Suwon District Court-2015-Guhap-67725 (No. 14, 2016)

An act of using funds by a representative director shall be deemed to be an act of outflow from the company, except in special circumstances.

The act of the representative director, etc., who is the actual manager of a corporation, uses the corporation's funds on the basis of the early recovery unless there are special circumstances, and thus the disbursement of the amount is already an act of outflow from the company.

Article 67 (Disposal of Income)

2016Nu36484. Revocation of notice of change in income amount

AAB by the receiver BB of the rehabilitation company

CC director of the tax office

Suwon District Court Decision 2015Guhap67725 Decided January 14, 2016

August 25, 2016

September 29, 2016

1. The plaintiff's appeal is all dismissed.

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

On February 1, 2014, the decision of the first instance is revoked. The defendant revoked each disposition of notice of change in income amount of KRW 6,092,98,00 for the business year of 2008, and of KRW 8,286,370,00 for the business year of 2009 (the plaintiff reduced the claim regarding the disposition of notice of change in income amount for the business year of 2008 at the trial).

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, and it is identical to the reasoning of the first instance court's judgment except for adding or deleting the part of the judgment of the first instance as follows, and the judgment on the plaintiff's argument in the court of the first instance is added in Paragraph 2. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

Part which is used or added or deleted.

The "representative director" in Part 8 shall be dismissed as the "chairperson".

Part 2, Paragraph 12 (hereinafter referred to as the "disposition of this case") shall be deleted.

The "total" shall be added to the partitions below the last part of the content of the year 2009 in the second Schedule.

Part 3: The following shall be added to the second page:

D. On July 31, 2014, DDR filed an objection against the global income tax amount attributed to the Defendant for the business year of 2008. According to the decision to conduct a reinvestigation, on November 17, 2014, the Defendant decided to reduce the amount of global income tax for the business year of 2008, and on December 15, 2014, the Defendant notified the Defendant of the reduction of KRW 100,000,000 in total, 570,000,000 (Seoul Central District Court Decision 201DaGG, etc.), excluding the changed amount of income for the business year of 208,000,000,000 in total, and KRW 670,000,000 in total, excluding the changed amount of income for the business year of 208,000,006, 2014, excluding the changed amount of income accrued to the company of this case.

Part III "No. 10, 18" shall include "No. 1 to 3," following

Part 4, "the collection limit" in Part 19 shall be deemed to be "the collection limit".

Part 6, Paragraph 27, "Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 26981, Feb. 22, 2016)" is added.

2. Judgment on the Plaintiff’s assertion in the trial room

A. The plaintiff's assertion

Since the amount embezzled by DDR, which was the largest shareholder of the instant company, is recognized as a special circumstance that cannot be deemed as not premised on recovery from the time of embezzlement, it cannot be deemed as being leaked out of the private company, and thus, the instant disposition based on the premise of the outflow of the company is unlawful.

B. Determination

1) The act of a representative director, etc., who is the actual manager of a corporation, uses the corporation’s funds on the premise of early recovery, and thus, 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 shall 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 interest with the representative director, etc. is in fact identical through the representative director, etc., the main agent of the embezzlement, etc., the degree of substantial status within the corporation, the degree of control over the corporation, the circumstances leading to the embezzlement, and the measures taken by the corporation after the embezzlement, etc. (see, e.g., Supreme Court Decisions 2007Du2323, Nov. 13, 2008; 2007Du20959, Jan. 28, 2010).

2) Considering the aforementioned facts and the overall purport of the evidence revealed in light of the following circumstances, it is insufficient to acknowledge special circumstances that, at the time of the Plaintiff’s act of using DD’s funds, the amount corresponding thereto was already leaked out of the company, and the evidence alone submitted by the Plaintiff cannot be deemed as not premised on recovery from the time of the act of using DD’s funds, and there is no other evidence to acknowledge it. Accordingly, the Plaintiff’s assertion is without merit.

A) At the time of the act of appropriating funds, DD substantially took charge of the management of the instant company as the president and the largest shareholder of the instant company.

B) On September 17, 2009, even after the largest shareholder of the instant company changed from DD to HH and transferred management rights, the instant company did not take any civil and criminal measures against DD, i.e., immediate measures against DD. On November 2010, the instant company filed a complaint for embezzlement of DD and did not take all measures for claim for damages against DD until the lapse of three years from the business year 2008 and the business year 2009, when DD used funds.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.