2015-Examination-360 ( November 10, 2016)

The action of this case that requires revocation of the disposition rejecting the correction of 0 won for the purpose of tax credit carried over is inappropriate.

Even if the defendant rejected the plaintiff's request for correction based on the amount of tax credit carried forward by the defendant, the rejection of correction of this case does not constitute a rejection disposition subject to appeal. Thus, the plaintiff's request for revocation of the plaintiff's request for correction of this case based on the premise that the rejection of correction of this case constitutes a rejection disposition is illegal.

Request for correction, etc. under Article 45-2 of the Framework Act

2017Guhap5107

OOAFFR

O Head of tax office

July 4, 2017

July 13, 2017

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The defendant's rejection of correction of the corporate tax of 20O.O. for the plaintiff 20O.O., KRW 0 of the corporate tax for the 20O business year and KRW 0 of the corporate tax for the 20O business year is revoked.

1. Basic facts

A. The Plaintiff was a juristic person established for the purpose of manufacturing automobiles and other passenger cars, and invested O% of the shares in the People's Republic of China (hereinafter referred to as "China"), and established the 200 OO group (China) Limited Liability Corporation in the 2000s (hereinafter referred to as "the subsidiaries of this case"), respectively.

B. The Plaintiff received dividends from the instant subsidiaries during each business year of 20O and 20O with the surplus accrued after O.O.O. from the instant subsidiaries, and filed a foreign tax credit for only 20O and 20O as to the foreign tax amount paid directly by the instant subsidiaries through withholding O% of the said dividends, and filed a tax return for each business year with the Defendant.

C. After that, the plaintiff filed a claim for correction with the purport that, if the foreign tax credit deemed to be zero percent of the above dividends is additionally applied to the above dividends, the foreign tax credit is no longer granted due to excess of the credit limit for each business year of 20O and 20O, but the foreign tax credit for carried forward for the following business year is increased, the plaintiff filed a claim for correction with the defendant that he additionally recognized the foreign tax credit for 20O and 20O corporate tax for each business year, and the defendant rejected the plaintiff's claim for correction on the ground that the foreign tax credit for 200O and 20O should be additionally granted with respect to the corporate tax for each business year of 20O and 20O.O.O.O. under the Korea-China Tax Treaty (hereinafter "the rejection of correction in this case").

D. The plaintiff is dissatisfied with the refusal of the correction of this case and filed a request for review on the Board of Audit and Inspection of 20O.O.O., but it was subject to dismissal decision 20O.O.O.

[Ground of recognition] Unsatisfy, entry in Gap'sO or O's certificates (including virtual numbers), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The defendant asserts that the plaintiff's claim for correction of this case does not have any "tax base and tax amount to be claimed for correction as zero won", or "amount of loss or tax amount to be claimed for correction", and therefore, the plaintiff's claim for revocation of correction of this case is unlawful because the eligibility subject to appeal litigation is insufficient or there is no benefit of lawsuit.

In this regard, the plaintiff asserts that if the amount of the carried-over tax credit exceeds the tax credit, the reduction of the amount of the tax credit for the next business year occurs even if there is no change in the amount of the tax credit for the corresponding business year, the change in the amount of the carried-over tax credit should also be

(b) Related statutes;

[Attachment] Article 45-2 of the Framework Act on National Taxes

(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

1. Where the tax base and amount of tax on a return of tax base (referring to the tax base and amount of tax after determination or correction is made, if such determination or correction is made pursuant to the tax-related Acts), exceed those to be reported under the tax-related Acts

2. Where the deficit amount or refundable tax amount entered in the tax base return (referred to the deficit amount or refundable tax amount after such decision or correction is made, if such decision or correction is made pursuant to the tax-related Acts), is insufficient to be reported under the tax-related Acts.

C. Determination

1) In order to request a correction of the tax base return pursuant to Article 45-2 of the Framework Act on National Taxes, when the tax base and tax amount entered in the tax base return exceed the tax base and tax amount to be reported pursuant to the tax laws, or ② the deficit amount or tax amount to be reported pursuant to the tax laws are short of the deficit amount or tax amount to be reported pursuant to the tax laws. However, according to the evidence No. O.O., the plaintiff is seeking a correction of the carried-over tax amount on the account of the tax amount to be reported by applying the deemed foreign tax credit. Thus, it cannot be deemed that the increase in the carried-over tax amount constitutes "the case where the tax base and tax amount to be reported exceed the tax amount to be reported"

2) However, when the deficit amount entered in the tax base return is short of the deficit amount or the tax amount to be reported under the tax-related Acts, the corporate tax base may be determined by deducting the deficit amount, non-taxable income, and income deduction amount from the income of each business year. In this case, the deficit amount not deducted in the calculation of the tax base of the previous business year may be deducted in the calculation of the tax base of the current business year as it occurred within 10 years before the beginning date of each business year (see Article 13 of the Corporate Tax Act). Thus, the deficit amount carried over in each business year after each business year shall be the object of the request for correction. In light of this, the plaintiff's assertion that the tax amount carried over should be the object of the request for correction can be seen as exercising the right of request for correction under the due diligence, unless there is any express provision recognizing the right of request for correction under the Framework Act on National Taxes or individual tax-related Acts, the right of request for correction under the due process cannot be acknowledged (see Supreme Court Decisions 2007Du18284, Feb. 25, 20106).

3) Therefore, even if the defendant rejected the plaintiff's request for correction based on the amount of tax credit carried forward by the defendant, the above rejection of correction does not constitute a rejection disposition subject to appeal litigation. Thus, the plaintiff's request for revocation of the plaintiff's request for correction of this case based on the premise that the rejection of correction of this case constitutes a rejection disposition, is unlawful.

3. Conclusion

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