Seoul Administrative Court-2015-Gu Partnership-568 ( August 28, 2015)

Seocho 2014west 2456 ( November 19, 2014)

Report of revised return based on the guide of explanation of the withdrawal of funds falls under the outflow of the company, and the case is different from the case that has no income due to the omission of income such as bribe under the Criminal

(1) The judgment of the court of first instance is the same as the judgment of the court of first instance, and the Supreme Court case and the case are different from the case where there is no income in the case of deprivation of interest, such as bribe, etc., under the Criminal Act, when the former representative of the corporation received the information from

Article 67 of the Corporate Tax Act

2015Nu541. Revocation of the disposition of revocation of notice of change in income amount

AAAA

Seoul Regional Tax Office

July 7, 2016

August 18, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's notification of change in income amount to the plaintiff on March 3, 2014 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court’s judgment is to delete the part of “from the time of establishment of the Plaintiff to March 201, 201” in Articles 4, 18, and 19 of the judgment of the first instance, and it is identical to the reasoning of the judgment of the first instance except for adding the judgment on the Plaintiff’s assertion at the appellate court as follows. Thus, it is to be cited in accordance with Article 8(2) of the Administrative Litigation Act and the text

2. Judgment on the plaintiff's assertion

A. The Plaintiff asserts to the purport that the Supreme Court en banc Decision 2014Du5514 Decided July 16, 2015, stating that “In the event the possibility of loss of economic benefits was realized due to the occurrence of a subsequent event where the possibility of loss of economic benefits became final and conclusive as the income is not realized, a taxpayer may, barring any special circumstance, file a subsequent request for correction stipulated in Article 45-2(2) of the Framework Act on National Taxes, and escape from the burden of tax liability, by analogying the legal principle that “if the tax liability initially established comes to be lost due to the occurrence of a subsequent event where the possibility of loss of economic benefits is realized, the taxpayer may

B. However, considering the following circumstances, the above legal doctrine cannot be applied by analogy to the instant case. Therefore, the Plaintiff’s assertion on this part is without merit.

1) The judgment cited by the Plaintiff concerns the issue of whether to impose global income tax on the individual who received a bribe under the Income Tax Act, and the purpose of confiscation or collection in the crimes, such as bribe, good offices, and breach of trust, under the Criminal Act, is to deprive the benefits from the criminal act and prevent the illegal gain from being held. Thus, if confiscation or collection has been made on such illegal income, it constitutes a real case where the possibility of loss of economic benefits inherent in such illegal income is realized. Therefore, in such a case, since the income has not been ultimately realized, since the cause after the establishment of the tax liability arises, it shall be deemed that there has occurred a change in the basis for calculating the tax base and the amount of tax, and thus, it shall be determined that the taxpayer may claim a reduction by proving such fact.

2) However, in the instant case, the Defendant’s notice of change in the amount of income to the Plaintiff was deemed as a bonus for the fixed period that was the representative director at the time pursuant to Article 67 of the Corporate Tax Act and Article 106(1)1(b) of the Enforcement Decree of the Corporate Tax Act.

3) Inasmuch as it is not based on the fact that the income amount in recognition is actually paid, rather than on the fact that it is deemed a legal fiction, income from recognition and contribution shall be determined only by its agenda. Considering that such recognition and contribution are derived mainly from the process of correcting the corporate tax base and tax amount, it is significant to impose the income tax on the corporate entity, which is the withholding agent, and impose the income tax on the corporate entity, even if it is not actually paid the bonus, thereby punishing the corporate entity, its representative, etc. for the illegally leaked amount such as omission of sales, etc.

4) Ultimately, the above Supreme Court decisions cited by the Plaintiff are different from this case, and thus, the basis for the discussion is different.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.