Scope of Trial of Appeal to the Supreme Court

The penalty tax portion is reversed only for the portion of the principal tax which is reversed, and the remainder of the principal tax excluding the reversed portion is finalized, so it is not included in the scope of judgment of remand.

Article 27 of the Income Tax Act shall calculate necessary expenses.

1. The part concerning the imposition of an additional tax for unfaithful payment among the judgment of the first instance shall be revoked, and the plaintiff's lawsuit corresponding to that part shall be dismissed;

2. Of the total litigation costs, 80% is borne by the Plaintiff, and 20% is borne by the Defendant.

1. Scope of judgment of party members;

A. In the first instance court on July 2, 2002, the Plaintiff sought revocation of the imposition of global income tax of KRW 21,327,680, global income tax of KRW 51,84,480, global income tax of the year 200, global income tax of KRW 20,274,300, and global income tax of KRW 20,274,30, and global income tax of the year 201. The court of first instance dismissed the Plaintiff’s claim.

B. As to this, the Plaintiff filed an appeal, and the court of first instance prior to the remand dismissed the Plaintiff’s appeal.

C. The Plaintiff appealed and filed an appeal. The Supreme Court reversed the part on the imposition of additional tax for unfaithful payment in the judgment before remanding to the judgment of remand, and remanded this part of the case to this court, and dismissed the Plaintiff’s appeal as to the remainder.

D. Therefore, in the case of a party trial, only the part on the additional payment for the remaining additional tax returned, which was reversed and remanded by the Supreme Court's judgment of remand among the judgment of the court of first instance

2. Details of the instant disposition

A. The non-party ○○○ Distribution Co., Ltd. (hereinafter referred to as “non-party ○○ Company”) was a franchise store of ○○○, a representative director from April 28, 1995, and the plaintiff operated the non-party company as the representative director from April 28, 1995, and transferred the business to others on July 31, 2001, and made a report on the closure of business.

B. On April 2, 2002, the Defendant found that the amount of KRW 266,406,80 in total was omitted in sales in the business year 1999, including KRW 60,872,90 in the non-party company, KRW 121,925,100 in the business year 2000, KRW 83,608,80 in the business year 2001.

C. On May 2, 2002, the defendant added the omitted amount to the gross income for each business year at issue, and prepared a written resolution on the imposition of each corporate tax of 13,94,125, 200, 28,585, 571, 201, 3,010, 201, 3,010,812, to the non-party company for the business year of 1999, and then issued the notice for the payment of corporate tax on the 6th of the same month.

D. At the time of correcting the above increase in corporate tax, the defendant deemed that the above omitted amount was reverted to the plaintiff, who is the representative director of the non-party company, and disposed of it as bonus income, and then delivered a notice of change in income amount that contains such contents to the plaintiff around May 4, 2002.

E. Around June 14, 2002, a public official who is in charge of the income tax imposed by the Defendant served a notice on the Plaintiff of the expected amount of global income tax imposed on the disposition of the above income and demanding the Plaintiff to send explanatory materials related thereto within 10 days.

F. After that, on June 28, 2002, the Defendant prepared a written resolution on the imposition of the global income tax for the year 1999, the amount of KRW 51,844,480, and the amount of KRW 20,274,30 for the year 2001, and the amount of KRW 20,274,00 for the year 200,000, and then sent the tax notice on July 2, 2002 to the Plaintiff on July 31, 2002.

G. The Defendant: (a) considered the statutory filing deadline for the return and payment of global income tax at the time of the instant disposition as May 31 of the following year, which was the filing deadline for the determination of the tax base for the pertinent business year; and (b) imposed additional tax on global income tax for the amount of 199 years, KRW 2,481,89, and KRW 5,194,367 for the unpaid tax payment period (761 days) from June 1, 2000 to July 2, 2002, which was the date of notification from June 1, 200, and KRW 7,040,770 for global income tax for the amount of 200 years, and KRW 2,98,386, and KRW 389 for the unpaid tax payment period from June 1, 201 to July 2, 2002 (396 days), respectively, from June 26, 2002 to June 27, 2002.

H. After that, the Plaintiff filed the instant lawsuit. Upon the Supreme Court’s decision, the Defendant revoked ex officio 264,739 won out of global income tax of 1999 as global income tax of 21,327,680 on October 26, 2006, and notified the Plaintiff of the fact.

3. Determination

A. The Plaintiff asserted that the disposition of imposing additional tax for unfaithful payment was unlawful, but the Defendant revoked ex officio the disposition of imposing additional tax for unfaithful payment on October 26, 2006. As such, the Plaintiff’s lawsuit on the disposition of imposing additional tax for unfaithful payment in the instant lawsuit became unlawful due to the revocation lawsuit against which no lawsuit on the disposition of imposing additional tax for unfaithful payment exists (see Supreme Court Decision 2004Du5317, Sept. 28, 2006).

B. If a corporate tax imposition disposition against the non-party company is null and void, the pertinent global income tax liability is not established, and thus, the lawsuit seeking revocation of the instant global income detailed disposition and the lawsuit seeking revocation of the instant disposition must be postponed until the judgment of the lawsuit seeking confirmation of invalidation of the corporate tax imposition disposition against the non-party company, which is a prerequisite. However, the disposition imposing additional tax is separate from the disposition imposing principal tax, and the additional tax and the additional tax on negligent payment are separate dispositions. The Supreme Court reverse only the disposition imposing additional tax among the instant disposition, and dismissed the final appeal as to the global income detailed disposition and the disposition imposing additional tax on negligent payment, which are the principal tax, and the appeal on the disposition imposing additional tax

4. Conclusion

Therefore, the plaintiff's lawsuit concerning the disposition of imposing additional tax for the erroneous payment among the lawsuits in this case is unlawful, and thus, the judgment of the court of first instance is improper. As such, the part concerning the disposition of imposing additional tax for the erroneous payment among the judgments of the court of first instance is revoked, and the plaintiff's lawsuit corresponding to that part is dismissed, and it is so decided as per Disposition by applying Article 32