Income 2008-0096 (2008.09.09)

Disposition of income in the case of keeping the amount omitted from sales in the amount received by the representative director;

Even if the omitted amount of sales was deposited into a corporation under the name of the representative director and there was no actual cash outflow, it is the obligation to be repaid to the representative director in the debt account, and it is the actual same as that leaked to the representative director at that time, so the bonus disposal is made to the representative.

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

Article 67 (Disposal of Income)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing global income tax of KRW 323,598,840 on April 1, 2008 against the Plaintiff is revoked.

1. Details of the disposition;

A. The plaintiff is a person who served as the representative director of the non-party company from September 10, 200 to October 31, 2003, the first incorporation of ○○ Industry Development Co., Ltd. (hereinafter referred to as “non-party company”).

B. The defendant conducted a tax investigation on the non-party company. On April 16, 2001, the non-party company purchased the land of this case from the Busan Metropolitan City Mayor 002-5 m2272-5 m25 m2, Busan Metropolitan City on the commercial facility site of this case (hereinafter referred to as the "land of this case"), and on January 15, 2002, the non-party company sold the land of this case to the non-party 1, 2002, the non-party 795,239,000 won for gains from transfer, which was acquired from selling the land to the non-party 1, 2005, 239,000 won for gains from transfer, and revised corporate tax by adding the total amount of the above money to the corporate tax on the non-party 208 m208 m200.

[Reasons for Stabilization] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 4-1, Eul evidence 1 and 2-1, Eul evidence 1 and 2, the purport of the whole pleadings

2. Appropriateness of the disposition; and

A. The plaintiff's principal

On December 31, 2002, the non-party company treated the gains from transfer as a revenue-free amount by the representative director, and entered the gains from transfer in KRW 1,291,796,730 as of December 31, 2002, which goes beyond the gains from transfer to the Director of the Director of the Director of the Director's Bank of Korea. (3) Since the company is a company that is obligated to pay the plaintiff, it is illegal to notify the defendant of his tax payment. (4) Since Article 67 of the Corporate Tax Act is delegated to Presidential Decree comprehensively, it is against the principle of tax law and the prohibition of comprehensive delegation, and since it is a provision that imposes heavy tax on a corporation and an individual, it is contrary to the principle of guarantee of property rights and the prohibition of excessive delegation. Therefore, the disposition of the defendant's disposal based on Article 67 of the Corporate Tax Act and the proviso of Article 106 (1) 1 of the Enforcement Decree delegated by him is illegal.

(b) Related statutes;

Article 21 of the Framework Act on National Taxes (Establishment Date of Tax Liability)

Corporate Tax Act § 167. Bah disposition

(c) Fact of recognition;

(1) On April 16, 2001, the non-party company entered into a sales contract with the Busan Metropolitan City Mayor as KRW 1,494,761,00 in view of the land of this case, and paid KRW 298,952,200 in Busan Metropolitan City.

"(2) On December 31, 2001, the non-party company prepared a sales contract with the non-party company's 2,290,000 won (230,000 won, balance 2,060,000 won, and 2,000,000 won) for the land of this case between the non-party company and the non-party company's ○○ on December 31, 2001 (the "non-party company's ○○○ (the plaintiff's son's son's son's son's son) (the contract) with the content that the remaining payment date of the land of this case is as of January 15, 202 (hereinafter "the 1 sales contract"). (3) The non-party company received 230,000,000 won from the account in the name of the joint purchaser, 00,000 won for the remaining ○○ (the spouse's ○○ 60,201.5.

(4) On January 15, 2002, the non-party company entered into a sales contract with a co-owner on the land of this case with the content that the purchase and sale price of KRW 1,500,000,000 (the balance of KRW 230,000,000, the balance of KRW 1,270,000) and the extinction of the remainder payment (the remainder of KRW 1,270,00,000), and the special agreement entered into on January 15, 202 that only the remainder payment is paid only as of January 15, 200, and that the buyer will succeed to the remainder (hereinafter referred to as the "the second sales contract").

(5) The difference in the transfer of the instant land was treated as the provisional payment by the representative director. The 637,000,000 won as of the end of 2001 and 1,291,796,730 won as of the end of 2002 as of the end of 2002 as the provisional payment by the representative director in the debt account of the non-party company.

(6) The non-party company closed its business on April 13, 2007.

[Reasons for Recognition] Unsatisfy, Nos. 4 through 7, No. 8-l or 13, and No. 9

Statement, the whole purport of the pleading

D. Determination

(1) Judgment on the Plaintiff’s assertion No. 1

On December 31, 2001, the non-party company entered into a sales contract to sell the land of this case to 2,290,000,000 won between the co-owner's son Kim Jong-hee and the non-party company received 2,060,000 won as the down payment on the same day from the common buyers on the same day. The fact that the non-party company received 2,060,000 won as the remainder on January 15, 2002 is as seen above, taking into account the purport of the entire pleading in the statement in the evidence No. 4, the second sales contract was written according to the convenience to lower the transaction price, and the fact that the actual sales contract is the first sales contract.

Therefore, it is reasonable to view that the non-party company sold the instant land to a common purchaser in KRW 2,290,000,000, and this part of the Plaintiff’s assertion that it cannot impose a comprehensive income tax because the transfer margin was not determined.

(2) Judgment on the Plaintiff’s assertion

Generally, in a lawsuit seeking revocation of disposition imposing tax, the burden of proving the facts of taxation must be borne by the person who has the authority to impose tax, but if it is revealed that the facts of taxation are presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the other party is an unlawful disposition that lacks the requirement for taxation (see, e.g., Supreme Court Decision 2002Du6392, Nov. 13, 2002).

As a matter of principle, the defendant, who is the authority to impose tax, should prove the fact that the profit-generating amount was out of the company as a premise of recognition and disposition, and the fact that the non-party company dealt with the transfer difference of the land of this case as the provisional payment by the representative director is the obligation to be paid to the representative director in the future as the debt account, and the amount appropriated as the provisional payment is in substance the same as that of the company from the representative director at that time. Thus, even if the amount omitted in the corporate tax return was deposited in the corporation as the representative director's deposit in the name of the corporate director's deposit, and there was no actual cash outflow, the taxpayer cannot prove special circumstances that the amount was not out of the company, as long as Article 67 of the Corporate Tax Act and Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act do not prove that such amount was out of

However, even based on the plaintiff's assertion itself, since the non-party company appropriated capital gains as the provisional payment for the representative director, it cannot be deemed that the capital gains were reserved to the non-party company at the end of the business year 2002.

Therefore, since it is reasonable to view that the transfer margin of this case was out of the corporation's representative, the plaintiff's assertion on this part is rejected.

(3) Judgment on the Plaintiff’s assertion

Even if income subject to withholding is omitted, a comprehensive income tax may be imposed on such income (see, e.g., Supreme Court en banc Decision 79Nu347, Sept. 22, 1981; Supreme Court Decision 2004Du4504, Jul. 13, 2006). In cases where the additional amount of gross income leaked to a tax office is deemed to be reverted to an officer or employee, and the tax office disposes of it as bonus, the additional amount of gross income shall be deemed to be reverted to the officer or employee; and in cases where the tax office disposes of it as a bonus, the payer of the income amount shall be deemed to be liable to pay the income (Article 135(4) of the Income Tax Act; Article 192(2) of the Enforcement Decree of the Income Tax Act; Article 21(2)1 of the Framework Act on National Taxes; Article 20(3) of the Income Tax Act shall be deemed to be reverted to the date on which the notice of change in the income amount was served on the corporation.

According to the above facts, the defendant disposed of the additional amount of earnings out of the company in 2002 as a bonus to the plaintiff who is the representative director, and the notice of change in income amount for notification of the income earner was delivered lawfully to the plaintiff (proviso of Article 192 (1) of the Enforcement Decree of the Income Tax Act). Thus, the plaintiff's liability to pay global income tax, which is the owner of income, shall be established when the taxable period of income tax in 202 expires

As such, if a disposition of income without regard to the establishment of a corporation’s obligation to withhold income from the disposition of income occurs to the Plaintiff, who is the person to whom the income accrued, and thus, the Defendant is justifiable to impose the global income tax on the Plaintiff based on the disposition of income. The Plaintiff’s assertion on this part is without merit on the premise that the Defendant’

(4) Judgment on the Plaintiff’s assertion

However, since it is practically impossible to stipulate all laws and regulations related to the imposition of taxes without exception due to the complex and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly, it is practically impossible to stipulate them by laws within a formal meaning without exception. In extenuating circumstances, it is permitted to delegate matters to be stipulated by laws to administrative legislation with more scarbity than the formal legislation of the National Assembly. In such a case, when delegating legislation, it is clearly and clearly prescribed the contents and scope to be stipulated in subordinate laws by specifically stipulating the basic matters of the contents and scope to be prescribed by Presidential Decree in the Acts and subordinate statutes as possible. Thus, if it is possible to determine by systematically and systematically comprehensively considering the legislative intent of the relevant Acts and the entire provisions of the relevant laws, if it is possible to predict the outline of the contents to be stipulated in the Presidential Decree, etc. from the relevant laws themselves, it cannot be said that there is no violation of the Constitution under the no taxation without law even if the Presidential Decree is included in the income disposition of the amount included in the corporate

Article 67 of the Corporate Tax Act (amended by Act No. 4804, Dec. 2, 1994) stipulates that "the disposal of the amount included in the calculation of earnings shall be governed by the Presidential Decree in determining or correcting the corporate tax base" shall be revised. The amount included in the calculation of earnings shall be disposed of to the person to whom the income belongs as prescribed by the Presidential Decree, such as bonus, dividend, and other outflow from the company and internal reservation of the company. As such, it seems that Article 67 of the Corporate Tax Act (amended by Act No. 4804, Dec. 2, 1994) simply delegates the disposal of income included in the calculation of earnings to the Presidential Decree, which is a subordinate law. Therefore, it is reasonable to conclude that the above provision itself violates the principle of no taxation without law and no comprehensive payment as asserted by the plaintiff. It is reasonable to establish that most of the amount included in the calculation of earnings in the calculation of earnings should be attributed to the corporation or its employees, regardless of its legislative intent purpose.

In addition, the imposition of corporate tax and the imposition of the comprehensive income tax by disposing of the amount included in the corporate tax base from the income tax base depends on the taxation requirements and the purpose of taxation, and since the corporate tax and the global income tax completely differ from the function and purpose of the tax, there is no problem of double taxation between the two. Therefore, Article 67 of the Corporate Tax Act and Article 106 of the Enforcement Decree of the Corporate Tax Act do not violate the principle of prohibition of excessive taxation, or it cannot be deemed that the property

Conclusion

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