early 209 middle 1955 ( November 23, 2009)

The bonus disposal is illegal for a person who is not the representative on the corporate register but is not a person who actually controls the management of the corporation among the executives, such as shareholders meeting the requirements of Acts and subordinate statutes.

The lawsuit for revocation of the disposition imposing global income tax is dismissed as it is inappropriate without going through the procedure of the preceding trial, and thus, it is unlawful to dispose of the bonus income of the Plaintiff, which is not a representative in the corporate register nor a person who actually controls the management of the corporation among the executives, such as shareholders meeting the requirements of statutes.

2010Guhap8515 Global Income and Revocation of Disposition

50

O Head of tax office

April 28, 2011

May 19, 2011

1. The plaintiff's action against the defendant HH director shall be dismissed.

2. The notice of change in income amount of KRW 2,902,476,000 on October 5, 2008 issued against the Plaintiff on October 5, 2008 and the notice of change in income amount of KRW 1,500,000 on 2005 shall be revoked.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant H head of the tax office is assessed against the Plaintiff, and the part arising between the Plaintiff and Defendant FF head of the tax office is assessed against the Plaintiff.

The disposition of imposition of KRW 1,204,531,430, total income tax of KRW 587,403,200 for global income tax of KRW 1,791,934,630 for the year 2005 shall be revoked by the head of the HH tax office and the head of the HH tax office on February 5, 2009.

1. Details of the disposition;

A. On November 3, 2000, BB golf clubs Co., Ltd. (hereinafter referred to as “BB golf clubs”) established the head office on the basis of the DB EE Ri 202-6 at the time ofCC, and run the business of operating a golf practice range, etc. by establishing various sports-related businesses as light management business, etc., and completed the report on business closure on June 30, 2006.

B. The head of the FF Tax Office conducted a tax investigation on BB golf clubs between May 20, 208 and August 12, 2008. On November 10, 2004, Defendant FFF golf clubs sold 201-3, 202-1, 202-6, 202-7 land (a total of 16,764 square meters) and 1,639.3 square meters of land driving range (hereinafter referred to as “each real estate” in this case’s land and golf driving range) on the land, and notified the Plaintiff of 4,402,476,00 won as bonus belonging to the Plaintiff who is the actual representative of the BB golf clubs (the actual representative of the BB golf club), and notified Defendant H of 204, 2009, 2005, 2005, 2005, 2005, 2005, 2005.

C. Accordingly, on December 30, 2008, Defendant HH head of the tax office notified the Plaintiff of the notice of taxation in accordance with the above taxation data, and on February 5, 2009, Defendant HH head of the tax office imposed the Plaintiff global income tax of KRW 1,204,531,430 for the year 204 and global income tax of KRW 587,403,40 for the year 2005 (hereinafter “instant global income detailed disposition”). The Plaintiff received the notice of taxation on the 11st day of the same month.

D. Meanwhile, the Plaintiff filed an objection on December 30, 208 against the notice of change in the income amount of this case, but the head of the FFF tax office dismissed the above objection on January 15, 2009. The Plaintiff filed an appeal on April 15, 2009. On November 23, 2009, the Tax Tribunal rendered a decision to re-examine whether each of the above amounts was actually reverted to the Plaintiff in relation to KRW 500 million for the year 2004 and KRW 1,500,000 for the year 205 and KRW 1,50,000 for the year 205, and to dismiss the remainder of the appeal.

E. On January 29, 2010, Defendant FF Head of the Tax Tribunal notified the Plaintiff that the instant notice of change in the income amount was justifiable as a result of the re-examination according to the aforementioned re-examination decision by the Tax Tribunal.

Each entry, as a whole, of Gap's 1 to 5, 10, and Eul's 1 to 3 (in the case of documentary evidence with several numbers, including each number, as long as the number is not specified) and the purport of the whole pleadings.

2. Whether the plaintiff's action against the defendant HH director is legitimate or not

A. The purport of Article 56(2) of the Framework Act on National Taxes that requires an administrative appeals procedure, such as a request for review, prior to filing a lawsuit seeking revocation of a tax disposition, is to provide a disposition authority with an opportunity for inventory and correction by itself, and to provide a superior administrative authority with an opportunity for correction based on the supervisory authority, and to reduce the court’s burden by having a superior administrative authority go at the pre-trial stage, and arranging in advance the dispute concerns in advance. Thus, whether a taxpayer lawfully satisfies the requirements for administrative appeals should be determined by fully considering the purport of establishing the pre-trial system.

On the other hand, Article 18(3)2 of the Administrative Litigation Act provides that a lawsuit for revocation may be brought even if one of the dispositions related to the contents of a letter or dispositions carried out in a step-by-step for the same purpose without going through an administrative appeal as to other dispositions, even though they are separate dispositions, even if they are formally separate dispositions, if they are in common with the grounds for illegality or dispute contents, and if they go through an administrative appeal on a certain disposition, they can be deemed to have given the relevant disposition disposition an opportunity to reconsider or correct them, then they can bring a lawsuit for revocation without going through a separate administrative appeal (see, e.g., Supreme Court Decision 9Du1953, Dec. 8, 2000).

Considering the contents and purport of the above provision, in a case where the tax authority recognizes the amount included in the calculation of the corporate tax as a bonus to the representative or officer, etc. and disposes of the income, and notifies the representative or officer officer of the change in the amount of income, on the ground that the whereabouts of the corporation in question are unclear, and then makes a request for examination or a request for judgment pertaining to the notification of change in the amount of income, the tax authority or the superior administrative agency has sufficiently the opportunity to correct or supervise the amount of global income and the subsequent disposition by examining the propriety of the notification of change in the amount of income. In addition, even if the request for examination cannot be expected to be different from the opinions expressed in the above review process, it would result in the failure of the taxpayer to make a request for re-request for examination, etc., without being required to impose unnecessary burdens on the taxpayer, which would result in delaying the realization of rights, thereby violating the purport of the establishment of the administrative appeals system.

Therefore, as long as an administrative agency examines and determines the validity of a notice of change in the amount of income, which is the basis of the global income and disposition following the above request for examination, it is reasonable to view the above request for examination, etc. as having gone through the administrative appeals procedure for the above disposition, and it is not deemed that the above disposition should

However, in the event that a request for administrative appeal against the notification of change in the amount of income is already made at a close time due to the notification of change in the amount of income and the notification of change in the amount of income, and the request for review is made at a close time, the administrative agency cannot be deemed to fall under the case of "unwritten adjudication on administrative appeal against the notification of change in the amount of income where the reason or the contents of the dispute are common," unless it is deemed that the administrative agency had an opportunity for self-resolution or inventory of the details of the global income and the notification of change in the amount of income. Thus, the taxpayer should not be deemed to be subject to the procedure of a request for review, etc. on the details of the global income and the disposition, separately from the case where the taxpayer receives the judgment together with the request for review, etc.

On February 11, 2009, the Plaintiff was served with a notice of tax payment on the instant global income detailed and disposition, and the Tax Tribunal rendered a decision on November 23, 2009 on the notice of change in the amount of income as seen earlier. As such, it is apparent that the period of request for examination or adjudgment (90 days from the date of receipt of the notice of disposition) of the instant global income detailed and disposition has already elapsed before the Tax Tribunal's decision on the notice of change in the amount of income was made. As long as the Plaintiff was a person who did not go through the administrative appeals procedure on the global income detailed and disposition of this case, the Plaintiff's lawsuit against Defendant H chief of tax office is unlawful as it did not go through the necessary administrative appeals procedure.

B. In addition, according to Article 20(1) and (2) of the Administrative Litigation Act, in principle, a revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known, and one year from the date on which the disposition, etc. is taken. Since the filing period system and the administrative appeals system are different in order to promote the prompt stability of legal relations in the public law, the purport of the system differs. As such, with respect to any taxation to which the requisite principle of administrative appeals is applied, where the principle of administrative appeals is mitigated on the grounds as seen earlier, and a separate administrative appeal procedure is not required, the period of filing the suit shall not be excluded as a matter of course

In other words, even if the Tax Tribunal's decision on the notice of change in the amount of global income of this case was made, even if there was no need to go through a separate procedure for administrative appeal against the above disposition regardless of the prior date of the filing period for administrative appeal against the detailed statement of global income of this case and the disposition of this case, the plaintiff was served with a notice of tax payment on the global income of this case on February 1, 2009. The fact that the plaintiff did not go through a request for examination or adjudgment as to the above global income detailed and disposition of this case separately from the notice of change in the amount of income of this case is obvious in the record. Thus, since the plaintiff filed the lawsuit of this case on February 19, 2010, it should be deemed that the plaintiff's lawsuit against the defendant H chief of the tax office, which was obviously raised 90 days after the date of the delivery of the notice of tax payment known to the plaintiff about the details and disposition of this case, it is inappropriate in that

3. Whether the disposition of notifying the change in the income amount of this case is legitimate;

A. Summary of the plaintiff's assertion

(1) Although the Plaintiff is not a representative director, executive, employee, etc. of the BB golf club, and the actual control of the BB golf club is not sufficient, and thus it cannot be subject to the recognized contribution disposition under Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21063, Oct. 7, 2008; hereinafter referred to as the "former Enforcement Decree of the Corporate Tax Act"), the disposition of the Plaintiff’s notification of the change of the amount of income made on the premise that the Plaintiff is the actual representative, executive, and employee of the BB golf club is unlawful.

(2) Moreover, since the Plaintiff did not use the transfer proceeds of each of the instant real estate for personal purposes, it cannot be deemed that the bonus disposal amount actually belonged to the Plaintiff. Thus, the instant notice of change in income amount was unlawful in this respect.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) First, we examine whether the Plaintiff constitutes an officer or employee as a subject of normal leisure under Article 106(1)1 main sentence (b) of the former Enforcement Decree of the Corporate Tax Act.

(A) Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court Decisions 2000Du4378, Jul. 26, 2002; 83Nu213, Dec. 27, 1983).

On the other hand, Article 106 (1) 1 (b) of the former Enforcement Decree of the Corporate Tax Act stipulates that the amount included in the corporation's gross income shall be leaked out of the company, and if the person to whom the amount included in the corporation's gross income is an officer or employee, the amount shall be disposed of as a bonus for the person to whom the amount belongs. In this case, with regard to the meaning of "executive" and "employee", the term "executive" refers only to an officer listed in the corporate register, in consideration of the following circumstances, and it does not mean that the term "executive" includes a person who actually performs an act as an executive in the course of de facto controlling the corporation, and it is reasonable to see that the term "employee" means a commercial employee

① Article 43(116) of the former Enforcement Decree of the Corporate Tax Act provides that “All members of the board of directors, such as president, vice president, chief director, representative director, managing director, executive director, etc. of the corporation, and persons engaged in other similar duties” shall be construed as “all members of the board of directors, such as president, vice president, president, managing director, managing director, and executive director of the corporation,” and the former Enforcement Decree of the Corporate Tax Act, instead of providing general provisions on the scope of executives

② Moreover, in light of the fact that the proviso of Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 106(1)2) has a separate provision regarding the meaning and scope of the representative, it is inconsistent with the systematic interpretation of the said provision to readily view that the said proviso includes an executive officer or employee as well as an actual executive officer or employee.

(3) Article 39 of the Framework Act on National Taxes provides for the basic and common matters concerning the national taxes and the procedure for protesting against the disposition of national taxes by investors with respect to the secondary tax liability of investors, it is difficult to interpret that the term "an oligopolistic shareholder" includes "an honorary chairperson, president, president, vice president, managing director, managing director, director, or any other person who actually controls the management of the corporation regardless of the name of the oligopolistic shareholder (Article 39 (1) 2 (b) of the same Act)" as "an officer under the main sentence of Article 1106 (1) 1 (b) of the former Enforcement Decree of the Corporate Tax Act" as "an officer under the latter Enforcement Decree of the Corporate Tax Act" without any separate provision.

④ Unless the former Enforcement Decree of the Corporate Tax Act has a separate provision as to the meaning of "employee" while establishing several provisions including the content of the provision, it is reasonable to view that Article 4 of the Enforcement Rule of the Inheritance Tax and Gift Tax Act provides for the meaning of "employee" in accordance with delegation under Article 13 (9) 2 of the Enforcement Decree of the same Act, and provides for the kind and scope of "employee" under Articles 10 through 17 of the Commercial Act, and the ordinary meaning of "employee" under Article 106 (1) 1 (b) of the former Enforcement Decree of the Corporate Tax Act should be interpreted in consideration of the ordinary meaning of "employee" under Article 106 (1) 1 (b) of the former Enforcement Decree of the Corporate Tax Act.

(B) In the instant case, there is no evidence to acknowledge that the Plaintiff had been registered as the representative director of the BB golf club or as other executives on the corporate register, or that the Plaintiff had been in an employment relationship with the BB golf club. Rather, during the period from the time the BB golf club was established to the closure of its business, the Plaintiff did not have been registered as the executive officer of the BB golf club on the donation of the juristic person, and furthermore, there is no way to conclude an employment contract between the Plaintiff and the BB golf club, and the fact that the Plaintiff had been engaged to considerable extent in the process of executing its business and making decisions on the BB golf club with the name of the “chairperson” from among the shareholders of the BB golf club, is not in dispute between the parties, or that the evidence No. 1, No. 4, 5, and 20, and the testimony of the witness KimGG is recognized by considering the overall purport of the pleadings as a whole.

Therefore, the plaintiff does not fall under any category of "a son or employee" under the main sentence of Article 106 (1) 1 (b) of the former Enforcement Decree of the Corporate Tax Act. Thus, the plaintiff cannot be subject to a bonus disposal originally recognized under the above provision.

(2) Furthermore, even if the disposition basis of the notice of change in the amount of income in this case is deemed to be the proviso of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act, the conclusion is not to change as seen below (the Defendant asserted that part of the transfer price of each real estate in this case was released from the original company, but the ownership was unclear, pursuant to the proviso of the same subparagraph, that the notice of change in the amount of income in this case was given to the Plaintiff, who is the real representative of the BB golf club, pursuant to the proviso of the same subparagraph. On June 10, 2010, the Defendant reversed the previous assertion by asserting that in the preparatory document dated June 10, 2010, the ground for the disposition of the notice of change in the amount of income in this case, which was taken on the ground that the amount of the outflow was actually reverted to the Plaintiff, was an important issue in the request for a trial in this case, and as

In other words, the system of recognition of a representative due to the disposition of income as stipulated in the proviso of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act is not based on the fact that such income has accrued to the representative, but it is intended to make certain facts that can be recognized as such act in order to prevent an unfair act under the tax law by a corporation be considered as a bonus to a unconditional representative regardless of its substance. In such a case, the representative of a corporation whose bonus disposition is the large amount should be strictly interpreted as a strict interpretation because it has driven away from its face.

In light of the proviso of Article 106 (1) 1 of the Enforcement Decree of the above Act, where the accrual of the amount of outflow from the company is unclear, it shall be deemed that the representative has accrued to an officer who is not a minority shareholder, etc. and an officer who is not a minority shareholder, etc. and a person with a special relationship with him/her hold not less than 30/100 of the total number of issued stocks or total amount of investment in the relevant corporation, and where the officer actually controls the operation of the corporation, the representative shall be the representative if he/she is not the representative but the actual representative is limited to the representative under the above provision. In light of the above provision, the representative deemed as a bonus disposition shall be a person registered as the representative on the corporate registry, or a person who actually controls the operation of the corporation among the executives, such as shareholders meeting the requirements under the above subparagraph, and even if the person actually controls the operation of the corporation, he/she shall not be deemed a representative under the above provision (see Supreme Court Decision 201Du808, Dec. 18, 20108).

In this case, there is no evidence to deem that the Plaintiff was registered as the representative of the BB golf club on the corporate register or that the Plaintiff met the requirements as the executive officers of the BB golf club, so there is no room for the Plaintiff to constitute the “representative” under the proviso of Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act without further examining the fact that the Plaintiff actually controlled the operation of the BB golf club.

(3) Ultimately, the notice of the change in the amount of income in this case is deemed to be either a mother or unlawful.

4. Conclusion

Thus, the plaintiff's lawsuit against the defendant HH head of the HH office is unlawful and dismissed, and the plaintiff's claim against the defendant FF head of the FF office is justified, and it is so decided as per Disposition.