Seoul Administrative Court 2015Guhap64848 ( October 10, 2016)

Examination Corporation 2015-002 (2015.04.15)

It is reasonable to deem that the withholding agent was delegated with the withholding business.

Since it is reasonable to see that the withholding agent was delegated with the withholding business by the withholding agent, it constitutes a withholding agent under Article 98 (11) of the Corporate Tax Act, and the assertion that the withholding agent was not a withholding agent in the 2009 and 2010 is due to the extreme act of good faith and thus, the trust of the tax

Article 98 of the former Corporate Tax Act / [Special Cases concerning Withholding or Collection for Foreign Corporations]

2016Nu5151 Invalidity, etc. of the imposition of corporate tax

○○ Co., Ltd.

○ Head of tax office

Seoul Administrative Court Decision 2015Guhap64848 decided June 10, 2016

2016.09.27

oly 25, 2016

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim corresponding to the above revoked part is dismissed.

3. The plaintiff's appeal is dismissed.

4. The total cost of the lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

1. Purport of claim

First, it is confirmed that the Defendant’s disposition stated in the attached disposition list against the Plaintiff is null and void. Preliminaryly, the Defendant’s disposition stated in the attached disposition list against the Plaintiff is revoked.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked. In the first instance, it is confirmed that the disposition in the separate disposition list against the defendant against the plaintiff is null and void. In the first instance, the disposition in the separate disposition

B. Defendant

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as stated in the reasoning of the judgment of the court of first instance, except for the dismissal of the judgment of the court of first instance as follows. Thus, this Court shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 4

2. Parts in height:

○ The first instance court’s first instance court’s first instance judgment No. 10 and second instance judgment’s second instance court’s second instance judgment are as follows.

Article 120-2 (2) of the Corporate Tax Act is a provision that Article 164 of the Income Tax Act shall apply mutatis mutandis to the submission of payment statements by proxy and delegation.

000 10 .0 4 .0 .0 .0 .0 .0 .0 .0 .0 .0

It is difficult (In this respect, the Defendant’s assertion that Article 98(11) of the Corporate Tax Act is a confirmatory provision is rejected). Even if the National Tax Service presented Article 73(4) of the Corporate Tax Act as a supporting provision on the representation of the withholding duty while guiding a foreign corporation’s tax payment, such circumstance alone cannot be said to apply the said provision to the withholding duty on the foreign corporation’s domestic source income.

○ From 10 up to 11 pages 13 to 11 of the judgment of the first instance court is as follows.

The defendant asserted that the plaintiff's obligation to withhold the remaining fee from the intervenor from 2009 to 2010 after receiving the fee from the intervenor and deducting 15% to 25% of the fee is against the principle of good faith. The defendant's assertion that the plaintiff is not a withholding agent is against the principle of good faith.

The first sentence of Article 15 of the Framework Act on National Taxes provides that "where a taxpayer performs his/her duties, he/she shall be in good faith and sincerity." The principle of trust and good faith related to the tax law, which is strongly affected by the principle of legality under the principle of no taxation without law, shall be limited to cases where it is deemed necessary to protect specific trust even if the principle of legality is sacrificeed, and it shall not be expanded and interpreted. However, in cases where there is an action objectively contradictory to the taxpayer, the behavior is derived from severe distribution of the taxpayer, and the trust of the tax authority caused thereby is worth protecting the taxpayer, it shall be exceptionally applied to the taxpayer (see Supreme Court Decision 2006Du14865, Apr. 23, 2009).

The following circumstances revealed in full view of the purport of the argument as seen earlier, namely, ① the Plaintiff withheld corporate tax from 2009 to 2010 on the remainder of the fees received by the Intervenor after deducting 15% or 25% from the total amount of the fees under the premise that he/she performed the withholding obligation. ② However, the Plaintiff’s assertion that Article 98(11) of the amended Corporate Tax Act does not apply retroactively to the business year before the exclusion period of imposition of corporate tax is expired or the period of imposition of corporate tax is enforced. On the other hand, the Defendant’s assertion that the Plaintiff would be unfairly deprived of the Plaintiff’s taxation right on the Intervenor’s unlawful act. ③ The Plaintiff’s assertion that the Plaintiff did not have any obligation to pay corporate tax from 209 to 2010 on the part of the Plaintiff’s tax withholding agent’s tax base and corporate tax, which was due to the Plaintiff’s new tax withholding agent’s trust and corporate tax, is deemed to be due to the Plaintiff’s breach of the obligation to withhold taxes.

3. Conclusion

Therefore, the part of the plaintiff's conjunctive claim seeking the revocation of the disposition listed in the separate disposition No. 1 to 8 among the lawsuits in this case shall be dismissed as unlawful, and all of the plaintiff's primary claim and the remainder of the conjunctive claim shall be dismissed as it is without merit. Since the part against the defendant who ordered the revocation of the disposition listed in the separate disposition No. 12 among the judgment of the court of first instance is unfair, it is so revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed,