[2] The case holding that only the expenses required for the operation of 2TV and 2 radio from the total deductible expenses paid by the Korea Broadcasting System for the pertinent business year cannot be deemed as deductible expenses for the advertisement business

[3] The case holding that the corporate tax base for each business year of the Korea Broadcasting System shall be calculated by the estimation method

[2] The case holding that since 2TV and 2 radio broadcasting are broadcasted by the Korean Broadcasting System, among channels operated by the Korean Broadcasting System, public interest programs, such as current events, cultural programs, etc., those are not sent only a day commercial broadcast from 2TV and 2 radio, those not sent only a day commercial broadcast from 1TV and 2 radio, those are also viewed as commercials, those are not managed separately from the revenue of the Korean Broadcasting System and the revenue of the TV license fees are mixed with the revenue of the TV license fees and the advertisement fees are managed, and in the production of the program, the production costs are paid with the entire revenue of the TV license fees and the total revenue is managed by each channel, and in the human resources management, the specific employee is involved in the transmission of the cultural broadcasting with a specific broadcast equipment, and the costs required for the radio broadcasting business are mixed with the costs required for the operation of 2TV and 2 TV broadcasting businesses, and therefore, it is not reasonable to view only two different TV businesses and 2 TV businesses operated by the Korean Broadcasting System as losses.

[3] The case holding that since the Korea Broadcasting System which operates a profit-making business and a non-profit business are belonging to the pertinent profit-making business and the profit and loss are not separately accounted for separately from the accounting, and it is also impossible to specify only the deductible expenses related to the advertising business among the total deductible expenses incurred to the Korea Broadcasting System in each business year, the corporate tax base for each business year of the Korea Broadcasting System shall be computed by the estimation and calculation method

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

A. The plaintiff's corporate tax declaration

When reporting the tax base and its amount of the corporate tax on the income in the business year 1998, the Plaintiff reported the amount of the television broadcast receiving fees (hereinafter referred to as "receiving fees") to KRW 780,680,632,736 by including the amount of the receiving fees (hereinafter referred to as "receiving fees") in the amount of the income, and reported the amount of the calculated tax (tax amount) to KRW 0,187,71,739.

B. The defendant's disposition to correct the corporate tax increase

In accordance with the tax investigation conducted on September 1, 2001 with respect to the plaintiff on September 1, 1996, the defendant excluded the plaintiff's receiving fees from the profit-making business for the business year of 1996, separated the amount belonging to the plaintiff's income for the business year of 1996 and the amount of a new tax base and tax amount for the business year of 1996, issued a corrective disposition to increase the plaintiff's corporate tax of 16,42,070 won (hereinafter referred to as "disposition 1996") accordingly. For the portion after the business year of 1997, the amount of income as originally reported by the plaintiff is not classified as belonging to the non-profit business, but the amount of income as originally reported by the plaintiff is not classified as belonging to the non-profit business, and the amount of income was increased or adjusted according to the non-deductible expense or an unfair calculation book of the amount of receiving fees for the business year of 198,582,414,70 won (including special agricultural and fishing villages).

C. The defendant's partial reduction or correction disposition

On the other hand, on November 29, 2001, the Plaintiff filed a request for review against the Commissioner of the National Tax Service for the disposition of imposing corporate tax on September 1, 2001, and the Commissioner of the National Tax Service made a decision of accepting part of the Plaintiff’s request for review on July 25, 2002, the Defendant corrected the amount of corporate tax reduced to 66,916,195 won (= corporate tax 66,434,560 + corporate tax 66,434,560 + KRW 481,635 won for special rural development tax) on September 10, 202.

D. The defendant's disposition to rectify the increased amount of corporate tax

After that, the defendant excluded the plaintiff's receiving fee from the profits for the business year of 1998 as well as the disposition of imposing corporate tax on the business year of 1996 on September 1, 2001, classified the plaintiff's income for the business year of 1998 as belonging to the profit-making business and the non-profit business, and calculated a new tax base and tax amount for the business year of 1998, and re-revision the corporate tax of 6,729,735,80 won on March 16, 2004 (hereinafter "the disposition in this case").

[Reasons for Recognition] Facts that a confession is deemed to have been made because there is no dispute or no dispute clearly, Gap evidence Nos. 1, 3, 5, Eul evidence No. 1, the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

(1) Illegal assertion of procedural part

(A) On September 1, 2001, the Defendant, despite the Plaintiff’s decision on collection of corporate tax for the business year of 1998, did not immediately issue a notice of collection decision, and only after March 16, 2004, issued a notice of tax payment in violation of Article 10 of the National Tax Collection Act, and thus, it is unlawful to deprive the Plaintiff of the opportunity for the Plaintiff to request the review of the legality before taxation by giving the notice of tax payment before 15 days from the due date.

(B) In rendering the instant disposition, the Defendant did not attach a tax base and tax amount calculation statement to a tax payment notice, and thus, the instant disposition is unlawful.

(2) The assertion of illegality in substantive part

(A) Illegal in calculating the tax base

① Even though the Plaintiff’s loss incurred during the pertinent business year is recognized as deductible expenses under the Corporate Tax Act, on the premise that the Plaintiff concurrently operates a profit-making business and a non-profit business, deeming only the deductible expenses equivalent to a profit-making business out of the total deductible expenses incurred during the pertinent business year as deductible expenses under the Corporate Tax Act is illegal to calculate the tax base for the business year 198.

② Under the Corporate Tax Act, only the Plaintiff engaged in the advertisement business, which is a profit-making business, is not obligated to keep separate accounting under the Corporate Tax Act. In fact, the Plaintiff did not keep separate accounting even without performing the obligation to keep separate accounting, deeming the cost report, which is merely a reference material for business management, as a material to perform the duty to keep separate accounting. Based on this, only the cost of operating 2TV and 2 radio from among the 16 channels operated by the Plaintiff, is illegal

(B) The penalty tax is an administrative sanction imposed only when it violates the obligation to report and pay under the Corporate Tax Act. It is unlawful to impose penalty tax on any Plaintiff who did not neglect the obligation under the Corporate Tax Act in the instant disposition.

(b) Markets:

(1) Determination as to the allegation of illegality in procedural part

(A) Determination as to the assertion of defects in the timing of duty payment notice

(1) Relevant statutes

Basic Act

Article 81-10 (Review of Propriety Before Taxation) (1) A person who is notified of any of the following subparagraphs may request the head of a tax office or the director of a regional tax office concerned to review the legality of the notification (hereafter referred to as the "examination of legality Before taxation" in this Article) within 20 days from the date he/she is notified of such notification:

1. Written notice of results of tax investigation under Article 81-7; and

2. Other advance notice of taxation as prescribed by the Presidential Decree.

National Tax Collection Act

Article 10 (Issuance Date of Notice for Tax Payment) A notice for tax payment and a notice for tax payment shall be issued at the following time:

2. Decision on collection where a deadline is not fixed;

(2) Determination

Since a claim for review of legality before taxation is made within 20 days from the date of receipt of notice of the result of tax investigation, it cannot be deemed that the defendant deprived of the plaintiff's right to request review of legality before taxation on March 16, 2004, which left 15 days from March 31, 2004, the date of payment period.

In addition, since Article 10 of the National Tax Collection Act on the time when a tax payment notice was issued is a decoration provision, it does not affect the validity of the notice issued after the time of issuance as stipulated in the above provision (see General Rules 10 of the National Tax Collection Act), and as alleged by the Plaintiff, it cannot be said that the instant disposition is unlawful on the ground that the Defendant, who made the decision on collection on September 1, 2001, issued a tax payment notice on March 16, 2004, and thus, the Plaintiff’s allegation is without merit

(B) Determination on the assertion on the failure to attach a statement of calculation

(1) Relevant statutes

National Tax Collection Act

Article 9 (Notice of Tax Payment) (1) When the head of a tax office or the head of a Si/Gun intends to collect a national tax, he/she shall issue a written notice specifying the taxable year, tax item, amount of national tax, grounds for the calculation, payment deadline and place of payment

Corporate Tax Act

The head of tax office or the director of the competent regional tax office having jurisdiction over the place for tax payment shall, when he determines or correctss the tax base and amount of corporate tax on income for each business year of a domestic corporation under the provisions of Article 53 or 66, notify the domestic corporation concerned under the conditions as prescribed by the Presidential Decree.

Enforcement Decree

Article 109 (Notification of Tax Base and Amount of Tax) (1) Where the head of tax office having jurisdiction over the place of tax payment notifies the tax base and amount of tax pursuant to Article 70 of the Act, he shall notify the tax payment notice along with the tax base and calculation statement of the amount of tax, and where there is no amount or no amount of tax payable

(2) Determination

In the case of a tax item imposed on total income generated in the year to which the tax is reverted, such as corporate tax, it shall be sufficient if the tax notice clearly states the year to which the tax is reverted, the tax base of the year to which the tax is to be reverted, the basis for calculation of the tax amount, etc. In addition, it is not necessary to state the substantial basis and route of calculating the amount of tax, such as gross income and deductible expenses in the business year, or the reasons for increase or decrease (see Supreme Court Decision 2001Du1014, Jan. 2

In full view of the purport of the argument in Gap evidence No. 5, the defendant can recognize the fact that the defendant imposed and notified the tax amount by the statutory tax payment notice stating the taxable year, tax item, amount of tax, basis for calculating the amount of tax (tax reversion year, tax base, tax rate, calculated tax amount, additional tax, various amount of tax, notified amount of tax) etc. In addition, it is reasonable to deem that the calculation statement of the amount of corporate tax required by the above related Acts and subordinate statutes is sufficient to the extent stated in the above tax payment notice. On the ground that the plaintiff did not state the substantial basis and route of calculating the amount of tax, such as gross income and deductible expenses, or the legal basis and reason for correcting the amount of tax in the business year,

(2) Determination as to the assertion of illegality of substantive parts

(A) Determination on the illegality of calculating the tax base

(1) Relevant statutes

Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998)

Article 1 (Liability for Tax Payment) (1) Any corporation having its head office or principal office in the Republic of Korea (hereinafter referred to as "domestic corporation") shall be liable to pay corporate tax under this Act: Provided, That any corporation established under Article 32 of the Civil Act or Article 10 of the Private School Act as a domestic corporation and any corporation established under other special Acts, which has the purpose of establishment and the purpose of establishment similar thereto as prescribed by Article 32 of the Civil Act (hereinafter referred to as "non-profit domestic corporation") shall be liable to pay corporate tax only on income accrued from profit-making business or revenue (hereinafter referred to as "profit-making business")

1. Agriculture, hunting, and forestry, fisheries, mining, manufacturing, electricity, gas, retail, and water supply business, construction business, wholesale, retail, and consumer product repair business, lodging and restaurant business, transportation, storage and communications business, financial and insurance business, real estate, rental and business service business, educational service business, health and social welfare business, social and private service business, and household service business, which are prescribed by Presidential Decree (excluding subparagraphs 2 through 7);

Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998)

Article 2 (Scope of Profit-Making Business) (1) "The Presidential Decree" as referred to in Article 1 (1) 1 of the Act means that profits accrue from the projects under the Korean Standard Industrial Classification Table publicly notified by the Commissioner of the Statistics Korea (hereinafter referred to as the "Korea Standard Industrial Classification Table"), but does not include the following projects:

(2) Determination

Determination as to the assertion that the Plaintiff’s total loss incurred in the relevant business year should be recognized as deductible expenses.

A broadcast shall be conducted separately from a broadcast under the Broadcasting Act (Article 35 (1) of the former Broadcasting Act (repealed by Act No. 6139 of Jan. 12, 200). Since the time and order of the broadcast are regulated, advertising business and the broadcast business can be conceptually distinguishable. Whether a non-profit corporation's profit-making business contributes to the proper purpose of a corporation is not a requirement for corporate tax liability. Thus, the plaintiff's profit-making business cannot be viewed as a requirement for corporate tax liability. Thus, since the broadcasting business operated by the plaintiff is provided free of charge, it cannot be viewed as a profit-making business of the plaintiff. Since the broadcasting business operated by the plaintiff is provided with services, it is evident that the advertisement business operated by the plaintiff is a profit-making business in light of the relevant Acts and subordinate statutes, the plaintiff is liable to pay corporate tax only on the income accrued from profit-making business (see Supreme Court Decision 98Da47184, Feb. 2

Therefore, the Plaintiff is liable to pay corporate tax on the basis of the amount calculated by deducting the total amount of losses belonging to a profit-making business from the total amount of gross income generated during the pertinent business year (such as advertising commission income, radio wave fee income, and the amount of classical bad faith income) generated during the pertinent business year from the total amount of gross income generated during the pertinent business year. Thus, the Plaintiff’s assertion that the amount of corporate tax should be calculated by deducting all losses incurred during the pertinent business year from the total

(B) Determination as to the legitimacy of the instant disposition that recognized only the expenses incurred in operating 2TV and 2 radio as deductible expenses

Based on the cost report prepared by the Plaintiff, the Defendant classified the operation of 2TV and 2 radio from among the 16 channels operated by the Plaintiff as a profit-making business, and classified the operation of the remaining channels excluding 2TV and 2 radio as a non-profit business, and calculated the Plaintiff’s corporate tax base for the business year 1998 by deeming that only the expenses incurred in the operation of 2TV and 2 radio out of the total deductible expenses for the business year 1998 as deductible expenses related to the advertising business.

However, in 2TV and 2 Radio, it is not possible to broadcast only a daily commercial broadcast from 2TV and 2 TV, but also a commercial broadcast from 2TV and 2 radio, the Plaintiff's revenue from receiving fees and advertising fees is not managed separately from a separate account, and the Plaintiff's revenue from receiving fees and advertising fees are mixed and managed. In the production of the program, the entire revenue from receiving fees and advertising fees are paid with the entire revenue, and the production cost is not specified by each channel, and the overall management is made with the entire revenue. Accordingly, the specific employee is involved in the transmission of cultural broadcasts with a specific broadcast equipment and involvement in the transmission of the advertisement, and the cost of the advertisement business is mixed among the cost of the operation of 2TV and 2 radio broadcasts, and it is not reasonable to classify the Plaintiff's radio business as a non-profit business operator's operating expenses and the costs of the advertisement business except for the Plaintiff's operating expenses and the costs of the non-profit business in this case.

(B) Determination as to whether the imposition of additional tax is illegal

In the imposition of additional tax, the taxpayer's intention or negligence shall not be considered, but if there is a justifiable reason not to cause any negligence on the taxpayer's duty, it shall not be imposed (see Supreme Court Decision 95Nu14602 delivered on May 16, 1997). If the plaintiff, who is a non-profit corporation, concurrently runs a profit-making business other than a non-profit business, has a duty to calculate the tax base only for the profit and loss related to the profit-making business under the Corporate Tax Act, but the plaintiff neglected it, and there is no evidence to prove that there is any justifiable reason not to cause any negligence on the part of the

C. Sub-committee

Therefore, the instant disposition is unlawful since it was erroneous in calculating the tax base.

3. Calculation of the corporate tax amount; and

(a) Relevant statutes;

Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998)

(3) Where the head of a regional tax office or the head of a regional tax office having jurisdiction over the place of tax payment determines or correctss the tax base and amount of corporate tax on the income for each business year under paragraphs (1) and (2), he shall make it based on the books and other documentary evidence: Provided, That where it is impossible to calculate the income amount due to books and other documentary evidence for the reasons as prescribed by the Presidential Decree,

Article 62 (Keeping and Entry of Books) Any corporation liable for tax payment shall keep its books, keep them by double entry, and keep and preserve important documentary evidence related to the books: Provided, That for non-profit domestic corporations, this shall be limited to those operating a profit-making business under Article 1 (1) 1 and 7.

Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998)

(4) When a non-profit domestic corporation operates a profit-making business under the subparagraphs of Article 1 (1) of the Act, it shall keep separate accounts of assets, liabilities, and profits and losses belonging to the profit-making business and belonging to other business (hereinafter referred to as "non-profit business") other than the profit-making business.

Article 93 (Estimated Determination of Tax Base) (1) "Grounds prescribed by Presidential Decree" in the proviso to Article 32 (3) of the Act means cases falling under any of the following subparagraphs:

1. Where necessary account books or documentary evidence in the calculation of the income amount do not exist or important parts are incomplete or false;

(2) In the case of making the estimation, investigation, determination or correction under the proviso of Article 32 (3) of the Act, it shall be subject to one of the following subparagraphs:

1. The amount of the business revenue amount multiplied by the standard income rate, minus the salary paid to the representative of the corporation, shall be determined or corrected as the tax base. In this case, if the amount of the salary paid to the representative exceeds the amount of the business revenue amount of the corporation multiplied by the standard income rate, the amount in excess shall be deemed nonexistent;

B. The plaintiff's duty of separate accounting

As seen earlier, the plaintiff who operates a profit-making business and a non-profit business shall keep separate accounting of the assets, liabilities, and profits and losses belonging to the profit-making business and the non-profit business in accordance with the relevant Acts and subordinate statutes.

However, as to whether the Plaintiff actually performed the obligation of separate accounting, the Defendant asserts that the Plaintiff actually performed the obligation of separate accounting since the cost report (Evidence No. 2) prepared and kept by the Plaintiff fulfilled the obligation of separate accounting under the Corporate Tax Act.

However, in order to calculate the tax base of corporate tax, the cost report does not include documents required by the relevant laws such as the Framework Act on National Taxes and the Corporate Tax Act to be prepared by taxpayers; the cost report does not include assets, liabilities, and profits and losses for each profit-making business operated by the plaintiff and each non-profit business; the cost report only analyzes the cost of production and expenditure for each program sent by the plaintiff; the tax data by separate accounting include both operating and non-business expenses; but the cost report includes only operating expenses such as broadcasting and sales expenses; the cost report excludes the cost of business expenses; the cost report excludes the cost of business expenses; the cost report excludes the cost of business expenses; the cost report does not include any assets and liabilities, so it is difficult to view the cost report as a separate accounting book for the purpose of preparation; the cost report was prepared from 1996 to 200, and no cost report was prepared until then prepared; and the cost report cannot be viewed as a cost report that the plaintiff fulfilled the obligation to perform the obligation.

C. Method of calculating a legitimate corporate tax where the plaintiff did not perform his/her duty of separate accounting

Where there is no necessary account book or documentary evidence in calculating the income amount because a taxpayer fails to prepare the account book prescribed by tax-related Acts, or where the important part thereof is incomplete, it shall be taxed by the method of estimated investigation. However, even if a taxpayer fails to prepare the account book prescribed by tax-related Acts, if it is possible to calculate the tax base based on other documentary evidence, the tax base and tax amount shall not be determined by the method of estimated investigation (see Supreme Court Decision 97Nu20304 delivered on January 15,

Therefore, even if the Plaintiff did not prepare the separate accounting book as prescribed by tax-related Acts, it is impossible to specify and calculate only the deductible expenses related to the advertising business among the total deductible expenses incurred in the business year 1998 by other documentary evidence as to whether it is possible to specify and calculate only the deductible expenses related to the advertising business among the total deductible expenses incurred in the business year 1998. In addition, it is impossible to specify and calculate only the deductible expenses related to the advertising business among the total deductible expenses incurred to the Plaintiff in each business year by other documentary evidence.

If so, the corporate tax base for the 1998 business year against the plaintiff shall be calculated by the estimation method.

(d) Distribution of common deductible expenses;

Under the premise that the plaintiff maintains separate accounting for profit-making business and non-profit business, the issue of how to distribute common deductible expenses to profit-making business and non-profit business. However, in this case where the plaintiff cannot calculate only the deductible expenses related to the advertisement business from the total deductible expenses incurred to the plaintiff in each business year because the plaintiff does not keep separate accounting for profit-making business and non-profit business, it is not necessary to further determine the distribution of common deductible expenses.

4. Whether the instant disposition and the corrective disposition of the amount of corporate tax for the business year 1998 dated September 1, 2001 were completely revoked

In a litigation seeking revocation of a tax disposition, when a reasonable amount of tax to be imposed lawfully is calculated based on the data submitted by the time the argument in the fact-finding proceedings is concluded to be unlawful, the court shall not revoke the entire amount of the tax disposition as unlawful, but shall revoke only the unlawful portion by deeming the portion exceeding the reasonable amount of tax assessment to be unlawful. However, in a case where a legitimate amount of tax to be imposed lawfully cannot be calculated based on the data submitted by the parties concerned, the entire amount of the tax disposition shall be revoked. In such a case, the court does not have the duty to actively calculate the amount of tax by finding the reasonable and reasonable method

In the instant case, even based on the evidence submitted by the parties or all the evidence presented by the court by the examination of evidence, the legitimate corporate tax amount for the business year 1998 cannot be calculated as the plaintiff.

Therefore, this Court must cancel all of the illegal disposition of this case and the corrective disposition of the amount of corporate tax for the business year 1998 dated September 1, 2001.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Kang Young-ho (Presiding Judge)