Cho Jae-2016-Gu-3293 ( December 29, 2016)

Any act of discharging corporation's profits from actual managers, etc. out of the company shall constitute bonus or wage income, except in extenuating circumstances.

Unless there are special circumstances, it is clear that the representative director, etc. of a corporation has used for the business of a corporation among the amounts attributed to himself/herself by discharging the corporation's profits out of his/her position constitutes earned income as bonus or other similar temporary allowances for the representative director.

Article 67 of the Corporate Tax Act

2017 Revocation of revocation of imposition of earned income tax

AA Unemployment Corporation

BB Director of the Tax Office

May 24, 2018

July 26, 2018

1. On April 1, 2016, the Defendant’s revocation of the part exceeding KRW 1,745,50,000, out of the disposition of notice of change in income amount of KRW 1,745,50,000, which belonged to the Plaintiff for the business year 2013.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

On April 1, 2016, the defendant revoked the disposition of notice of change in income amount of KRW 1,945,50,000, which reverts to the plaintiff in the business year of 2013.

1. Details of the disposition;

A. The Plaintiff Company is a company that operates real estate leasing and parking lot business for the CCC race tracks. At the time of May 14, 2013, KimD was the representative director of the Plaintiff Company; ParkF, ParkF, Park E-E, a director of the Plaintiff Company; and the current status of the shareholders as indicated below in the detailed statement on changes in stocks, etc. of the Plaintiff Company.

B. On May 14, 2013, the Plaintiff Company received a loan of KRW 3,499,710,000 (hereinafter “instant loan”) in the name of the Plaintiff Company from the H branch of the GG Savings Bank (hereinafter “GG Savings Bank”).

C. In the process of the above loan, KRW 1.82 billion, which is a part of the above loan, was deposited into the Plaintiff Company’s second bank account on the same day, KRW 1.08 billion deposited in the Plaintiff Company’s second bank account, and KRW 617.5 million, among the money remaining in the Plaintiff Company’s GG Savings Bank account, deposited into the said LL industry development account on June 19, 2013.

D. Meanwhile, the Plaintiff Company managed the accounts as follows, such as short-term lending of KRW 1.5 billion among the said money to II Hot Springs Co., Ltd., and KRW 485.5 million as a shareholder officer’s short-term employee’s short-term liability.

E. ParkE, etc. embezzled and arbitrarily used KRW 1.993.5 million out of the above money deposited in the account of the Plaintiff Company and the LL Industry Development (hereinafter “instant crime list”) as indicated in the crime sight list (hereinafter “instant embezzlement”).

F. Around June 2015, the Plaintiff filed a complaint with the Plaintiff on charges of occupational embezzlement, occupational breach of trust, etc. against Park E-E, KimD, ParkF, M and newJ.

G. As a result of the investigation into the above case, ParkE was prosecuted for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud; hereinafter referred to as the "Violation of the Aggravated Punishment, etc. of Specific Economic Crimes") and for the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud; hereinafter referred to as the "Violation of the Aggravated Punishment, etc. of Specific Economic Crimes") (Embezzlement); the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement); the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement); the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation); the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation); the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement); the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement); the violation of the Aggravated Punishment, etc. of Specific Economic Crimes); the violation of the Aggravated Punishment

H. On January 29, 2016, the above court rendered a judgment of not guilty (hereinafter referred to as "relevant first instance judgment") on the charge of some charges of ParkE, KimD and ShinJ, and rendered a judgment of not guilty of imprisonment with prison labor for 4 years, 2 years, 3 years, 3 years, 4 years, 3 years, 4 years, 3 years, 3 years, 4 years, 3 years, 3 years, 3 years, 4 years, 3 years, 3 years, 3 years, 3 years,

(i) On April 1, 2016, the Defendant: (a) deemed that the amount of KRW 1,945,500,000 (hereinafter referred to as “the key amount in this case”) derived from the embezzlement amount of KRW 1.99,35 million, which was recognized in the judgment of the first instance related to the Plaintiff Company, was reverted to the Park E in 2013; and (b) deemed that the amount of KRW 1,945,50,000 (hereinafter referred to as “the instant disposition”) was reverted to the said Park E in 2013, the Defendant issued a notice on the change in the amount of income that disposes of the said amount as a bonus to Park E (hereinafter referred to as “the instant disposition”).

(j) On June 9, 2016, the appellate court (II High Court Decision 2015No000) rendered judgment on the judgment of the first instance related to the judgment of the first instance (II High Court Decision 2015No00) found each guilty of the remaining criminal facts except for No. 5-No. 5-no. 5-no. 5-no. 1, 2016, i.e., the violation of the Act on the Special Economic Crimes (Embezzlement), the violation of the Act on the Aggravated Punishment (Embezzlement), the occupational embezzlement of KimD, the violation of the Act on the Aggravated Punishment (Embezzlement), and the violation of the Act on the Aggravated Punishment (Embezzlement) of the New JJ (Embezzlement, 3 years of suspended sentence of imprisonment with prison labor for 8 months, 1 year of suspended sentence of imprisonment with prison labor for KimD, 1 year and six years of suspended sentence for 1 year and six years of imprisonment with prison labor for the new J. (hereinafter referred to as the "related appellate judgment"). The above case continues to the

(k) On July 1, 2017, the Defendant imposed on the Plaintiff Company an imposition of KRW 697,414,870 of the earned income tax for the year 2013 (including additional taxes).

Other. On August 23, 2016, the Plaintiff Company filed a petition for a trial with the Tax Tribunal. However, on December 29, 2016, the Tax Tribunal rendered a decision to dismiss the Plaintiff Company’s claim.

(m) The statutes related to the instant disposition are as shown in the attached Table 2-related statutes.

Facts without any grounds for recognition, Gap's 1 through 5, Eul's 7, the purport of the whole pleadings, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff company

1) The primary argument

A) Park E is not the actual manager or owner of the Plaintiff Company, and thus the intent of Park E cannot be deemed as identical to the intent of the Plaintiff Company. The economic interests of both parties are inconsistent. The Plaintiff Company has made its best efforts to recover the amount of embezzlement, such as sending content certification, convening a provisional general meeting of shareholders, filing a criminal complaint against Park E, etc. and filing a lawsuit seeking compensation for damages. As such, the key amount of the instant case is reserved in the Plaintiff Company as the damage claim against Park E, etc.

B) From among the portion on which ParkF deposited in the Plaintiff Company’s account for repayment of loans through KimN, KRW 50 million, KRW 92,556,868 of retirement pay of ParkF, EE reserved in the Plaintiff Company’s company, and KRW 50 million collected on November 19 and December 20, 2014, and KRW 485,50,000,000, which were accounted for as a result of the reduction of shareholders’ short-term employees’ short-term liabilities, should be deducted from the instant key amount.

2) Preliminary assertion

Even if the issue amount of this case was out of the company, notice of change in income amount under the principle of substantial taxation should be given in consideration of the person to whom the above amount was attributed and the actual repayment. Since the issue amount of this case due to the embezzlement of this case belongs to the newJ besides ParkE, the amount reverted to the newJ (joint occupational embezzlement by ParkE and NewJ and the sole embezzlement by the newJ) and the judgment of related appellate court, the number 5-not less than 100 million won among the list of crimes of this case in which innocence is pronounced in the judgment of related appellate court should be excluded.

B. Defendant

1) The actual manager of the Plaintiff Company is Park E-E and the economic interest between the Plaintiff Company and Park E-E is consistent. There was no person who could supervise the act of misappropriation in the outside of the Plaintiff Company at the time of the instant embezzlement, and there was no special circumstance on the premise that the Plaintiff Company’s measure after embezzlement constitutes an act of implied ratification to conceal the embezzlement.

2) The assertion that the Plaintiff Company recovered part of the amount of embezzlement is different from the fact, and even if partially repaid, it does not affect the tax liability already incurred.

3) The subject of the instant embezzlement is Park E-E, and the remainder of money, except for KRW 48 million, used by KimD for its own debt repayment after Park E-E MD was distributed under the judgment, direction, permission, or implied consent of Park E-E. Therefore, the said money was finally and substantially reverted to Park E-E at the time of embezzlement.

3. Whether the instant disposition is lawful

A. Facts of recognition

1) Relevant civil litigation, etc.

가) 홍OO은 II지방법원 00지원으로부터 2015. 3. 24. 위 법원 2014비합00호로 임시주주총회 소집허가를 받은 후 2015. 4. 20. 임시주주총회를 개최하여 원고 회사의 기존 이사인 김DD, 임MM, 박FF, 감사 조SS을 각 해임하고, 새로운 이사로홍OO, 홍PP, 홍QQ을, 감사로 김RR를 각 선임하는 의결을 하였다.

B) On April 27, 2015, ParkF filed a lawsuit against the Plaintiff Company seeking confirmation or revocation of the invalidity of the “resolution on the dismissal of directors, KimDD, TrustT, Park F and Audit SS,” which was made at the provisional shareholders’ meeting on April 20, 2015 by the Plaintiff Company at the above provisional shareholders’ meeting on April 20, 2015, and the “resolution on the appointment of directors, RedO, Hong PP, Pubbb BU, and KimR.” On November 20, 2015, the above court rendered a judgment revoking the said resolution on the grounds that the method of resolution, such as the failure to meet the quorum, constitutes grounds for revocation in violation of statutes or the articles of incorporation. The Plaintiff Company appealed against the Plaintiff Company, and dismissed both of the appeals on December 7, 2015 (II High Court Decision 2015Na0000) and on October 20, 2016 (Supreme Court Decision 2010Da1006060).

C) On July 3, 2015, Plaintiff Company filed a lawsuit against GaE, etc. seeking compensation for damages arising from the embezzlement of this case by the District Court II District Court Decision 2015 Gohap00000. On December 22, 2016, the above court rendered a judgment including the order that: (a) on December 22, 2016, the remainder 1,745,500,000 won, excluding Nos. 2 (48 million won), 5-3 (100 million won), 5-555,000 won (100 million won) from the list of the crime of this case, GaE used or embezzled for personal use or embezzlement of GaE and caused damages equivalent to the above money to the Plaintiff Company; and (b) on December 3, 2015, Gate was also dismissed by both Plaintiff Company’s appeal (II High Court Decision 2017Na500,500,000 and damages for delay thereof).

라) 홍OO은 2016. 8. 2. 박EE, 박FF, 임MM, 김◆◆를 상대로 II지방법원2016가단000000호로 원고 회사의 주주권 확인을 구하는 소를 제기하였으나, 위 법원은2017. 10. 19. 홍OO의 박EE에 대한 청구는 각하하고, 홍OO을 실질적인 주주라고 인정할 수 없다는 이유로 박FF, 임MM, 김◆◆에 대한 청구를 기각하는 판결을 선고하였다. 이에 불복하여 홍OO은 2017. 11. 10. II지방법원 2017나000000호로 항소하였고, 현재 항소심 계속 중이다.

2) Preparation, etc. of certificates of the acquisition of shares of redP and the issuance, etc. of certificates of redO

A) On June 9, 2009, Hong PP, one of the children of HongO, entered into a contract to purchase 13,500 shares of the Plaintiff Company (10,500 shares + 1,500 shares + 1,500 shares) from HongO on June 9, 2009.

B) On April 22, 2013, RedO drafted a written confirmation (hereinafter “instant confirmation”) with the Plaintiff Company (and Park E-E) as follows:

(iii)a statement in the course of the tax investigation;

Park E-E, etc. responded to the Defendant’s tax investigation process related to the embezzlement of this case as follows.

(A) Park E;

The reason why the additional loan was required is that the additional loan should be granted for the purpose of transferring the AA building to the marina society, and it is determined that the value of the AA building can be enhanced, and the additional loan was intended to be granted for repayment with the knowledge that there is a debt of 2 billion won with the RedO.

The direction of ○○ lending was given, and the settlement of funds is the one dealt with by the representative KimD, which is well aware of the details of the execution of the funds. However, the principal is the major shareholder of the Plaintiff company and the manager, which is currently bound.

○ Investment KRW 300 million in capital in the Plaintiff Company, thereby under title trust with the Plaintiff Company’s shares in KimD, RedO, etc. In the end, the principal is the major shareholder of the Plaintiff Company, and all of the Plaintiff Company’s projects were

○ In the name of HongP, there was no actual transaction of acquisition due to false information.

B) KimD

○○ was the representative director of the Plaintiff Company to exercise overall control over all parts such as funds, accounts, and personnel affairs.

○○ ParkE, in fact, took full charge of all projects, such as funding, the attraction ofCCC, and the authorization of the business, as a founder who has paid the full capital of the Plaintiff Company. ParkE, as a real manager of the Plaintiff Company, has made all decisions on the management of the Company, under the direction and responsibility of ParkE.

○○○ KimD, SS, and M are all a title trustee of the shares of GaE. Since the heavy situation of the Plaintiff Company’s building construction works becomes difficult, the Plaintiff Company’s shares were collected and transferred to GaF, but the Plaintiff was transferred to GaF, and the name was returned to the principal in form, if he/she was in charge of management again.

○○ and GaE arranged all debts related to the Plaintiff Company as KRW 2 billion, and offered KimD, Seo-gu, and Kim XX shares among the Plaintiff Company’s shares as collateral.

○ KRW 1.5 billion out of the amount loaned from the GG Savings Bank is a loan to the II Hot Springs Co., Ltd., the amount of KRW 8,000,000,000,000,000 as cash withdrawal, and the amount of KRW 115,000,000,000 was accounted as the representative, and there was no two hot springs and money lending contracts that were not repaid until the end of 2013, and the actual representative was not used as a half of the cash lending system as above.

(C) ParkF;

around August 2014, ○○J became aware that the funds received from the newJ were related to the Plaintiff Company’s loans by putting in provisional attachment the Plaintiff Company’s claim for rent of KRW 500 million against the CCC and real estate. Since the provisional attachment on the above rent claims is needed, the Defendant borrowed KRW 500 million from the high mother KimN, which is the mother-in KimN, to raise the Plaintiff Company’s funds, and did not think that KRW 690 million received from the newJ would be repaid.

Facts that there is no dispute over recognition, Gap's evidence 6, 10, 13, 15, 16 (including Serial number; hereinafter the same shall apply), Eul's evidence 1 and 2, and the purport of the whole pleadings.

B. Judgment on the main argument

1) Determination as to the assertion that the instant embezzlement was conducted on the premise of recovery

A) The act of using corporate funds by the representative director, who is the actual manager of the relevant legal entity, is not based on the premise of early recovery, barring special circumstances, 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 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 principal agent of the embezzlement, the degree of control over the corporation, the circumstances leading to the embezzlement, and whether the representative director, etc.’s intent is identical to the corporation’s intent or it is difficult to deem that the corporate economic interest is in fact identical with the representative director, etc. after the embezzlement, and such special circumstances must be proved by the legal entity asserting it (see Supreme Court Decisions 2009Du287, May 9, 2012; 2012Du23822, Feb. 28, 2013).

B) Even though ParkE is a real manager of the Plaintiff Company, even though it is not bound by the criminal court’s fact-finding in the administrative litigation, the criminal judgment that became final and conclusive in relation to the same factual basis is a flexible evidence in the administrative trial. Barring special circumstances where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial, the above criminal judgment cannot be rejected and the facts opposed thereto cannot be acknowledged (see, e.g., Supreme Court Decision 98Du10424, Nov. 26, 199).

In light of the foregoing legal doctrine, comprehensively taking account of the following circumstances revealed by the health stand, the above recognition facts, and the purport of the entire pleadings, the actual manager of the Plaintiff Company appears to have been ParkE, and further, all business related to the Plaintiff Company, including the embezzlement of this case, were conducted under the judgment, direction, and involvement of ParkE.

① Although it has not yet become final and conclusive, in the judgment of the first instance and related appellate court related to the disposition of this case, the Park E-E was recognized as a person who actually engages in the business of operating the Plaintiff Company, and in the related civil procedure, the Park E-E was judged on the premise that it is the actual manager of the Plaintiff Company.

② Examining the reasoning of the relevant appellate judgment’s appeal and the judgment on the grounds of the appeal, the ParkE only claims that some of them are unrelated to itself with respect to the embezzlement act in this case, and the allegation that it is a real manager is not likely to be denied.

③ ParkE and KimD made a statement to the effect that ParkE is a major shareholder and a real manager of the Plaintiff’s company in the course of the Defendant’s tax investigation, all the Plaintiff’s business was conducted under the direction of ParkE, and shares in the name of RedO and RedP are offered as a security for RedO. The above two statements are consistent with most of the above two statements, and the above statements mean that ParkE was able to participate in a considerable portion of the embezzlement of this case. Therefore, it is difficult to deny the credibility of the above statements in that ParkE itself recognized it.

④ Comprehensively taking account of the instant confirmation and notice, the statement in the process of the said tax investigation, etc., the shares held in the name of HongP are deemed to have been transferred by GaE for the purpose of securing a loan to HongO. In this regard, the Plaintiff Company asserted that ParkE’s deceptive act was written on the said confirmation. However, the said confirmation was prepared to submit data that ParkE would have been the actual owner and that RedO or RedPP was not the actual owner. As a result, GaE could be deemed to have been misled in that GaE did not repay the above loan to the RedO, however, it cannot be deemed to have been different from the fact that the RedO and RedPP acquired the said shares as collateral (see Supreme Court Decision 2016Da11810, Oct. 19, 2017).

⑤ 또, 원고 회사는, 홍OO이 원고 회사의 인감을 관리하면서 대부분의 의사결정을 직접한 점, 홍OO은 2012. 9. 17. 원고 회사의 II은행에 대한 거액의 채무를 근보증한 점, 원고 회사의 재무제표에 홍OO의 주식회사 ▲▲▲▲▲ 건축사사무소가 특수관계자로 명시되어 있는 점을 들면서, 홍OO은 단순한 채권자가 아니라 원고회사의 실질주주라고 주장하나, 갑 제8호증의 기재만으로 홍OO이 원고 회사의 인감을 관리하였다거나 이를 통하여 직접 원고 회사의 의사결정을 하였다고 보기에 부족하고, 나아가 원고 회사의 위 주장 사실만으로는 홍OO이 위와 같이 원고 회사의 주식을 담보로 취득한 것이라는 사실을 뒤집고 원고 회사의 실질주주라고 보기에는 부족하다.

C) Whether measures have been taken after monitoring and embezzlement of the Plaintiff Company

Comprehensively taking account of the following circumstances revealed by the above-mentioned facts, Eul evidence No. 3, and the purport of the entire pleadings, the power to monitor or check Park E, etc. at the time of the instant embezzlement appears to have never existed in the Plaintiff Company, and even thereafter, the Plaintiff Company was aware of or ratified the instant embezzlement act.

① The embezzlement of this case was conducted by Park E, KimD, and newJ. According to the judgment of the court of first instance and the appellate court, KimD was the representative director of the Plaintiff company, who is in charge of overall management and administration of the Plaintiff’s company under the direction of Park E-learning. The new JJ is a person who holds or held the Plaintiff’s shares, and the Plaintiff was merely a person who has assisted the Plaintiff’s loan by introducing the development of LL industry necessary for the Plaintiff’s loan from the GG Savings Bank. Moreover, in addition to the fact that the instant loan itself appears to be by the statement in the course of the tax investigation of Park E-E, the loan from the GG Savings Bank of the Plaintiff company and the instant embezzlement was conducted under the lead of Park E-E.

② At the time of the embezzlement of this case, the representative director is KimD, Kim DoD, directors, M, ParkF, and auditors were SS, but all of the above persons appears to have been an executive officer of the above company since the time when the Plaintiff was established or near the time when the company was established. In addition, the process of the establishment of the Plaintiff Company by ParkE and Park E-E were the actual managers of the Plaintiff Company, and Park E-E was actively involved in the embezzlement of this case, it appears that Park E-E had de facto control over the stocks held or held by the above persons.

③ The board of directors of the Plaintiff Company held on March 8, 2013 at the meeting of the Plaintiff Company, when the executives and shareholders of the Plaintiff Company prevented or raise an objection to the embezzlement of this case, on the other hand, the said directors passed a full-time resolution on the loan of KRW 3.5 billion from the GG Savings Bank as to the loan of KRW 3.5 billion from the GG Savings Bank. Since then, KimD had been involved in the said embezzlement in accordance with ParkE’s instructions, and ParkF had a de facto interest with the GGE’s children. In fact, some of the funds from the above embezzlement were used for ParkF.

④ The Plaintiff Company asserted that RedO was taking appropriate measures after embezzlement because it has made its best effort to convene a provisional general meeting of shareholders, file a criminal complaint against Park E, etc. and file a lawsuit for damages. However, the embezzlement of this case was conducted between May 14, 2013 and June 19, 2015. Measures such as holding a provisional general meeting of shareholders and filing a lawsuit for damages, etc. asserted by the Plaintiff Company were taken only in around 2015, and such measures were taken, as RedO did not receive a loan, etc. from Park E, and it appears that RedO made a resolution to dismiss Kim DD, etc. by holding a provisional general meeting of shareholders, but eventually, it is difficult to deem that the Plaintiff Company was taking appropriate measures to recover the amount of the Plaintiff Company’s embezzlement in consideration of the following: (i) RedO’s failure to receive a loan, etc. from Park E; (ii) RedO was a beneficial shareholder; and (iii) RedO was still in dispute as to whether it was a beneficial shareholder.

⑤ In light of the fact that part of the amount of the instant embezzlement was accounted for as a loan to the second hot spring, etc., the Plaintiff Company: (a) recorded a part of the amount of the instant embezzlement as a representative director; (b) the hot spring II Hot Spring Co., Ltd. was run by ParkE while it was working as a representative director; (c) KimD, the representative director of the Plaintiff Company, did not enter into a monetary lending contract for the second hot spring; and (d) stated that the said accounting was kept in a temporary account even if it was not actually used as

D) The degree of control of Park E-E and whether it conforms to economic interests

In full view of the aforementioned circumstances and the background leading up to the instant embezzlement, it is sufficient to view that Park E-E, while establishing the Plaintiff Company, was practically engaged in the title trust with gamblingF, etc. and completely controlling the Plaintiff Company. Therefore, it is reasonable to deem that Park E-E’s intent and economic interest coincide with the Plaintiff Company.

E) Sub-decisions

Inasmuch as there are no special circumstances to deem the act of embezzlement of this case as not premised on recovery from that time, it cannot be deemed that the issue amount of this case was reserved in the company as a claim for damages against Park E-E.

2) Determination on the assertion of partial repayment

A) The representative director or actual manager, etc. of a corporation who uses his/her position and uses the corporation's income for the business of the corporation constitutes bonus or temporary salary income, barring any special circumstance. The act of using the corporation's representative director or actual manager's embezzlement and other acts of appropriating the corporation's funds is not conducted under the premise of early recovery, and thus constitutes a outflow from the corporation as its expenditure itself, and once the income tax liability is established for the portion belonging to the representative director or actual manager, etc. out of the outflow from the company, it cannot affect the tax liability already accrued (see, e.g., Supreme Court Decision 9Du324, Sept. 14, 2001; 9Du324, Feb. 12, 2016; hereinafter the same shall apply). Thus, even if the corporation's voluntary efforts to dispose of the corporation's income under Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act were not made within the scope of 10th of the outflow from the corporation, the corporation.

B) KRW 500 million that ParkF repaid through KimN

As seen earlier, ParkF did not want to repay the issues of this case regarding KRW 500 million deposited in the Plaintiff Company’s account through Kim NN in the course of tax investigation. The statement to the effect that GJ deposited the Plaintiff Company’s claim as a deposit in the name of tidal deposit to revoke provisional attachment execution of the Plaintiff Company’s claim, and GG awareness on August 29, 2014, which received a decision to provisionally seize the Plaintiff Company’s claim against CCC as the illegal source 2014Kadan0000 (the claim amount: 50 million), the above court held that the Defendant deposited KRW 500 million as a deposit in the provisional attachment order (the above court No. 0000,000) on November 10, 2014 (the above court No. 2014,000) for the reason that the Plaintiff Company did not voluntarily collect the above amount of money from the Plaintiff Company as a short-term reserve account, but it did not appear that the Plaintiff Company did not pay the above amount of money to the Plaintiff Company out of the company.

C) The portion of KRW 92,556,868 reserved as retirement pay

In light of the legal principles as seen earlier, it is difficult to see that the Plaintiff Company received retirement allowances from its voluntary efforts, and it cannot be deemed that the Plaintiff reported such retirement allowances by including them in the gross income under the tax adjustment as seen above, and the Plaintiff Company did not take any measures with respect to the retirement allowances such as Park E, E, etc., and therefore, it cannot be deemed that Park E, etc. paid money equivalent to the above retirement allowances solely on the ground that Park E, etc. had a retirement payment claim

D) The portion of KRW 585,500,000 accounting account as a loan to II Hot Springs Co., Ltd. and 485,500,000 accounting due to the reduction of shareholders’ short-term liabilities.

Of the key issue amount of this case, 50 million won is a loan to II Hot Spring Co., Ltd., and 48.55 million won was accounted for as a result of the reduction of shareholders' short-term liabilities. However, it is difficult to view that the Plaintiff Company voluntarily recovered the key amount of this case solely on the ground that the accounts were accounted as above. In addition, it is difficult to view that ParkE’s account management was made at the time of accounting management, and that there was no person to control or monitor the act of embezzlement, etc., and KimD stated that the accounts of the amount borrowed from GG Savings Bank were carried out in an interim manner, even though there was no such fact in the course of tax investigation, and that the two hot springs also were operated while in office as the representative director, and that there was no income amount after 2011, it appears that the above accounting management was not for the recovery of the key amount of this case, but rather measures to conceal the act of embezzlement of this case.

E) Sub-decisions

Therefore, the Plaintiff cannot be deemed to have repaid or recovered KRW 500 million, etc. from the key amount of the instant case, which the Kim NN deposited in the Plaintiff Company’s account as voluntary efforts. Therefore, the Plaintiff’s assertion on this is without merit.

C. Judgment on the conjunctive assertion

1) Relevant legal principles

Under the Corporate Tax Act, the representative bonus system is not based on the fact that such income has accrued to the representative, but rather requires a certain fact that can be recognized as such in order to prevent unfair conduct under the tax laws by a corporation to be regarded as an unpaid representative regardless of its substance (see, e.g., Supreme Court Decision 93Nu1176, Mar. 8, 1994). It is not clear that the representative director, etc. of a corporation has used the corporation's income for its business out of his position as a bonus to the representative director or other similar temporary benefits (see, e.g., Supreme Court Decisions 97Nu4456, Dec. 26, 1997; 98Du5064, May 26, 2000). In such a case, the revenue of a corporation that has been discharged from the company must be treated as a bonus for the representative unless it is clear that it has accrued to the representative, and it shall not be deemed that it has been distributed or distributed to 201,2000.

2) Determination

The Defendant: (a) deemed that the remaining KRW 1,945,500,000, excluding only KRW 48 million used by KimD to repay personal debts among the crime sight table of this case, was reverted to Park E in 2013; and (b) disposed of the said amount as a bonus to Park E in 2013, as seen earlier.

However, according to the above legal principles, interpretation of relevant laws, the principle of substantial taxation, and the result of the relevant appellate judgment, the following grounds are as follows: (a) in addition to the above KRW 48 million, the pertinent disposition that deemed to have been reverted to Park E, including all of the above measures, even though 100 million in the list of crimes of this case, which was recognized as a sole embezzlement by the new JJ in the relevant appellate judgment, should be excluded from the key amount of the crime of this case.

① The main text of Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act, which is the basis of the instant disposition, stipulates that “where it is clear that the amount included in the calculation of gross income has leaked out of the company, it shall be the dividend, bonus, other income by the disposition of profits, and other outflow from the company according to the person to whom it belongs,” and that other disposition of income shall be made according to the person to whom it belongs, and where it is unclear even in the proviso of the same subparagraph, it shall be deemed that it belongs to the representative.” Thus, even if the recognition system aims to prevent the representative from unjust act regardless of the substance of such income, as seen earlier, the basis for taxation shall eventually belong to the withdrawn amount.

② For the same reason, the Defendant appears to have excluded the amount of KRW 48 million in the list of crimes in the instant case, which was recognized as a single criminal act of KimD in the judgment of the first instance court related to the same reason, from the point of view that it was not reverted to ParkE.

③ In light of the purport and purpose of recognition and criminal punishment differ, the Defendant asserts that the pertinent appellate judgment should not be bound without conditions, but the recognition and contribution system is based on the "Reversion of the amount out of the company," and the pertinent appellate judgment is one of the grounds for judgment on the crime of ParkE in light of the fact that the issue amount in this case belongs to ParkE, and that the pertinent disposition in this case appears to be based on the relevant first instance judgment, and that it is reasonable to accept the result of the relevant criminal judgment, barring any circumstances, such as where evidence submitted to the underlying criminal judgment is different, and it is very unfair to accept the result. However, the instant disposition is based on the relevant first instance judgment that was reversed in the relevant appellate judgment, and there seems to be no other circumstances to reject the relevant appellate judgment.

④ In light of the fact that the decision of the court of first instance recognized the crime of ParkE with respect to No. 5-3 and No. 5-5 of the crime list of this case, and that the disposition of this case was conducted after the decision of the court of first instance related to the crime list and before the decision of the relevant appellate court was rendered, the defendant's disposition of this case excluding only 48 million won among the crime list of this case is based on the judgment of the court of first instance related to the case. If the disposition of this case was rendered after the judgment of the relevant appellate court, it would be sufficient to exclude 200 million won from the disposition of this case.

(5) The liability for the reason that the person is a real manager without considering the purpose of use of money that was released from the company and the person to whom the income accrued, etc., may be excessively harsh to the responsible person, and subsequent taxation may be contrary to the principle of substantial taxation.

(6) The relevant appellate judgment does not comprehensively recognize the involvement of the act of embezzlement in the instant case on the ground that ParkE is the actual manager of the Plaintiff Company, and the issue of whether to embezzlement of loans and the Defendants’ participation should be determined individually and specifically depending on the custodian, recipient, specific user, etc. of loans.

7) Specifically, among the crime sight table of this case, it can be deemed that most part of the crime committed by ParkE was used or reverted to ParkE or ParkE for the purpose of the crime, while it is clear that 5-III in the crime sight table of this case belongs to the newJ, and 5-Ⅲ in the same crime sight table of this case is not recognized.

① Comprehensively taking account of the above, there seems to be no ground to see the No. 5-3 and No. 5-No. 2 in the list of crimes in this case, from among the list of crimes in this case.

① Of the crime sight table of this case, it is apparent that 5-3 100 million won belongs to the newJ, and 5-5-5) No. 106 (1) (proviso) of the former Corporate Tax Act cannot be deemed as belonging to the Park E inasmuch as it is not itself an act of embezzlement, i.e., an act of outflow from the company.

(10) On the other hand, even if the remaining part of the issues in the instant case, which was excluded as above, was performed by the co-principal conduct with KimD, NewJ, not by the act of single principal of GaE, it is reasonable to deem that money under the said part is reverted to GaE, in view of the fact that all of the issues in the instant case were used or reverted to the company run by GaE, and KimD and NewJ appears to have been used or reverted to the company run by GaE, and that all of the accomplices or accomplices of the instant embezzlement act were to have been ordered by GaE.

D. Sub-committee

In a lawsuit seeking revocation of a taxation disposition, whether the pertinent disposition exceeds a reasonable tax amount is determined depending on whether the pertinent tax amount is exceeded. The relevant party may submit objective tax bases and materials supporting the tax amount until the closing of argument in the fact-finding court, and when calculating the legitimate tax amount to be imposed lawfully based on such materials, only the portion exceeding the reasonable tax amount shall be revoked (see Supreme Court Decision 9Du8930, Jun. 12, 2001).

Therefore, since money reverted to Park E-E by the instant embezzlement is KRW 1,745,50,00,000, the part that exceeds the above KRW 1,745,500,000, out of the notice of change in income amount of KRW 1,945,50,000, the Defendant’s disposition against the Plaintiff on April 1, 2016 should be revoked.

4. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.