Cho High Court Decision 201Du0197 (No. 28, 2012)

There is any defect in omission of descriptions, since the assessment basis of additional tax is not specified in the notice of tax payment.

Since the additional tax payment notice is not divided into the additional tax payment notice, and the additional tax payment notice is written, and it can be recognized that the basis for calculation of each additional tax is not written, it is necessary to revoke the tax payment notice because there are defects such as omitting the matters required by related Acts and subordinate statutes.

2012 Gohap43819 Revocation of Corporate Tax Imposition Disposition, etc.

AAA Loan Co., Ltd.

Head of the District Tax Office

May 29, 2013

June 21, 2013

1. The defendant was committed against the plaintiff, and

(a) the portion of KRW 00 of the corporate tax of the business year 2005 on September 1, 2010 (including the additional tax), KRW 000 of the corporate tax of the business year 2005, KRW 000 of the corporate tax of the business year 2006 (including the additional tax), and KRW 000 of the corporate tax of the business year 2007 and KRW 000 of the corporate tax of the business year 2008 (including the additional tax) respectively; and

B. Each disposition of imposition of wage and salary income tax (including additional tax) of 2005, wage and salary income tax (including tax) of 2006, wage and salary income tax (including additional tax) of 2006, wage and salary income tax of 0000 (including tax), wage and salary income tax (including tax) of 2007, and wage and salary income tax of 2008 (including tax) and wage and salary income tax of 000 won (including tax) of 2008 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 6/10 of the costs of lawsuit shall be borne by the plaintiff, and the remainder by the defendant.

The judgment of Paragraph 1(b) and each disposition of imposition of KRW 000 (including additional taxes), corporate tax of KRW 000 (including additional taxes), corporate tax of the business year 2006, corporate tax of KRW 000 (including additional taxes), and corporate tax of KRW 000 (including additional taxes) for the business year 2007 and KRW 000 (including additional taxes) for the business year 2008 shall be revoked.

1. Details of the disposition;

A. The Plaintiff was established on September 2, 2002, and registered credit business on December 17, 2002. From 2004 to 2008, the Plaintiff paid remuneration and bonus to (one shareholder and representative director) KimB and (the spouse and director of KimB) KimCC as shown in the following Table 1:

Table 1, KimB, and KimCC’s remuneration status

(Omission)

B. The Defendant: (a) on the grounds as indicated in the table 2, (b) on September 1, 2010, (c) on the business year 2005, (d) corporate tax of KRW 000 (including additional tax), corporate tax of KRW 000 for the business year 2006, corporate tax of KRW 007 for the business year 2007, and corporate tax of KRW 000 for the business year 2008 (including additional tax); (b) on the 3rd of the same month, earned income tax of KRW 00 for the business year 2005, and earned income of KRW 00 for the business year 2006 (including additional tax) and earned income of KRW 00 for the business year 2007, and (including additional tax) on the earned income of KRW 000 for the business year 208.

Reasons for disposition on Table 2

(Omission)

C. On November 23, 2010, the Plaintiff filed a request for adjudication, and on September 28, 2012, the Tax Tribunal rendered a decision that “100 won excluded from deductible expenses is corrected by including the tax base and tax amount and dismissed the request for judgment on money, on the grounds that it exceeds the brokerage commission paid to an unrelated corporation among the brokerage commission paid to EEEM Co., Ltd. to EEM players” as the tax Tribunal.

D. On October 17, 2012, the Defendant notified the Plaintiff of the correction of corporate tax of 000 won (including additional tax) for the business year 2008 (hereinafter “2008 business year”) (hereinafter “the corporate tax and additional tax”) and the earned income tax and additional tax for the business year 2005 to 2008 business year, and “each disposition of this case”).

[Grounds for Recognition] 1, 5, 9, and 10, and 1 through 4 (including household numbers), and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) As to the remuneration of KimB

(A) As to the non-performing industry of remuneration

(1) Articles 19 and 26 of the Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008, hereinafter the same shall apply) delegate the scope of losses to the Presidential Decree, and Article 26 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008, corporate tax for the business year 2007 shall be amended by Presidential Decree No. 20619 of Feb. 22, 2008, and Article 43 (3) and (4) of the Corporate Tax Act shall not apply to the exclusion of losses, and Article 19 and Article 26 of the Corporate Tax Act shall not apply to the exclusion of losses, and Article 26 of the Corporate Tax Act shall not apply to the exclusion of losses to the officers who have contributed to the exclusion of deductible expenses, and shall not apply to the exclusion of deductible expenses for the officers who have contributed to the KimB Kim, while Article 34 of the Corporate Tax Act shall not apply to the officers who have contributed to the plaintiff's growth and its profits.

(B) As to the non-deductible of bonuses in deductible expenses

① The KimB’s bonus is complementary to the fixed amount remuneration paid within the limit of the director’s remuneration determined at the general meeting of shareholders, and is not subject to Article 143(2) of the Enforcement Decree of the Corporate Tax Act. Therefore, the imposition of corporate tax, etc., which was made by non-deductible of the bonus to KimB, is unlawful.

② Since the purpose of Article 43(2) of the Corporate Tax Act is to exclude the disposition of profits by officers, it is reasonable to view that the limit is set at the general meeting of shareholders, and the bonus paid within that limit is included in the calculation of losses. Therefore, the corporate tax imposition disposition, etc., which was made in the calculation of losses for KimB-B.

(3) Regarding the remuneration and withholding of KimCC

(A) As to the provision of labor

일본 대주(寶主)들에게 원고의 영업상황을 설명하고， 대출조건 및 대출금액 등을 상담하는 업무를 수행한 점， 수시로 임원 회의에 참석한 점 등을 고려할 때，국. 내외에서 등기이사의 임무를 충실히 수행하였으므로， 근로 미제공을 전제로 김BB의 보수를 손금불산업하거나 조세특례제한법의 과세특례를 인정하지 아니하여 이루어진 법인세 부과처분 등은 위법하다.

(B) As to the tax rate

(G) Article 18-2 of the Restriction of Special Taxation Act provides that "If GimCC provides labor to the Plaintiff, it shall apply a single tax rate to the earned income that a foreign worker receives by performing his/her service in Korea," and does not exclude "non-standing officers residing in a foreign country" from the application of the special tax rate, it is unlawful to withhold the earned income tax without applying

(C) As to the taxable income

(G) The remuneration of GimCC, and KimCC, because it does not constitute a domestic source income under the income tax law, and it constitutes other income that is not taxed in the Republic of Korea pursuant to Article 22 of the Convention between the Republic of Korea and Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income between the Republic of Korea and Japan (hereinafter referred to as the "Korea-Japan Tax Treaty"), and the tax withholding disposition on wage and salary income is unlawful.

(3) As to additional tax

The imposition of penalty tax without disclosing the type and the basis for calculation is illegal.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Rules on the payment of remuneration for executive officers

(A) Article 35(1) of the Plaintiff’s articles of incorporation provides that “The remuneration of directors and auditors shall be determined by a resolution of the general meeting of shareholders.”

(B) The Plaintiff adopted a resolution on the limit of remuneration for directors at the regular general meeting of shareholders as indicated in Table 3 below.

Resolution 3 on the Limit of Remuneration Amount of Table 3

(Omission)

(2) Remuneration of executive officers in the same kind of loan industry

(A) The Defendant included the difference between the average amount of the representative director’s wages and that of KimB paid for the representative director in deductible expenses, compared to the remuneration of the executive officers of the same kind of loan company whose business size is similar to that of the same kind as indicated in the table 4 below.

(4) The remuneration of officers of the same kind of lending enterprise;

(Omission)

(B) The remuneration paid by the Plaintiff to the employee is as specified in the following Table 5:

Current status of remuneration of employees in Table 5.

(Omission)

(C) The remuneration ratio of KimB from the Plaintiff’s operating income is as set forth below in the table 6.

Table 6. List 6.B Remuneration Rate

(Omission)

(D) The amount of non-industrial accident out of the remuneration of KimB and SPCC is as described in the following Table 7:

Table 7. Statement of non-deductible expenses

(Omission)

(3) Details of sales, etc.

Details of the Plaintiff’s capital, sales, and operating profits shall be as follows:

Details of sales, etc. in Table 8.

(Omission)

(4) Work experience, etc. of KimB

(A) On Apr. 11, 1987, KimB joined GG Co., Ltd., Ltd., and worked as the head of the branch office in 192, from Mar. 11, 1992, and from Mar. 11, 1995, KimB awarded each highest number of outstanding points, and (2) on Nov. 11, 1997, 197, 5 points in 197, and 3) on Mar. 10, 2001, 10. KimB retired on Apr. 10, 202, 197, 3) on the operation planning and overall management, and 17) on April 10, 202, 3) on the list of directors of the Association, including "OOOF meetings," and "Credit Business and Credit Business". The plaintiff asserted, and submitted 135 (17) evidence 17, and 135 (14) evidence 17, and 135 (15) evidence 17.

(나) 김BB는 1988. 4. 1.부터 1991. 6. 30.까지 주식회사 야마도에서 회계 및 소비자금융업무를 담당하는 사원으로 근무하였다. 주식회사 HH클럽 등 일본의 대주(賢主)들은 "김CC로부터 원고의 업무내용을 설명받았다. 김CC의 제안으로 원고에게 융자할 것을 검토하고 설행했다. 김BB와 상담 및 조정하여 융자조건 및 융자금액을 결정했다. 김CC를 통하여 계약서 의 상황보고，변제 안내 등 원고에 대한 모든 정보를 확인하고 있다 는 확인서를 작 성.제출하였다.

(C) On May 28, 2013, the former II drafted and submitted a written statement to this Court as follows. The title in the order of the former II is printed as the chief.

(5) Entry or departure details

(A) The entry and departure details of KimCC are as follows:

The entry into or departure from Korea on Table 9

(Omission)

(B) The number of departures of KimB is as listed below in Table 10.

Table 10 (Number of Departures)

(Omission)

(6) Data on attending meetings, etc.

(A) In the tax investigation, the Plaintiff submitted the meeting attendance data on which the seal of the KimCC was affixed, as shown in Table 11 below.

Data to be submitted for tax investigation.

(Omission)

(B) On April 30, 2013, as indicated in Table 12, the Plaintiff submitted an officer’s minutes (No. 1 through 19, and No. 26-1 through 19, as indicated in Table 12, to this court, and signed an O on the list of the participants in the meeting.

Minutes of officers and meeting of the Table 12

(Omission)

[Grounds for Recognition] The entire purpose of the arguments and statements in Gap's three, 4, 6, 7, 8, 11 through 19, 23 through 29, 34, and 35 (including household numbers), and 35.

D. Determination

(1) As to the remuneration of KimB

(A) Article 19(12) of the Corporate Tax Act provides that “The amount deemed excessive or unreasonable as prescribed by the Presidential Decree among personal expenses shall not be included in the calculation of losses” with respect to deductible expenses in general provisions, and Article 26 provides that “The amount which is generally acceptable or directly related to profit shall not be included in the calculation of losses.”

(B) Article 43(12) of the Enforcement Decree of the Corporate Tax Act provides for the same industry as deductible expenses under the premise that the Plaintiff was paid remuneration in the limit of remuneration at the general meeting of shareholders. However, the Plaintiff does not present any wage payment standard, and if it is considered that the Plaintiff contributed to the growth of the Plaintiff and the creation of profits at the general meeting of shareholders, it would result in permitting the disposal of profits by the controlling shareholders, but the remuneration for KimB is not applicable to the amount paid by the calculation of earnings. (2) Article 43(3) of the Enforcement Decree provides that the Plaintiff may not be considered to include the same remuneration in deductible expenses. (3) Article 43(1) of the Enforcement Decree of the Corporate Tax Act provides that the Plaintiff may not be considered to include the same remuneration in deductible expenses, and that there is no reasonable ground that the Plaintiff would be more than the average amount paid to the officers or employees other than those of KimB, and that there is no reasonable ground that the Plaintiff would be more than the amount paid in deductible expenses than the amount paid by the former 20%.

(C) As above, among the remuneration of KimB, it is difficult to calculate the scope of recognition in accordance with the general provisions of Article 19(2) of the Corporate Tax Act. In this case, it is a problem whether the scope of recognition can be separately determined in accordance with the general provisions of Article 19(2) of the Corporate Tax Act. The separate provision of Article 19(2) of the Corporate Tax Act provides that personnel expenses are determined in various ways, so as to ensure predictability, etc. of taxpayers, and to exclude them within the scope, and to facilitate the taxpayer's arbitrary non-taxation or the convenience of proving arbitrary non-taxation by the tax authorities. In other words, the tax authorities can easily exclude non-taxation by proving only "the standard for payment of benefits under Article 43(2) of the Enforcement Decree, and the scope of the amount paid to officers or employees other than controlling shareholders in the same position or position, and Article 43(4) of the Enforcement Decree of the Corporate Tax Act excludes the scope of exclusion from inclusion in deductible expenses, and it is reasonable to determine the same amount of remuneration and social responsibilities as prescribed by the Presidential Decree.

(D) The case returns back to the case, and the defendant set the scope of non-deductible expenses on the basis of the average amount of representative directors of the upper three companies among loan companies that are not corporations, and of those that are similar to the business size. This method is not set according to the above criteria, but is calculated on the basis that the average amount of the representative directors of the upper three companies is calculated on the basis that the upper three companies are more favorable to the plaintiff, and the average amount of the representative directors of the upper three companies is higher than the remuneration of the KimCC or the former II, which is the plaintiff's officer, and more favorable than the application of Article 43 (3) of the Enforcement Decree (in applying the remuneration of the formerCC, the average amount of the representative directors of the upper three companies except for the business year 2005 are 3.5 times or 5 times more than the average amount of the representative directors of the upper three companies). Thus, the above three companies' representative directors can be considered to have ordinary or economic rationality, and it is not reasonable for the plaintiff's argument to impose non-deductible expenses.

(2) As to the remuneration of KimCC (A) labor provision

(A) According to the record in Table 11, as shown in Table 11, the fact that the meeting attendance material was under investigation, and the fact that it was under investigation was under investigation is proved, and after the tax investigation, it is proved that even according to the officer's meeting minutes as described in Table 12 attached to this court, the fact that the officer's office was under departure on February 28, 2005, and June 11, 2007 is proved. According to Table 10, KimB appears to have been conducting the work in Japan from 2002 to 2008, and each confirmation document is prepared during the tax investigation or after each disposition of this case, and it is impossible to exclude the possibility that it was prepared differently from the fact that it was under loaned by a Japanese company, and there is no other evidence to support the plaintiff's performance of the work outside Korea, and there is no other evidence to support that the plaintiff has provided the work outside Korea.

(B) As to the taxable income

① The amount of income disposed of as a bonus for a representative pursuant to the provisions of the Corporate Tax Act is deemed to have been paid by the relevant corporation on the date when the notice of change in the amount of income was received. This does not mean that the relevant corporation actually pays the amount of income to the representative, but is merely deemed a legal fiction by the law. Therefore, in order to establish a withholding obligation of the corporation that received the above notice of change in amount of income, when the said notice of change in amount of income was received, the income tax liability of the original taxpayer ought to be established (see Supreme Court Decision 2007Du20959, Jan. 28, 20

② 이 사건으로 돌아와 보건대， 김CC는 일본 거주자이므로， 원고에게 소득세 원천징수의무를 부과하기 위해서는 한 . 일 조세조약에 따라 김CC의 소득세 납세의무가 성립하여야 한다. 그런데 ① 한 일 조세조약 제15조 제1항은 "급료 임금 및 기타 유사 한 보수에 대하여는 그 고용이 타방체약국에서 수행되지 아니하는 한 일방체약국에서 만 과세한다"고 규정하고 있는데， 앞에서 본 바와 같이 김CC는 국내에서 등기이사의 업무를 수행하지 아니하였으므로， 국내에 과세권이 없고，② 제16조는 "타방체약국의 거주자인 법인의 이사회의 구성원 자격으로 취득하는 이사회의 보수 및 기타 유사한 지급금에 대하여는 타방체약국에서 과세할 수 있다"고 규정하고 있는 점， 한편 제16조와 동일한 OECD 모델 조세조약(OECD Model Tax Convention) 제16조에 대한 주석 문단 1.은 "본조는 개인 흑은 법인인 일방체약국 거주자가 타방체약국 거주자인 회사의 이사회 구성원 자격으로 수취하는 보수와 관련된 것이다. 종종 그 용역이 수행된 장소를 확인하기 어려우므로 이 규정은 회사의 거주지국에서 용역이 수행된 것으로 취급한다 (This article relates to remuneration received by a resident of a Contracting State， whether an individual or a legal person， in the capacity of a member of a board of directors of a company which is a resident of the other Contracting State. Since it might sometimes be difficult to assertain where the services are performed， the provision treats the services as performed in the State of residence of the company.)고 규정하여 용역의 수행을 전제하고 있는 점， 앞에서 본 바와 같이 김CC는 국내 . 외에서 등기이사의 업무를 수행하지 아니한 점 등을 고려할 때， 김CC의 보수는 이사회의 보수 및 기타 유사한 지급금에 해당하지 아니하므로， 국내에 과세권이 없다.

(3) Therefore, KimCC has no income tax liability in Korea, and it does not establish the plaintiff's tax withholding obligation based thereon, and the plaintiff's above assertion is with merit.

(3) As to additional tax

(A) When a single tax payment notice imposes both the principal tax and the additional tax, the individual tax amount and the basis for calculation should be stated in the tax payment notice separately, and when multiple kinds of additional tax are to be imposed, the tax amount and the basis for calculation should be separated between them so that the person liable for tax payment can per se identify the details of each tax disposition by classifying the amount and the basis for calculation. Thus, the imposition of additional tax is not unlawful if the person liable for tax payment states only the total amount of the additional tax without disclosing the type and the basis for calculation of the amount (see Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012). However, even if there is any defect in the tax payment notice, even if there is any defect in which the matters required by related Acts and subordinate statutes are omitted, if it is evident that the person liable for tax payment already stated in the tax payment notice prior to the tax payment notice, and it does not interfere with the determination of whether to appeal such disposition and appeal (see Supreme Court Decision 200Du3979, Mar. 29, 2019).

(B) Comprehensively taking account of the overall purport of the arguments in this case, and the whole purport of evidence Nos. 5-1 through 8, the additional tax on negligent tax returns, and the additional tax on negligent tax returns are not divided by different types, and only the total amount is included in the tax notice, and it can be recognized that the basis for calculation of each additional tax is not specified. Therefore, there is no reason to view that there is any defect such as omitting the matters required by the relevant laws and regulations, and that the defect has been corrected or cured, and the plaintiff's above assertion is with merit.

(4) As to the legitimate tax amount

(A) As to corporate tax additional tax

The plaintiff stated the corporate tax and additional tax for the business year of 2005, the corporate tax of 000 won (including additional tax), the corporate tax of 2006, the corporate tax of 0000 won for the business year of 2007, and the corporate tax of 0000 for the business year of 2008 (including additional tax), and as mentioned above, the corporate tax and additional tax of 000 won for the business year of 2005, and 000 won for the business year of 2007, and 0000 won for the business year of 2007, including the additional tax of 000,000 for each business year of 200,000 won (including additional tax) and 00,000 won for the corporate tax and additional tax of 200,000 for the business year of 200,000 for the above business year (including the additional tax of 00,000 won).

(B) As to wage and salary income tax and additional tax

The imposition of wage and salary income tax and penalty tax for the year 2005 through 2008 must be illegal, and all must be revoked.

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above recognized scope, and the other claims are dismissed as there is no reasonable ground, and it is so decided as per Disposition.