Daegu District Court-2016-Gu Partnership-379 (Law No. 19, 2016)

A lawsuit seeking invalidity of a disposition imposing global income tax on a bribe accepted in 2002

(1) A bribe which was accepted in 2002 is deemed to be an honorarium among other income and imposed, and the Supreme Court en banc Decision does not apply retroactively, and therefore, it is reasonable that the instant tax disposition is null and void.

Article 21 of the Income Tax Act

2016Nu5748 Nullification of global income tax disposition

AA

a) the Director of the Tax Office

Daegu District Court Decision 2016Guhap379 Decided July 19, 2016

December 2, 2017

on 017 October 06, 201

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. On May 1, 2010, the defendant confirms that the imposition of the global income taxx members against the plaintiff is invalid.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as stated in the part of the judgment of the first instance except for modification or addition of a trial decision as stated in the following Paragraph (2). Thus, this Court cited it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Details to be corrected or added;

(a) On the 6th page 16-17 of the judgment of the court of first instance, the phrase “each entry” shall be amended to read “each entry and witness BB”.

(b)in addition, between conduct 7, 9 and 10 of the first instance judgment, the following shall be added:

4) The Plaintiff asserts as follows.

① According to the amendment of the Framework Act on National Taxes on December 22, 1994, when the collection of illegal income is completed as in the instant case, the instant disposition imposing a general income tax on the Plaintiff differently is null and void.

② If collection of illegal income was made after the establishment of the tax liability, the Plaintiff was sentenced to the judgment that “if it constitutes the grounds for filing a subsequent claim for correction, it constitutes the grounds for filing a subsequent claim for correction” (Supreme Court en banc Decision 2014Du5514 Decided July 16, 2015). After receiving the response, the Plaintiff filed a subsequent claim for correction on September 16, 2015, following the Defendant’s response to the request for information disclosure, and filed a subsequent claim for correction with the Defendant within two months, and then filed a subsequent claim for correction on February 15, 2016, upon receiving the “recommendation for cancellation by filing a civil petition with the Anti-Corruption and Civil Rights Commission on March 16, 2016.” As such, the Plaintiff filed the instant lawsuit on March 16, 2016.

First of all, in order for a defective administrative disposition to be null and void as seen earlier, the defect must be objectively apparent to be significant. However, since the statutory interpretation on whether it falls under the grounds for post-explosion correction has been modified, it cannot be deemed that the defect of the previous income tax imposition disposition was a significant and apparent defect. Thus, the above argument No. 1 on a different premise is without merit.

2. We examine the above argument.

Article 45-2(2) of the Framework Act on National Taxes provides that an application for rectification shall be filed within two months from the date on which the grounds for the latter filing of a request for rectification arise. Meanwhile, since the latter filing of a request for rectification even after the lapse of the statutory due date of return of the relevant national tax is based on the following reasons: (a) whether a transaction or act, which is the basis for calculating the tax base and amount of tax, exists after the statutory due date of return of the relevant national tax, or the legal effect thereof vary; (b) may include grounds for the latter filing of a request for rectification under Article 45-2(2)5 of the Framework Act on National Taxes and Article 25-2 subparag. 4 of the Enforcement Decree of the Framework Act on National Taxes; however, the relevant statutory interpretation does not include the grounds for changing from the time of the initial filing, determination or correction (see, e.g., Supreme Court Decision 2012Du28254, Nov. 27, 2014).

In this case, the income accrued from the Plaintiff’s receipt of loan case expenses from around 2000 to 2002 is subject to income tax in principle, but the Plaintiff’s tax liability, which was established as a result of confirming that the income was not realized on June 15, 2006 after the Plaintiff was sentenced to collection in a criminal proceeding, shall be deemed to have lost its premise. Thus, it can be deemed that the cause for requesting a subsequent correction has already occurred. However, as otherwise alleged by the Plaintiff, it cannot be deemed that the ground for requesting a subsequent correction was not established only on July 16, 2015 when the previous interpretation of the statutes was modified by the Supreme Court en banc Decision (the instant disposition was made on May 1, 2010, but the instant lawsuit was instituted only on March 16, 2016, and the materials submitted by the Plaintiff alone cannot be deemed as having been in compliance with the period of the previous trial procedure required in the instant disposition, and thus, the relevant cause for revocation cannot be further examined).

Therefore, it is not reasonable to consider the above-mentioned argument on a different premise.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.