[소득세부과처분취소]
Whether Article 12 (2) 3 of the former Enforcement Rule of the Corporate Tax Act is null and void.
If there is a difference between the income amount determined by the government and the income promulgated by the corporation concerned, the former Enforcement Rule of the Corporate Tax Act (Ordinance No. 400 of the Ministry of Finance and Economy) which considers it as a bonus to a representative of the corporation concerned is null and void in violation of the principle of no taxation without any basis under the former Corporate Tax Act or the Enforcement Rule of the same Act.
Article 94 of the Constitution of the Republic of Korea; Article 28(1) of the Corporate Tax Act (Law No. 1720, Dec. 20, 1965); Article 12(2) and Article 12(2)3 of the Enforcement Rule of the Corporate Tax Act (Ordinance of the Ministry of Finance and Economy No. 400, Mar. 11, 1966);
Seoul Passenger Co., Ltd (Attorney Lee Byung-ho, Counsel for the defendant-appellant)
The Head of Seoul Southern District Tax Office (Attorney Ansan-sik, Counsel for defendant-appellant)
Seoul High Court Decision 67Gu52 delivered on January 18, 1968
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The judgment on the first ground for appeal
If a corporation fails to report its income to the Government or the Government deems that the content of the corporation's income return is unfair under the Presidential Decree, the Government shall investigate and determine the corporation's income on its own pursuant to the proviso of Article 28 (1) of the Corporate Tax Act (amended by Act No. 1720), but if there is a difference between the income amount determined in this case and the income promulgated by the corporation, the Government shall immediately consider such difference as a bonus of the representative of the corporation concerned and treat it as a bonus. In addition, the purport of the judgment of the court below is that the representative director of the corporation concerned who is the premise for the tax disposition of Class A earned income tax in this case done by the defendant is the income recognition of the corporation's income, i.e., bonus, which is the premise for the tax disposition of Class A earned income tax in this case by the defendant. The above provision of the Enforcement Rule is enacted without any ground under the Corporate Tax Act or the Enforcement Decree of the same Act (amended by Act No. 2566), and thus, the court below's decision is justified in light of Article 12 (2)3) of the Corporate Tax Act.
The appeal that criticizes the legitimate legal judgment of the court below cannot be adopted as a non-founded view.
Judgment on the Second Ground of Appeal:
Of the income of a juristic person, it is not a reserve but a dividend out of the company, which is not a surplus amount, and it is a view that it is reasonable to conclude it as the voice income of the representative director of the juristic person concerned as a matter of course. Therefore, it is difficult to accept the appeal based on this view.
Judgment on the grounds of appeal Nos. 3 and 4
The argument that Article 12 (2) 3 of the Enforcement Rule of the Corporate Tax Act has become a customary law is not based on the opinion that there is no basis for the argument that Article 12 (2) 3 of the Enforcement Rule of the Corporate Tax Act, and Article 12 (2) of the same Act provides taxation that is not based on the law, and thus, it cannot be deemed inappropriate for the public welfare
Therefore, the appeal is dismissed. The appeal is assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices of the Supreme Court (Presiding Judge) Na-Ba (Presiding Judge) and Kim Dong-dong and Kimchi-bak, who presided over the so-called red net scarb and the maximum scarbing scarf in the lu