Seoul Administrative Court 2008Guhap44082 ( October 29, 2009)

Seocho 208west 1893 (2008.04)

Income tax liability of the representative and such disposition;

Since the amount disposed of as bonus under the Corporate Tax Act is naturally included in Class A earned income, which is an element of calculating global income tax, the representative is liable to pay income tax regardless of whether the amount is actually attributed to himself/herself, unless he/she proves that the amount distributed out of the company is clear.

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 44,830,290 against the plaintiff on March 7, 2008 shall be revoked.

1. Determination as to the circumstances of the disposition and the defense before the merits

The court's explanation about the background of the disposition and the defense prior to the merits is the same as the relevant part of the judgment of the court of first instance. Thus, it shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Related Acts;

It is as shown in the attached Table related statutes.

3. Judgment

A. As to the plaintiff's assertion that he is a nominal representative director

(1) The plaintiff asserts that the disposition of this case against the plaintiff merely nominal representative director is unlawful because it violated the substance over form principle, since it was registered as representative director on the corporate register upon the request of the NAA, which actually operated ○○ Industries Co., Ltd. (hereinafter "the company of this case").

(2) The so-called recognition contribution system, which is obviously out of the amount included in the calculation of earnings under Article 67 of the former Corporate Tax Act (amended by Presidential Decree No. 8831 of Dec. 31, 2007) and Article 106 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19328 of Feb. 9, 2006), is not based on the fact that such income has accrued to the representative, but is not based on the fact that the amount of accrual is unclear, the so-called recognition contribution system, which aims to ensure that certain facts that can be recognized as such act in order to prevent unfair conduct under the tax law by a corporation should be considered as bonus to the representative without substance.

In this case, since the representative is a de facto representative operating the company, even if he was registered as the representative director of the company on the corporate register, if there is no actual operation of the company, such recognized income shall not be imposed by devolving it on the representative.

However, a person who actually exercises the authority as a representative director and actually participates in the management shall be deemed a representative who is subject to disposition by recognizing the representative, and a nominal representative director shall not be deemed a nominal representative director solely on the ground that there is a separate controlling shareholder (see, e.g., Supreme Court Decision 2005Du8030, Jan. 18, 2008). Furthermore, the fact that a person constitutes a representative director of a corporation who is subject to disposition by recognizing the title shall be proved by the data such as the register of corporate register, etc., and even if registered as the representative director on the register of corporate register, the person who asserts the fact that the representative is not the actual representative shall prove the fact that the name was only lent the name, and the fact that the representative was not the actual representative shall be proved (see, e.g., Supreme Court Decisions 84Nu68, Jun. 26, 1984; 203Du1615, Jul.

(3)The following facts are not in dispute between the parties, or recognized by Gap evidence Nos. 7,10,11,12,14, 14, 21 to 24, Eul evidence No. 3, Eul evidence No. 6-1 to 3, and by the purport of the entire testimony and arguments of the witnesses of the first instance and the first instance trial.

Around July 2004, the Plaintiff asked the Plaintiff to establish the company under the Plaintiff’s name on the grounds that the Y, who was living together with the Plaintiff, could not establish the company under its own name. Accordingly, the Plaintiff prepared documents directly related to the Plaintiff’s name and applied for the report of establishment and business registration of the instant company, and all of the 50,000,000,000 capital was invested.

On July 9, 2004, the Plaintiff entered into a contract with △△△-dong 161-15 △△△-dong, △△△-dong to lease five floors of the instant company’s workplace, and signed and sealed the lease contract directly.

During the performance of the duties such as ordering construction from outside and managing the site of construction, the plaintiff performed the management of funds such as payment in the office, and the large amount of financial settlement, etc. can be executed by the plaintiff under the approval of the AA.

In order to pay the construction price of the company of this case, the plaintiff issued bills in the name of △△, which was operated by himself, and delivered them to Professor.

On June 2, 2006, the Plaintiff: (a) transferred KRW 9,700,000 from the bank account in the name of the instant company to the deposit account in its own name to prevent the withdrawal of the funds of the instant company; (b) due to the above fact, the Plaintiff was rendered a judgment of suspension of sentence on October 21, 2008 with respect to the crime of occupational embezzlement in the Dong Branch Branch of △△ District Court (2008DaDa421); and (c) according to the said judgment, the Plaintiff is deemed to be the actual operator of the instant company and the Plaintiff to be in charge of the management of the funds.

On October 10, 2006, on the corporate register of the instant company, the registration of resignation of the Plaintiff was completed, and on the same day, the statusB, who is the father of the AA, was registered as the representative director.

(4) In light of the above facts and the above facts, the following circumstances are revealed. In light of the above, the evidence submitted by the plaintiff alone did not bear legal responsibilities as representative director despite the fact that the plaintiff was registered as representative director of the company of this case, and it was merely a nominal representative director who lent only his name to A regardless of the exercise of authority as representative director or management of the company of this case, and it is insufficient to recognize A as the only substantial representative of the company of this case. Thus, the plaintiff's assertion on this cannot be accepted.

(가)원고는 이 사건 회사의 설립 과정에서 단지 자신의 명의를 이용하는 것을 허락한 데 그친 것이 아니라, 스스로 자본금을 조달하고(임AA은 제1심 및 당심에서 회사설립 시 자본금은 원고가 댔고 이에 따라 그 자본금 납입에 의하여 발행된 주식은 원고에게 귀속된다는 취지로 증언하였다), 이 사건 회사의 설립신고 및 사업자등록신청 등을 직접 했으며, 자신이 운영하던 주식회사 ◇◇건물 내에 이 사건 회사의 사업장을 마련하면서 그 임대차 계약도 직접 체결하는 등 설립에 관한 전반적 업무를 주도적으로 처리했다.

(b)AA appears to have been performing the role of an operator by being in charge of external business affairs of the instant company, but it appears that the Plaintiff also engaged in the operation of the company by taking charge of its fund management, such as lending approximately KRW 1.4 billion to A and the instant company, as the Plaintiff is, as well as making the Plaintiff, by issuing bills in the name of △△, a stock company it operated, and allowing it to use them for the settlement of the contract price of the instant company.

(다)이 사건에서의 소득금액 변동 통지 사유는 2005 사업연도에 이 사건 회사가 주식회사 ▲▲특송(이하'▲▲특송'이라 한다)으로부터 공급가액 139,090,910원의 매입계산서를 허위로 수취하여 그 상당의 금액이 사외로 유출되었다는 것인바, 위와 같은 거액의 돈의 사용 및 사외 유출에 관하여는 회사의 자금관리업무에 관여한 원고가 그에 관하여 상당한 책임이 있는 것으로 보인다.

(D) Furthermore, the head of △△ Tax Office, by deeming the Plaintiff as the representative of the instant company and disposing of the income with the recognition of the Plaintiff, and notified the Plaintiff of the change in the income amount attributed to the Plaintiff in the year 2005. The Plaintiff did not object to the notice of change in the income amount, and instead filed a revised return of the global income tax base belonging to the Defendant in January 11, 2008 according to its notification, and did not dispute that the details of the revised return were wrong until re-revision for the reason that the Defendant filed a revised tax base on the grounds that the excessive amount of earned income deduction was less reported.

(e)In conclusion, it is reasonable to view that the Plaintiff becomes the representative director of the instant company and has actually exercised his/her authority over a certain portion, with the purport that the Plaintiff is legally responsible for the instant company’s legal liability as the representative director. In light of the personal relationship and economic power between the Plaintiff and the Pacific, etc., the Plaintiff cannot be deemed to be only the nominal representative director of the instant company solely on the ground that the Plaintiff was actually involved in

B. As to the assertion that the amount excluded from the deductible expenses of the instant case belonged to the AA

(1) The plaintiff asserts that the non-Inclusion in the deductible expenses of this case was leaked out to the extent of the loss, and the ownership was attributed to the forest, and since the ownership was not unclear, it cannot be accepted and disposed of by the plaintiff.

(2)앞의 인정사실과 같이, 이 사건 회사가 2005 사업연도에 ▲▲특송으로부터 공급가액 139,090,910원{갑 제5,6호증, 을 제7 내지 11호증의 각 기재 및 변론 전체의 취지에 의하면, 이는 2005.10.31.자 세금계산서 97,900,000원, 같은 해 11.30.자 세금계산서 100,100,000원 및 같은 해 12.9.자 세금계산서 55,000,000원에서, 2006.3.28.▲▲특송 계좌로 송금된 위 1억 원을 공제한 나머지 금액 153,000,000원 중 부가가치세액을 공제한 공급가액(153,000,000÷ 1.1)상당액이다}의 매입세금계산서를 허위로 수취하였고, 이와 관련하여 손금으로 산입된 위 금액이 회사에 유보되어 있지 않은 점이 인정되는 이상, 위 금액은 사외로 유출된 것으로 보아야 한다.

원고가 제출한 갑 제4 내지 12호증, 15내지 50호증(가지 번호 포함)의 각 기재와 제1심 및 당심 증인 임AA의 일부 증언에 의하면, ①임AA이 이 사건 회사의 경영 및 금전거래 등과 관련하여 원고와 함께 실질적으로 중요한 역할을 한 사실, ②임AA이 원고를 ▲▲특송으로부터 세금계산서를 발급받아 자금을 지급한 후 돌려받는 방법으로 횡령했다고 고소하였으나 무혐의 처분되는 등, 원고가 특히 위 허위세금계산서와 관련된 금액을 횡령하거나, 나아가 사외로 유출된 위 허위세금계산서 공급가액 관련 금액이 원고에게 귀속되었다고 밝혀진 것은 없는 사실은 인정된다.

그런데, 갑 제23,24,41 내지 47호증의 각 기재에 의하면, 위 고소사건에서 참고인 김DD은 이 사건 회사의 이사로 일을 하면서 세금을 줄이기 위해서 ▲▲특송과 거래가 없음에도 있는 것처럼 돈을 지급하여 준 다음 바로 그 돈을 돌려받은 적이 있는데 원고가 그 돈을 임의로 사용한 것으로 알고 있다는 취지로 진술하였지만, ▲▲특송의 대표 안EE는 김DD과 10여 년 전부터 알고 지냈고 원고는 잘 알지 못하는 사람이며 김DD이 부탁하여 허위세금계산서를 발급하여 주고 2005.9.5.2억 원 및 2006.3.8. 1억 원을 각각 송금 받은 뒤 2005.9.5.경 김DD이 불러주는 계좌로 2억 원, 2006.3.8.경 이 사건 회사의 여직원이 불러주는 계좌로 1억 원을 각각 송금하였다고 진술하였으며, 한편 위 1억 원이 다시 송금된 계좌는 원고의 명의로 개설되었지만 임AA도 이를 사용하였음이 밝혀지고, 또한 그 계좌에서 출금된 1억 원의 수표 추적 결과 위 수표는 김귀중에게 건네졌음이 드러났지만 그 수표를 김귀중이 누구로부터 받았는지 기억이 나지 않는다고 진술하는 한편, 임AA도 위 금액을 원고가 사용한 것이 아닌 것 같다고 수긍함에 따라, 원고가 3억 원을 ▲▲특송으로부터 돌려받아 임의로 사용함으로써 횡령하였다는 증거가 충분하지 않다는 이유로 횡령 피의사실을 인정할 증거가 부족하다는 취지에서 무혐의 처리되었음을 알 수 있을 뿐, 나아가 위 3억 원, 특히 수표나 계좌 추적이 이루어지지 아니한 2억 원에 관한 최종적인 귀속 대상자가 누구인지에 관하여는 밝혀진 바 없다.

따라서, 이러한 사정에 비추어 보면, 위와 같은 인정사실이나 그밖에 원고가 제출한 증거들을 종합하여 보더라도, 이 사건에서 ▲▲특송과 관련하여 사외유출 되었다고 인정되는 위 매입세금계산서의 공급가액 139,090,910원이 임AA이나 제3자에게 귀속되었다는 점을 인정하기에는 부족하고, 달리 그 금액이 대표이사인 원고 이외의 자에게 실질적으로 귀속되었음이 분명하다는 점을 인정할 증거가 없다.

As a result, the above amount was leaked out of the company, but it cannot be deemed as a property, and thus, the plaintiff's above assertion disputing this cannot be accepted.

C. As to the assertion of the burden of proving the attribution of the recognized bonus income

(1) Unlike the recognition bonus disposition under the Corporate Tax Act, the tax authorities must prove that the above income was reverted to the Plaintiff in order to impose the global income tax on the Plaintiff, and insofar as the proof is insufficient, the disposition of this case is unlawful.

(2)However, as seen above, the so-called recognition contribution system, which is obviously out of the amount included in the calculation of earnings under Article 67 of the former Corporate Tax Act and Article 106 (1) of the Enforcement Decree of the same Act, but it is unclear that the amount to be reverted is attributed to the representative, not based on the fact that such income has accrued to the representative. The purpose of the so-called recognition contribution system is to ensure that certain facts which can be recognized as such act in order to prevent unfair conduct under the tax law by a corporation should be regarded as bonus to the representative regardless of their substance, regardless of its substance. Under Article 20 (1) 1 (c) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006), the "amount treated as bonus under the Corporate Tax Act" is naturally included in Class A earned income, which is an element of calculating the global income tax, so the representative has the obligation to pay income tax regardless of whether it has actually accrued the amount (see, e.g., Supreme Court en banc Decision 2008Da9696.).

Therefore, as seen above, insofar as the Plaintiff, a representative director, fails to prove the clear attribution of KRW 139,090,910, as seen above, it is justifiable that the Defendant imposed the global income tax in this case by deeming the amount of the disposition to be recognized as the Plaintiff’s earned income, and the Plaintiff’s assertion disputing the burden of proof is without merit (in relation to this, the Plaintiff asserts that the burden of proof exists on the tax authority based on Supreme Court Decision 2003Du15300 Decided May 12, 2005). However, the above judgment concerns the issue that the disposition of income in the Corporate Tax Act was revealed to be illegal, and that the tax authority alleged that the amount of the income omitted was leaked out to the private company and actually reverted to the representative, so long as the income does not become an agenda item, it is merely that the tax authority should assert and prove the income accrued, which is a taxation requirement in accordance with the legal principles of the general tax lawsuit, and thus, it is different in this case).

4. Conclusion

The judgment of the first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.