Cho High Court Decision 2008Do3014 ( October 16, 2009)

Disposition of income by estimation decision

However, the fact that there are documents among fire-related articles may be recognized, but it is difficult to conclude that they are books or evidence necessary for calculating the amount of income, although it is difficult to conclude that they are books or evidence necessary for calculating the amount of income.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

On January 14, 2008, the Defendant revoked a notice of change in income amount notification disposition against the Plaintiff.

1. Details of the disposition;

A. Plaintiff’s business: A report on the discontinuance of business on October 16, 2006 while running the housing construction and sales business, etc.

B. On January 14, 2008, the defendant's notice of the change in the original income amount

(1) The person to whom the income is reverted: literature of the representative director;

(b) Income amount reverted: ① 2,928,085,471 won in 2004; ② 5,93,158,195 won in 2005;

(c) Grounds for disposition: The sum of the amounts included in the calculation of earnings, such as the omitted amount of construction income in calculating the income amount for each business year, and the amount not included in the calculation of losses, shall be the bonus from the representative

(c) the procedure of the previous trial; each of the results of the objection and the decision of the tax trial;

(1) Results of the objection

- Determination by applying standard expense rates to the amount of income for each business year;

- Reduction of the income amount belonging to year 2004 751,248,232

(2) Determination of tax appeal

-presumed by applying simple expense rates to income for each business year;

- Reduction of income amount of 800,268,600 won for year 2004 (final 1,376,568,639 won)

- Reduction of income amount belonging to year 2005 4,769,126,348 (final 1,224,031,847)

(1) Each entry in Gap evidence 1-2, Eul evidence 1-2, 1-5, and 2-1 and 2-2, respectively, and the purport of the whole pleadings, as a whole, of each of the above final income.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was in custody of the account books, etc. in the second floor of juitius underground, which was operated by the juitius (the representative director of the Plaintiff). However, the fire that occurred on August 27, 2007 and the remaining account books and other documents were destroyed by flooding in the course of fire extinguishment. Therefore, since the account books, etc. were destroyed by fire fall under “where account books and other documentary evidence are destroyed by natural disasters, etc.” under the proviso of Article 68 of the Corporate Tax Act and Article 107 of the Enforcement Decree of the Corporate Tax Act, it shall not be disposed of as a bonus to the representative, and it shall be disposed of as other outflow from the company pursuant to the proviso of Article 106(2) of the Enforcement Decree of the Corporate Tax Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

According to the provisions of the above related Acts and subordinate statutes, when the corporate tax base on income for each business year is corrected, the amount included in gross income shall be disposed of as bonus, dividend, and other outflow from the company and internal reserve according to the person to whom it belongs. In case where there is no account book or documentary evidence necessary to calculate the amount of income in the correction of the tax base and amount of corporate tax, or where the account book or documentary evidence necessary to calculate the amount of income in the calculation of the amount of income in the calculation of the amount of income in the calculation of the amount of income in the calculation of the amount of income in the calculation of the amount of income in the absence of such account book or in a false relationship, the difference between the tax base and the net income on the balance sheet of the corporation

In this case, the question is whether the tax base and tax amount of each of the above business years were corrected by estimation due to natural disasters and so on (whether or not the last amount of income listed in paragraph 1(c)(2) as bonus for the representative or as other outflow from the company is determined, depending on whether or not the last amount of income listed in the above paragraph 1(c)(2) is to be a bonus for the representative or as other outflow from the company). According to the statements in the evidence Nos. 3, 5 and 7, it can be recognized that fire occurred in the juitius operated by the above Doitius operated on Aug. 27, 2007 and the documents included among the damaged articles, but it is difficult to conclude that the documents were "documents or documentary evidence necessary for calculating the amount of income of the plaintiff for each business year at issue in this case", and there is no other evidence to acknowledge it (the testimony of the witnessB is not believed). Therefore, the disposition of this case as a bonus for the last representative stated in the above paragraph 2).

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.