Ulsan District Court 2008Guhap642 ( November 19, 2008)

National High Court Decision 2007Nu2078 (No. 22, 2008)

When a corporation acquires assets, it shall keep accounts as the representative's receipts and disbursements, and it shall keep accounts as half of the receipts and disbursements at the time of disposal.

A corporation shall not be deemed a bonus due to the outflow from the company, if it has been reverted to the representative in the form of a half of the amount paid and disposed of the assets by paying the price as a representative in the acquisition of assets.

The contents of the decision shall be the same as attached.

1.The decision of the first instance shall be revoked.

2. The imposition of global income tax of KRW 1,357,380,470 on the Plaintiff and the imposition of KRW 135,738,040 on global income tax of KRW 1,357,38,040 on the Plaintiff and the imposition of KRW 135,738,040 on the resident tax of the head of △△△△△ in 201

The same shall apply to the order.

1. Circumstances of dispositions;

가. ○○기업 주식회사(1998.9.8.상호가 ♤♤건설 주식회사로 변경되었다. 이하 주식회사를 표시할 때 '주식회사'기재는 모두 생략하기로 한다)의 대표이사이던 원고는, ◇◇지구 토지구획정리조합의 체비지대장에 ○○기업 명의로 등재되어 있던 별지 목록 기재 토지(이하'이 사건 토지'라고 한다)의 매매대금 4,309,734,000원 중 3,015,000,000원을 2001.2.26.부터 2001.5.3.까지 자신의 예금계좌로 송금받아 사용하였다.

나. □□세무서장은, ○○기업 소유의 이 사건 토지가 1999년에 ■■종합건설에 매도되었는데, ○○기업의 대표이사이던 원고가 2001년에 지급받은 매도대금 3,015,000,000원을 개인용도로 사용하였다고 보고, 2007.3.2.귀속자를 원고로 하여 원고에게 소득금액변동통지를 한 후 이러한 과세자료를 피고 □□세무서장에게 통보하였고, 이에 피고 □□세무서장은 2007.5.15.위와 같은 소득금액변동통지를 근거로 원고의 2001년 귀속 종합소득세를 1,366,097,572원(가산세 포함)으로 경정하고, 기납부세액 8,717,100원을 공제한 나머지 1,357,380,470원을 납부할 것을 원고에게 고지하였고, 이와 동시에 피고 □□시 △△구청장을 대신하여 소득세할 주민세 135,738,040원을 납부할 것도 고지하였다.

[Ground for Recognition: Each entry of Gap evidence 1, 2, 3, Eul evidence 1, 2 (including paper numbers)]

2. Whether a disposition is lawful

A. The parties' assertion

(i)the plaintiff

a) the purpose of the exclusion period;

원고가 이 사건 토지를 ■■종합건설에 매도한 것은 1999.3.31.인데 그로부터 5년의 제척기간이 지난 후에 이 사건 처분이 이루어졌으니, 이 사건 처분은 위법하다.

B) Title trust

The instant land is not owned by ○○ enterprise, but owned by the Plaintiff. Since the Plaintiff only caused a disaster, such as the name of ○○ enterprise in the land secured by the recompense for development outlay, the sale price should also be attributed to the Plaintiff. Therefore, the instant disposition is unlawful.

ii)the Defendant;

Defendant 1 asserted that the assessment disposition of global income tax is lawful as follows, and Defendant 1’s head of △△△△△ is the tax base of 10% of the income tax amount. As such, Defendant 1’s head of △△△ Office’s disposition of global income tax is not revoked, resident tax to be imposed is also lawful.

a)the exclusion period;

Since the plaintiff's income occurred in the year 2001, May 15, 2007, which is the date of the defendant's disposition, the exclusion period is not excessive.

(b)The legality of the formal action

The bonus disposition of KRW 3,015,00,000 against the plaintiff was taken as a result of the plaintiff's personal use of the proceeds from the sale of the land of this case, which is owned by ○ enterprise, and based on this, the rectification and imposition disposition of global income tax was taken, and the land of this case is registered in the register of land secured for development outlay in the name of ○ enterprise, it shall be deemed as ○ enterprise

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i) whether the exclusion period has expired;

The head of △ District Tax Office deemed ○○ Company’s land sale price of this case 3,015,000,000 won was leaked to the Plaintiff in 2001, and notified the Plaintiff of the change in the amount of income as above. The Defendant’s head of △ District Tax Office (the legality of the disposition imposing global income tax is to review the legality of the disposition imposing global income tax as long as it follows the legality of the disposition imposing global income tax by the Defendant’s head of △ District Tax Office, and it refers to the “Defendant” without indicating the Defendant’s name. In the case of global income tax, which is the method of filing a return, the Plaintiff’s global income tax, the period of exclusion from June 1, 2002, which is the following day of May 31, 2002, the filing deadline for the return of global income tax in 201, and thus, the exclusion period and the transfer period of May 15, 2007, which is the date of the disposition of this case, is clear.

(ii)the legality of a regular female disposition

(a)Arrangement of issues;

In full view of the provisions of Article 67 of the Corporate Tax Act, Article 106 (1) of the Enforcement Decree of the Corporate Tax Act, and Article 20 of the Income Tax Act, in case where the amount included in the calculation of the corporate tax is out of the company in determining or revising the corporate tax base, the chief of the competent tax office shall dispose of the amount included in the calculation of the income to the officer as a bonus, and accordingly, he shall dispose of the amount included in the calculation of the income to the officer, and accordingly, he shall be deemed to have earned income

앞서 본 것처럼 □□세무서장은 "○○기업 소유의 이 사건 토지가 ■■종합건설에 매도된 후 그 대금 3,015,000,000원이 2001년도에 ○○기업의 대표이사이던 원고에게 입금되어 원고가 개인 용도로 사용하였음"을 전제로 하여, 2007.3.2.위 금액이 원고에게 상여로 귀속되었다는 내용의 소득금액변동통지를 원고에게 하였고, 피고는 이를 근거로 2007.5.15.2001년 귀속 종합소득세(가산세 포함) 1,357,380,470원을 납부할 것을 고지하는 처분을 하였으며, 이 사건 소송중에도 원고에 대한 소득금액변동통지로서 한 상여처분이 적법하다고 주장하고 있다. 그러므로 피고가 원고에게 한 상여처분의 적법성을 검토하여야 할 것이다.

b)the location of the burden of proof;

Unless there are other special circumstances, the tax authority bears the burden of proof with respect to the facts that meet the requirements for taxation, such as the grounds for taxation and the amount of tax base, in administrative litigation on taxation (Supreme Court Decision 80Nu521 Decided May 26, 1981).

c)review the legality of bonus disposal against the plaintiff;

(1) According to the evidence Nos. 1 and 2,5,11 (including paper numbers) of A, the instant land was registered in the name of ○○ Company, and was entered in the account books of ○ Company as KRW 4,448,584,366, among the purchase price of KRW 4,225,476,60,000, the Plaintiff received KRW 3,015,000 from 4,225,476,60, and deposited into the substitute construction for which the Plaintiff was the representative director. However, if only these facts are established, it may be questionable whether the Plaintiff’s arbitrary use of KRW 3,015,00,000, which is the assets of ○○ Company, was not arbitrarily leaked.

(2)그러나 다음에서 보는 것처럼, 원고는 1993.3.경부터 1996.3.경까지 ●●개발과 ○○종합건설의 명의로 토지구획정리사업공사를 수행하는 과정에서 취득하게 된 이 사건 토지를 ○○기업 명의로 등재하여 둔 것이고, 이 사건 토지를 ○○기업 명의로 등재할 당시 ○○기업이 그의 대표이사인 원고에게 이 사건 토지의 취득가액 4,446,584,366원을 ○○기업의 자금으로 교부한 것이 아니라 대표이사 가수금으로 대금을 지급하였다고 회계장부를 정리하여 둔 것일 뿐이 만큼, ■■종합건설에 대한 이 사건 토지의 매각대금 중 3,015,000,000원을 대표이사 개인인 원고가 수령하였다고 하더라도 이는 ○○기업의 회계장부에 기장되어 있는 것처럼 대표이사 가수금을 반제한 것이거나, 또는 아무런 대가 없이 원고로부터 명의만 이전받아 둔 이 사건 토지의 매도대금을 원고가 가져간 것으로 볼 수 있다. 그러므로 원고가 대표이사 가수금도 없이 ○○기업의 자산인 3,015,000,000원을 임의로 유용하였다거나, 또는 이 사건 토지의 매도대금 3,015,000,000원을 실질적인 ○○기업의 자산이라고 보기 어렵다.

(a)In accordance with the following facts, each of the statements in Gap evidence Nos. 4 to 30, 38 to 52, 55 and 59 (including paper numbers), and each of the testimony of the witness KimB of the first instance court, the witness KimB of the trial, the JCC of the trial witness of the party, and the female DD, the plaintiff registered the land of this case acquired in the course of executing the development of Baltch and the land readjustment project in the name of the ○○ Integrated Construction from March 1993 to March 196, in the name of the ○○ Enterprise.

(1) On February 23, 193, 1993, on the premise of the supply and demand of the contract for the public works in the land readjustment project in △△ District, ○○ General Construction entered into with the Plaintiff the so-called installment director contract (a contract under which the installment director agrees to implement the construction works supplied in the name of the construction company for his responsibility and account, but to pay a certain amount of installments to the construction company to be appropriated for public charges, etc.). In concluding the above contract, the Plaintiff agreed to purchase 3,000 square meters which the Plaintiff can use as the site for the construction of collective housing from among the land secured for development outlay

② At that time, on March 17, 1993, the Plaintiff was entrusted with the right to implement the land readjustment project, including the right to implement the land readjustment project, in the name of Balurie Development (the installment director contract between the Plaintiff and Baluri Development) from the land rearrangement cooperative in △△ District, and actually implemented the land readjustment project.

③ On April 1, 1993, in accordance with the installment director contract with ○○ General Construction, the Plaintiff prepared a contract from ○○ General Construction to supply and demand the land in the name of KRW 6.9 billion for the civil works for the land readjustment project in ○○ General Construction, and performed the construction work. Accordingly, on August 19, 1994, the Plaintiff received the certificate of land secured for recompense of development outlay on the aggregate of KRW 10,523.8 square meters from the association as the cost of construction in the capacity of KRW 2.8 billion for the construction in the capacity of KRW 2.8 billion from the association. The Plaintiff received the certificate of land secured for recompense of development outlay in the form of disturbance and KRW 16 block and KRW 17 block land in the form of exchanging part of the land with other reserved land, and then registered the land in the name of land secured for development in the name of ○ General Construction on May 1, 195 and provided the remaining multi-family housing construction project in the attached Table No. 12, 12.

④ In this regard, ○○ General Construction promoted a joint housing construction project with the instant land as its site approved on May 25, 1995 for the construction of apartment houses with a scale of 424 households from the ○○ General Construction. However, around March 12, 1996, the Plaintiff agreed to give up this and return the said land to the person designated by the Plaintiff in the manner of transferring the ownership of the said land to another person.

⑤ In accordance with this, the Plaintiff, on March 12, 1996, completed the ○ General Construction with respect to the above 3,4,5, and the real estate sales contract [the nominal owner shall be the ○○ Enterprise, and the Plaintiff, on April 22, 1996, took over 50% of the ○ Enterprise’s shares (50%) from A.I.D. and entered the ○○ Enterprise’s shares as the ○ Enterprise’s representative director on April 29, 1996. The content of the sales contract was based on the following: (a) the ○ Enterprise purchased the said 3,46,40,00 shares from the said 3,46,40,00 shares of 3,46,60 won; and (b) the Plaintiff entered the land in the ○○ Enterprise’s name on March 15, 1996.

(6) On the other hand, ○ General Construction shall be the construction cost of March 31, 1996 for a land readjustment project, and the price for the construction cost of KRW 1,323,190,000 shall be paid to the Plaintiff. The status of the beneficiary was agreed to be succeeded by the ○○ Company that will be appointed as the representative director, and the Plaintiff was paid the development recompense land of KRW 5,250,75 square meters from the partnership for the above construction cost of the said construction cost.

7. On October 29, 1997, the Plaintiff entered ownership in the register of land allotted by the authorities in recompense for development outlay in the name of ○ enterprise with regard to the land attached Nos. 1 and 2 among the land in this case.

(b)In full view of the following circumstances revealed by Gap evidence Nos. 31 to 36, 59, Eul evidence Nos. 2 and 35, and testimony by the witness KimB of the first instance trial, when the land of this case is registered in the name of ○○ enterprise, the ○ enterprise did not deliver 4,46,584,366 won of the land of this case with its own funds to the plaintiff, not with its own funds, but with its representative director having set up and paid its price items for the acquisition.

(1) The real estate sales contract to purchase the land Nos. 3,46,40,00 among the land in this case from ○○ Construction was prepared on March 12, 1996 and accordingly, it was registered by ○○ Company as the owner of the above land on March 15, 1996. There was no evidence that ○○ Company paid the price with ○○ Company’s own funds. There was no reply that ○ Company paid the price for the real estate acquisition on April 27, 1996 by ○○ Company on real estate acquisition. There was no evidence that ○ Company paid the price for the land Nos. 1,446,40,000 among the land in this case.

②1999.3.31.○○기업이 이 사건 토지를 매매대금 4,225,476,600원으로 ■■종합건설에 매도하는 매매계약서가 작성된 후 1999.4.30.에 정리된 다음과 같은 내용의 회계장부의 기재내역과 토지매각대금 처리내역에 관한 다음과 같은 현금출납장의 기장내역에 의하면, 적어도 3,955,000,000원이 넘는 대표이사 가수금이 설정되어 있다.

○○기업 현금출납장에는 위와 같이 이 사건 토지 매각대금 4,225,476,600원의 대부분인 3,955,000,000원이 1999.2.~4.경 대표이사(원고) 가수금반제로 출금된 것으로 기장되어 있지만, ■■종합건설은 그와 같이 매매대금을 지급한 적이 없고, 매매대금 중 3,015,000,000원을 2001.2.26.부터 2001.5.3.까지 여러 차례로 나누어 원고에게 지급하였다.

③ When comparing the balance sheet of ○ enterprise in the business year 196, which was the business year in which the land was transferred to ○○ enterprise, and the balance sheet in the business year 1995, the total amount of the debt was increased by 3.7 billion won from 80 billion won to 4.5 billion won. The total amount of the assets is also indicated as the increase of 3.7 billion won from 1.8 billion won to 5.5 billion won from 1.8 billion won to 3.7 billion won from the total amount of the assets. This is the cause for the increase of 3.8 billion won from 3.8 billion won.

(3) Accordingly, it is clear that the instant land was an asset in the name of the ○○ Enterprise, and that the instant land was entered in the account book of the ○○ Enterprise in the amount of KRW 4,48,584,366, and that it cannot be viewed as an outflow from the company of the ○○ Enterprise solely because the said KRW 3,015,00,000, out of the price, was reverted to the Plaintiff, and there is no evidence to prove that the KRW 3,015,000,000 was attributed to the Plaintiff, and thus, the disposition of KRW 3,015,000,000 against the Plaintiff of the ○○ Enterprise was illegal.

(iii) the resolution;

Therefore, the imposition of global income tax (including additional tax) for the year 2001 belonging to Defendant 1,357,380,470 on May 15, 2007, which is premised on the above bonus disposal, and the imposition of the resident tax to be imposed by the head of △△△△ in the Si of △△△ on the premise of such imposition, shall be revoked in all unlawful manner.

3.In conclusion

Therefore, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance shall be revoked and the disposition of imposition of global income tax for 2001 and the disposition of imposition of the resident tax to be imposed by the head of △△△△ in △△ in Do shall be revoked. It is so decided as per Disposition.