Cho Jae-2015-west-765 (24 April 2015)

The notice of change in the amount of income shall be filed within 90 days from the date of receipt of the notice of request for correction pursuant to the proviso to Article 45-2 (1) of the National Techniques.

The notice of change in the amount of income falls under the proviso to Article 45-2 (1) of the national technique, and an application for correction accordingly shall be filed within 90 days from the date of receipt of the notice, and there is no obligation to give prior notice of change in amount of income before notice

Article 106 of the Enforcement Decree of the Corporate Tax Act, such as scope of pre-assessment review and procedures for filing a request for correction, etc. under Article 45-2 of the former Framework Act on National Taxes

2016Guhap68659 Revocation of revocation of a request for rectification

OOOO

O Head of tax office

. 2016.08

2016.09.02

1. The instant lawsuit shall be dismissed.

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

The defendant's rejection disposition against the plaintiff on June 27, 2014 against the plaintiff is revoked.

1. Details of the disposition;

A. The Plaintiff is a company incorporated on March 17, 2009 for the purpose of broadcasting business, etc., and from March 13, 2012

Until now, the representative is AA as an internal director.

B. On September 15, 201, the Plaintiff received a tax invoice of KRW 000,000,000 from BB Entertainment (hereinafter “B”), and included it in advertising and publicity expenses, and thereafter, included it in corporate tax, etc.

However, on September 4, 2013, the above amount was deposited in the corporate account book, including value-added tax of KRW 00,000,000,000,000, and was disposed of as a half of the provisional payment, and then reported the revised return of corporate tax, etc. (hereinafter referred to as "the revised return of this case").

C. On December 4, 2013, the Defendant: (a) deemed that the Plaintiff filed a revised return on the amount of money out of the company with prior knowledge that it would have been corrected under the proviso of Article 106(4) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 26981, Feb. 12, 2016); (b) deemed that the said amount was disposed of as a bonus to the representative, and issued a notice of change in the amount of income (hereinafter “instant notice of change in the amount of income”) to the Plaintiff on December 4, 2013. Accordingly, on January 10, 2014, the Plaintiff submitted a report of change in the amount of income (hereinafter “instant notice of change in the amount of income”). The Plaintiff paid KRW 00,000,000,000 as earned income tax withheld for the year 201.

D. Since then, on April 11, 2014, the Plaintiff filed a request for correction to the Defendant for refund of KRW 00,000,000 of the above earned income tax. However, on June 27, 2014, the Defendant notified the Plaintiff of the refusal of the request for correction (hereinafter “instant refusal disposition”). On August 26, 2014, the Plaintiff filed an objection against the Defendant on August 26, 2014, but was dismissed on September 25, 2014, and filed an appeal with the Tax Tribunal on December 11, 2014, but was dismissed on April 24, 2015.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 7, 12, Eul evidence 1(s)

(hereinafter the same shall apply), the purport of the whole pleading

2. Whether the instant lawsuit is lawful (ex officio determination)

(a) Claim for correction by a withholding agent;

Where the tax authority deems that the gross income out of the company belongs to an officer or an employee and disposes of it as a bonus, the tax authority shall establish a withholding obligation on the date the notice of change in the amount of income is served on the corporation (Articles 135 (4) and 131 (2) 1 of the Income Tax Act).

In this regard, Article 45-2 (4) of the Framework Act on National Taxes (amended by Act No. 7008 of Dec. 30, 2003) was newly established, and only wage and salary income, etc. are settled and paid by withholding and year-end settlement procedures, and income tax on the relevant income has not been filed a final return on the tax base of global income, thereby allowing a source taxpayer or withholding agent to make a correction claim by applying mutatis mutandis Article 45-2 (1) of the same Act.

Article 45-2 (1) of the Framework Act on National Taxes shall apply mutatis mutandis to the right to request for correction by a withholding agent, and the following procedures are examined under Article 45-2 (1).

(b) Revisions under Article 45-2 (1) of the Framework Act on National Taxes;

December 22, 1994

Law No. 4810

(1) Any person who has filed the tax base return within the legal return term, may request from the chief of the competent tax office the decision or rectification of the tax base and amount of the national tax initially returned within one year after the legal return term expires (where the decision or rectification is made pursuant to the provisions of each tax-related Act, it refers to the tax base and amount after such decision or rectification is made),

December 29, 2000

Law No. 6303

(1) Any person who has filed the tax base return within the legal return term, may request from the chief of the competent tax office the determination or rectification of the tax base and amount of the national tax initially returned within two years at the expiration of the legal return term (where the determination or rectification is made pursuant to the provisions of each tax Act, referring to the tax base and amount after such determination or rectification is made),

July 13, 2005

Law No. 7582

(1) Any person who has filed the tax base return within the legal return term, may request from the chief of the competent tax office the determination or correction of the tax base and amount of the national tax (where the determination or correction is made pursuant to the provisions of each tax-related Act, it refers to the tax base and amount of tax after such determination or correction is made) which has been filed first and revised within three years after

December 31, 2007

Law No. 88301

(1) A person who has filed a tax base return within the statutory due date of return may request the head of the competent tax office to file an objection, request for examination or adjudgment within three years (referring to the period for filing an objection, request for adjudgment, or request for adjudgment where a determination or correction is made pursuant to each tax-related Act) after the statutory due date of return elapses for the determination or correction of the tax base and amount of national tax (where a determination or correction is made pursuant to each tax-related

December 27, 2010

Law No. 104052

(1) In any of the following cases, a person who has filed a return on a tax base by the statutory due date of return may request the head of the competent tax office within three years after the statutory due date of return elapses to determine or correct the tax base and amount of the national tax for which the initial return and revised return have been filed: Provided, That with respect to the increased tax base and amount of tax due to the determination or correction, a request for correction may be made within 90 days (limited to within three years after the statutory due date of return expires) from the date he/

December 23, 2014

Law No. 12848

(1) In any of the following cases, a person who has filed a tax base return by the statutory due date of return may request the head of the competent tax office within five years after the statutory due date of return elapses to determine or correct the tax base and amount of national tax for which the initial return and revised return have been filed: Provided, That with respect to an increased tax base and amount of tax due to a determination or correction, a request for correction may be made within 90 days (limited to within five years after the statutory due date of return expires) from the date he/she becomes aware

(c) Recognition of disposal of the notice of change in income amount;

The Supreme Court did not recognize the disposal of the notice of change in the amount of income, but recognized the disposal of the notice of change in the amount of income for the following reasons through the Supreme Court Decision 2002Du1878 Decided April 20, 2006.

In cases where the tax authority’s disposition of income and the notice of change in the amount of income accrued therefrom are given, the corporation that is the withholding agent shall be deemed to have paid the relevant amount to the person to whom the income recorded in the notice was given on the date of receipt of the notice of change in the amount of income, and at the same time the liability to pay the income tax withheld is established, and the corporation that is the withholding agent bears the obligation to pay the withholding tax according to the details of the disposition of income recorded in the notice of change in the amount of income to the head of the competent tax office by the 10th day of the following month. If the person fails to pay it, the notice of change in the amount of income shall be subject to punishment as well as criminal punishment

D. The starting point of reckoning the claim for correction in this case

As seen earlier, a request for correction by a withholding agent under Article 45-2(4) of the Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter “Framework Act on National Taxes”).

Article 45-2 (1) of the Framework Act on National Taxes shall apply mutatis mutandis to the right, and Act No. 8830 on December 31, 2007

Before Article 45-2 (1) of the Framework Act on National Taxes is amended, where a withholding agent pays income tax through year-end settlement and submits a payment record within the payment period, the following day of the income tax payment deadline following the notice of change in income amount (the tenth day of the month following the month in which

Within three years based on which a claim for correction was filed (Supreme Court Decision 2009Du23587 Decided November 24, 201)

[Reference]

However, Article 45-2(1) of the Framework Act on National Taxes amended by Act No. 8830 of Dec. 31, 2007 provides that when a decision is made pursuant to each tax law, a request for correction may be made within the period for filing an objection, a request for review, or a request for adjudgment. Article 45 of the Framework Act on National Taxes amended by Act No. 10405 of Oct. 27, 201

The proviso to Article -2 (1) shall allow a request for correction with respect to the increased tax base and amount of tax due to the determination, within 90 days from the date (where a notice of disposition is received, the date of receipt) on which the relevant disposition is known, to the effect that the period of appeal against the decision of the tax authority for the decision

As a result, the period of request for correction was reduced. Therefore, if there is a notice of change in the amount of income of the tax authorities, it is a problem whether the period of request for correction reduced is applied because it falls under "decision under the above tax laws" or "decision to increase the

In full view of the following circumstances, the Plaintiff’s claim for correction of KRW 00,000,00 of the withheld amount of earned income tax for the year 2011 shall be filed within 90 days from the date the Plaintiff becomes aware of the disposition of notice of change in the amount of income or from the date of receipt of the notice of change in amount of income pursuant to Article 45-2(4) and the proviso of Article 4

(1) As confirmed in the Supreme Court Decision 2002Du1878 Decided April 20, 2006, a corporation that is a withholding agent is deemed to have paid the income to the person to whom the income as stated in the notice is attributed on the date of receipt of the notice of change of income, and at the same time the liability to pay income tax withheld at that time becomes effective. As long as the tax amount is automatically determined at the same time as the notification of change of income is received, the notice of change of income constitutes "decision to increase the tax base and tax amount as stipulated in the proviso of Article 45-

(2) As long as it is deemed that the notice of change in the amount of income falls under the “decision to increase the tax base and tax amount” as provided in the proviso of Article 45-2 (1) of the Framework Act on National Taxes, the starting point of calculating the application for rectification shall be deemed the day when the notice of change in amount

Meanwhile, as stated in the Supreme Court Decision 2009Du23587 Decided November 24, 201, there may be an opinion that the starting point of reckoning a request for correction shall be 90 days from the day following the deadline for payment of income tax (the 10th day of the month following the month in which a notice of change in income amount was received) following the notice of change in income amount (the 10th day of the month following the month in which a notice of change in income was received). However, there is no ground to view that the period from the day following the due date of payment following the notice of change in income amount should be calculated

③ Article 45-2(4) of the Framework Act on National Taxes (amended by Act No. 7008, Dec. 30, 2003) newly established Article 45-2(4) of the same Act, the right of a withholding agent to request for correction was recognized, and the Supreme Court Decision 2002Du1878, Apr. 20, 2006, recognized the disposition of notice of change in the amount of income, and the withholding agent immediately filed a lawsuit for revocation on the notification of change in the amount of income itself or was able to recover and pay the amount withheld according to the notification of change

However, since the amendment of the Framework Act on National Taxes by Act No. 8830 on December 31, 2007, the objection period against the decision of increase and the period for the request for correction by the tax authorities were consistent, and thus, the benefit of the tax withholding agent who received the notice of change in income amount was lost. Thus, the interpretation of the same as the conclusion of the case can be seen as going against the legislative intent of Article 45-2(4) of the Framework Act on National Taxes. However, if a tax withholding agent reports an additional return, it may still be claimed for correction based on Article 45-2(4) of the Framework Act on National Taxes. Thus, even if the interpretation of the provision of Article 45-2(4)

④ In addition, a withholding agent’s right to demand rectification has a newly established provision under the Framework Act on National Taxes within 2003 and should not be deemed as a right to be naturally acknowledged to taxpayers, and should be deemed as a mutually advantageous right. Thus, a withholding agent’s right to demand rectification notified of change of amount of income does not appear to be a right to recognize even when it goes beyond the legal language.

⑤ On the other hand, as long as the notice of change in income amount is recognized as disposal, the withholding agent who received the notice of change in income amount can bring a lawsuit seeking revocation thereof, and it does not have any means of objection by the withholding agent.

E. Determination

1) Since a request for correction filed after the lapse of the period for filing a request for correction is illegal and thus the tax authority has no obligation to either determine or rectify the tax base and amount of tax or take a disposition of refusal, it cannot be deemed a disposition of refusal that is subject to appeal, even if the tax authority refuses correction (see, e.g., Supreme Court Decisions 2014Du44830, Mar. 12, 2015; 2012Du27183, Dec. 11, 2014).

2) On December 4, 2013, the Defendant notified the Plaintiff of the change in the amount of income on December 4, 2013. The Plaintiff received a notice of change in the amount of income and received a notice of change in the amount of income on January 10, 2014 from the representative’s wage and salary income, and submitted a withholding performance report, and paid KRW 00,000,000 as earned income tax withheld for the year 201. According to the above facts acknowledged, the Plaintiff was aware of the disposition of change in the amount of income at the latest on January 10, 2014. As such, the Plaintiff’s request for correction was filed on April 11, 2014, which was 90 days thereafter, the Plaintiff’s request for correction is unlawful, and even if the Defendant refused it, it cannot be viewed as a rejection disposition subject to appeal. Therefore, the Plaintiff’s lawsuit in this case is unlawful.

3. Preliminary determination (if the instant lawsuit is deemed lawful, 4) as to the legitimacy of the disposition rejecting the instant correction

A. The parties' assertion

1) As to the notice of change in the instant income amount

A) Plaintiff

Unlike the provisions of the Administrative Procedures Act before giving notice of change in the amount of the instant income, the Defendant did not provide the Plaintiff with an opportunity to give prior notice and state his opinion, and did not present the reason for the disposition, and did not provide an opportunity to request pre-assessment review without giving notice of prior notice of taxation.

The above procedural defect is so significant that the notice of change in the amount of income of this case is null and void, and accordingly, the defendant has to accept the plaintiff's request for correction, but the rejection of this case is unlawful.

B) Defendant

As long as the notice of change in the amount of income of this case becomes final and conclusive and conclusive, the plaintiff cannot contest against the notice of change in the amount of income of this case. Thus, the plaintiff cannot contest the illegality of the rejection disposition of this case on the premise that the notice of change in the amount

2) As to the nature of the instant revised declaration

On the other hand, the plaintiff asserts that the revised declaration of this case was voluntary, while the defendant knew in advance that the corporate tax, etc. would be corrected.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to whether notice of change in the amount of income is illegal

A) Whether the instant lawsuit can contest the illegality of the notice of change in income amount.

The notification of change in the amount of income constitutes a disposition to determine tax liabilities, and it is not possible to follow the revised return, request for correction, or tax litigation procedure in a way of disputing the final tax liabilities, and the objection period or the period of filing a request for correction in order to cause disputes with respect to the notification of change in the amount of income. Therefore, if the plaintiff filed a request for correction with respect to the tax on earned income paid on the ground of the notification of change in the amount of income, the notification of change in the amount of income cannot be deemed to have caused

On the other hand, the defendant's assertion that if the notification of change in the amount of income is a disposition subject to appeal litigation and there is a tax payment notice (collection disposition) issued by the tax authority on the premise that the notification of change in the amount of income is a disposition subject to appeal litigation, then the defect cannot be asserted thereafter. Thus, in a lawsuit seeking revocation of the notification of change in amount of income, the taxpayer cannot contest the illegality of the notification of change in amount of income, and it is different from the case of this case in which the notification of change in amount

B) Whether notice of change in the amount of income is unlawful

(1) Whether the provisions of the Administrative Procedures Act should be complied with

(A) Article 21 of the Administrative Procedures Act (amended by Act No. 12844, Nov. 19, 2014; hereinafter the same) provides that prior notice of a disposition shall be given; Article 22 of the same Act shall hear opinions; and Article 23 of the same Act shall provide that the presentation of the reason for the disposition shall be made; Article 3(2)9 of the Administrative Procedures Act and Article 2 subparag. 5 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 25505, Jul. 28, 2014) shall not apply to matters concerning the imposition and collection of taxes under tax-related Acts and subordinate statutes.

(B) On the other hand, as long as the obligation to withhold wage and salary income tax arises to the Plaintiff through the notice of change in the amount of income, the notice of change in the amount of income can be deemed as a matter concerning the imposition and collection of taxes, and accordingly, the Administrative Procedures Act does not apply to the notification of change in the amount of income. Accordingly, the Plaintiff

(2) Whether advance notice of taxation should be given before giving notice of change in the amount of income

(A) Article 81-15(1)2 of the Framework Act on National Taxes and Article 63-14(2) of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 25751, Nov. 19, 2014; hereinafter the same) provide that a pre-announcement notice of taxation by the head of a tax office or the director of a regional tax office or the director of a regional tax office on a tax office or regional tax office according to the result of business audit conducted by the director of a regional tax office or the director of a regional tax office (Paragraph 1); a pre-announcement notice by the head of a tax office or the director of a regional tax office on a person other than the relevant taxpayer; a pre-announcement notice by the head

(B) On the other hand, the notice of the change in the amount of income of this case pursuant to the review of the revised return of this case, and thus does not fall under Article 63-14 (2) 1 and 2 of the Enforcement Decree of the Framework Act on National Taxes, and the notice of the change in the amount of income of this case does not fall under Article 63-14 (2) 3 of the Enforcement Decree of the Framework Act on National Taxes, and it cannot be deemed that the defendant must make a separate notice prior to giving the notice of the change in

2) Determination as to whether the instant revised declaration was voluntarily made

A) Facts of recognition

(1) From August 23, 2013, the Director of theCC Tax Office commenced an investigation into the data on BB, and on August 30, 2013, the inquiry was sent to the Plaintiff a written inquiry about the fact of transaction for the investigation of the suspect on the data, but the said inquiry was returned. As a result, BB had a transaction relation with the Plaintiff, DDDDD Co., Ltd. (hereinafter “DDD”), but was set at 10% of the data, and the Director of theCC filed an accusation against BB and related persons under the Procedure for the Punishment of Tax Evaders Act.

(2) The Plaintiff’s dynamics are not only the representatives of DoDD, but also the Plaintiff’s shares are 100% of the Plaintiff’s corporation’s equity. DoDD declared a revised corporate tax return on September 4, 2013 with respect to processing transactions with BB, which is the date on which the Plaintiff filed the instant revised return.

(3) On September 30, 201, the Plaintiff transferred KRW 00,000,000 to BB on September 30, 2011, and BB transferred KRW 000,000 to EE on the same day, KRW 00,000,000 to EO, and KRW 0,000,000 to EO.

(4) On September 4, 2013, the Plaintiff received KRW 000,000,000 from EE to transfer to the account, and dealt with it as a half of the provisional receipts. On September 5, 2013, the Plaintiff transferred KRW 00,000,000 to EE to DD, respectively.

(5) Meanwhile, at the request of DDD, F accounting corporations conducted tax management diagnosis services from 2008 to 2012.

[Reasons for Recognition] Gap's evidence Nos. 8, 9, 18, Eul's evidence Nos. 3 through 5, 7, 9, and 13, and the purport of the whole pleadings

B) Determination

(1) A group of income tax liability on the amount accrued to the representative, etc. of the pertinent corporation that was released from the company in principle shall not affect the income tax liability already established, even if such amount was returned to the pertinent corporation later, and thus, it is a principle to dispose of income pursuant to Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act. However, the main text of Article 106 (4) of the same Act is that where the pertinent corporation collects the amount by voluntary efforts within the prescribed period, the amount shall not be deemed to have been disclosed from the company, and thus, the corporation shall be given an opportunity to voluntarily correct the amount by failing to take measures in accordance with the above principle. Therefore, even if the amount that was withdrawn from the corporation is not by voluntary efforts of the pertinent corporation, it is the proviso of the same paragraph that the corporation must take a disposition again again in principle if it is not by the corporation's voluntary efforts. Thus, it cannot be deemed that it infringes on the essential contents of property rights guaranteed by the Constitution or it is levied without the ownership of income in violation of

(2) The following facts revealed in light of the above facts: (a) the Plaintiff asserted that the instant revised tax return was filed in accordance with F’s tax diagnosis by the tax accounting corporation; (b) but the tax accounting corporation FF did not provide tax management diagnosis services for DD; and (c) the Plaintiff did not separately state the content of E in the report; (b) the Plaintiff held 100% shares of E; (c) the Plaintiff filed a revised corporate tax return with respect to BB as of September 4, 2013; and (c) the Plaintiff’s corporate tax return and the head of the bank of each account, etc. cannot be deemed to have recovered the amount out of the company by voluntary efforts. Accordingly, this part of the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

1) The purport of the amendment of the Act: The period for filing a request for correction and the period for filing a request for adjudgment, etc. are separately prescribed within three years after filing the report and within 90 days after becoming aware of the decision, so it is likely to be interpreted that a request for correction may be filed even in cases where disputes arise after the period for filing the request for adjudgment, etc. expires. Where a disposition agency makes a decision or rectification, a request for correction on the tax base and amount of tax related thereto shall be limited to the period for filing the request for adjudgment, etc., within which a request for correction is available.

2) The revised tax law theory by the National Tax Service: A statement to solve the problems of the previous provisions that can be interpreted as not only "three years after the lapse of the statutory reporting period," but also "90 days after the statutory reporting period," if the purport of the amendment is determined and corrected by the tax authority.

3) The date when the Plaintiff received the notification of change in the amount of income does not appear on the record.

4) The notice of change in the amount of income does not constitute a determination increasing the tax base and amount of tax.