Cho Jae-2014-China-2325 (Law No. 18, 2014)

If it is distinguished from the amount due at the time of the estimated investigation, the bonus disposal box to the representative;

In determining the tax base of corporate tax, if the attribution is unclear, the representative shall be disposed of as bonus, and if there are two or more representatives in one taxable period, it shall be divided in proportion to the service period.

Article 5 of the Framework Act on National Taxes

2014Guhap7122 global income and revocation of disposition

○ ○

○ Head of tax office

March 22, 2016

April 5, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of global income tax of KRW 521,708,530 on the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff was registered as the representative director of ○ Construction Co., Ltd. (hereinafter “○○ Construction”) from January 6, 2005 to March 8, 2010, from May 26, 2010 to July 29, 2010.

B. On July 28, 2010, the Plaintiff transferred all 92,819 shares of ○ Construction to ○○○○, which was owned on July 28, 2010, and resigned from the representative director on July 29, 2010. On the same day, ○○ was appointed as the representative director of ○○ Construction.

(c) The jurisdiction of the head office of ○ Construction as ○ Construction did not report corporate tax for the business year 2010;

After conducting a tax investigation on ○○ Construction, the director of the tax office calculated the amount of income as KRW 3,287,801,266 according to the estimation method, and disposed of it as a bonus to the representative director, and notified the defendant having jurisdiction over the plaintiff’s domicile.

D. On January 9, 2014, upon the notice of taxation data by the head of ○○ Tax Office, the Defendant calculated the period in which the Plaintiff served as the representative director of ○○ Construction was registered in the National Tax Integration System as 143 days. Based on the amount of KRW 3,287,801,266, the Defendant determined and notified the Plaintiff of KRW 521,708,530,530, global income tax for the year 2010, based on the amount of KRW 1,288,097,482 (= KRW 3,287,801,266 x 143/365 x 143/365).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 7, 2014, but the said appeal was dismissed on August 18, 2014.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1, 4, 5, Eul evidence 1 through 5 (including each number in the case of a tentative number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful on the following grounds.

1) The method of estimated investigation in determining ○○ Construction’s 2010 business year income

The instant disposition was based on the amount of income determined. At the time, ○○ Construction was in a state of default due to business losses, and there was no profit in fact, so the amount of income should not be determined by the method of estimated investigation, and as ○○○○○○ who acquired the shares of ○○ Construction agreed to assume the responsibility for all bonds and debts related to ○○ Construction, it is unclear that ○○○○○ was responsible for ○○ Construction, so it should not be deemed as a bonus income even for the Plaintiff who resigned the representative director of

2) Consideration of the period during which Kim○-○ and Kim○-○ together with the Plaintiff was serving as the representative director of ○○ Construction

In 2010, the period of service of the plaintiff as the representative director of ○○ Construction shall not be 143 days calculated by the defendant, but 70 days.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to whether the disposition of estimated investigation and recognized contribution is illegal

A) In principle, the tax base and tax amount of corporate tax on income for a business year of a corporation shall be determined by the actual amount revealed by the field investigation method. However, if there is no necessary account books or documentary evidence, or there is no reliability in the important part, and there is no other way for the tax authorities to disclose the actual amount of income, it may be determined by the estimation investigation method.In addition, the corporate tax law does not provide the representative with the basis of the fact that such income has accrued to the representative, but rather requires the representative to consider certain facts that can be recognized as such act in order to prevent unfair acts under the tax law of a corporation as bonus regardless of the substance (see Supreme Court Decision 92Nu3120, Jul. 14, 1992). In particular, if a tax base is calculated by the estimation investigation and determination method and then a bonus is disposed of to the representative, it shall not be asked for anyone to whom the difference between the net income for the corporation's tax base and the balance on the balance sheet (referring to the amount not deducted) of the corporation's corporate tax base and determination method.

B) As to the instant case, a corporation in the business year 2010, by March 31, 2011, ○○ Construction.

The fact that the plaintiff disposed of the amount equivalent to the period of service as the representative director of ○○ Construction as bonus from the plaintiff among the amount corresponding to the above corporate tax base after calculating the corporate tax base by means of estimated investigation and determination as a result of failure to report the tax base of the tax base of the tax, is the same as the above. The data submitted by the plaintiff alone cannot confirm the actual income amount of ○○ Construction, and whether the amount of the tax is attributed to anyone who actually belongs to anyone who actually belongs to the plaintiff shall not be asked at the time of the disposition of bonus against the representative. Thus, the disposition of this case is legitimate after calculating the income amount of ○○ Construction for the business year 2010 and disposing of it as a bonus to the plaintiff who is the representative director, which

2) Determination as to whether the calculation of the period of the representative director's service is illegal

A) In full view of the following circumstances, it is reasonable to view that the Plaintiff was a de facto representative of ○○ Construction from January 1, 2010 to July 28, 2010, taking into account the following circumstances, which can be acknowledged by adding up the evidence evidence Nos. 6, 8, and 14, the witness Kim○, and the purport of the entire testimony and pleading of ○○.

① Since 2005, the Plaintiff had been registered as the representative director of ○○ Construction and operated ○○ Construction. However, the Plaintiff’s representative director in the copy of the corporate register of ○○ Construction as seen earlier.

On November 30, 2009, Kim○-○, along with registration, was appointed as representative director on November 30, 2009, and resigned on May 26, 2010. The Kim○-○, who was appointed as representative director on June 3, 2010, was registered as the resignation on July 29, 2010.

② On July 28, 2010, the Plaintiff owned 50.73% of the shares of ○○ Construction until transferring the shares of ○○ Construction to ○○○○○, and yellow ○○ was holding 37.41% of the remaining shares.

③ The registration of ○○○ as the representative director of ○○ Construction was made at the request of the Plaintiff, etc. during the process of acquiring ○○○ Construction by transfer. Even after the registration as the representative director, ○○ was made, ○○ was actually in attendance at ○○ Construction and was either involved in the work or was not paid from ○○ Construction.

④ Around July 29, 2010, prior to the registration as a representative director, the Plaintiff managed the overall affairs related to the operation of ○○ Construction; and

As the head of the headquarters, Kim ○ has dealt with the practical part by assisting the plaintiff while working for ○○ Construction.

B) Therefore, within the scope of 209 days from January 1, 2010 to July 28, 2010, the period during which the Plaintiff served as the representative of ○○ Construction is deemed 143 days and cannot be deemed to be erroneous in the disposition of this case that calculated the comprehensive income tax against the Plaintiff. Thus, the Plaintiff’s assertion on this part is rejected.

3. Conclusion

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