Whether a bonus disposition is legitimate

The issue of this case is that the non-party company's provisional payment is not reserved as a profit in 2001 and that it is not clear that it belongs to the non-party company, so the bonus disposition against the plaintiff who is the representative of the non-party company is legitimate.

Article 67 of the Corporate Tax Act

1. The plaintiff's claim is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The imposition of global income tax of KRW 87,606,630 against the plaintiff on November 22, 2004 by the defendant shall be revoked.

1. Quotation of judgment of the first instance;

In addition to the reasoning of the judgment of the court on this case, the part except the conclusion of the judgment of the court on this case shall be dismissed as "○○○ during the fourth procedure of the judgment of the court of first instance that became the defendant and is still pending in modern trials", and the part of the parallels Nos. 2 through 5 and No. 7 in the fourth procedure of the judgment of the court of first instance is the same as the ground of the judgment of the court of first instance, and thus, it shall be accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Completioned Parts]

(2) Determination

(A) According to Article 67 of the Corporate Tax Act and Article 106(1)1 of the Enforcement Decree of the Corporate Tax Act, when filing a report on the corporate tax base on income for each business year, or determining or revising the corporate tax base, the amount included in the calculation of earnings is obviously leaked out of the company, and if the person to whom the income belongs is an executive officer or employee, it shall be treated as a bonus to the person to whom the income belongs, and if the attribution is unclear, it shall be deemed to have been reverted to the representative. This is not based on the facts that the representative has generated such income, but rather, on certain facts that can be recognized as such act in order to prevent unfair conduct under the tax laws of the corporation, regardless of substance, the representative is a de facto representative operating the company. Thus, even if the representative is registered on the corporate register of the company, if the company was not actually operated, the representative director or the representative director (see, e.g., Supreme Court Decision 9Nu176, Mar. 8, 1994).

(B) The Plaintiff’s return to the instant case and the Plaintiff’s assertion that ○○○○○ is the de facto representative director of Nonparty 1 and the Plaintiff merely lent his/her name to Nonparty 5, and as seen earlier, the Plaintiff was subject to criminal punishment as the representative of Nonparty 1, but the investigation agency, etc. did not sufficiently investigate relevant persons or relevant evidence (such as fund relations and profit distribution, degree of involvement) and did not appear to have been subject to criminal punishment as to the Plaintiff’s acquisition of shares in the instant case’s name, and it is difficult to conclude that ○○○○ was the representative of Nonparty 1, and that the Plaintiff was not the de facto representative director of Nonparty 2, and that the Plaintiff did not have any legal interest in the instant case’s name. In light of the above, it is difficult to view that ○○○○○ was the de facto representative director of Nonparty 1, the Plaintiff could not be deemed to have worked for 0% of the total number of shares issued in the instant case’s name and thus, it appears that the Plaintiff did not have any legal interest in the Plaintiff’s name.

(C) Furthermore, the Plaintiff asserted that the disposition of this case, based on the premise that the issue of this case was paid to the Plaintiff, is unlawful, since it was merely an occurrence of the issue of this case’s provisional payment account and it did not actually pay it to the Plaintiff, in order to fill the gap of insufficient funds in calculating the income and expenditure.

However, according to the statement of the recognition of the provisional payment, etc., submitted by the non-party company to the defendant when it reported corporate tax in 2001, and the statement of the difference between the provisional payment and the settlement (Evidence No. 5-3 and No. 5-4), the non-party company had repeatedly paid 5 million won to the plaintiff on January 30, 2001 and repeatedly paid 5 million won to the plaintiff on December 31, 2001. The issue of the provisional payment was determined as 183,50,000 won, which is the provisional payment of this case, and the amount was actually paid (in case that the difference between the provisional payment and the cash payment was not consistent with the plaintiff's assertion, it is common that the difference between the provisional payment and the cash payment amount was appropriated in several installmentss under the accounting practice, and thus, the disposition of this case is legitimate under the premise that it is legitimate.

In addition, even if the issue of this case was merely for the convenience of accounting as alleged by the Plaintiff and the actual payment was not made to the Plaintiff, it is clear that the issue of this case’s provisional payment was not retained as a profit in the year 2001 by the non-party company, and its attribution is not clear. Thus, this also should be deemed to have been reverted to the Plaintiff, who is in the representative’s position, according to the legal principles as seen earlier. Accordingly, the Plaintiff’s argument does not seem to have been a mother or without merit.

2. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.