Busan High Court Decision 2017 Busan High Court Decision 3652 ( November 16, 2017)

Embezzlements cannot be deemed to have been conducted on the premise of recovery.

With respect to special circumstances that cannot be seen as not premised on recovery from the useful point of view, it shall be determined individually and specifically by comprehensively taking into account all the circumstances, such as whether the intent of the representative director, etc. is identical to the intent of the corporation or whether it is difficult to see that the economic interests of the representative

Article 67 of the Corporate Tax Act

2018Guhap20055 The revocation of revocation of a request for rectification of earned income tax

○○○○○○○

△△△ Director

2018.05.31

8.06.21

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection of a claim for correction of wage and salary income tax amounting to KRW 855,93,525 against the plaintiff on May 16, 2017 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is registered as the representative director in the corporate register of the company that conducts the surface disposal business of vehicles and electronic equipment, etc. from around 2002, Kim Jong-gu, and Kim △-chul, Kim Jong-tae, respectively.

B. From February 22, 2013 to July 12, 2013, the commissioner of a regional tax office confirmed that the Plaintiff was the actual representative of the Plaintiff, and confirmed the fact that he/she was issued a tax invoice to excessive amount than the actual product from 2003 to 2010 and embezzled the Plaintiff’s funds 4,665,663,727 won due to the method of returning the difference, etc., and then notified the Plaintiff of the change in the amount of income.

C. Accordingly, from November 11, 2013 to August 11, 2014, the Plaintiff paid KRW 1,500,893,670 to the total amount of income income withheld from 2003 to 2010 on the amount of income disposal of Kim △△△ in the year 203 to 2010.

D. On February 20, 2017, the Plaintiff filed a claim for correction of wage and salary income tax with the Defendant on February 20, 2017, 450,580,75,763,727 won, excluding the total amount of KRW 83,832,287,938, which was recognized as the outflow from the company, excluding the total of KRW 833,795,039, and the total amount of KRW 382,79,75,78, which was recognized as the outflow from the company by the relevant criminal procedure and civil litigation, (hereinafter referred to as “instant claim for correction”). On May 19, 2017, the Defendant refunded the amount of KRW 1,08,00,000 from the amount of income disposition at source 1,08,05,000 from the amount of income disposition at source excluding the amount of income disposition at source 2,795,781,830).

E. The Plaintiff appealed and filed an administrative appeal on August 10, 2017. The Tax Tribunal, on November 16, 2017, excluded additional KRW 92,409,077 from the amount of the initial income disposition against Kim Jong-tae on the part of the Tax Tribunal (hereinafter referred to as the “instant disposition”). The Plaintiff’s remaining claims were dismissed [2,651,873,108 won (2,74,282,185 won-92,409,07 won) and the amount of the remaining income disposition (hereinafter referred to as the “amount of the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 1 (including number ; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In addition, in light of the fact that the Plaintiff filed a criminal complaint against Kim △△△, and sought damages through civil litigation, etc., it cannot be deemed that the instant income disposition amount was out of the company because there exist special circumstances, which cannot be deemed as not premised on recovery from the point of embezzlement, and thus, it cannot be deemed that the instant income disposition amount was out of the company. Therefore, even though there exist such illegal causes in calculating the amount of income and imposing the tax on earned income, it is unlawful for the Defendant to take the instant disposition rejecting the Plaintiff’s request for correction.

B. Relevant statutes

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

C. Determination

1) Relevant legal principles

Unless there are special circumstances, the act of the representative director, etc., who is the actual manager of a corporation, uses the corporation's funds on the premise of recovery at the beginning, and thus, it constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be deemed as not premised on recovery from the utilization time, the determination must be made individually and specifically by taking into account all the circumstances, including where the intent of the representative director, etc. is identical to the intent of the corporation or where it is difficult to see that the corporate economic interests with the representative director, etc. are in fact identical through the actual status of the corporation, such as the representative director, etc., which is the principal manager of the embezzlement, and the degree of control over the corporation, the circumstances leading to the embezzlement, and the measures taken by the corporation after the embezzlement, etc.

(ii) the facts of recognition

A) The current shareholder status of the Plaintiff is as follows.

(unit: State)

Reversion

Gyeong Kim

개지 Kim

△△△△△

Maternate

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

2003

16,000

40%

14,000

35%

6,000

15%

4,000

10%

204

18,000

45%

16,000

40%

6,000

15%

-

-

205

18,000

45%

16,000

40%

6,000

15%

-

-

206

36,000

45%

32,000

40%

12,000

15%

-

-

2007

36,000

45%

32,000

40%

12,000

15%

-

-

208

36,000

45%

32,000

40%

12,000

15%

-

-

209

36,000

45%

32,000

40%

12,000

15%

-

-

2010

68,000

85%

12,000

15%

-

-

-

-

B) On July 2010, the Plaintiff filed a complaint on the charge of embezzlement against Kim △△, △△△△, and △, and then withdrawn the complaint after having reached an agreement with Kim △ on October 2010.

C) On October 6, 2010, Kim Jong-tae transferred all the Plaintiff’s shares held by the Plaintiff’s representative director Kim Jong-tae, and resigned from office on January 28, 201.

D) Around March 2012, the Plaintiff filed a second complaint with Kim Jong-chul as a suspicion of embezzlement.

E) From 202 to 2010 to 2010, Kim Young-chul had been in charge of the Plaintiff’s management and accounting, he prepared a tax invoice as if he was supplied with goods more than the actual goods supplied by the Plaintiff’s transaction partner and paid the price for the goods that was lower than the actual goods. The difference from the transaction partner Kim Gyeong-chul, Kim △, Kim Young-chul, the wife, and the so-called so-called “non-funds” was raised through various methods, such as remittance of money or cash payment from the account in the name x x the account in the name x x 319 times after he was sentenced to the punishment of 5,980,90,909,707 won in total for the personal purpose of purchasing real estate, etc., and he was indicted on April 8, 2013 and sentenced to a fine of 200,000 won in Busan High Court Decision 200 to 260,516, May 26, 2016.

F) Meanwhile, with the knowledge of the fact that Kim Jong-chul was willing to pay the funds at will after raising the funds for Nonindicted 26, 2001, he was convicted of a suspended sentence of three years on August 28, 201, and the judgment became final and conclusive around that time (the Busan District Court 2013Gohap240, Busan High Court 2015No5999) by using KRW 1,757,320,212 in total for 80 times from September 26, 2001 to December 23, 201, as the real estate purchase price, etc., in collusion with Kim Jong-chul, in collusion with Kim Jong-chul, for the crime that he/she embezzled in office, was indicted on August 30, 2013 and embezzled for a suspended sentence of three years on January 28, 2016.

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 4, 6 through 9, 11, and the purport of the whole pleadings

3) Determination

According to the statements in Gap's evidence Nos. 6, 8, 9, 12, and 15 and the facts found above, the plaintiff filed a complaint with Embezzlement, etc. on or around June 2012, the plaintiff filed a lawsuit claiming damages against Kim Jong-chul, etc. (Dasan District Court 2012Gahap10198) and a lawsuit claiming damages (Dasan District Court 2013Gahap18366) such as indemnity amount (Dasan District Court 2013Gahap1866). ② In addition, the plaintiff received a provisional attachment decision (Dasan District Court 2012Kahap109, 2013Kahap1097) on the real estate owned by Kim Jong-myeon, as the preserved right, on June 15, 2012 and August 21, 2013, and ③ the plaintiff received a claim for the right to claim the provisional attachment and the right to claim the dividend on the real estate owned by Kim Jong-myeon, from 16. 16.21.

However, comprehensively taking account of the following circumstances acknowledged by the Plaintiff’s respective descriptions as Gap’s evidence Nos. 7, 11, and 2 and 3 as well as the aforementioned facts acknowledged by adding the whole purport of the pleadings, it is difficult to view that the above-mentioned facts and the evidence presented by the Plaintiff alone cannot be deemed as not premised on the recovery from the time when Kim △-chul embezzled embezzled the amount of the disposition of this case’s income, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’

① As a type of punishment, 35% in 2003, 2004 to 2009, and 15% in 2010, 15% in shares of the Plaintiff were appointed as a director from the time of establishment of the Plaintiff to January 28, 201, and Kim Jong-tae was in charge of the Plaintiff’s accounting, office affairs, operation, and management, and production affairs.

around May 2010 at the time of the tax investigation on July 3, 2013, Kim Jong-tae stated that the Plaintiff was the final approval of the Plaintiff by this day (No. 2 No. 6), and that at the time of the police investigation, the Plaintiff was established by making a full investment and establishing the Plaintiff at the time of the police investigation, and Kim Jong-tae stated that he was only the representative director on the name of the deceased (No. 12 No. 5).

② The embezzlement of the Plaintiff’s funds made from 2003 to 2010 and the embezzlement is also reasonable. However, there is no evidence to deem that the Plaintiff’s executives and employees have raised an objection against the Kim △△△△. Rather, the Plaintiff’s representative director, in collusion with Kim △△, used part of the funds illegally raised by Kim △△△△, as the real estate purchase fund, and the director appointed and the △△△△△△△△△△△△△△ had his child lent the name of the ownership of the real estate to Kim △△△ in order to avoid compulsory execution.

③ In relation to the embezzlement of the amount of income disposition in this case, Kim Jong-chul did not account at any time, such as provisional payments and loans. A person inside the Plaintiff appears to have never been in a practical control or supervision over the act of appropriating funds by Kim Jong-tae. The sum of the shares in the Plaintiff’s shares held by Kim Jong-chul and Kim Jong-tae was 75% or 10% from around 2003 to 2010.

④ As seen earlier, the Plaintiff filed a criminal complaint against Kim △△, on June 2012 and around August 2013, and attached the real estate owned by Kim △△△△ on or around June 2012. On or around June 2012, the Plaintiff filed a criminal complaint against Kim △△△, on or around July 2010, and on October 6, 2010, made an agreement on the transfer of the Plaintiff’s shares to Kim △△△△△, etc., and then withdrawn a criminal complaint against Kim △△△△, and then filed a criminal complaint again on or around March 2012. The measures such as a criminal complaint or provisional seizure, etc. taken on or around 2012, become difficult to operate together the Plaintiff as a result of the criminal complaint, which led to the failure of operation of the Plaintiff to transfer the shares owned by △△△△△, and it is difficult to deem that the Plaintiff’s above measures were useful on the premise that the Plaintiff’s above measures were taken.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and it is so decided as per Disposition.