[법인세등부과처분취소][공1996.6.15.(12),1767]
[1] The burden of proof and the need for proof in the litigation for revocation of taxation
[2] Whether a revocation suit against a disposition imposing additional dues without a payment demand is appropriate (negative)
[3] The scope of validity of the Constitutional Court's decision
[1] In an administrative litigation seeking the revocation of a taxation disposition on the grounds of illegality, in principle, the tax authority bears the burden of proof with respect to the legality of the disposition and the existence of the facts requiring taxation. However, with respect to the existence of special circumstances belonging to this example according to the empirical rule, the taxpayer must bear the burden of proof or proof with respect to the existence of the special circumstances belonging to this example. If it is found that some of the above labor costs reported as losses by the tax authority were included in the book as double on the account books, unless there are special circumstances, it shall be presumed that the above labor costs were included in double on the account books. Thus, the above labor costs should be included in double on the account books, and the fact that the above labor costs were included in double on the account books only to avoid withholding of the Class A labor income tax on the daily worker's wages, and that the above labor costs were actually paid as actual wages need to be submitted to the taxpayer easily to submit all data, such as the account books and evidence,
[2] If national taxes are not paid by the due date, the additional dues under Article 21 of the National Tax Collection Act are a kind of incidental dues imposed as a meaning of interest on arrears, and if national taxes are not paid by the due date without the due date for payment without the due date for the additional dues determined by the person who has the authority to impose taxes, the additional dues shall be determined as a matter of course pursuant to the above provisions of the Act, and if it is possible to commence the procedure for collecting the additional dues, it shall be urged by a demand notice to urge the payment. Thus, if the demand for payment is unfair or defect is found in the procedure, it shall be possible to object to a revocation lawsuit against the collection disposition. However, there is no act of the tax authority to determine the additional dues, but it shall be notified that the additional dues shall be collected by one month after the due date for payment, and if there is no fact of urging the payment after the due date for payment, the additional dues
[3] On November 30, 1995, before the judgment of the court below was rendered, the Constitutional Court declared that Article 32 (5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994) which served as the basis for imposing the tax on Class A earned income subject to withholding tax in the case of 93Hun-Ba32 and 94Hun-Ba14, which is in violation of the Constitution. Although the above decision of unconstitutionality was not applied separately for the above decision of unconstitutionality, the pertinent provision of the relevant Act is a premise for the judgment and still pending in the court.
[1] Article 26 of the Administrative Litigation Act / [2] Article 21 of the National Tax Collection Act, Article 12 of the Administrative Litigation Act / [3] Article 107 (1) of the Constitution, Article 47 (2) of the Constitutional Court Act, Article 32 (5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994)
[1] Supreme Court Decision 89Nu2851 delivered on February 13, 1990 (Gong1990, 686), Supreme Court Decision 91Nu12912 delivered on March 27, 1992 (Gong1992, 1455), Supreme Court Decision 94Nu5816 delivered on October 28, 1994 (Gong1994Ha, 3154), 94Nu3407 delivered on July 14, 1995 (Gong1995Ha, 2829) / [2] Supreme Court Decision 86Nu147 delivered on October 28, 198 (Gong1986, 31989) decided on September 14, 195, 193; Supreme Court Decision 97Nu1963989 delivered on September 29, 194 (Gong196, 3199)
Samho Construction Co., Ltd. (Law Firm Taecheon General Law Office, Attorneys Kim Dong-ho et al., Counsel for the plaintiff-appellant)
Head of Eastern Tax Office
Busan High Court Decision 95Gu2739 delivered on December 8, 1995
The part of the judgment below on imposition of additional dues and imposition of withholding tax on Class A is reversed, and that part of the case is remanded to Busan High Court. The remaining grounds of appeal by the plaintiff are dismissed, and all costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. As to the imposition of corporate tax
In an administrative litigation seeking revocation on the grounds of illegality of taxation disposition, in principle, the defendant, who is the taxation authority, bears the burden of proof with respect to the legality of disposition and the existence of taxation requirements. However, with respect to the existence of special circumstances belonging to this example according to the empirical rule, the defendant, who is the taxpayer, must bear the burden of proof or proof (see, e.g., Supreme Court Decisions 91Nu12912, Mar. 27, 1992; 94Nu5816, Oct. 28, 1994; 94Nu3407, Jul. 14, 1995; 95Nu281,000, which was reported as deductible expenses by the plaintiff at the corporate tax return for the business year 191, the defendant, who is the tax authority, submitted the above evidence that the above labor expense amount should be included in the calculation of labor expense amount, and unless special circumstances exist, it should be presumed that the above labor expense amount should be included in the calculation of the above labor expense amount.
In addition, examining the records, it is difficult to find that the evidence in the judgment of the court below alone is not sufficient to acknowledge that the above labor cost of KRW 95,281,00 has been paid as an actual wage, and there is no other evidence to acknowledge it, and it is also justifiable to deem that the disposition of the corporate tax of this case is legitimate. All arguments
2. As to the disposition imposing additional dues
ex officio deemed.
If national taxes are not paid by the due date, additional dues under Article 21 of the National Tax Collection Act are a kind of incidental dues imposed in the meaning of interest on arrears, and if national taxes are not paid by the due date without the due date for payment of the due date without the due date for payment of the additional dues determined by the due date for payment, it shall be determined by the provisions of the above Act. In order to commence the collection procedure, it shall be possible to demand the payment of the additional dues by the due date. Thus, if the demand for the payment of the additional dues is unfair or defective in the procedure, it shall be possible to object to a revocation lawsuit against the collection disposition, or there is no action to determine the additional dues. However, if the payment is not made by the due date for payment of national taxes, it is merely notified that the additional dues shall be collected by the due date for one month after the due date for payment, and if there is no demand for the payment after the due date for payment, there is no additional dues imposition disposition. Thus, a lawsuit seeking the cancellation of such additional dues shall be deemed unlawful (see, e.g.
According to the records, the defendant's notice of the payment of corporate tax of this case to the plaintiff on January 3, 1994 was issued and notified on January 15, 1994, to the effect that if the defendant did not pay the amount by January 15, 1994, the payment date of the corporate tax of this case, the additional dues shall be collected until February 15, 1994 after the payment period. There is no evidence to acknowledge whether the defendant urged the payment of the above additional dues after the above payment period.
Therefore, the court below should examine whether the defendant urged the payment of the above additional dues and did not take such measures, and then there is no additional dues that the plaintiff seeks revocation if the defendant did not take such measures, so the court below should have dismissed the plaintiff's lawsuit. However, the court below judged the above additional dues without the above deliberation on the premise that the above additional dues are in existence, so this part of the court below's judgment cannot escape from reversal.
3. On a disposition imposing Class A employment income:
ex officio deemed.
According to the records of this case, it is recognized that the plaintiff had undergone all the pre-trial procedures with regard to the disposition of imposition of corporate tax of this case, but there is no evidence to acknowledge that the plaintiff had undergone the pre-trial procedure with regard to the disposition of imposition of the tax of Class A earned income of this case.
Therefore, the court below should first examine whether the plaintiff had undergone the procedure of the preceding trial on the imposition of the Class A earned income tax at source in this case, and should have judged whether the above disposition was legitimate, and thus, it cannot be said that this point is unlawful.
In addition, on November 30, 1995, before the judgment of the court below was rendered, the Constitutional Court rendered a decision that the above disposition of unconstitutionality shall be against the Constitution under Article 32 (5) of the former Corporate Tax Act (amended by Act No. 3270, Dec. 13, 1980) which served as the basis for imposing the tax on Class A earned income subject to withholding tax in this case, in the case of 93HunBa32 and 94HunBa14, which is before the judgment of the court below. The above decision of unconstitutionality was not filed separately, but the above disposition of unconstitutionality shall also be unlawful as it is based on the premise of the judgment of the court, and therefore, the above disposition of unconstitutionality shall be deemed unlawful as it is found that the above disposition of unconstitutionality was lawful, since the court below determined the above disposition of unconstitutionality without any legal basis.
4. Conclusion
Therefore, the part of the judgment of the court below on imposition of additional dues and imposition of withholding tax on Class A employment income is reversed, and that part of the case is remanded to the court below. The remaining appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating
Justices Lee Yong-hun (Presiding Justice)