[법인세등부과처분취소][공2005.9.1.(233),1450]
Whether Article 113-2 of the former Enforcement Decree of the Corporate Tax Act, which provides that if the amount of tax base returned by a corporation includes any amount which is not the tax base, it shall be the tax base amount returned (negative)
If Article 41(1)2 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) provides that a person liable for tax payment shall collect additional taxes by imposing sanctions against a person liable for tax payment in cases where he/she has returned below the tax base amount to be returned, it is intended to induce the person liable for tax payment to faithfully report the tax base. In addition, if there is an error or omission in the reported tax base amount, the tax authority shall investigate it and correct the tax base amount. In such a case, if the reported tax base amount includes any amount that is not the original tax base, the tax authority shall exclude it from the tax base and calculate the legitimate tax base amount. In such a case, if an under-reported amount is calculated without deducting the amount that is not the tax base from the returned tax base amount, it is deemed that the actual under-reported tax base amount is not under-reported, and thus, it cannot be deemed that the provisions of Article 41(1)2 subparag. 13 of the Enforcement Decree of the same Act should not be included in the reported tax base amount.
Article 41(1)2 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) (see current Article 76(1)2 of the Enforcement Decree of the Corporate Tax Act) Article 113-2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998) (see current Article 118(2))
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Korea Electric Power Corporation (Law Firm Rate, Attorneys So-young et al., Counsel for the plaintiff-appellant)
Samsung Head of Samsung Tax Office
Seoul High Court Decision 2001Nu11474 delivered on June 26, 2003
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
According to Article 41(1)2 of the former Corporate Tax Act (amended by Act No. 5581, Dec. 28, 1998; hereinafter the “Act”), where the amount of tax base to be returned under Article 26 falls short of the amount of tax base, the amount equivalent to 10/100 of the calculated tax amount shall be collected as additional tax. Article 113-2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970, Dec. 31, 1998; hereinafter the “Enforcement Decree”) provides that if the amount that is not the tax base to be returned is included in the amount that is not the tax base to be returned under Article 41(1)2 of the Act, the amount of tax base shall be deducted if the amount that is not the tax base to be returned is included in the amount of tax base to be returned under Article 41(1)2 of the Act and thus, it shall be excluded from the amount of tax base to be returned under Article 41(1)2 of the Act.
In the same purport, the court below is just in holding that the disposition of this case by which the defendant deducteds the amount that is not the tax base in the tax base return as prescribed in Article 113-2 of the Enforcement Decree and calculates the difference between the tax base amount and the legitimate tax base amount, and it is not erroneous in the misapprehension of legal principles as to the interpretation of the requirements for imposing no taxation without representation or underreporting penalty, as otherwise alleged in the ground of appeal. The ground of appeal cannot be accepted.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-dam (Presiding Justice)