Ulsan District Court 2013Guhap738 ( October 08, 2014)

A person registered as a representative director on the corporate register is presumed to have been actually operating the company.

(See the judgment of the court of first instance) The plaintiff is a representative under the name of the plaintiff and is not the actual operator, but it is evident that the plaintiff is the actual representative operated by the plaintiff through all evidence, so it is legitimate to regard the plaintiff as the actual representative director and dispose of

Article 67 of the Corporate Tax Act

2014Nu20735 Global income and revocation of disposition

O KimO

AA Head of the Tax Office

Ulsan District Court Decision 2013Guhap738 Decided April 10, 2014

June 24, 2015

August 12, 2015

1. The plaintiff's appeal is dismissed.

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

제1심 판결을 취소한다. 피고가 2012. 9. 3. 원고에게 한 2008년 귀속 종합소득세 QQ,QQQQ,QQQ원, 지방소득세 Q,QQQ,QQQ원의 부과처분을 취소한다.

1. Details of the disposition;

A. From September 3, 2004, to December 20, 2012, the Plaintiff was registered as the representative in the corporate register ofCC (hereinafter “instant company”).

나. 이 사건 회사는 2008 사업연도 법인세 과세표준 및 세액신고를 하면서 주주・임 원・관계회사에 대한 단기대여금으로 Q억 Q,QQQ만 원(이하 "이 사건 대여금")을 계상하여 신고하였는데, 피고는 이 사건 회사가 폐업일인 2008. 8. 31.까지 이 사건 대여금을 회수하지 아니하자 그 귀속이 불분명하다고 보아 법인세법 제67조 및 같은 법 시행령 제106조 제1항 제1호 단서에 따라 이 사건 대여금을 원고에 대한 인정상여로 소득처분한 다음, 2012. 9. 3. 원고에게 2008년 귀속 종합소득세 QQ,QQQQ,QQQ원, 지방소득세 Q,QQQQ,QQQ원을 경정・고지(이하 이를 통틀어 "이 사건 처분")하였다.다. 원고는 이에 불복하여 2012. 11. 14. 국세청장에게 심사청구를 제기하였으나, 2013. 3. 15. 기각되었다.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) The Plaintiff was registered as the representative director of the instant company in its form upon the request of the newD, and the actual operator of the instant company was a newD, and thus, the instant disposition issued against the Plaintiff, which was merely a representative in its form, was unlawful. 2) The instant disposition was unlawful. In that process, the instant loan was distributed as residual property to newD and its family members, which are shareholders of the instant company, inasmuch as the instant loan was distributed as it was distributed to newD and its family members, it was unlawful to have disposed of the instant loan again as it

3) The instant disposition is based on the General Rule 4-0, 6 of the Corporate Tax Act, which is merely an administrative rule, and is unlawful as it violates the principle of no taxation without law.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Facts of recognition

1) The Plaintiff had its trade name with the instant company, the sameCC building company (hereinafter referred to as “previousCC building”), and newD operated the EE Construction Industry (hereinafter referred to as “former EE Construction Industry”).

2) Around April 7, 2004, the Plaintiff sold the previousCC lecture to Daddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

3) 원고는 2004년에 이 사건 회사로부터 받은 QQQ만 원의 근로소득이 있었고, 상호 변경된 EE건설산업의 대표이사를 사임한 후에도 주식 Q,QQQ주를 계속 보유하고 있었다.

4) The instant company closed its business on August 31, 2008, and was deemed dissolved under Article 520-2(1) of the Commercial Act on December 3, 2012, and completed its registration on December 20, 2012.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 3, 5, Eul evidence Nos. 3, 4, 9, and 10, the purport of the whole pleadings

D. Determination

1) Determination on the first argument

A) The recognition contribution system for a representative under Article 106(1) of the Enforcement Decree of the Corporate Tax Act is not based on the facts that such income has accrued to the representative, but it aims to enable the representative to consider certain facts recognized as such in order to prevent an unfair act under tax law by a corporation as a bonus to a unconditional representative regardless of their substance. The representative is substantially a representative who operates the company. Thus, even if the company was registered as the representative director in the corporate register, if the company was not actually operated, such recognized income shall not be attributed to the representative and shall not be imposed on the representative. However, since it can be presumed that the representative director in the corporate register actually operates the company, the fact that the representative director in the corporate register actually failed to operate the company should be proved (see, e.g., Supreme Court Decision 2006Du187, Apr. 24, 2008). Thus, there is no evidence to acknowledge that the plaintiff did not actually operate the company in this case.

Rather, in full view of the following circumstances, it is reasonable to deem that the Plaintiff, as the representative of the instant company, actually managed the instant company, by comprehensively taking account of the overall purport of the pleadings in the written evidence Nos. 9, 10, and Nos. 5, 6, 8, 9, 10, and 11.

① The Plaintiff was registered as the representative director of the instant company for a long period of not less than eight years, and the name of the instant company is the same as that of the previousCC lecture operated by the Plaintiff.

② On September 7, 2004, immediately after the Plaintiff assumed office as the representative of the instant company, the Plaintiff was actually involved in the management of the instant company on September 7, 2004, in light of the fact that the instant company’s workplace was transferred not only to XX 130-4 land owned by the Plaintiff, but also to the fact that the Plaintiff’s name was stated as a lessor at the time of concluding a lease agreement for moving the place of business.

③ A witness witness at the trial did not directly or indirectly participate in the management of the company of this case or directly operate the company of this case. However, the plaintiff stated at his request that he only registered as a representative director in the form of a representative director. However, in light of the fact that he did not state the standard balance sheet (Evidence A) of the company of this case and stated that he did not know about the contents of the tax accounting, it is difficult to trust his assertion that he directly operated the company of this case.

④ 원고는 종전 CC강건을 신DD에게 매도한 이후에는 상호 변경된 EE건설산업은 물론이고 이 사건 회사의 경영에 관여한 바가 전혀 없다고 주장하나, ㉠ 원고는 2004. 4. 7.경 종전 CC강건을 신DD에게 매도하면서 그 대가로 Q,QQQ만 원을 지급받았다고 주장하면서도 이에 관한 구체적인 자료를 제출하고 있지 아니한 점, ㉡ 원고가 상호 변경된 EE건설산업의 대표이사를 사임한 이후에도 위 회사의 주식 Q,QQQ주를 보유하고 있었던 점, ㉢ 이 사건 회사는 원고가 대표이사로 취임한 후에도 상호 변경된 EE건설산업과 수차례 거래를 지속하였던 점, ㉣ 원고는 2004년 이 사건 회사로부터 520만 원의 급여를 받았을 뿐 아니라, 2009년, 2010년, 2011년, 2012년에 상호 변경된 EE건설산업으로부터도 수백만 원에서 수천만 원에 이르는 급여를 받았 던 점 등에 비추어 볼 때, 원고는 상호 변경된 EE건설산업 및 이 사건 회사와 어떠한 형태로든 밀접한 관계를 맺고 있는 것으로 보인다. ⑤ 한편 원고는 종전 CC강건을 신DD에게 매도한 이후부터는 주식회사 FF비앤비(이하 "FF비앤비")에 근무하여 일정한 급여를 받았을 뿐이므로 이 사건 회사의 경영에 관여할 수 없었다는 취지로 주장하나, 위 ④의 사정에다가 FF비앤비의 대표이사인 서GG은 이 사건 회사의 주주(5% 지분 소유)이고, 상호 변경된 EE건설산업, 이 사건 회사, FF비앤비는 모두 금속구조물 및 창호공사 등을 목적으로 설립된 회사로서 동종 업종에 종사하면서 경제적 이해관계가 얽혀 있었던 것으로 보이는 사정까지 보태어 볼 때, FF비앤비에 실제로 근무하였다거나 특정한 직책을 가지고 업무를 수행하였다는 원고의 주장을 그대로 신뢰하기 어렵다.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Judgment on the second argument

According to the facts found earlier, the instant company was deemed dissolved on December 3, 2012, and there was no distribution of residual assets by implementing the liquidation procedures at the time of closure of business on August 31, 2008. Therefore, the Plaintiff’s assertion on this part is without merit.

3) Judgment on the third argument

As seen earlier, the instant disposition is based on Article 67 of the Corporate Tax Act and Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act, and thus, it does not violate the principle of no taxation without law. Therefore, the Plaintiff’s assertion

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.