Seoul Administrative Court-2017-Gu Partnership-51792 ( October 13, 2017)

Since the imposition was made after the expiration of the exclusion period, invalidation is invalidated.

Even if the representative director who is in the position of employee of the Plaintiff is the actual manager’s embezzlement, and the actual manager and the company’s intent are identical. Thus, the time when the Plaintiff’s embezzlement belongs to the recognized employee due to the Plaintiff’s embezzlement is illegal with the exclusion period.

The delayed period for imposing national taxes under Article 26-2 of the Framework Act on National Taxes

Seoul High Court-2017-Nu-79051

AA, Appellants

AA

BB

National Flag

2018.22

o October 10, 2018

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

Defendant BB confirmed that the imposition of global income tax****,***,**(including additional tax) imposed on May 14, 2014 by the head of the Seoul Special Metropolitan CityCC against AA on May 14, 2014 and the imposition of local income tax***,***** is all null and void.

2. Purport of appeal

The judgment of the first instance is revoked. All claims filed by AA against the Defendants are dismissed.

1. Details of the disposition;

A. AA, on November 21, 2007, was appointed as a director or a representative director of DDR Co., Ltd. (hereinafter referred to as DDD), but resigned from the representative director on December 31, 2007 and resigned from the director on December 2, 2009.

B. The audit report on the financial statements of DD in 2007 includes that "AAA, the former representative director of the DD, withdraws the company's funds of KRW 500 million by cashier's checks on December 12, 2007 in the form of short-term loans to false customers and advance payment, and returned only KRW 100 million out of them on February 2, 2008. AA, on April 7, 2008, filed a complaint against DDA by occupational breach of trust and embezzlement, and included the above KRW 50 million as the total amount of tort, and included the remaining KRW 400 million (hereinafter "the issue amount of this case")."

C. From July to September, 2012, the director of the regional tax office of ○○○ (the director of the regional tax office) notified the head of FF Tax Office having jurisdiction over DD to dispose of the instant issue amount out of DD as bonus for the year 2008, and on November 1, 2012, the director of the regional tax office of ○○○ (the director of the regional tax office) notified the head of FF Tax Office of the disposal of the instant issue amount out of DD as bonus for the year 2008.

D. After that, on May 14, 2014, Defendant BB imposed the global income tax**,***,** (including additional tax) on AA in 2008 on the premise that the key issue member of the instant case was actually attributed to AA in 2008, and on the same day, Defendant CB also imposed *,**, *, **(including additional tax) on AA as local income tax attributed to year 2008 on the same day, which is equivalent to 10% of the total global income tax **,***, ****.

(hereinafter referred to as "each of the instant dispositions" in total of the imposition of global income tax and the imposition of local income tax.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, 4, 8, 17, Eul evidence 7, and the purport of the whole pleadings

2. Whether each of the dispositions in this case is invalid

A. Summary of the AA’s assertion

AA asserts to the effect that each of the dispositions of this case is void as a matter of course due to the following significant and apparent defects:

1) It is reasonable to regard the above amount as 2007 when it was withdrawn and reverted to AA as 2007 when it was withdrawn, even if the issue amount of this case was actually reverted to AA, as the defendants' assertion, even though the issue amount of this case was actually reverted to AA, since DDR did not have an intention to recover the above amount from the beginning, it was reasonable to regard it as 2008. Accordingly, each of the dispositions of this case was imposed 5 years of the exclusion period of imposition.

2) After notification of change in the amount of income on November 1, 2012, from February 2013 to February 2013, the Defendants were unable to exercise the right to claim a pre-assessment review on the grounds that: (a) the Defendants were unable to delay business operations without delay, and the period up to the expiration date of the exclusion period of imposition does not exceed three months, even though they were able to impose a taxation on AA; (b) and (c) the Defendants failed

3) The Defendants made each of the instant dispositions with the trust of only audit report on the DDR’s financial statements without any grounds, without completely disregarding the methods of the on-site investigation, etc. prescribed by the Income Tax Act, etc.

(b) Fact of recognition;

The following facts may be acknowledged as mentioned above or remarkably in this court, or as being based on Gap evidence Nos. 4, 10 through 12, 17, Eul evidence Nos. 7, 14, 15, 17, Eul evidence No. 22-1, and the whole purport of arguments in response to an order to submit financial transaction information to EE banks by this court, and as a whole.

1) DD, which is a KOSDAQ-listed corporation, was the largest shareholder and two other (39%) on October 207, 2007, and was changed to HH (Representative ggg) and aa and AAAA and AAA under a contract for acquisition of the largest shareholder’s shares and management rights (at the time of the publication made on October 26, 2007, the total sum of HHH 15%, aaa2.94%, AA4.6%, and AAA4.54%, as at the time of the publication made on October 26, 2007, HH 14.98%, aaa2.3%, and AA4.6% increased to 31.91% in total at the time when the largest shareholder was changed to KK.).

2) 그런데 당시 DDD의 경영권을 실제로 인수한 것은 aaa이었고, AAA는 지분 취득을 위해 자금을 투입한 것은 아니었으며, 인수과정에 대하여 aaa은 2010.7. 19. 서울○○지방검찰청에서 조사받으면서 "제가 그 전에 ♧♧♧를 적대적M&A;를 통해 인수하면서 굉장히 시끄러웠기 때문에 자이링크(DDD의 변경 전상호이다)를 인수할 때는 저를 나타내지 않기 위해 동생 명의로 된 HHH를 내세워 지분을 분산시키고 아무것도 모르는 AAA를 대표로 시켰던 것입니다."라고 진술한 바 있고, 2012. 3. 12. 서울구치소 수감 중에 국세체납 징수와 관련하여 조사받을 때에도 AAA 명의의 지분은 명의를 빌려 매수한 것이라고 진술하였다.

3) On November 21, 2007, AA was appointed as the representative director of DD on December 31, 2007, but dismissed from office as the representative director on December 31, 2007. Aa was appointed as the latter representative director on April 7, 2008, and Aa had resigned from office on April 7, 2008. A exercised the substantial warning of DD during one year after resignation from office as the representative director (According to the business report of DD in 2008, Aa and AA were present as a director of DD until September 2, 2008).

4) ADD initially rejected the audit opinion on March 14, 2008 on the grounds of the limitation on the audit scope in the course of the audit of the financial statements for the business year 2007, and received the audit opinion that it was adequate on April 8, 2008 by preparing a revised financial statement and submitting relevant data to the public. AAA on April 7, 2008, which was the preceding day, filed a complaint on April 2008, on the grounds of embezzlement, etc. of the key bank of this case.

5) However, on July 30, 2008, the accusation case against the charge that AA embezzled the key funds of this case was concluded as a non-prosecution disposition by the dismissal on July 30, 2008 due to the failure of the complainant to comply with the investigation by the complainant.

6) DDD는 RRR이 대표이사로 취임한 후 2009. 1. 19. AAA를 다시 업무상배임 혐의로 고소하였으나, 이는 이 사건 쟁점금원의 횡령이 아니라 주식회사 ♡♡♡ 시행사업과 관련된 업무상 배임을 이유로 한 것이었다.

7) There was no measure such as provisional seizure against AA to preserve the damage claim arising from the embezzlement of the Bank of Korea, and there was no civil lawsuit against AA to recover the damage claim in addition to the above two complaints.

8) 한편, DDD는 AAA의 처 PPP의 ♡♡은행 계좌로 2008. 4. 25. 9,646,810원을 입금하였다.

C. Determination

1) As the representative director, etc., who is the actual manager of a corporation, has not been subject to recovery at the beginning, barring any special circumstance, the act of using the corporation’s funds constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be seen as not premised on recovery from the utilization point of view, it shall be determined individually and specifically by taking into account all the circumstances such as the actual status within the corporation of the representative director, etc., the subject of embezzlement, the degree of control over the corporation, the circumstances leading to embezzlement, and the measures taken by the corporation after embezzlement, etc., where the intent of the representative director, etc. is the same as that of the corporation, or where it is difficult to see that the corporate economic interest with the representative director, etc. is in fact consistent (see, e.g., Supreme Court Decisions 2007Du20959, Jan. 28, 2010; 2009Du2887, May 9, 2012).

2) In light of the following circumstances, even if AA may be deemed to have reverted to it by taking advantage of the status as representative director as alleged by the Defendants, as seen in the above facts and the overall purport of the pleadings, i.e., (i) AA acquired a part of DD’s shares in its name and held office as representative director, based on the intention of AAa who actually acquired management rights of DD; (ii) in the course of preparing the audit report on the financial statements in 2007, the withdrawal of DD was at issue; and (iii) AA made a complaint against AA on April 7, 2008 on the charge of embezzlement; however, in light of the fact that the complaint was rejected and terminated as a rejection, it appears that the complaint was formally filed for the purpose of preventing delisting, and (iii) even after the complaint, the complaint still has been filed for the purpose of maintaining the status of the director or the claim for damages of AA for the purpose of preserving the claim for damages of 90 million won in its name.

④ In full view of the fact that (a) even after the resignation of the representative director on April 2008, aa exercises the substantial management right for one year; (b) even thereafter, there was an additional complaint or a lawsuit seeking compensation for damages, and the specific recovery measures were not underway, it is reasonable to deem that AA was in the position of representative director of DD and is in the position of actual employee; (c) at that time, AA was in the position of actual manager of DD when DD was in the position of representative director; (d) it is reasonable to deem that AA had no intention to recover it from AA from the time of withdrawal of the DD amount (in light of the above circumstances, it is reasonable to deem that the withdrawal of the DD amount was based on the intention of AAa; and (d) for a considerable period of time prior to and after the withdrawal of the D amount, it is reasonable to deem A and DD’s intention to have been removed from the company immediately on December 12, 2007, which was withdrawn by cashier’s checks.

3) Thus, even if the issue amount of this case was reverted to AA, the time when it was reverted to AA is 2007. Thus, each of the dispositions of this case made on May 14, 2014 is made after the lapse of five years from the exclusion period under Article 26-2(1)3 of the Framework Act on National Taxes and Article 30-4(1)3 of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010). Thus, each of the dispositions of this case was made after the lapse of five years from the exclusion period under Article 26-2(1)3 of the Framework Act on National Taxes and Article 30-4(1)3 of the former Local Tax Act (wholly amended by Act No. 10221

4) As to this, the head of the Defendant Seoul Special Metropolitan CityCC alleged that since the AA was unable to use the DD’s failure to produce the data at the time of the preparation of the audit report in 2007, the exclusion period should be applied 10 years to the case of fraudulent and other unlawful acts, not in general cases, but in general. However, it is insufficient to recognize that AA had failed to submit the relevant data as above at the time of the preparation of the audit report on the DD’s financial statements in 2007, and there is no other evidence to acknowledge this differently, the above assertion is without merit without any need to further examine.

3. Conclusion

Therefore, the claim of this case against the defendants of AA is justified, and the judgment of the court of first instance is just, and all appeals by the defendants are dismissed as it is without merit. It is so decided as per Disposition.