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(영문) 대구고등법원 2007. 11. 23. 선고 2007누0925 판결
매출누락액을 대표자 상여처분하고 소득금액변동통지한 처분의 당부[국승]
Title

propriety of the disposition notified of the change in the amount of income after bonus disposal by the representative;

Summary

Since it is not recognized that the omitted amount of sales has been used for another purpose or reserved in the company, the representative shall dispose of the revenue amount as bonus and the disposition notified of the change in the income amount is legitimate.

Related statutes

Article 67 of the Corporate Tax Act

Article 106 of the Enforcement Decree of Corporate Tax Act

[Tgu High Court 2007Nu0925 ( November 23, 2007)] - Kukkiwon

Text

1. The plaintiff's claim against the defendant corrected in the trial room is dismissed.

2. The costs of the trial are assessed against the Plaintiff.

Purport of claim

On August 30, 2004, the part of KRW 35,200,00 among the disposition of notification of change in the income amount of KRW 42,265,993, which the Defendant rendered to the Plaintiff on August 30, 200, was revoked (it was corrected from the trial to the director of ○○ Tax Office).

Reasons

1. Details of the disposition;

Facts that there is no dispute over recognition, Gap Nos. 1, 2, 3, 14, 15, Eul Nos. 1 through 4 (including each number), the purport of the whole pleadings.

A. On March 31, 2004, the Plaintiff, a corporation operating a furniture manufacturing and sales business, omitted the sales amount of KRW 32,00,000,000, the household sales amount of KRW 3,413,630, the household sales amount for ○○ Elementary School, KRW 760,00, the household sales amount for ○○ University, KRW 68,182, and KRW 2,181,818, and KRW 38,423,630 from the sales amount.

B. The Defendant revealed the omission of the Plaintiff’s report on sales in the course of tax investigation, and notified the Plaintiff of the change in the amount of income belonging to KRW 42,265,93 (the supply price of KRW 38,423,630 + value-added tax of KRW 3,842,363) to the head of the tax office having jurisdiction over the Plaintiff’s domicile, who is the head of the tax office having jurisdiction over the jurisdiction over the tax office having jurisdiction over the Plaintiff’s domicile, on August 30, 2004, on the ground that the ownership of the omitted sales amount was unclear as it was leaked out of the company, Article 67 of the Corporate Tax Act and Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706, Feb. 19, 2005; hereinafter the same).

C. On November 26, 2004, the plaintiff filed a request for adjudgment with the Director of the National Tax Tribunal, but the Director of the National Tax Tribunal dismissed the above request for adjudgment on September 29, 2005, and the plaintiff was served with the above decision on the adjudgment on October 7, 2005.

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant asserts that the disposition of this case is legitimate on the grounds of the above disposition and related Acts and subordinate statutes. The plaintiff asserted that the disposition of this case is legitimate on the ground that the plaintiff used 200,000 won for sales of 32 million won and 3.2 million won for sales of 3.2 million won for the total omitted sales at the time of filing a corporate tax base return for the business year 2003, and that the part of the disposition of this case which was omitted on the ground that the sales of this case was not disclosed to the representative director of the company, 27,457,75 won for credit to 0,000 won for 27,457,775 won for 00,000 won for household purchase contract for 0,000 won for 0,000 won for 00 won for 0,000 won for 0,000 won for 00 won for 0,000 won for 0,000 won for 0.

(b) Related statutes;

Article 67 of the Corporate Tax Act

In filing a report on the tax base of corporate tax on the income for each business year under the provisions of Article 60 or in determining or revising the tax base of corporate tax under the provisions of Article 66 or 69, the amount included in gross income shall be disposed of according to the person to whom the income belongs as prescribed by Presidential Decree, such as bonus, dividends, other outflow of

○ former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706 of Feb. 19, 2005)

§ 106. Disposal of income

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of under the provisions of the following subparagraphs. The same shall apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed to have been reverted to the representative (where the total number of stocks held by an officer who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30% or more of the total number of stocks issued or total investment amount of the relevant corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation which has been exempted from withholding taxes under the provisions of Article 46 (12) of the Restriction of Special Taxation Act reports that there is a separate representative among the officers who are stockholders, the reported person shall be the representative, and where there are

(a) Where the person to whom benefits accrue is a stockholder, etc. (excluding a stockholder, etc. who is an executive officer or employee), the dividends to such person;

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

(c) Other outflow from the company, if the person to whom it belongs is a corporation or an individual operating the business; and

(d) Other income of the person to whom the income belongs, in cases where the person to whom the income accrues falls.

(c) Fact of recognition;

Facts without any dispute over recognition, Gap's evidence Nos. 4 through 8, 15, Eul's evidence No. 5, 6, 7 (including each number), and witness of the first instance court ○○○.

(1) Plaintiff’s report of corporate tax base

On March 31, 2004, the Plaintiff reported the corporate tax base and its tax amount to the Defendant for the business year of 2003 (from January 1, 2003 to December 31, 2003) as follows:

(1) 1,664,269,246 won, (2) 1,378,284,483 won, (3) 262,62,773 won [1,64,269,246 won-1,378,284,483 won [262,62,621,690 won] 39,825,322 won from ordinary profits 63,18,095 won [23,362,773 won (business profit) + 39,225,325,365 [1,79, 207, 205, 207, 1965, 279, 279, 279, 279, 39, 325, 165, 286, 205, 207, 367, 1965, 1967, 205, 7, 167

(2) Contents of entry, withdrawal, and entry in the account book relating to the omitted amount of the instant case

(A) On April 16, 2003, the Plaintiff’s account (○○-○-○○○○○○○○○) remitted KRW 35,200,000 to the Plaintiff’s account, and thereafter, the Plaintiff deposited KRW 35,20,000 from the above account to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○-○○○○-○○○○-○○○○○) on one’s account.

(B) On April 16, 2003, the Plaintiff omitted the entry of the sales revenue on ○○○○ from the ledger of the accounts for sales of goods, and entered the cash of KRW 35.2 million on April 16, 2003 at the ledger of the general account, and entered the same amount as the withdrawal on April 30, 200. On April 16, 2003, the Plaintiff entered the cash of KRW 36 million at the temporary deposit by the representative director on April 16, 2003, and again entered the same amount as KRW 38.2 million at the same time on April 30, 200.

(3) Whether the amount equivalent to the sales cost is treated as deductible expenses

On March 31, 2004, when the Plaintiff reported and paid the corporate tax base and the amount of tax for the business year 2003, the Plaintiff already included 27,457,775 won in credit purchase contract amounting to ○○○○○○○○○○○○○○○○○○○○○○, and KRW 1,742,25 in total amount of deductible expenses, and KRW 1,674,735,7316 in total amount of deductible expenses (including KRW 1,378,284,483 + KRW 285,984,763 in sales expenses and management expenses + KRW 10,46,070 in corporate tax, etc.) (a fact that there is no dispute).

(4) Part of the contents are different from each other submitted to the first instance court.

The details of the Plaintiff’s report on the tax base of corporate tax for 2003 are identical to those of the director of the account, the director of the cash ledger, and the director of the cash ledger (Evidence No. 5, 6) prepared by the Plaintiff. However, there are some differences between the Plaintiff’s return and payment of money, the sales ledger, and the sales ledger (Evidence No. 9, 11, 12, and 13) prepared separately.

D. Determination

(1) Where a corporation fails to enter its sales in an account book despite the fact of sales, the total amount omitted from sales, including the cost of raw material purchase, shall be deemed to have been leaked out of the company, barring any special circumstances. In this case, the special circumstance that deeming the omission of sales to be not leaked out of the company must be proved by the corporation asserting it (see Supreme Court Decisions 2005Du2049, Dec. 21, 2006; 2001Du2560, Dec. 6, 2002; 200Du3726, Jan. 11, 2002; 200Du3726, Jan. 11, 2002); where the ownership is unclear pursuant to the proviso of Article 94-2 (1) 1 of the Enforcement Decree of the Corporate Tax Act, the bonus shall be deemed to have been reverted to the representative; and where the person to whom the sales accrue is an executive.

(2) As to the instant case, the facts that the Plaintiff omitted the sales revenue of this case against ○○○ upon filing a corporate tax base return in 2003, are as seen earlier. As such, the omitted sales amount of the instant case, which the Plaintiff failed to enter in the account book, shall be deemed to have been leaked out of the company, and as long as the ownership is unclear, the Defendant’s disposition of this case shall be made as bonus to ○○○, a representative director of the Plaintiff, barring special circumstances, is lawful.

(3) As to this, the Plaintiff alleged that the amount omitted from sales was not entirely used for the credit payment for ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 35.2 million on April 16, 2003. On the 30th of the same month, the Plaintiff deposited KRW 37,457,75 won from the above account to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ account, and the Plaintiff’s allegation that it was difficult to readily conclude the amount of sales revenue out of 30,000 won, including the above cash sales revenue.

3. Conclusion

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

[Tgu District Court 2006Guhap42 (2007.06.13)] - Kukkiwon

Text

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Purport of claim

The Defendant’s disposition of notification of change in KRW 35,200,000 among the disposition of notification of change in the income amount of 42,265,993, which the Plaintiff on August 30, 2004, shall be revoked.

Reasons

1. Details of the disposition;

The following facts do not conflict between the parties, or if Gap evidence 2, Gap evidence 3-1 to 5-1 to 5, Eul evidence 1-1 to 10, Eul evidence 2-3, Eul evidence 4-1, 2, Eul evidence 5, Eul evidence 6, 7-1, 2, and 3 respectively, and the purport of the whole pleadings is collected, and there is no counter-proof otherwise.

A. On March 31, 2004, the Plaintiff reported the corporate tax base and its tax amount for the 2003 business year (from January 1, 2003 to December 31, 2003; hereinafter referred to as “2003 business year”) as follows to the Defendant.

(1) Sales amount: 1,64,269,246 won; 2) 1,378,284,483 won; 262,621,90 won; 4. Business profits: 23,362,773 won [1,64,269,246 won (Sales) - 1,378,284,483 won - 262,621,90 won (sales expenses and management expenses) - 39,825,322 won; 63,18,095 won [23,62,773 won (business profits) + 39,825,7253 [36,705,705,79] - 1965,705 won (business profits} - 39,825,725,765,2965,75,297, 297

B. The Plaintiff omitted the sales amount of KRW 32,00,000 for household sales to ○○○○ Company at the time of filing the corporate tax base and its tax amount for the business year 2003 (hereinafter “amount omitted for household sales”), KRW 3,413,630 for household sales to ○ Elementary School, KRW 760,00 for household sales amount for ○○ University, KRW 68,182 for household sales amount for ○ University, KRW 2,181,818 for ○○ Housing, and KRW 38,423,630 for household sales amount for ○ University (hereinafter “total omitted sales amount”).

C. However, on April 16, 2003, the Plaintiff received 32,000,000,000 won and its value-added tax totaling KRW 3,200,000,000 from ○○○○○ Company’s total amount omitted in sales to its own account account. The Plaintiff did not treat the said KRW 35,200,000 as the recovery of credit account account account account account, but did not report the sales amount equivalent to the omitted sales amount by treating the said KRW 35,20,00 as the deposit account in its possession.

D. On August 30, 2004, the defendant revised the plaintiff's corporate tax base for the business year of 2003, included the total omitted sales amount of 38,423,630 won in gross income, and then issued a disposition of income that the total omitted sales amount of 38,423,630 won and value-added tax 3,842,363 won and its value-added tax 42,265,993 won in total as bonus to the plaintiff's representative director Kim ○○, and on that day, issued a notice of change in income amount (hereinafter "the notice of change in income amount of this case") in accordance with Article 67 of the Corporate Tax Act and Article 106 (1) 1 of the Enforcement Decree thereof (amended by Presidential Decree No. 18706, Feb. 19, 2005).

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant asserts that the disposition of this case is legitimate under the relevant laws and regulations.

In this regard, the plaintiff filed a return on the tax base of corporate tax and its tax amount of 2003 business year with "the plaintiff omitted the total amount of 38,423,630 won in sales revenue, but 32,000,000 won in total of 32,200,000 won in sales revenue and its value-added tax, 27,457,700 won in total of 35,200,000 won in total of 32,200,000 won in sales revenue (hereinafter "the "the dispute outflow amount"), 1,000,000 won in payment of the credit payment to ○○ corporation, ○, the other 6,742,225 won in repayment of the household purchase contract amount to Kim○, and the sales expense and its tax amount were used respectively as 35,20,000 won in sales revenue and management expenses, the plaintiff asserts that the bonus amount of 35,20,000 won in this case should be revoked.

(b) Related statutes;

Article 67 of the Corporate Tax Act

In filing a report on the tax base of corporate tax on the income for each business year under the provisions of Article 60 or in determining or revising the tax base of corporate tax under the provisions of Article 66 or 69, the amount included in gross income shall be disposed of according to the person to whom the income belongs as prescribed by Presidential Decree, such as bonus, dividends, other outflow of

○ former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706 of Feb. 19, 2005)

§ 106. Disposal of income

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of under the provisions of the following subparagraphs. The same shall apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed to have been reverted to the representative (where the total number of stocks held by an officer who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30% or more of the total number of stocks issued or total investment amount of the relevant corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation which has been exempted from withholding taxes under the provisions of Article 46 (12) of the Restriction of Special Taxation Act reports that there is a separate representative among the officers who are stockholders, the reported person shall be the representative, and where there are

(a) Where the person to whom benefits accrue is a stockholder, etc. (excluding a stockholder, etc. who is an executive officer or employee), the dividends to such person;

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

(c) Other outflow from the company, if the person to whom it belongs is a corporation or an individual operating the business; and

(d) Other income of the person to whom the income belongs, in cases where the person to whom the income accrue falls.

C. Determination

(1) In filing a return on the tax base of corporate tax and its amount of tax for 2003 business year, the Plaintiff filed a return on the sales amount of KRW 1,64,269,246; KRW 1,378,284,483; KRW 262,621,90; operating income amount of KRW 23,362,773; and the Plaintiff filed a return on the sales amount of KRW 38,423,630,630, the sales amount of KRW 35,200,00 (the sales amount omitted is KRW 32,00,000,000; KRW 32,00,000; KRW 360,000, KRW 360,000, KRW 360,000, KRW 200, KRW 360,000, KRW 360,000, KRW 360,000.

(2) On the other hand, in a case where a corporation fails to enter its sales in the account book despite the fact of sales, the entire omitted sales amount shall be deemed to have been leaked out of the company, barring special circumstances, and in this case, the special circumstance that the omitted sales amount shall not be leaked out of the company shall be proved by the corporation asserting it (see Supreme Court Decision 2000Du3726, Jan. 11, 2002). In addition, as long as the revenue of a corporation leaked out of the company without being entered in the account book is unclear, the tax authority shall have the duty to dispose of the revenue as it belongs to the representative's bonus. In this case, the burden of proving that the ownership is obvious shall be the taxpayer (see Supreme Court Decision 92Nu6747, Aug. 14, 1992).

(3) However, as seen earlier, the Plaintiff did not dispose of the amount of KRW 35,200,000 on its account books, despite having received KRW 35,200,00 from ○○○○○○ Company as its own account account account account, and disposed of its own cash as its account deposit. ② Although the Plaintiff used KRW 35,200,000 on the credit account for ○○○○ Company as one’s own claim, and the total amount of the sales and management expenses for 2003 business year, the Plaintiff did not include KRW 35,20,00 in the above amount of KRW 1,640,90,406,470,000, including the reported sales and 300,000,000 won in the above amount of KRW 1,640,50,700,000 in the above amount of corporate tax for 203 business year, and there was no other evidence to acknowledge the Plaintiff’s account statement as its account books as its deductible expense.

(4) Therefore, the notice of the change in the income amount of this case, which was disposed of as bonus to the representative director Kim ○○ by the plaintiff's representative director, is lawful since the ownership of the amount of 35,200,000 won was unclear, and thus, it is not acceptable to accept the prior plaintiff's above assertion in the opposite position.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation on the ground that the notice of change in the income amount of this case was illegal is dismissed as it is without merit. It is so decided as per Disposition.

[Supreme Court Decision 2007Du26735 (No. 13, 2008)]

Text

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Reasons

Although all of the records of this case and the judgment of the court below and the grounds of appeal were examined, the argument on the grounds of appeal by the appellant falls under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal, and therefore, the appeal is dismissed under Article 5 of the same Act. It is so decided as

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