In cases where a corporation that has paid the withholding tax pursuant to the notice of income disposition and change in income amount exercises a right to indemnity against the representative, whether the representative bears the responsibility to prove the existence of the liability to pay taxes in addition to the fact that the withholding tax has been paid

The withholding system is an indirect realization of the implementation of the original tax liability that a person liable for tax payment pays by the source law through the procedure of withholding taxes. As such, a person liable for tax payment is exempted from the liability for tax payment due to the payment of withholding taxes in relation to the State. In cases where a person liable for tax payment pays a person liable for tax payment without deducting and collecting withholding taxes from the source tax, he/she may exercise the right to demand reimbursement against a person liable for tax payment. In cases where a person liable for tax payment exercises the right to demand reimbursement, in principle, prove not only the fact that the person liable for tax payment has paid the national tax withheld but also the fact that the person liable for tax payment has the obligation to pay the source tax. As such, even in cases where a corporation that has paid withholding taxes upon the

Article 67 of the Corporate Tax Act; Articles 20(1)3 and 127(1)4 of the Income Tax Act; Article 106(1)1(b) of the Enforcement Decree of the Corporate Tax Act; Article 192(1) of the Enforcement Decree of the Income Tax Act; Article 288 of the Civil Procedure Act

Supreme Court en banc Decision 2006Da49789 Decided September 18, 2008 (Gong2008Ha, 1421)

KFF Securities Corporation

Defendant (Law Firm Jeon, Attorneys Lee Dong-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Na48540 decided October 30, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts based on the adopted evidence: (1) the Seoul Regional Tax Office, after conducting a regular tax investigation against the plaintiff; and (2) the defendant, who was the representative director of the plaintiff, engaged in a third party, such as the non-party and the ice Trade Co., Ltd. (hereinafter referred to as "cases"), as it unfairly acquired 50,4910,000 won from the plaintiff at a low price, and thus unfairly acquired 550,000 won of private equity bonds issued by Anam semiconductor Co., Ltd. (hereinafter referred to as "the bonds of this case") at a low price; and (3) the profits of the plaintiff were included in the plaintiff's gross income as well as the income belonging to the defendant in June 29, 2004; and (2) the plaintiff notified the change of income amount to the plaintiff on July 12, 2004; and (3) the amount of income converted to the defendant as a withholding agent, paid additional earned income tax amount as withholding tax.

Then, the court below reasoned that when a person liable for tax payment receives a claim for reimbursement from a withholding agent who paid income tax, it may refuse to pay part of the bonds of this case from the non-party on the basis of the source tax liability and the scope thereof must be proved by the original taxpayer, and that the transaction subject to the avoidance of unfair act and calculation in the Plaintiff’s corporate tax base calculation (hereinafter “the bonds transaction of this case”) is lawful and appropriate, and thus, the Defendant did not have the original tax liability. As to the assertion that the Plaintiff’s tax liability was not created because the transaction of this case, such as the non-party and the case, can be deemed to be related to the Defendant, and the Seoul Enterprise Investment Co., Ltd. (hereinafter “Seoul Investment”) was the company with 15% equity interest of the non-party, the Defendant, and the Plaintiff, at the request of the Defendant, again sold part of the bonds of this case from the non-party on the basis of the call loan offered by the Plaintiff to the Defendant, and determined that the bonds sale of this case constitutes a sale and purchase of bonds of 3.70 million won and damages for the Plaintiff’s interest.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. The withholding system is a system that indirectly realizes the performance of the original tax liability that a person liable for tax payment pays through the procedure of withholding taxes, and where a person liable for tax payment pays withholding taxes through the payment of withholding taxes is exempted from the corresponding tax liability in relation to the State, and where a person liable for tax payment pays withholding taxes to the State without deducting and collecting the withholding taxes from a person liable for tax payment, he/she may exercise a right to demand reimbursement against a person liable for tax payment (see Supreme Court en banc Decision 2006Da49789, Sept. 18, 2008). In principle, when a person liable for tax payment exercises such right to demand reimbursement, he/she must prove not only the fact that the person liable for tax payment has paid the withholding taxes but also the fact that the person liable for tax payment has the corresponding tax liability as a person liable for tax payment, as well as the fact that the person liable for tax payment has paid the withholding taxes through the representative of the tax authority

B. According to the evidence duly admitted by the court below, ① the plaintiff sold the bonds of this case to the non-party and the case operated by them on September 9, 1998, and they again sold the bonds of this case to the Seoul Chang Port and pandeco, and the Seoul Chang Port and pandeco were finally sold to the defendant during the period from October 10 to October 15, 1998. The Seoul Regional Tax Office decided that the bonds of this case were sold over three times, i.e., the bonds of this case, the bonds of this case were sold at low price, and thus disposed of the bonds of this case, and notified the change in the amount of income, ② the plaintiff was dismissed on the ground that the defendant who was the representative director at the time violated the duty of loyalty or prohibition of competitive business, or caused losses to the representative director who could have been able to gain profits from the bonds of this case by using internal information, and ③ the plaintiff's first appeal and the defendant's first appeal against the non-party to this case were dismissed on the ground that the plaintiff's first appeal and the bonds of this case were dismissed.

In addition to these facts, in light of the fact that the Defendant planning and coordinating the entire process of the instant bonds and directly purchased the instant bonds from the Plaintiff and directly participated in the third party as a formal transaction party, or there is no evidence to prove that the Plaintiff sold the instant bonds at a price lower than the market price, it is difficult to conclude that the mere fact that part of the transaction parties to the instant bonds were related to the Defendant, or that some of the transaction was conducted at the Defendant’s request, etc. was actually transferred from the Plaintiff to the Defendant at a low price, solely on the basis that the instant bonds were actually transferred from the Plaintiff via a bypassive transaction form, it is difficult to conclude that the Plaintiff, a withholding agent, bears the burden of proving the existence of the representative’s liability to pay taxes.

Nevertheless, the lower court determined that the Plaintiff’s claim for reimbursement against the Defendant was reasonable solely on the grounds as seen earlier, on the erroneous premise that the existence of the original tax liability in exercising the right to demand reimbursement by a withholding agent had the burden of proof against the original taxpayer. In so doing, the lower court erred by misapprehending the legal doctrine of the burden of proof as to the right to demand reimbursement by a withholding agent and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)