap metal 1,224,982,470 won was deposited into an individual account of yyy orq and reported and paid the said amount under his/her own tax base and tax amount such as value added tax. The said amount was not issued and has not been counted as value added tax base and corporate tax revenue amount. The said omitted amount was not deposited into the corporate account but used by the representative himself/herself” and signed and sealed a written confirmation.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 4, 5, Eul evidence 2 and 5, witnessqs and the purport of the whole pleadings

5. Determination

(a) Imposition of corporate tax;

1) The key issue of the instant case is whether the qq is deemed to waive the claims for the purpose of returning or recovering the omitting amount of scrap metal sales, and whether the Defendant would deduct the amount equivalent to the provisional receipts from the Plaintiff’s income amount out of the amount of earnings earned by the Defendant.

2) In full view of the following circumstances as a whole, it is difficult to view that the qq renounced its claim for the purpose of returning or collecting the omitted amount of sales, taking into account the facts acknowledged earlier and the facts stated in subparagraphs 1 through 8 above, and the purport of the entire pleadings. Accordingly, the disposition imposing corporate tax in this case is lawful, and the Plaintiff’s assertion is without merit.

A) The Plaintiff deemed that the instant provisional revenue was premised on the collection of the omitted amount of sales (the preparatory document as of January 25, 2016). However, the Plaintiff’s deposit of KRW 600,000,000 as of June 1, 2007, which was the time when the Plaintiff deposited KRW 600,000,000, is merely about KRW 181,000,000 and does not coincide with each other.

B) In addition, April 1, 2008, the amount of outflow from the company on April 1, 2008, which was at the time of waiver of the primary amount of outflow from the company, KRW 596,027

In addition, even though the balance of the available amount was 716,614,000 won and qq was abandoned only 500,000,000 won out of the available amount, and on September 1, 2008, at the time of the renunciation of the second available amount, the outward amount was 42,27,500 won out of the available amount, but the remaining amount was 160,364,00 won out of the available amount, such as the full waiver of the remaining balance of the available amount was 160,364,00 won.

C) The Plaintiff asserted that the initial qqq was deposited in the company on the premise of the recovery of the omitted sales amount, i.e., deposit in accordance with the process of collecting the credit for sales of scrap iron.

However, the argument that the witnessqq was present at this court on May 3, 2016 as a witness and deposited 600,000,000 won as of June 6, 2007, which was not the company's funds because it was difficult for it to put it into a match and that it was not for the return of the omitted amount of sales. In this case, the plaintiff's argument on the motive and circumstance of the provisional deposit money is inconsistent.

D) For the Plaintiff’s audit report in 2008, major shareholders (qq) shall improve the financial structure of the corporation.

For purposes of this, it is only stated that a waiver of a claim for the amount of gold and no particular reference is made to the recovery of the amount of scrap metal. A letter of confirmation drawn up by qq from 2006 to 2013 after undergoing a tax investigation on April 2014 also received 1,224,982,470 won of sales of scrap metal from 2006 to yyy orq from 2013. There is no fact that it has been counted as value-added tax base and corporate tax revenue for the said deposited amount. The above omitted amount is not deposited into a corporate account, but used by the representative himself/herself, and there is no indication on the recovery of the amount of scrap metal omitted.

If the qqqq, as the plaintiff's assertion, gives up the credit for the recovery of the non-refluent scrap, the qq seems to have stated without fail the facts favorable to himself.

e)qs will pay interest on each month from the end of June 2007 to the end of September 2008.

If the qqs as the plaintiff's assertion made a payment for the collection of the omitted sales amount, there is no reason to receive interest (the plaintiff argues that it is the actual receipt of the person in charge of accounting, but it is difficult to believe that it is true).

F) The agreement signed between the Plaintiff and theq on April 1, 2008 on the waiver of the Daehan (No. 3) dated 1, 2008

qq stated that it has waived 660,364,00 won to the plaintiff until December 31, 2008. However, the balance of the provisional deposit to the plaintiff qq as of April 1, 2008, which was drafted by the above agreement, was not KRW 660,364,000, not KRW 716,614,000, and even according to the plaintiff's assertion, the provisional deposit that the plaintiff decided to waive was finalized as KRW 660,364,000, and in light of the above contents, it is difficult to recognize the credibility of the above agreement on the grounds that it was not retroactively prepared since September 1, 2008.

G) The evidence No. 6, for which the Plaintiff asserted as evidence to recover the sales proceeds of scrap iron sales, states that the content of the Plaintiff’s agent sent it to yyy, and that the sales proceeds of scrap iron sales in qq, belonging to the Plaintiff and reflected in the company’s financial statements. However, this is merely the Plaintiff’s proposal or opinion, and therefore, it cannot be proven that the sales proceeds of scrap metal have been recovered by itself.

H) In addition, the Plaintiff had consulted external tax affairs, legal experts, and methods of recovering the omitted amount of sales at the time of waiver of the provisional payment, but there is no evidence to acknowledge it.

(b) Notification of changes in income amount;

1) Whether it constitutes an outflow from the company

The facts of the omission in sales of this case, the facts of the omission in sales of this case, the fact that theqq used it as officers and employees' business expenses, etc., and the fact that it is difficult to see the omission in sales of scrap metal to waive the claims for the purpose of returning or collecting the omission in sales of scrap metal as mentioned above. Thus, the notice of the change in the income amount issued to the plaintiff on the premise that the omission in sales of this case was

(Plaintiff) The amount omitted from sales in 2008 shall be included in the calculation of the gains from debt exemption under the settlement of accounts and reported thereon.

Although it is alleged that the omission of sales was not disclosed from the company, there is no evidence to prove that the omission of sales was appropriated as the profit from debt exemption, this part of the assertion is without merit).

2) Whether the exclusion period has expired

A) Relevant legal principles and precedents

(1) "Fraud and other unlawful acts" under Article 26-2 (1) 1 of the Framework Act on National Taxes shall be the tax collector.

It can be interpreted as "Fraud and other unlawful acts" under Article 9 of the Punishment of Tax Evaders Act. "Fraud and other unlawful acts" refers to fraudulent and other active acts which make it impossible or considerably difficult to impose and collect taxes, and in the crime of tax evasion, "the person liable to pay taxes has the intention to commit a crime" refers to the fraudulent and other unlawful acts which are committed by him, while recognizing that the act constitutes fraud and other unlawful acts and recognizing that the act of the person liable to pay taxes results in tax evasion (see Supreme Court Decision 2004Do817, Jun. 29, 2006).

② Meanwhile, pursuant to the provisions of the Corporate Tax Act, the amount of income disposed of as a bonus for a representative of a corporation is deemed to have been paid by the corporation on the date of receipt of the notice of change in income amount. This is merely a legal fiction as it does not mean that the corporation actually pays the amount of income to the representative. In order to establish the corporate withholding obligation, the income tax liability of the source taxpayer should be deemed to have been paid at the time of receipt of the above notice of change in income amount, which is the time of establishment. If the source taxpayer’s tax liability for income tax has already been extinguished due to the intent of exclusion period for imposition of income tax, the corporate withholding obligation cannot be established (see Supreme Court Decisions 85Nu451, Mar. 14, 198; 91Da40931, Sept. 22, 1992).

(3) In addition, the Supreme Court shall receive false tax invoices from the representative of a corporation and keep them on the account

In a case where an excessive appropriation of the input amount and concealed income, it is difficult to view that a taxpayer under Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same shall apply) on income tax due to such recognition and contribution disposition is "a case where the taxpayer evades national taxes by fraudulent or other unlawful means," and the exclusion period for imposition of income tax for the portion belonging to the corresponding year is 5 years pursuant to Article 26-2 (1) 3 of the same Act (Supreme Court Decision 2007Du11382, Apr. 29, 2010).

[Reference]

(4) The Supreme Court and the representative of a corporation are corporations in the course of embezzlement of corporation funds.

Even in the case of an act of manipulating books, etc., such an act is to conceal the fact that the embezzlement amount is deducted, and it is difficult to view that the tax authority’s disposal of the embezzlement amount is expected to take place in the future, and it is to evade the income tax on the bonus to be reverted to it. Thus, the taxpayer under Article 26-2(1)1 of the former Framework Act on National Taxes does not constitute “the case where the taxpayer evades the national tax by fraud or other unlawful act” (see Supreme Court Decision 2007Du20959, Jan. 28, 2010).

B) Amendment, etc. to the relevant legislation

(1) The former Framework Act on National Taxes shall apply to the exclusion period for national taxes under Article 26-2 (1) 1.

If a taxpayer evades a national tax or obtains a refund or deduction by fraud or other improper means, it shall be limited to 10 years from the date on which the national tax can be imposed.

According to the amendment of Act No. 11124, "in case of national tax evaded, refunded or deducted by unlawful act, it shall be for 10 years from the date on which income tax or corporate tax can be imposed on the amount disposed of in accordance with Article 67 of the Corporate Tax Act in relation to the case of national tax which is refunded or deducted by unlawful act (hereinafter referred to as "coverage provision"), and Article 2 of the Addenda of the Act provides that "the latter part of Article 26-2 (1) 1 of the Act shall apply from the amount disposed of in accordance with Article 67 of the Corporate Tax Act first on or after January 1, 2012."

② Meanwhile, according to the purport of Articles 38 and 59 of the Constitution that provides for the principle of no taxation without law, citizens

In principle, a provision imposing a new tax liability or a new tax liability heavier than the previous one may be applicable only where the requirements for imposition are met after its enforcement (see, e.g., Supreme Court en banc Decision 2008Du17363, Sept. 2, 2011). The retroactive application of a new tax liability or a new tax liability heavier than the previous one may be set by law only where it is inevitable to realize the principle of fair taxation, or where it is necessary for public welfare (see, e.g., Supreme Court Decision 81Nu423, Apr. 26, 1983).

(3) Retroactive legislation has already been terminated by a new legislation or legal relationship.

It can be divided into a genuine retroactive legislation that can be applied to the existing facts or legal relations. Among them, a genuine retroactive legislation that intends to deprive an individual of his/her legal status already formed under the existing law through a post legislation is a principle of the rule of law that does not be permitted by the principle of the law of law that covers the protection of the individual's trust and legal stability. However, in principle, a quasi-petition retroactive legislation is limited in the course of a bridge between the reasons for the public interest requesting retroactive effect only if permitted in principle, and the reasons for personal protection requesting the protection of trust. Furthermore, the principle of legal non-payment means that the relevant law cannot be applied to the facts completed before the entry into force of the relevant law, and it does not limit the application of the law to the pending facts or the requirements that occurred thereafter (see, e.g., Supreme Court Decisions 93Nu20726, Feb. 25, 1994; 201Du5705, Nov. 13, 2001).

C) Determination

In light of the above legal principles, the exclusion period for imposition of income tax ofqqs at the time of notification of change in the income amount of this case was not imposed, and the notification of change in income amount of this case is lawful, and the plaintiff's assertion is without merit.

① A part of the total sales amount of scrap metal that the Plaintiff received between 2006 and 2008 is a shareholder.

The sales of yyy, etc., an executive officer of interest, were omitted in a tax return by means of managing the relevant transaction account. This is reasonable to view that the act of illegally evading corporate tax by concealing the Plaintiff’s income is an act of evading corporate tax (see, e.g., Supreme Court Decisions 2015Du45274, Oct. 14, 2015; 98Do869, Jun. 23, 1998).

(2) Provided, That the plaintiff's representative qq is made by the tax authorities' disposition of income in the future.

The exclusion period for taxation on income tax for the year 206, 2007, and 2008 shall be five years pursuant to Article 26-2 (1) 3 of the former Framework Act on National Taxes, and the exclusion period for taxation for income tax for the year 2008 shall expire five years from May 31, 2007, which is the due date for filing a report, five years from May 31, 2008, and May 31, 2008; and May 31, 2009, May 31, 2009.

③ However, it was newly established by Act No. 11124 on December 31, 201 and was first established after January 1, 2012.

The key provisions applicable to the amount disposed of pursuant to Article 67 of the Corporate Tax Act provide that the exclusion period of imposition of income tax, etc. shall be 10 years for the amount disposed of in accordance with Article 67 of the Corporate Tax Act if the national tax evaded by unlawful act or refunded or deducted by unlawful act is corporate tax. In this regard, the exclusion period of imposition of income tax, etc. on the amount disposed of in accordance with Article 67 of the Corporate Tax Act is 206, 2007, 2008, and 2008 as of January 1, 2012 when the dispute provisions were enforced, the exclusion period of imposition for five years for the income tax belonging to theq was not set at the time of January 1, 2012. Therefore, the key provisions were to be applied to the income tax belonging to theq in 2006, 2007, 2007, and 2008, but have not yet been completed,

④ Accordingly, the 2006, 2007 and 2008 of the qs obtained from the disposal of income of this case

Since the exclusion period for income tax is 10 years in accordance with the key provisions, the exclusion period for imposition of income tax for the year 2006, 2007, and 2008, which is the date of notification of change in income amount to the plaintiff by the defendant, did not impose the exclusion period for imposition as of June 5, 2014.

6. Conclusion

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