Whether an attorney-at-law entitled to obtain registration as a certified tax accountant under the Certified Tax Accountant Act, who works as a partner or an affiliated attorney of a law firm, constitutes a case where he/she engages in profit-making business as an executive partner, executive or employee of a profit-making corporation

Article 16(2) of the former Certified Tax Accountant Act (amended by Act No. 11610, Jan. 1, 2013; hereinafter the same shall apply) provides that no certified tax accountant shall serve in the “profit-making corporation” means that it is deemed that the performance of his/her duties would result in damage to the fairness of tax agent services if he/she conducts tax agent services in a subordinate position of a profit-making corporation. However, Article 3 subparag. 3 of the former Certified Tax Accountant Act provides that a certified tax accountant shall be qualified as a certified tax accountant. Article 49(1) of the former Certified Tax Accountant Act provides that a law firm shall provide that a partner of a law firm or an affiliated attorney-at-law may provide services for profit-making purposes, on the premise that a partner of the law firm or an affiliated attorney-at-law may provide services for tax agent services, and that a partner of the law firm or an affiliated attorney-at-law may not be deemed to be in violation of the provisions of the former Certified Tax Accountant Act.

Article 3 Subparag. 3 of the former Certified Tax Accountant Act (Amended by Act No. 11610, Jan. 1, 2013); Article 6(3)3 and Article 16(2) of the former Certified Tax Accountant Act; Article 49 of the Attorney-at-Law Act

Plaintiff

Seoul Regional Tax Office

Seoul High Court Decision 2013Nu12876 decided October 21, 2015

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 6(3)3 of the former Certified Tax Accountant Act (amended by Act No. 11610, Jan. 1, 2013; hereinafter the same) provides that “Where a tax accountant concurrently serves as a public official or engages in profit-making business, in violation of Article 16,” and Article 16(2) provides that a certified tax accountant may not become an employee of a person who engages in a profit-making business or an executive officer, executive officer, or employee of a “profit-making corporation,” other than a lecture in the field of education or an extraordinary executive officer of a profit-making corporation.

Article 16(2) of the former Certified Tax Accountant Act provides that no member or affiliated attorney of a law firm shall provide services for the purpose of profit-making shall be transferred to his/her original services by preventing him/her from providing other services than tax agent services. Furthermore, Article 3 subparag. 3 of the former Certified Tax Accountant Act provides that if such corporation provides tax agent services in subordinate position of a profit-making corporation, the fairness of such services may be undermined. However, Article 3 subparag. 3 of the former Certified Tax Accountant Act provides that a person eligible for attorney-at-law may provide tax agent services, and an attorney-at-law eligible for registration pursuant to the former Certified Tax Accountant Act provides that a law firm shall provide tax agent services. Article 49(1) of the former Certified Tax Accountant Act provides that a partner or affiliated attorney-at-law may provide services for profit-making purposes when he/she is able to provide such services. In such cases, it is reasonable to deem that a partner or affiliated attorney-at-law may provide tax agent services for a limited liability corporation or an affiliated attorney-at-law service for profit-making without any other grounds under the former Certified Tax Accountant.

2. According to the reasoning of the lower judgment, the lower court determined that the instant disposition rejecting the registration of a certified tax accountant was unlawful solely on the ground that the Plaintiff, who is eligible to register as a certified tax accountant under the former Certified Tax Accountant Act, was an attorney affiliated

Examining the above legal principles in light of the above, the judgment of the court below is just. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the duty of prohibition of profit-making business

3. 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 on the bench.

Justices Kim Yong-deok (Presiding Justice)