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(영문) 가공매입금액을 대표자에 대한 인정상여로 소득처분하고, 10년의 부과제척기간을 적용하여 소득금액변동통지한 처분의 당부(경정)

조세심판원 조세심판 | 2011-05-17 | 조심2010중2358 | 법인

[Case Number]

early 2010 Heavy2358 ( October 17, 2011)

[Items]

A corporation

[Types of Decision]

Revocation

[Summary of Decision]

This case was disposed of after the lapse of the five-year national tax exclusion period. Thus, the disposition that the disposition agency disposes of the supply value of the tax invoice as bonus to the representative, and the five-year exclusion period has expired on May 24, 2010, which was notified of the change in the income amount of KRW 000 that reverts to the requesting corporation in the year 2003 is erroneous.

[Related Acts]

Article 26-2 of the Framework Act on National Taxes / [Period of Exclusion of National Tax Imposition] The initial date in calculating the exclusion period for national tax imposition]

【Determination following Decision】

early 2011stru 3282 / early 2013Gu3821

【Disposition】

The notice of change in income amount of KRW 100,000,000, which was given to the claimant corporation on May 24, 2010 by the head of the OO head of the tax office shall be revoked.

【Reasoning】

1. Summary of disposition;

A. From September 1, 200, the applicant corporation received two copies of the tax invoice of KRW 100,000,000 from OO (hereinafter “instant tax invoice”) to the date of September 1, 200, deducted the relevant input tax amount from the output tax amount, and filed a return of the value-added tax for two years in 2003 and the corporate tax for 2003 business year.

B. On January 10, 2009, the disposition agency notified the head of the OOO tax office of the taxation data that the issue tax invoice was received without a real transaction, and issued a notice of the change in the amount of income to the requesting corporation on May 24, 2010, after correcting and notifying the value-added tax and corporate tax by not including the non-deduction of the related input tax amount and the purchase amount in deductible expenses.

C. The applicant filed an appeal on July 1, 2010.

2. Opinion of the requesting corporation and the disposition agency;

A. The claimant corporation's assertion

Although it is recognized that the claimant corporation received the issue tax invoice without real transaction from the OO, even in cases where the person to whom the amount of the processed purchase belongs is unclear, and thus, in cases where the disposition of income is made to the representative, the liability to pay the tax is unlawful and unjust since the five-year expiration date of the period of imposition of national tax (.............) counting from the date of June 1, 2004, which is the day after the payment deadline of global income tax for the taxable period to which the date of receipt of the tax invoice belongs (9.5.31......).

(b) Opinions of disposition agencies;

It is legitimate to apply the exclusion period for national taxation to 10 years since a corporation purchases assets through processing and deducts input tax and deducts input tax from deductible expenses falls under "Fraud or other unlawful acts."

3. Hearing and determination

A. Key issue

The propriety of the disposition of change in the amount of income by applying the exclusion period for 10 years after disposing of the processed purchase amount to the representative.

(b) Related statutes;

(1) Framework Act on National Taxes

Article 26-2 (Period of Exclusion from Imposition of National Taxes) (1) National taxes shall not be imposed after the expiration of the period prescribed in the following subparagraphs:

1. Where a taxpayer evades national taxes, or receives a refund or deduction by fraudulent or other unlawful means, for ten years from the date on which the national taxes are assessable;

2. If the taxpayer fails to file a written tax base return within the legal return term, for seven years from the day on which the national tax is assessable;

3. If it does not fall under subparagraphs 1 and 2 above, for five years from the day on which the national tax is assessable; and

(2) Enforcement Decree of the Framework Act

Article 12-3 (Initial Date in Calculation of Period for Imposition of National Taxes) (1) The date on which national taxes may be imposed under Article 26-2 (4) of the Act shall be any of the following days:

1. For a national tax return on its tax base and amount, the following day of the deadline for filing the tax base and amount of the national tax or for filing the return (hereinafter referred to as "period for filing the tax base"). In such cases, the deadline for interim prepayment, preliminary return and revised return shall not

(2) National taxes may be levied on the dates set forth in the following subparagraphs, notwithstanding the provisions of paragraph (1):

1. For the national taxes levied on the withholding agent or tax association, the day following the statutory due date for payment of the withheld or tax amount collected by the tax association;

(3) Corporate Tax Act

Article 67 (Report on Tax Base of Corporate Tax on Income for each business year under the provisions of Article 60 or the amount included in gross income in determining or revising the tax base of corporate tax under the provisions of Article 66 or 69 shall be disposed of as bonus, dividend, other outflow from the company, internal reservation, etc. according to the person to whom it belongs as prescribed by Presidential Decree.

(4) Enforcement Decree of Corporate Tax Act

Article 106 (Disposition of Income) (1) The amount included in gross income under the provisions of Article 67 of the Act shall be disposed of in accordance with the provisions of the following subparagraphs. The same shall also apply to non-profit domestic corporations

1. Where it is obvious that the amount included in the calculation of earnings has leaked out of the company, it shall be the dividend, bonus from the disposal of profits, other income, and other outflow out of the company under each of the following items according to the person to whom it reverts: Provided, That where the ownership is unclear, it shall be deemed that it has been reverted

(5) Enforcement Decree of the Income Tax Act

Article 192 (Fictitious Payment Date of Dividend, Prize and Other Incomes Obtained by Disposal of Income)

(1) When the head of a tax office or the director of a regional tax office determines or revises the corporate income amount under the Corporate Tax Act, he/she shall notify the corporation concerned of the notice of change in the income amount as prescribed by the Ordinance of the Ministry of Finance and Economy within 15 days from the date of the determination or correction of the corporate income amount: Provided, That where the location of the corporation concerned is not clear or it is impossible to serve the notice, or where the corporation concerned falls under Article 86 (1) 1, 2 and 4 of the National Tax Collection Act, he/she shall notify the relevant stockholder and the resident who has received the disposition of the bonus

C. Facts and determination

(1) According to the instant psychological data:

Since September 1, 2000, the applicant received two copies of the key tax invoices of KRW 100,000,000 (value added tax 10,000,000) from OO until then, and reported the input tax deduction of value added tax and the inclusion of corporate tax in deductible expenses;

After examining the data on the processed tax invoices received without a real transaction from an OO, an enterpriser suspected of being suspected of being exposed to the data, the agency issued a notice of the fact that it was a processed purchase. On January 10, 2009, when correcting and notifying corporate tax on January 10, 2009, it issued a notice of the amount to be included in the calculation of earnings as "other" in the list of the total amount of income adjustment (Ⅰ) of the corporate tax base and tax

On May 24, 2010, when one year or more has passed since the correction date, review of the disposition of income on May 24, 2010 and judge the amount of 100,000,000 won as the outflow from the company in which the person to whom the disposition of income belongs is unclear and notify the representativeO of the change in the amount of income which the person to whom the amount of outflow from the company

(2) The amount of income disposed of as a result of the recognition of the representative of a corporation pursuant to the provisions of the Corporate Tax Act is deemed to have been paid by the corporation concerned on the date of receipt of the notice of change in the amount of income. However, this is not a case of actual payment to the representative, but a legal fiction. Thus, in order for the corporation to be subject to the above notice of change in amount of income to be established, the withholding agent must be deemed to have received the income at the time of receipt of the above notice of change in amount of income, which is the time of establishment. If the tax liability of the withholding agent already extinguished due to the expiration of the exclusion period for imposition of income tax, the corporate withholding obligation cannot be established, and thus the subsequent notice

(3) In a case where a representative of a corporation receives processing tax invoices in excess of the purchase amount on the account book and conceals income, it is difficult to recognize that he/she committed such act to evade income tax imposed on his/her own by predicting that he/she is subject to disposition of income as he/she is not aware of the ownership of the income accrued after he/she received the processed tax invoices in excess of the purchase amount on the account book, as in this case, it is reasonable to apply the exclusion period for imposition of five years stipulated in Article 26-2(1)3 of the Framework Act on National Taxes.

(4) If so, this case was disposed of after the expiration of the five-year statute of limitation for national taxes on the part of which the amount of supply was received by the claimant corporation and included in deductible expenses the amount of supply in question and the amount of income leaked out of the company. Thus, it is deemed that the disposition was erroneous for the claimant corporation to notify the change in the amount of income in the amount of KRW 100,000,000 for which the five-year statute of limitation for national taxes expires on May 24, 2010, when the disposition authority disposed of the value of supply in question as bonus to the representative of the claimant corporation as a bonus.

4. Conclusion

This case is decided in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes because the petition for the trial results is well-grounded.