logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
부산고등법원 2015. 04. 01. 선고 2014누21417 판결
매출액을 장부에 기재하지 아니하고 대금을 회수한 경우에는 특별한 사정이 없는 한 전액이 사외유출된 것으로 봄[국승]
Case Number of the immediately preceding lawsuit

Busan District Court Decision 2013Guhap490 (Pronouncement 19, 2014)

Title

If sales are not entered in the account book and proceeds are collected, the full amount shall be deemed to have been discharged from the account, except in extenuating circumstances.

Summary

(1)If the sales are omitted and reported, unless it is proved that the corresponding sales cost, etc. had already been paid separately from the sales cost reported by the Plaintiff corporation, this is already included in the deductible expenses corresponding to the total sales revenue.

Related statutes

Article 106 of the Enforcement Decree

Cases

2013Guhap490 Notice of Changes in Income Amount

Plaintiff and appellant

(State)00 Construction

Defendant, Appellant

00. Head of tax office

Judgment of the first instance court

on 19, 2014

Conclusion of Pleadings

on 03 October 04, 2015

Imposition of Judgment

on 04 October 01, 201

Text

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On October 2011, 201, the Defendant revoked the portion of KRW 000 among the disposition of notice of change in income amount of KRW 000 as bonus income in the business year 2010, wherein the income earner was 000 with respect to the Plaintiff.

Reasons

1. Details of the disposition;

A. On Mar. 25, 2009, the Plaintiff (hereinafter referred to as the “Plaintiff”) concluded a contract with the Plaintiff (hereinafter referred to as the “Plaintiff”) to newly build the instant church on Mar. 25, 2009, with the date of commencement of the project on Mar. 25, 2009; Nov. 25, 2009; the date of completion of the project; the date of completion of the project; the date of completion of the project; the price of construction KRW 000 (00, value-added tax; value-added tax KRW 000) on Nov. 25, 2009.

B. The Plaintiff corporation completed the instant church on January 14, 2010, and received 000 won out of the said contract amount (000 won for construction work, value-added tax 00 won, hereinafter “instant issues amount”) from the instant church over 00 times from April 27, 2009 to April 23, 2010 as 00 passbooks in the name of the Plaintiff corporation.

C. From October 00 to October 00, 200, the Defendant conducted an integrated corporate tax investigation with respect to the Plaintiff corporation on January 1, 2008 to December 31, 2010, and discovered the omission in the return of value-added tax and corporate tax without issuing the sales tax invoice even after receiving the key amount from the instant church, the Defendant corrected KRW 000, KRW 200, KRW 000, and KRW 000 for the business year 2010, and KRW 000 as a bonus for the actual representative of the Plaintiff corporation. On December 1, 201, the Defendant disposed of KRW 00 as a bonus for the Plaintiff corporation on December 1, 201 as a bonus for the business year 200, and then disposed of KRW 200,000 as a bonus for the Plaintiff corporation on December 1, 201 (hereinafter referred to as “income amount”).

D. On December 12, 2011, the Plaintiff corporation filed an objection against the notice of change of income amount pertaining to the key portion of the instant disposition among the notice of change of income amount of KRW 000, the bonus income amount of the instant disposition, and filed a tax appeal on April 13, 2012, but the Tax Tribunal dismissed the Plaintiff corporation’s claim on October 26, 2012.

Facts without any dispute arising in recognition, Gap evidence 1, 2, 5, 6 (for each type of dispute, including the number; hereinafter the same shall apply), Eul evidence 1, 2, 3, and 4, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff corporation's assertion

In light of the following circumstances, the instant disposition that deemed the instant issue amount as a bonus for the representative of the Plaintiff corporation on the premise that the instant issue amount was leaked out of the company’s death is unlawful.

1) The key issue amount omitted in the sales report was transferred to the passbook in the name of the Plaintiff corporation, and most of the Plaintiff corporation was disbursed without dilution with other funds and dilution. The Defendant confirmed that the Plaintiff corporation paid KRW 00 out of the key issue amount in the instant case as business-related expenses and included it in the calculation of losses. Thus, the key issue amount in the instant case was not leaked out of the company.

2) The key issue amount of this case used a voluntary account called cash because it is impossible to use the sales account at the time of deposit in the account, and the shortage of cash stock therefrom was adjusted by using the provisional account. As such, the key issue amount in this case was substantially reflected in the account book. Since the virtual cash, which was stated in the account book of the Plaintiff corporation, was disposed of in half of cash made by appropriating the processed sales at the end of the business year 2009, it was only used voluntarily for the adjustment of cash, and it was merely a nominal debt that was not scheduled for the first half of the fiscal year, and the key issue amount of this case was not leaked out out of the private company.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Relevant legal principles

Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (Presidential Decree No. 23589, Feb. 2, 2012; hereinafter referred to as the "Enforcement Decree of the Act") provides that "where it is clear that the amount included in the calculation of gross income has leaked out of the company, it shall be the dividend, bonus from the disposition of profits, other income, and other outflow according to the person to whom it reverts, but where it is unclear that it has been reverted, it shall be the representative (where an executive who is not a minority shareholder, etc. and a person with a special relationship under Article 43(8) own 30/100 or more of the total number of stocks issued or total investment amount of the relevant corporation and actually controls the management of the corporation, he/she shall be the representative, and where there are two or more representatives, the de facto representative; hereinafter the same shall apply)."

On the other hand, if a corporation fails to enter its sales in the account book despite the fact of sales, the total amount omitted from sales shall be deemed to have been leaked to a private company, except in extenuating circumstances. The tax authority shall have the burden of proving that the revenue of a corporation leaked to a private company is attributed to the representative with respect to the revenue, unless it is stated in the account book, and unless it is clear that the revenue belongs to the private company. In this case, the tax authority shall prove that the special circumstance that the omission in sales is not leaked to a private company or that the omission in sales belongs to the private company (see, e.g., Supreme Court Decisions 85Nu556, Sept. 9, 1986; 97Nu19151, May 25, 199).

2) Omission of sale of the issues amount of the instant case

According to the overall purport of Gap evidence Nos. 5, 6, and Eul evidence Nos. 1 through 5 and all pleadings, the plaintiff corporation completed the provision of construction services to the church of this case on Jan. 14, 2010, and the defendant's disposition of this case is lawful unless it proves that the issue amount of this case can not be seen as being leaked out from Apr. 27, 2009 to Apr. 23, 2010, even after being transferred to the account in the name of the plaintiff corporation to the account account account, and the above amount was not treated as the recovery of credit account account account account account account, and it was treated as deposit of cash held by the plaintiff corporation. Therefore, it is reasonable to deem that the issue amount not entered in the account book was leaked out from the account book, and as long as it is unclear, it is necessary to dispose of the amount of this case to YO as the representative of the plaintiff corporation, the representative of the corporation, and there is no special circumstance to prove that the issue amount of this case was leaked.

3) Determination on the first argument of the Plaintiff Corporation

The key issue amount of this case is that the Plaintiff corporation received money from the passbook in the name of the Plaintiff corporation and disbursed it to the Plaintiff corporation’s expense. The Defendant included 00 won in the items of corporate tax resolution for the 2010 business year, and the key issue amount of this case was not leaked. However, as alleged by the Plaintiff corporation, even if 00 won out of the key issue amount was used for construction expenses and other expenses, as long as the sales were omitted and reported, it can be deemed that the corresponding sales cost and other expenses were already included in the deductible expenses corresponding to the total sales price reported by the Plaintiff corporation, unless it is proved by books or other documentary evidence that it had been disbursed separately from the sales price reported by the Plaintiff corporation. The Plaintiff corporation’s assertion that the amount of this case’s revenue corresponding to the key issue amount of this case’s deductible expenses was not included in the deductible expenses of the Plaintiff corporation’s 200 business year, which was not included in the calculation of the amount of the Plaintiff corporation’s income for each of the above 2000 business years since it had not been found to be included in the amount of the Plaintiff corporation’s revenue amount already reported.

4) Judgment on the second argument of the Plaintiff Corporation

The Plaintiff Company treated the issue amount of this case to deposit the cash held by the Plaintiff Company without treating it as the collection of credit sales at the time of deposit in the account. However, the amount corresponding to the above cash was actually reflected in the account book in the form of "passion-cash-cash-deposit" using the provisional deposit account by treating the amount corresponding to the above cash as the representative's deposit. As such, the provisional deposit amount as mentioned above is merely a nominal obligation that is not expected to reflect, and therefore, it cannot be viewed that the money equivalent to the issue amount of this case was leaked out of the private company.

The purport of the claim is that, even if the cash, which is the counterpart account, was included in the provisional account, for which the amount received by the corporation through sales is not confirmed, and the account was recorded as the entry of the corporation once, the other party account was recorded in the account. If the contents of the pertinent provisional account were to keep the short-term loan transactions from the representative director, and it is found that it was an obligation to counter-inform the representative director in the future, it would not result in the change or increase of the net assets of the corporation, and thus, it is irrelevant to the corporation's profits or expenses. Thus, barring special circumstances such as the processed obligation under the pretext of the name of which the obligation is not planned against the first half of the total assets of the corporation, the omitted sales amount to be entered as the profit of the corporation shall be deemed to have already been leaked to the representative director, who is the other party to the above provisional account (see Supreme Court Decision 200Du3726, Jan. 11, 2002). Therefore, it did not be recognized as the account after setting the issue amount in this case.

① Even if the issue amount of this case is to be reflected in the accounts of the Plaintiff corporation, it should be acknowledged that the amount of this case is merely the name of the Plaintiff corporation not scheduled to be deposited. Therefore, as otherwise alleged by the Plaintiff corporation, the following circumstances can be acknowledged by comprehensively taking account of whether the amount of this case was reflected in the accounts through the Plaintiff corporation’s deposit account as alleged, Gap’s bill No. 9, 10, 12, and 18, and the purport of the entire pleadings. ① The Plaintiff corporation did not count the amount of this case’s deposit in the accounts of the Plaintiff corporation from April 27, 200 to April 23, 2010, because it is difficult to find that the amount of this case’s deposit was counted in the accounts of the Plaintiff corporation’s account No. 209 to be deposited in the account of the Plaintiff corporation’s account No. 209, the amount of this case’s deposit in the account of the Plaintiff corporation’s account No. 200, the amount of this case’s account deposit in the account No. 206.

D. Sub-committee

Therefore, the disposition of this case, which was disposed of by the plaintiff corporation as bonus, is legitimate on the ground that the sales of the issue amount of this case 000 won received as the construction cost of the new church construction project was omitted, and that the ownership is unclear.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.