Article 67 of the Corporate Tax Act

2. The costs of lawsuit are assessed against the plaintiffs.

2. On September 8, 2005, Defendant ○○ Head of the tax office revoked each of the imposition of KRW 84,420,20,200, KRW 103,405,730, and KRW 30,813,070 (30,818,070 as stated in the purport of the claim by the above Plaintiff appears to be a clerical error) as earned income tax imposed on Plaintiff ○○○ Co., Ltd. on September 8, 2005.

A. On June 30, 1997, the Plaintiff ○○○ Co., Ltd. (hereinafter “Plaintiff”) was established for the purpose of the business of manufacturing, wholesale and retail, etc., and the Plaintiff ○○○ is the representative director of the Plaintiff Co., Ltd. The Plaintiff’s shares are 40% of the Plaintiff Co., Ltd., the Plaintiff ○○○, the Plaintiff’s wife, 25% of the Plaintiff’s shares, and 20% of the Plaintiff’s maximum ○○, the Plaintiff’s wife, and the Plaintiff’s birth.

B. The director of the regional tax office of ○○○ (hereinafter referred to as “○○”) revealed that the Plaintiff Company omitted the purchase amount of KRW 651,744,424 from 199 to 1,202, while conducting a tax investigation on the ○○○ (hereinafter referred to as “○○○”) on the ○○○ (hereinafter referred to as “○○”). The Plaintiff Company notified the head of the regional tax office of this fact.

C. Accordingly, the head of ○○ Tax Office: (a) calculated by applying the gross profit ratio of sales by type of business (0.1079) at KRW 146,74,424 in the amount omitted from purchase in the business year 1999; and (b) disposed of the said amount to the Plaintiff’s corporate income in the calculation of the amount of the converted income; (c) on March 24, 2005, the said amount was disposed of to the Plaintiff’s largest ○○ in the year of 1999, and notified the Plaintiff of the change in the amount of income (the notice was served on March 25, 2005) and the Defendant ○○ Tax Office notified the Plaintiff of the tax data.

D. On April 8, 2005, before the end of the following month, the date of receipt of the notice of change in the amount of income, the head of the tax office on April 30, 2005 imposed the global income tax of 116,245,541 won (including additional tax of 10,252,924 won, additional tax of 49,807,821 won) for the year 1999. The plaintiff ○○ filed an objection with the head of the tax office of ○○ on June 17, 2005, the head of the tax office of ○○○ on July 22, 2005, the head of the tax office of ○○○ on April 8, 2005, the head of the tax office of ○○○ on April 16, 2005, 205, 199, 245, 541 won, 206, 207, 4506, 206, 14.6.

E. In addition, according to the notice of taxation data at the director of ○○○ Tax Office, the head of ○○○ Tax Office included the amount of 458,421,147 won from January 200 to January 1, 2002 by type of business (0: 0.11431, 200; 0.156, 2001: 0. 0.15756, 002: 0.1579), calculated by applying the gross profit ratio (540,25,835 won; 54,025,582 won in total, 594,281,417 won (540,25,835 won + 54,025,582 won) in the income amount of the Plaintiff Company, and notified the head of ○○○ Tax Office of 205,205,205,204. 75,251,2005

F. On October 4, 2005, the last day of June 30, 2005, which was June 30, 2005, the date of receipt of the notice of change in the amount of income, the head of the tax office imposed the Plaintiff ○○○ on October 4, 2005, KRW 37,105,814 ( KRW 14,324,421,421, KRW 17,476,804, KRW 5,302, KRW 5,304,589, KRW 959,643, KRW 456,418, KRW 202, KRW 1649, KRW 419, KRW 219,000, KRW 208, KRW 2006, KRW 2086, KRW 208, KRW 200, KRW 2086, KRW 208, KRW 2006, KRW 2086.

On November 17, 2006, the National Tax Tribunal made a request for a trial to the National Tax Tribunal. On October 4, 2005, “Defendant ○○○○○ Head of the National Tax Tribunal made a decision to impose KRW 16,493,440 for the year 200, KRW 18,680,220 for the year 201, and KRW 11,276,06,00 for the year 202, KRW 30 for the imposition of global income tax, KRW 20 for the additional 36 years from the end of the month following the month in which the notice of change in the amount of income was received, KRW 20 for the additional 30 years from the end of the month following the month in which the notice of change in amount was received, KRW 20 for the additional 30 years from the end of 205, KRW 208 for the additional 20 years from the 206th day of the year 205th day following the above decision.

G. The head of the tax office on September 8, 2005 imposed an additional tax (including additional tax, 7,674,564), 103,405,730 won for the year 2001 (including additional tax, 9,400,521 won), 30,813,070 won for the year 202 (including additional tax, 2,801,188 won) on September 8, 2005, when the Plaintiff Company did not withhold and pay the labor income tax until June 10, 2005, which was the 10th day of the following month after receiving the notice of change in the amount of income, even though the Plaintiff Company received the notice of change in the amount of income as above on May 1, 2005.

H. The above-mentioned 1, 2, and 3 imposed dispositions (if referred to as "the disposition in this case" is referred to as "the disposition in this case") are arranged as follows:

Classification

Items of Taxation

The agency (Defendant)

Year

Date of Disposition

Amount initially imposed (won)

Determination to reduce requests for adjudication;

The amount of this case imposed (won)

Additional Tax on negligent tax returns

1Assessment Disposition

Global Income Tax

○ Head of tax office

199

o April 8, 2005

56,184,796

56,184,796

2Assessment Disposition

“”

“”

200

o-4, 2005

16,493,440

901,593

15,591,847

14,324,421

“”

“”

201

“”

18,680,220

420,562

18,259,658

17,476,804

“”

“”

202

“”

11,276,060

1,082,137

10,193,923

5,304,589

3Assessment Disposition

Earned income tax

○ Head of tax office

200

205.99.8

84,420,730

84,420,200

“”

“”

201

“”

103,420,730

103,405,730

“”

“”

202

“”

30,813,070

30,813,070

[Reasons for Recognition] The facts without dispute, Gap evidence 1-1 through 3, Eul evidence 2-3-1 to 4, each of Eul evidence 1-2, Eul evidence 2-3, each of Eul evidence 1-2, Eul evidence 2-3, Eul evidence 4 through 6-1 to 6, Eul evidence 7-1, 2-8 through 13, Eul evidence 14, 15-1 to 4, Eul evidence 16-1 to 5, Eul evidence 17-1, Eul evidence 2-2, each of the whole arguments, the purport of the whole pleadings

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

(1) Illegality common to the instant disposition

㈎ 각 환산매출액의 사외 유출 부분

The Plaintiff Company, as a small-scale small and medium enterprise, was identified by its employees in the course of transaction, and sold all transactions through a normal purchase process. The omission of purchase by the Plaintiff Company was avoided by ○○○ from issuing a tax invoice. As such, each conversion sales of the Plaintiff Company before the Plaintiff Company (hereinafter referred to as “the conversion sales of this case”) did not leak out outside of the company. Accordingly, the instant disposition of taxation on the premise that the transaction was leaked out of the company is unlawful.

㈏ 부외 매입액을 공제하지 않은 부분

Even if the conversion revenue of this case is deemed to have been leaked out of the company, according to the General Rule 67-106, 11 of the Corporate Tax Act, "the amount that can be proved to have not been appropriated as the corporation's deductible expenses because it is an amount equivalent to the cost corresponding to the omission of sales separately borne by the person to whom the omission of sales was actually attributed," was appropriated as the amount equivalent to the cost equivalent to the cost corresponding to the omission of sales, which was not appropriated as the corporation's deductible expenses, without any deficit paid out in the official account book under Article 106 of the Enforcement Decree of the Corporate Tax Act. The shortage was appropriated from the sales revenue of this case by the representative director, the plaintiff ○○, the representative director, raised the funds, supplemented the amount which was deducted from the omission of the purchase corresponding thereto, and therefore, the disposition

㈐ 부가가치세 매출세액 포함 부분

The output tax amount of value-added tax is of the nature of the liabilities that could not lead to the corporation’s profits, and Article 18 subparag. 5 of the Corporate Tax Act does not include the amount in the gross income, and even though there was no burden of value-added tax due to the characteristics of the transaction outside the country, the disposition of this case, including the output tax amount of value-added tax, is unlawful, where Plaintiff ○○ (○○) embezzled the output tax amount of value-added tax without proof as to the fact

(2) The procedural illegality of the first disposition

According to Article 134(1) of the Enforcement Decree of the Income Tax Act, there is an opportunity to voluntarily pay the tax amount by the end of the month following the month in which the notice of change in income amount was received. Defendant ○○○ Tax Office deprived Plaintiff ○○○○○○, who is the tax authority having jurisdiction over the Plaintiff Company, the withholding agent, and Defendant ○○ Tax Office, who is the withholding agent, has first exercised the taxation right on the income. However, Defendant ○○ Tax Office’s exercise the taxation right first, and Defendant ○○ Tax Office’s exercise the taxation right on the income, thereby omitting Plaintiff ○○○ to the risk

(3) The illegality of the portion of the additional tax on negligent tax returns during the 2 imposition disposition

With respect to the bonus income accrued only when Defendant ○○ Head of the tax office notifies the change in the amount of income in relation to the second disposition, the obligation to pay it by withholding under the provisions of Articles 134 through 143 of the Income Tax Act is terminated as earned income provided in subparagraph 1 of Article 20 of the Income Tax Act

As for the income of the Plaintiff Company, Defendant ○○ Tax Office, the head of the tax office having jurisdiction over the Plaintiff Company, notified the Plaintiff’s income tax withheld from the year-end tax settlement method, and Defendant ○○ Tax Office, the head of the tax office, who is the withholding agent, can not exercise double imposing authority on the paid tax amount because the Plaintiff Company already paid the same amount.

In cases of bonus income that varies due to the notice of change in the amount of income, the withholding agent pays the income tax by making a return and payment through the year-end adjustment procedure, so the income earner shall be liable for payment only in cases where there is no need to make a separate return on the income, and

Additional tax on negligent tax returns is a disciplinary measure due to neglect of duty to report, and in cases of income recognized as income, no additional tax on negligent tax returns may be imposed because there is no obligation to report.

The taxation authority's imposition of additional tax on negligent tax returns on the ground that it had been negligent in the duty to report the amount of income even though it had already been aware of the details of income through the procedure of notifying the change in the amount of income, is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether common illegality of the instant disposition is unlawful

㈎ 각 환산매출액의 사외 유출 부분

Where a corporation fails to record its sales in its account book despite the fact of sales, the total amount of the omitted sales, including the cost of raw material purchase, shall be deemed to have been leaked out, barring any special circumstances, and in such cases, special circumstances to deem that the omitted sales are not leaked out of the company shall be proved by its assertion (see, e.g., Supreme Court Decisions 90Nu3751, Dec. 26, 1990; 2005Du2049, Dec. 21, 2006).

However, in the instant case, since the Plaintiff Company omitted the purchase amount without receiving a tax invoice from ○○○, and the corresponding conversion sales amount (in this case, the conversion sales amount applied by the total profit ratio as prescribed by the Value-Added Tax Act) was not recorded in the account book, the total conversion sales amount in the instant case appears to have been leaked out of the company, but there is no evidence to acknowledge that the omitted sales amount was not leaked out of the company, and therefore, the Plaintiffs’ assertion on this part is without merit.

㈏ 부외 매입액을 공제하지 않은 부분

The general rules of the National Tax Service’s basic rules are merely the administrative rules that instruct the criteria for interpretation and enforcement of the tax-related Acts in the tax authority’s internal territory, and they are not the laws that bind the court or the people, and thus, the general rules of the principle of no taxation without law cannot be a legitimate basis for the taxation itself (see, e.g., Supreme Court Decisions 2003Du7064, Oct. 15, 2004; 2005Du5611, Feb. 8, 2007).

In addition, if a corporation fails to enter its sales in an account book despite the fact of sales, it shall be deemed that the whole amount omitted from sales, including the cost of purchase of raw materials, was leaked out, unless there are other special circumstances. In this case, there is no evidence to acknowledge that the amount omitted from sales was paid. Accordingly, the plaintiffs' assertion on this part is without merit.

㈐ 부가가치세 매출세액 부분

Article 18 subparagraph 5 of the Corporate Tax Act provides that the output tax amount of value-added tax shall not be included in the corporate income amount, and it seems that the provision related to the income amount of the corporation does not mean that the output tax amount of value-added tax should not be included in the corporate income amount.

On the other hand, where a corporation fails to enter its sales in its account book despite the fact of sales, and the total omitted sales amount is deemed to have been leaked out of the company, there is no special reason to view it differently from the general case where a supplier collects value-added tax from a person who receives the supply. There is no ground to distinguish the case of converting the sales amount into the omitted purchase amount, which is the transaction subject to value-added tax, like the case of omitting general sales. Therefore, the Defendants’ measures are legitimate to deem that the added value-added tax

(2) Whether the procedure of imposition 1 is procedural illegality

Article 134 (1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005) provides that "where a person who has filed a final return on global income is required to pay additional income tax due to changes in the amount of income, the relevant corporation (where a resident is notified pursuant to the proviso of Article 192 (1), the relevant resident) receives a notice of change in amount of income under Article 192 (1) by the end of the month following the month belonging to the date of receipt of the notice of change in amount of income under Article 192 (1) (where there is any change in the amount of income by filing a return under the Corporate Tax Act, the relevant corporation's corporate tax return date) shall be deemed to have been filed and paid within the period under Article 70 or 74 of the Act, and it cannot be interpreted as a provision that does not impose a tax within the above period. In addition, as seen earlier, as long as this case is found in the foregoing, it cannot be deemed unlawful prior to the Plaintiff's violation of the procedure for imposition of maximum obligation.

On the other hand, since the withholding agent and the source taxpayer are not related to the joint and several tax liability, and one party is not the secondary tax liability for the other party's tax liability, it cannot be deemed unlawful on the ground that Defendant ○○ Tax Office first exercised the taxation right. The Plaintiff ○○○'s assertion on this part is without merit.

(3) Whether the part of the additional tax assessment on negligent tax returns is unlawful

If the withholding tax on Class A earned income to be withheld was omitted, the income earner may impose it as global income tax on the income earner (see, e.g., Supreme Court Decision 92Nu4048, Jul. 14, 1992). Since the Plaintiff Company omitted the withholding tax, Defendant ○○ Head of the tax office having jurisdiction over the place of tax payment, which is the domicile of Plaintiff ○○○○, may impose global income tax on Plaintiff ○○○.

In addition, according to the provisions of Article 81 (1) of the Income Tax Act (amended by Act No. 7289 of Dec. 31, 2004), where income tax is withheld, an amount equivalent to 20/100 of the above amount shall be the amount subject to additional tax after deducting the corresponding withholding tax if income tax is withheld. However, in this case, the Plaintiff Company did not withhold on the portion of the income recognized by the Plaintiff Company, so the amount after deducting the withholding tax cannot be the subject amount subject to additional tax. For the same reason, the Plaintiff Company cannot be said to be the subject amount subject to additional tax, on the premise that the Plaintiff Company withheld the withholding tax from the withholding tax, or that there is no need for a separate return by the income earner.

On the other hand, Article 134 (1) of the Enforcement Decree of the Income Tax Act provides that "in case where a person who has filed a final return on global income as a result of a change in the amount of income due to the disposal of the income, the income tax shall be additionally paid by the person who has filed the final return on global income, if the relevant corporation pays the additional return within the deadline under Article 70 or 74 of the Act by the end of the month following the month in which the notice of change in the amount of income under Article 192 (1) is received, it shall be deemed that the return is filed and paid within the deadline under Article 70 or 74 of the Act." The purport of the above provision is to interpret that the person who has filed the additional return is liable

Furthermore, since the notification of change in the amount of income and the imposition of additional tax on negligent tax returns are in accordance with the statutes, the argument that the tax authority’s imposition of additional tax is illegal with the knowledge of the content of income is

Therefore, in the instant case, if ○○ is legally served with a notice of change of amount of income in the qualification of the representative of the Plaintiff company, but the Plaintiff did not report the tax base and amount of income by the end of the following month from the date of receipt of the notice of change of amount of income, punishment for negligent tax returns due to neglect of duty to report cannot be avoided (see Supreme Court Decision 2004Du4604, Jul. 13, 2006).

(4) Sub-determination

Ultimately, all of the instant dispositions against the Defendants are legitimate.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are without merit, and all of them are rejected, and it is so decided as per Disposition.

Related Acts and subordinate statutes

[The Value-Added Tax Act (amended by Act No. 7007 of Dec. 30, 2003)]

Article 21 Correction

(2) Where the head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service determines or revises the tax base and amount of tax payable or refundable for each taxable period pursuant to paragraph (1), he/she shall do so on the basis of tax invoices, account books and other evidence:

1. Where tax invoices, books, and other evidence necessary for calculating the tax base do not exist or important parts are incomplete;

[Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 18175 of Dec. 30, 2003)]

Article 69 Estimated Adjustment Method

(1) Estimated correction under the proviso to Article 21 (2) of the Act shall be made by the following methods:

4. Calculation method by any of the following criteria determined by the Commissioner of the National Tax Service by type of business and by region:

(d) A sales profit rate which determines the ratio of the sales to the gross sales profit during a fixed period;

[Corporate Tax Act (amended by Act No. 7838 of Dec. 31, 2005)]

Article 18. Non-Inclusion of Evaluation Marginal Profit in Gross Income

The following profits shall not be included in gross income in calculating the income amount of a domestic corporation for each business year:

5. The output tax amount of value-added taxes.

Article 67 Disposal of Income

In filing a report on the tax base of corporate tax on 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 as bonus, dividend, other outflow from the company, internal reserve, etc. according to the person to whom it belongs

[Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17826 of Dec. 30, 2002)]

§ 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 pursuant to the provisions of the following subparagraphs. The same shall also 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 as accrual 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 concerned 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

[Income Tax]

Article 20 Employment Income

(1) Earned income shall be the following incomes generated in the corresponding year:

1. Class A:

(a) Salary, salary, remuneration, remuneration, annual allowance, wage, bonus, allowance, and other benefits of a similar nature, which are received due to the provision of labor;

(c) The amount treated as a bonus under the Corporate Tax Act;

Article 81 Additional Tax (amended by Act No. 7289 of Dec. 31, 2004)

(1) If a resident fails to make a final return on the tax base under Articles 70 through 72 or 74, or makes a return on the amount less than the income amount to be returned, an amount equivalent to 20/100 of the amount calculated by multiplying the calculated tax by the ratio of the unreported or insufficient income amount to the global income, retirement income, or forest income, to the calculated tax amount (where income tax is withheld from the income amount not returned or reported short, it shall be the amount after deducting the withholding tax concerned; hereafter referred to as "amount subject to additional tax" in this paragraph): Provided, That where a person subject to double-entry bookkeeping fails to make a final return on the tax base of real estate rental income, business income, or forestry income, and the amount equivalent to 20/100 of the amount subject to additional tax is less than 7/10,000 of the income amount of the relevant business operator, an amount equivalent to 7/10,00

Article 85 Collection and Refund (amended by Act No. 8144 of Dec. 30, 2006)

(3) If a withholding agent or a person liable to withhold tax pursuant to Article 156 fails to pay within the time limit or pays underpaid tax, the head of the district tax office having jurisdiction over the place of tax payment shall collect the amount of tax to be collected by adding additional tax under Article 158 (1) to the amount of tax to be collected by the relevant withholding agent: Provided, That where the withholding agent fails to withhold tax and falls under any of the following subparagraphs, he/she shall collect only the amount of penalty tax under Article 15

1. Where the income subject to withholding which a taxpayer has failed to withhold is already included in the amount of tax base returned and paid by the taxpayer;

2. Where the superintendent of the competent tax office levies or collects the income tax on the income subject to withholding which the withholding agent has failed to withhold, directly on the taxpayer under Articles 80 and 114.

Sub-Section 3. Withholding on earned income

Articles 134 to 143

Article 158 Additional Tax on Indecent Payment of Withholding Tax (amended by Act No. 6781 of Dec. 18, 2002)

(1) If a withholding agent or a person liable to withhold taxes pursuant to Article 156 fails to pay the tax collected or to be collected within the prescribed period, or pays it insufficiently, he/she shall pay the tax amount calculated by adding the larger of the following amounts to the tax amount to be collected, within the limit of the amount equivalent to 10/100 of the unpaid or insufficient tax amount: Provided, That this shall not apply where the withholding agent or the person liable to withhold taxes pursuant to Article 156 is the State, a

(2) The additional amount under paragraph (1) shall be referred to as "additionally paid withholding tax".

[Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005)]

Article 134. Voluntary Payment by Additional Reporters

(1) In cases where a corporation files a return on the tax base of the corporate tax pursuant to the Corporate Tax Act after the expiration of the deadline for the final return on global income, or the head of a tax office makes a determination or correction of the corporate tax base by disposing of dividend, bonus or other income, and thus no liability for the final return on global income exists, a person who is exempt from the final return on tax base or who makes the final return on tax base of the income tax pursuant to the tax-related Acts, and a person who files the final return on tax base is to additionally pay the income tax, if the relevant corporation (where a resident is notified under the proviso to Article 192 (1), the relevant resident) pays the additional return within the period under Article 70 or 74 of the Act by the end of the month following the month to which

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 by a 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 the provisions of 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

(2) In cases falling under paragraph (1), the relevant dividend, bonus, and other income shall be deemed paid or recovered on the date when such notice is received.

(3) In filing a return on the amount of a corporation's income, the dividend, bonus and other incomes disposed of pursuant to Article 106 of the Enforcement Decree of the Corporate Tax Act shall be deemed to have been paid by the relevant corporation on the date of report.

Common Provisions of Corporate Tax Act

67-106, 11 [Disposition of any bonus, such as an omission in sales]

The gross amount (including indirect taxes, such as value-added tax) shall be disposed of pursuant to Article 106 of the Decree, except in cases falling under any of the following subparagraphs:

1. Omission of appropriation of credit account;

2. The amount equivalent to the cost corresponding to the omission of sale borne separately by the person to whom the omission of sale belongs, which is proved to have not been appropriated as losses of the corporation due to external processing.