2014west 1335 ( October 29, 2014)

The amount of money omitted from sales accounts as a bonus shall be disposed of as a bonus to the representative.

Since it is reasonable to see that the funds of this case were already released from the company at the time of being appropriated in the provisional income account or at the time of reporting the initial corporate tax, it should be disposed of as a bonus as a representative director. It is reasonable to see that the revised report of this case constitutes the case of inclusion in the gross income with prior knowledge that the corporate tax is corrected

Article 67 of the Corporate Tax Act

2014Guhap72989 global income and revocation of disposition

LAA

○ Head of tax office

June 19, 2015

July 17, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of global income tax of 008 on September 23, 2013 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. Nonparty BB Co., Ltd. (hereinafter “instant company”) is a company established on August 29, 2005 with its business purposes as an insurance agency business.

B. On June 11, 2008, the Plaintiff was appointed as the representative director of the instant company, and was employed as the representative director until the instant company was incorporated into BBCC Co., Ltd. (hereinafter “BD”) on June 10, 201 and dissolved, regardless of whether it was before or after the mutual change.

C. As of December 31, 2008, among the accounting books of the instant company, the item of the "representative director" deposit account (hereinafter referred to as the "the provisional deposit account of this case"), the balance of the provisional deposit as of December 31, 2008 is written as ○○ (hereinafter referred to as the "the provisional deposit of this case").

D. At the time of March 2009, the instant company submitted a corporate tax return for the business year 2008 to the director of the EE Tax Office, who is the head of the competent tax office (hereinafter “the first return”), and the said report omitted ○○ out of the sales amount of the pertinent year.

E. On May 12, 2009, the director of the EE Tax Office reviewed the tax invoice belonging to the company of this case for the year 2008, and judged that there is room to regard the omission of sales equivalent to 00 won in the above tax return, and notified the company of this case of explanation of taxation data.

F. According to the notice of the above explanation, the instant company filed a revised return on November 9, 2009, which was within the deadline for filing a revised return of corporate tax as stipulated in Article 26-2 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010). The content of the revised report on the business year of corporate tax in 2008, which was within the deadline for filing a revised return of corporate tax under Article 26-2 of the former Framework Act on National Taxes, was included in the gross income of the omitted sales amount, and among which, ○○

G. On February 17, 2011, the head of the FF Tax Office: (a) deemed the portion of the instant provisional income amount out of the amount that the instant company disposed of as a reservation to the Plaintiff as the amount that was out of the company; and (b) notified the instant company of the change in the amount of income; and (c) notified the Defendant, the head of the tax office having jurisdiction over the Plaintiff’s domicile, who is the head of the tax office having jurisdiction over

H. On September 1, 2013, based on the foregoing taxation data, the Defendant deemed the amount of the bonus recognized in 2008 for the Plaintiff as ○○○○○ won in the instant case and notified the comprehensive income tax in 2008 (hereinafter referred to as “the initial disposition”).

I. On October 21, 2013, the Plaintiff dissatisfied with the initial disposition, and filed an objection with the director of ○○ Regional Tax Office, and the director of ○○ Regional Tax Office decided to the effect that the portion arising from the period of service of the representative director (from June 11, 2008 to December 31, 2008) of the Plaintiff’s household tax revenue out of the instant household tax revenue amount should be calculated as the amount of a recognized bonus and revised the initial disposition by calculating the new tax standard and tax amount as the amount of a recognized bonus.

(j) Accordingly, on September 23, 2013, the Defendant: (a) deemed the Plaintiff as the amount of recognized bonus for the Plaintiff; and (b) notified that the Plaintiff’s total income tax attributed to the year 2008 was reduced to KRW 000,000,000 calculated by multiplying the number of days in which the Plaintiff had worked as the representative director in the instant company in 2008 by the ratio divided by 365 days; and (c) accordingly, the Defendant issued a correction and notification by reducing the Plaintiff’s total income corresponding to the Plaintiff’s 208 to KRW 00.

(k) On February 20, 2014, the Plaintiff was dissatisfied with the disposition of imposition of global income tax as stated in the foregoing paragraph (j) and was requested by the Tax Tribunal for a trial on February 20, 2014, but was dismissed on August 29, 2014.

(l) On August 6, 2014, the Defendant issued a revised and notified that the merged corporation deducted the already paid tax amount, including the Plaintiff’s global income tax paid by the merged corporation as a withholding agent of the said global income tax, and then deducted the Plaintiff’s global income tax for 2008 from ○○○ Won again (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 8, 10 through 15, Eul evidence 1, 3, 4 and 5 (including those with above numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Plaintiff’s assertion

A) In light of the fact that the instant provisional receipts were deposited into the corporate account of the instant company, and that the instant provisional receipts were not recorded as sales on the account book and were entered in the item of the representative director’s provisional receipts, but the said provisional receipts were merely the nominal items not planned to reflect on the representative director, etc., it cannot be deemed that the instant provisional receipts were leaked out of the company.

B) Even if the issue amount of the instant case was leaked out of the company once, the instant company filed a revised return after including the amount of the instant case received from the company out of the company within the period for filing a revised return under Article 45 of the Framework Act on National Taxes, and thus, the instant company’s disposal of income related to the instant case should not be a bonus but a retained reserve pursuant to the main sentence of Article 106(4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22035, Feb. 18, 2010;

(2) Defendant’s assertion

A) Since the instant provisional revenue account cannot be deemed as nominal, the instant provisional revenue account was leaked out of the private company.

B) The instant company reported the instant amount of provisional receipts within the deadline for filing a revised return under Article 45 of the Framework Act on National Taxes, but this was made after receiving the notice from the head of EE tax office for explanation of taxation data, and thus, it should still be disposed of as bonus pursuant to the proviso to Article 106(4) of the former Enforcement Decree

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Key issue of the instant case

1) Whether the issue of the instant case was leaked out of the private company

2) Whether the main sentence of Article 106(4) of the former Enforcement Decree of the Corporate Tax Act is applied

D. Determination

If a juristic person fails to enter its sales in the account books despite a fact of sales, the total amount omitted from sales shall be deemed to have been leaked to a private company, barring special circumstances. In such cases, the special circumstance that the amount omitted from sales shall not be proved by the juristic person claiming it (see, e.g., Supreme Court Decisions 85Nu556, Sept. 9, 1986; 97Nu19151, May 25, 199). If the sales amount was deposited in the account books with a provisional deposit, it shall not be presumed that the above amount was leaked to a private account only because it was not stated in the income statement for the pertinent business year. In such cases, the fact that the above amount was leaked to a private company other than the private account should be proved by the tax authority to have been stated in the account books, i.e., e., the 20th executive director of the juristic person’s temporary deposit account, even if the amount was not stated in the account books with a view to a change in the account books.

On the other hand, in a lawsuit seeking revocation of the disposition imposing tax, the burden of proving the facts of taxation requirements should be borne by the imposing authority. However, if it is revealed that the facts of taxation requirements are presumed in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the taxation requirements, unless it proves that the pertinent facts in question are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 97Nu13894, Jul. 10, 1998).

In light of the following circumstances revealed by the aforementioned evidence, i.e., ① the Plaintiff’s withdrawal from the company’s account for 208 taxable year, and 209 taxable year, the details are not verified. ② The Plaintiff also deposited the company’s account for 2009 taxable year; ③ the details of the Plaintiff’s financial transaction with the company and the company are inconsistent with considerable part of the details of the Plaintiff’s financial transaction with the company. ④ The Plaintiff asserted that the instant provisional deposit account was only made at the company’s office for the purpose of coordinating the balance of cash receipts and disbursements, but there is no objective evidence to support this, and there is no special circumstance that the Plaintiff’s initial payment was made at the company’s office for 200 years after the Plaintiff took office as the representative director, and it is difficult to view that the Plaintiff’s initial payment of the instant provisional deposit account was made at the company’s office for 10 years after the Plaintiff’s appointment of the representative director. It is reasonable to view that the Plaintiff’s initial payment of the instant case’s 20.13.

In this regard, even if the issue amount of this case was leaked out, the Plaintiff asserts that the company of this case should dispose of it as internal reserve rather than bonus in accordance with the main sentence of Article 106(4) of the former Enforcement Decree of the Corporate Tax Act, which was enforced at the time of the revised return, since the company of this case included the issue amount of this case in its gross income within the revised return period under Article 45 of the Framework Act on National Taxes.

In light of the following circumstances, i.e., (i) the EE director of the tax office reviewed the aggregate of the tax invoices belonging to the company of this case on May 12, 2009 and the tax invoices belonging to the EE director of the tax office on May 12, 2009; (ii) the plaintiff submitted a revised corporate tax return only after it submitted a revised tax return; (iii) the tax investigation of the company of this case can only be accompanied by the company of this case if there is no explanation as to the omission of the sales revenue; and (iv) the amount of the provisional tax of this case was not entered in the sales account in order to reduce the burden of corporate tax at the tax office of the tax accountant of this case and entered in the accounts of the company of this case, and (iii) the amount of the provisional tax of this case was stated in the revised tax invoice of this case without entering it in the sales account; and (iv) the Seoul High Court Decision 20130Nu14979 decided May 24, 2012.

Therefore, this case constitutes a case stipulated in the proviso of Article 106 (4) of the former Enforcement Decree of the Corporate Tax Act, and thus, this case cannot be disposed of as internal reserve pursuant to the proviso of the same paragraph, and it must be disposed of as a bonus to the representative director.

The disposition of this case, which was made on the same premise, is legitimate, and the plaintiff's assertion is without merit.

3. Conclusion

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