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

A. On April 26, 1995, the Plaintiff is a company established to conduct mechanical equipment construction business, electrical construction business, etc., and Jung held office as the representative director from the time of establishment of the Plaintiff until May 10, 2007.

B. On August 29, 2008, Jeong was convicted of a suspended sentence of 5 years and a fine of 5 million won for the following criminal facts in the Seoul Central District Court Decision 2007Da753, 2008 Gohap282, 2008 Gohap384 (Joint), etc. of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), and the above judgment was finalized on June 24, 2009.

○ Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

Defendant Jung-A in collusion with KimB, working as the head of the Plaintiff’s accounting department, and Defendant Jung-A is the representative director of the Plaintiff, and KimB, while jointly managing and keeping the Plaintiff’s funds with the head of the accounting department, with intent to embezzled the Plaintiff’s funds in such a way that the Plaintiff excessively appropriated the Plaintiff’s funds for the goods supplied by XX Korea, or would make an excessive amount of the goods supplied by the Plaintiff, or would refund them in cash, etc., by paying to XX Korea the excessively appropriated

A. A. On December 31, 2006, in the Plaintiff’s office, the sum of the market price (all import price, transportation fee, and revenue incidental expenses, such as customs fee) of the four industrial analysis technicians purchased from the Republic of Korea is not equivalent to KRW 000,000, and the purchase price was over-paid by the method of receiving a tax invoice as if the purchase price were 00, and the above purchase price was paid 00,000 won of the funds owned by the above Plaintiff to the Republic of Korea under the above purchase price. The difference between the actual purchase price and the actual purchase price was returned, and the purchase price was returned from October 1, 2005 to the above date, and the purchase price was paid over 20,000 won in total, by means of collecting the difference between the actual purchase price and the purchase price, and then using the full amount of the above business funds for private purposes;

B. On June 30, 2006, the above Plaintiff’s office received tax invoices as if there was no receipt of OO-related services equivalent to the market price of 000 won from Korea, paid 00 won funds owned by the Plaintiff to XX Korea, and returned them again. From April 10, 2005 to the above temporary date, 100 won was raised in the same place, and 00 won was returned by paying the purchase price of goods or services not provided by XX Korea, and then embezzled the total amount of the above funds owned by the Plaintiff for private use, and 00 won (the amount of 00 won embezzled by Jeong in 2005 referred to as “the instant embezzlement”).

C. According to the result of the above criminal judgment, the Defendant deemed that the Plaintiff received false purchase tax invoices with respect to the oxygen analysis devices and OO-related services from Korea, etc. on June 1, 201, and subsequently corrected and notified the Plaintiff of KRW 000 of corporate tax for the business year 2005, corporate tax of KRW 000 for the business year 2005, and corporate tax of 2006 for the business year 2006.

D. In addition, the Defendant deemed that both the amount excluded from deductible expenses was discharged out of the company and reverted to the Company, and received the disposition of income (hereinafter referred to as “the disposition of income in this case”) as a bonus to the Company for the business year 2005 and the business year 2006 as a bonus to the Company (hereinafter referred to as “the disposition of income in this case”). On June 1, 2011, the Defendant notified the Plaintiff of the change in the amount of income in relation to the amount of income disposed of as a bonus reverted to the year 2005 (hereinafter referred to as “the notice of change in the amount of income in this case”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 30, 201, but the Tax Tribunal dismissed the said appeal on May 21, 2012.

F. Meanwhile, with respect to the earned income accrued in 2005 as a result of the year-end tax settlement, Jung paid the total income tax belonging to 2005, and did not separately file a final return on tax base.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 4 (including branch numbers), and the purport of the whole pleadings

2. Whether notice of the change in the income amount in this case is lawful

A. The plaintiff's assertion

The Plaintiff’s obligation to withhold the income tax following the notice of change in the income amount of this case is premised on the Plaintiff’s obligation to withhold income tax, which is the source taxpayer, and there is no Plaintiff’s obligation to withhold income tax when the said obligation expires due to the lapse of the exclusion period of imposition. However, in 2005, the Defendant deemed that the amount leaked out of the private capital was reverted to the prescribedA in the business year, and disposed of it as a bonus to the prescribedA and accordingly notified of the change in the income amount of this case. The initial date of the exclusion period of imposition of the global income tax of the prescribedA due to the disposition of this case is June 1, 2006, and Article 26-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 7796, Dec. 29, 2005; hereinafter the same) is unlawful since the exclusion period of imposition of the above global income tax is five years pursuant to Article 5-2(1)3 of the former Framework Act on National Taxes.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

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 relevant corporation on the date of receipt of the notice of change in the amount of income; however, it does not mean that the relevant corporation actually pays the amount of income to the representative, but merely means the legal fiction of the law. Thus, in order to establish the withholding obligation of the corporation that received the above notice of change in the amount of income, the income tax liability of the original taxpayer should be established when he received the above notice of change in the amount of income, which is the time of establishment. If the original taxpayer’s liability to pay income tax already extinguished due to the intention of exclusion period for exclusion of imposition of the income tax, the corporate withholding obligation cannot be established. Thus, the subsequent notice of change in amount of income is unlawful (see, e.g., Supreme Court Decisions 85Nu451, Mar. 14, 1989;

Meanwhile, according to Article 26-2 (1) of the former Framework Act on National Taxes, national taxes may not be imposed after the expiration date of the exclusion period for imposition of national taxes under each subparagraph of the same paragraph, and with respect to the exclusion period for imposition of national taxes, subparagraph 1 of the same Article provides that "ten years from the date on which the relevant national taxes may be imposed if the taxpayer evades, obtains a refund or deduction due to fraudulent or other unlawful acts," subparagraph 2 provides that "seven years from the date on which the relevant national taxes may be assessed if the taxpayer fails to file a tax base return within the statutory due date for return," and subparagraph 3 provides that "five years from the date on which the relevant national taxes may be assessed, if the taxpayer

The plaintiff asserts that the exclusion period of imposition of the global income tax from the disposition of this case is five years pursuant to Article 26-2 (1) 3 of the former Framework Act on National Taxes, and that the notice of change in the income amount of this case issued after the exclusion period is expired, the defendant asserted that the notice of change in the income amount of this case was unlawful. The defendant did not submit the tax base return within the statutory exemption period, but the above act of the Jung, as provided by Article 26-2 (1) 1, constitutes "where the taxpayer evades national tax by fraud or other unlawful act", the exclusion period of imposition of the global income tax is seven or ten years pursuant to Article 26-2 (1) 1 or 2, and thus the notice of change in the income amount of this case was made before the exclusion period of imposition expires. Accordingly, the exclusion period of imposition of the global income tax for the year 2005 due to the disposition of this case falls under any of the items of Article 26-2 (1) 1, 7 and 5 years.

According to the above facts, the Plaintiff received a false tax invoice in the process of purchasing goods from XX Korea and appropriated the Plaintiff’s excessive purchase amount in the Plaintiff’s account book is merely a concealment of the fact that the embezzlement amount was deducted in light of the circumstances. It is difficult to view that the Defendant’s future disposal of the embezzlement amount was intended to evade the income tax on bonus attributable to himself/herself (see, e.g., Supreme Court Decisions 2007Du20959, Jan. 28, 2010; 2007Du11382, Apr. 29, 2010). The taxpayer under Article 26-2(1)1 of the former Framework Act on National Taxes, which regards the exclusion period of imposition as 10 years with respect to the global income tax on the Plaintiff’s global income from the instant disposal of the disposition of this case, cannot be deemed to fall under “the case where the taxpayer evades the national tax by fraud or other unlawful act.”

In addition, Articles 70(1) and 73(1) of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter the same) are exempted from the obligation to file a final return on tax base in cases where only earned income has been paid by a person having only earned income through year-end settlement. The purport thereof is that a resident with only earned income is to determine and collect the relevant amount by having a withholding agent withhold the relevant earned income tax and pay it through year-end settlement, and as such, there is no substantial need for the person having the relevant income to report it separately. Therefore, in light of the fact that a withholding agent intends to promote the convenience of a taxpayer by granting a exemption from the final return on tax base based on the procedures prescribed by the relevant Acts and subordinate statutes such as the Income Tax Act, etc., if the income tax has been paid after the year-end settlement, it is reasonable to view that the relevant employee has the same effect as having fulfilled the procedure for filing a final return on tax base. As seen earlier, even if a taxpayer has not included the statutory tax base return within 26.

Ultimately, it is reasonable to view that the exclusion period of global income tax on the embezzlement of this case, which belongs to the taxable year 2005, is five years pursuant to Article 26-2 (1) 3 of the former Framework Act on National Taxes. Thus, the above income tax may not be imposed after the lapse of five years from the date on which the income tax can be imposed.

Meanwhile, according to Article 26-2(4) of the former Framework Act on National Taxes and Article 12-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19461, Apr. 28, 2006), in cases of national taxes, such as global income tax, the date following the due date of the deadline for filing a report on the tax base and tax amount of the relevant national tax can be national taxes. According to Article 70(1) of the former Income Tax Act, the due date of the due date of filing a report on global income tax is the date of May 31 of the year following the taxable period. Thus, the due date of filing a report on global income tax for global income tax in 2005 shall begin to run from June 1, 2006. The notice of the change in the amount of income of this case on the embezzlement of this case shall be null and void since it was made on June 1, 201.

3. Conclusion

The plaintiff's claim is justified and accepted.