(영문) 부산고등법원 2014. 05. 16. 선고 2014누20162 판결

1. If a corporation discontinues its business, any outstanding credit shall be disposed of to the representative at the time of the occurrence of the credit, not to the representative at the time of the closure;

2. If the representative at the time of closure of business is merely a nominal representative and there is a different real representative, it is reasonable to dispose of the bonus to the de facto representative, regardless of the name thereof;

Related statutes

Article 67 of the Corporate Tax Act

Cases

2014Nu20162. Detailed global income and revocation of disposition

Plaintiff, Appellant

Defendant, appellant and appellant

〇〇〇세무서장

Judgment of the first instance court

Busan District Court Decision 2013Guhap20685 Decided December 20, 2013

Conclusion of Pleadings

April 18, 2014

Imposition of Judgment

May 16, 2014

Text

1. The defendant's appeal is dismissed.

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

Purport of claim and appeal

1. Purport of claim

The Defendant imposed global income tax of KRW 880,091,440 on the Plaintiff on January 2, 2012, 2008.

Sector shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The court's explanation of this case is in accordance with 6th court's decision No. 9 and 19th court's decision

Pursuant to the reasoning of the judgment of the court of first instance, administration is the same as that of the reasoning of the judgment of the court of first instance, except with the following modifications:

Article 8 (2) of the Litigation Act and the main sentence of Article 420 of the Civil Procedure Act shall be quoted as it is.

Parts used for cutting.

1) "Representative" under the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act means, in principle, a "representative".

The concept of the Commercial Act is followed in accordance with the Commercial Act, and in principle, in the case of a corporation, the term "representative" shall be a representative who actually runs the company in light of the substance over form principle. Thus, even if a person is registered as the representative director of the company on the corporate register, if the person actually runs the company, he/she may not impose comprehensive income tax on such person. However, since a person registered as the representative director of the company on the corporate register can be presumed to substantially operate the company, the representative director on the corporate register must prove that he/she actually failed to operate the company on the corporate register (see, e.g., Supreme Court Decisions 2008Du10461, Dec. 23, 2010; 2010Du116, Dec. 23, 2010; 2010Du10810, Oct. 28, 2010; 2010Du10810, supra, the defendant is not a representative on the corporate register.

2. Conclusion

If so, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit.