Seoul Administrative Court 2010Guhap40632 ( October 13, 2011)

Seocho 208west 1857 (Law No. 26, 2010)

The disposal of processing expenses as bonus to the representative is legitimate.

(The same as the judgment of the court of first instance) If the processing cost is calculated in the account book, the corporation's revenue equivalent to the processing cost shall be deemed to have been leaked out of the company, except in extenuating circumstances, and in light of the fact that the processing cost has been deposited from time to time and half, it cannot be readily concluded that the processing cost has not been leaked out of the company, so the processing cost is legitimate as bonus to the representative.

2011Nu19484 Revocation of Disposition rejecting a request for rectification of global income tax

XX

Head of Seodaemun Tax Office

Seoul Administrative Court Decision 2010Guhap40632 decided May 13, 2011

December 7, 2011

January 18, 2012

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 rejection of the application for rectification of global income tax for the return on February 15, 2008 and each disposition to revoke the application for rectification of global income tax for the return on February 15, 2008,

1. Details of the disposition;

A. Psi Co., Ltd. (hereinafter referred to as "non-party company") is a corporation established for the purpose of the taxi transport business, etc., and the plaintiff was employed as the representative director of the non-party company from August 20, 1993 to June 4, 2007.

B. As a result of the tax investigation conducted on the non-party company around June 2007, when the non-party company filed corporate tax returns for the business year 2004 and each business year 2005 without paying fuel or personnel expenses, each of the processed expenses (the sum of the processed fuel cost of the business year 2004 and the processed personnel cost of the business year 000 won) and 000 won (the sum of the processed fuel cost of the business year 2005 and the processed personnel cost of the business year 0000 won) were appropriated for each of the processed expenses (hereinafter the above processed expenses of the above 000 won and the processed expenses of the business year 2000 won) (hereinafter the above processed expenses of the above 00 won were included in the non-party company's deductible expenses and added the issue amount to the non-party company's gross income and the amount of the above processed expenses of the non-party company to the plaintiff on June 15, 2007 as the income amount reverted to the non-party company's representative director.

C. Accordingly, on July 10, 2007, the non-party company withheld and paid KRW 000,000, and KRW 000,000,000,000,00 for Class A earned income belonging to the year 2004 from the Plaintiff.

D. On January 10, 2008, the plaintiff filed a request for correction of the global income tax for the year 2004 and the global income tax for the year 2005 for the refund of Class A earned income tax paid on the ground that the notice of change in the amount of income by bonus disposition as above and the withholding of Class A earned income tax was illegal, but the defendant issued a rejection disposition to dismiss each of the above requests against the plaintiff on February 15, 2008 (hereinafter "the rejection disposition of this case").

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Gap evidence 5-1 to 3, the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

The non-party company operated a part of the taxi as the so-called "contract system" in each business year of 2005, which is an abnormal operation type, and in order to reduce such operational form, it was inevitable to keep and appropriate it as if it was actually paid fuel cost and personnel expenses. The key issue amount of this case is to be appropriated as processing expenses for this reason, and it is merely the establishment and management of a false provisional revenue account corresponding thereto to deem that it was paid in cash. The provisional revenue in the name of the plaintiff in the related books, such as cash receipt and disbursement book, is merely a processed debt created without the intention of recovery in collusion with the non-party company for the purpose of hiding the operational form of the contract system, and is not actually repaid to the plaintiff. Therefore, the rejection disposition of this case is unlawful, under the premise that the issue amount of this case was leaked outside the company and reverted to the plaintiff.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Relevant legal principles

Where a corporation fails to record its sales in the account book despite the fact of sales or appropriates the cost of processing in the account book, barring any special circumstance, the profit of the corporation equivalent to the omitted sales or the cost of processing shall be deemed to have been leaked out of the company, and in such case, the special circumstance that the whole amount of the omitted sales or the cost of processing shall not be leaked out of the company shall be proved by the taxpayer (see, e.g., Supreme Court Decisions 98Du16347, Dec. 24, 199; 9Du16346, Jan. 11, 200; 200Du3726, Jan. 11, 2002).

(ii) the facts of recognition

A) The non-party company received the amount equivalent to KRW 000,000 from the plaintiff, the representative director of the company, in 2004, under the pretext of the deposit of provisional payments or the collection of provisional payments, and paid 71 times to the plaintiff the amount equivalent to KRW 000,000 in the name of the half of provisional payments. The non-party company received 183 times in the business year 2005 the amount equivalent to KRW 00 in the name of the plaintiff such as deposit of provisional payments or the collection of provisional payments, and entered 247 times in the president of each account of provisional payments.

B) The part claimed by the Plaintiff as false provisional receipts was stated as "the disposal of fuel expenses for contract articles" or "the disposal of provisional payments for contract articles" in the column of cash receipts and disbursements, which always entered the Plaintiff's actual provisional receipts and disbursements (in the column of cash receipts and disbursements, "the temporary deposit of the representative" was entered into the column of cash receipts and disbursements) and entered as a accompanying document.

C) The term "contract engineer" is used as it is in the column of relevant books such as cash receipts and disbursements, etc.

[Reasons for Recognition] Evidence Nos. 7 and 8, and the purport of the whole pleading

3) Determination

In light of the following circumstances revealed in the above facts, i.e., (i) the Plaintiff alleged that the non-party company used the taxi business as a fuel cost and personnel expenses as if it were paid in order to reduce the operation of the taxi business as a "contract system," but the main reason for which the term "contract engineer" was used in the column of the relevant books such as cash receipts and disbursements, such as the fact that the term "contract engineer" was falsely counted is not hidden, there is doubt as to whether fuel cost and personnel expenses were confined to the above business form, and (ii) the deposit of provisional receipts and disbursements from the Plaintiff who is the representative director as of each business year as of 2005 and the Plaintiff were investigated, and (iii) the obligation related to the amount of provisional receipts and disbursements related to the issue amount of the instant case and the actual provisional receipts and disbursements of the Plaintiff's assertion can not be clearly determined from 200 years to 20 years to 30 years to 30 years to 40 years to 200.

Therefore, the rejection disposition of this case is legitimate, and the above assertion by the plaintiff is without merit.

3. Conclusion

Therefore, the claim of this case filed by the plaintiff cannot be accepted as it is without merit. Since the judgment of the first instance is legitimate, the appeal filed by the plaintiff shall not be accepted.