Plaintiff

Seoul Regional Tax Office

October 7, 2015

Seoul Administrative Court Decision 2012Guhap24627 decided April 4, 2013

1. Revocation of a judgment of the first instance;

2. The Defendant’s rejection disposition of certified tax accountants registration against the Plaintiff on July 20, 2012 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is an attorney-at-law who passed the 45th judicial examination on December 24, 2003 and served as an attorney-at-law from April 1, 2012, and from April 1, 2013, the Plaintiff is an attorney-at-law belonging to a law firm as an associate attorney-at-law belonging to a senior law firm.

B. On May 15, 2012, the Plaintiff obtained a certified tax accountant’s license from the Minister of Strategy and Finance, and filed an application for registration of a certified tax accountant with the Defendant on June 26, 2012.

C. On July 20, 2012, the Defendant rejected the Plaintiff’s above application on the ground that “the registration of a certified tax accountant is not possible under Articles 6(3) and 16(2) of the Certified Tax Accountant Act” (hereinafter “instant refusal disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 12, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

The rejection disposition of this case is unlawful for the following reasons.

(i) the existence of the reasons for the measure

A) The purpose of Article 16(2) of the Certified Tax Accountant Act is to ensure that a tax accountant concurrently serves as a special corporation with the character of public interest and that it does not interfere with the fair performance of his/her duties and the belief of his/her duties. However, according to Article 49(2) of the Attorney-at-Law Act, where an affiliated attorney of a law firm is able to perform his/her duties with the qualification of a certified tax accountant, he/she can perform his/her duties as a law firm; where an affiliated attorney of a law firm performs his/her duties with the qualification of a certified tax accountant, it is difficult to deem that it would interfere with the fair performance of his/her duties; and Article 13(2) of the Certified Tax Accountant Act is able to concurrently serve as a certified tax accountant and an attorney-at-law; therefore, Article 13(2) of the Certified Tax Accountant Act cannot be deemed as a profit-making corporation.

B) Article 16(2) of the former Certified Tax Accountant Act (amended by Act No. 6837, Dec. 30, 2002; hereinafter “Certified Tax Accountant Act”) provides that a certified tax accountant shall obtain permission from the Minister of Finance and Economy to engage in profit-making business, but the said provision does not apply to a lawyer’s practice, as a matter of course, because the certified tax accountant’s practice is included in a lawyer’s practice. This purport is equally applicable to Article 16(2) of the current Certified Tax Accountant Act. Thus, Article 16(2) of the Certified Tax Accountant Act does not apply to the Plaintiff, a lawyer.

C) Even if a law firm falls under a profit-making corporation prohibited from holding concurrent office with a certified tax accountant under Article 16(2) of the Certified Tax Accountant Act, the Plaintiff cannot be deemed to fall under “the managing member, officer, or employee of a profit-making corporation,” since the law firm is an affiliated attorney

D) Article 2 of the Addenda of the former Certified Tax Accountant Act (amended by Act No. 7032, Dec. 31, 2003; hereinafter “2003 Certified Tax Accountant Act”) provides that a person, etc. who passed the judicial examination at the time when the amended Certified Tax Accountant Act enters into force in 2003 shall be eligible for the registration of a certified tax accountant under Article 6 notwithstanding the amended provisions of Article 6. Thus, the instant refusal disposition violates the aforementioned Addenda provisions.

E) Article 16(2) of the Certified Tax Accountant Act, which the Defendant rendered based on the instant refusal disposition, violates the principle of clarity and proportionality and limits the law firm’s freedom to perform occupation.

2) Violation of the principle of equality or the principle of proportionality

The Defendant discriminates against an individual attorney-at-law on the ground that the Plaintiff is an attorney-at-law belonging to a law firm without reasonable grounds, and discriminates against an attorney-at-law who has already registered a tax accountant before the 2003 amended Certified Tax Accountant Act enters into force without reasonable grounds. In addition, the Defendant accepted the tax accountant registration regardless of whether the Plaintiff is an attorney-at-law belonging to the law firm or not even an attorney-at-law who has passed the 45th judicial examination under the same conditions as the Plaintiff. The instant rejection disposition is against the principle of equality or proportional principles

3) Violation of the principle of trust protection.

The defendant accepted the registration of a tax accountant regardless of whether a person who passed the judicial examination before December 31, 2003 is an attorney-at-law working in a law firm or an individual attorney-at-law. Thus, the plaintiff was trusted that the registration of a tax accountant is possible even in the case of the plaintiff. Although such trust is worthy of protection, the defendant issued the disposition of refusal against this issue.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Markets:

1) Article 16(2) of the Certified Tax Accountant Act provides that a certified tax accountant shall not become an employee of a person who engages in profit-making business or an executive officer, executive officer, executive officer, or employee of a profit-making corporation, except where a certified tax accountant participates in a lecture in educational fields, such as schools and private teaching institutes (excluding a full-time lecturer), and non-standing executive officer of a profit-making corporation. Article 6(3)3 of the Certified Tax Accountant Act provides that where a person engages in profit-making business in violation of Article

2) We first examine the history of amendment of Article 16(2) of the Certified Tax Accountant Act. Before the amendment in 2002, Article 16(2) of the Certified Tax Accountant Act provides that, unless a certified tax accountant obtains permission from the Minister of Finance and Economy, a person cannot engage in profit-making business or become an employee of a profit-making corporation, etc., and Article 16(3) of the same Act provides that, where an attorney-at-law, etc. registered under Article 6 performs his duties as an attorney-at-law, etc., he shall be deemed to have obtained a license under Article 16(2). Accordingly, an attorney-at-law registered as a certified tax accountant

Before the amendment in 2002, Article 16(2) of the Certified Tax Accountant Act (hereinafter “Certified Tax Accountant Act”) was amended on December 30, 2002 with the same content as the former Act prior to the amendment in December 30, 2002, and deleted the provision regarding permission of the Minister of Finance and Economy and Economy and the provision regarding permission of attorneys, etc. However, the purpose of the amendment in 2002 is to expand concurrent business activities of certified tax accountants, not to have any other intention, such as reducing the scope of concurrent business activities of certified tax accountants (Evidence A, 10, 11). Thus, it is reasonable to view that the aforementioned provision prior to the amendment in 202 remains in existence after the amendment. In other words, the deletion of Article 16(3) of the Certified Tax Accountant Act prior to the amendment in 2002 does not have any special ground to deem that it was necessary to regulate attorney-at-law's activities for profit-making purposes while amending Article 16(2) of the Certified Tax Accountant Act.

Therefore, it is reasonable to view that the prohibition provision on this part of the Certified Tax Accountant Act was deleted through the amendment as above, because an attorney-at-law registered as a certified tax accountant operates a private office or belongs to a law firm and concurrently conducts attorney-at-law's services.

3) Next, the legislative intent of Article 16(2) of the Certified Tax Accountant Act, supra, is to ensure that a certified tax accountant concurrently serves as a profit-making business regardless of whether before or after the amendment in 2002, thereby doing so would not interfere with the fair performance of his/her services and the belief of his/her services (see Supreme Court Decision 91Nu3185, Feb. 11, 1992). Therefore, the prohibited services here refer to services subject to tax agent services and other services, i.e., services, other than tax agent services. Therefore, there is no reason to prohibit a certified tax accountant from serving as a certified tax agent in a corporation authorized to provide tax agent services.

However, Article 49(2) of the Attorney-at-Law Act provides, “Where other Acts recognize the qualification of an attorney-at-law, a law firm may perform its duties as a legal entity if its partner or partner attorney-at-law is able to perform his/her duties with such qualification.” This is a special provision that allows a law firm to perform legal services other than the Attorney-at-Law Act exceptionally, and it can be deemed that an attorney-at-law is allowed to perform his/her duties as a certified tax accountant under the Certified Tax Accountant Act. Therefore, where an affiliated attorney is able to perform his/her duties by registering as a certified tax accountant under the Certified Tax Accountant Act, it can be deemed as a legal entity’s duties. Therefore, interpreting that an attorney-at-law registered as a certified tax accountant violates Article 16(2) of the Certified Tax Accountant Act with the intent of Article 49

4) Ultimately, an attorney-at-law registered as a certified tax accountant cannot be deemed to be subject to the prohibition under Article 16(2) of the Certified Tax Accountant Act in the event that he/she provides tax accountants with services in a law firm. Furthermore, the rejection of an application for registration of a certified tax accountant with respect to an attorney-at-law registered as a certified tax accountant under the Certified Tax Accountant Act for a violation of Article 16(2) of the Certified Tax Accountant Act on the ground that he/she is an attorney-at-law affiliated with the law firm may not be allowed as being contrary to the purport of Article 16(2) of the same Certified Tax Accountant Act and Article 49(2) of the Attorney-at-Law Act. In this case, the Plaintiff is an attorney-at-law entitled

5) The instant rejection disposition is unlawful without examining the remaining arguments of the Plaintiff.

3. Conclusion

The plaintiff's claim of this case is reasonable, and the judgment of the court of first instance is revoked, and the rejection disposition of this case is revoked.

[Attachment Form 5]

Judges Ansan-chul (Presiding Justice)