early 2012west0824 (25 April 2012)

It shall not be included in the calculation of losses, considering the remuneration paid to members who invest with labor in a limited partnership company as bonus from the disposal of profits.

Article 43 (1) of the Enforcement Decree of the Corporate Tax Act does not include the remuneration paid to the members who invest in labor in a limited partnership company by deeming it as a bonus from the disposal of profits, and the form of such payment shall be deemed as the consideration for the provision of labor or its substance as the consideration for the investment (distribution). Thus, the disposition that imposed the payment on the person who has not been objectively verified is just

2012Guhap29479 Revocation of Disposition of Corporate Tax Imposition

NewA

Head of Seocho Tax Office

May 2, 2013

June 13, 2013

1. Of the instant lawsuit, the part seeking the revocation of the disposition imposing additional 000 won shall be dismissed.

2. On December 28, 2012, the Defendant: (a) designated the Plaintiff as the secondary taxpayer by Law Firm OO on December 28, 2012; and (b) revoked the imposition disposition of KRW 000 of the corporate tax reverted to the Plaintiff in 2010.

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

피고가 2011. 12. 28. 원고를 법무법인 ㅇㅇ의 제2차 납세의무자로 지정하여 원고에게 한 법무법인 OO의 2010년 귀속 법인세 000원(법인세 000원 + 가산금 000원)의 부과처분을 취소한다.

1. Details of the disposition;

A. The OO (hereinafter referred to as a "OO") was established on March 13, 2009, and it paid 000 won to the plaintiff, who is a member of labor investment in the register of corporate register, and appropriated it as deductible expenses, and reported corporate tax." However, the defendant denied the payment made by the plaintiff, etc. as a member of labor investment as deductible expenses, and disposes of it as a dividend to each member on November 17, 2012, and corrected and notified the non-party corporation of KRW 000 of corporate tax for the year 2010.

(C) On November 28, 201, the non-party corporation did not pay the above taxes, and the defendant, a member of the non-party company, designated the plaintiff as the second taxpayer, and notified the plaintiff to pay the delinquent amount of KRW 000 (the corporate tax 000 + additional 000 won for the year 2010) (hereinafter referred to as the "disposition in this case"). The plaintiff et al. appealed to the Tax Tribunal for the judgment against it, but was dismissed on May 31, 2012, and filed the lawsuit in this case on September 3, 2012.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 3, and Eul evidence 1 to 5 (including branch numbers, if any) and the whole purport of the pleading

2. Whether the part of the instant lawsuit seeking revocation of the disposition imposing additional dues is legitimate

As to the lawfulness of the part of the instant lawsuit seeking revocation of the disposition imposing additional dues, the part of the instant lawsuit seeking revocation of the disposition imposing additional dues shall be examined as to whether it is legitimate. The additional dues or aggravated additional dues provided for in Articles 21 and 22 of the National Tax Collection Act, as a matter of course, are naturally arising and determined by the provisions of the Act without the final procedure by the tax authorities if national taxes are not paid by the due date, and when the initial amount of tax imposed is revoked or revised, additional dues are voluntarily cancelled or reduced, and thus, notification of additional dues or increased additional dues cannot be deemed as a disposition subject to appeal (see, e.g., Supreme Court Decision 2000Du2013, Sept. 22, 2000). Accordingly, the part seeking revocation of the disposition imposing additional dues amounting to KRW 00,000 among the instant lawsuit is unlawful.

3. Whether the instant disposition is lawful

(a) Relevant statutes;

Attached Form. The entry in the relevant statutes is as follows.

B. The plaintiff's assertion

The plaintiff was registered as a member of the non-party corporation in form and served as an employment attorney, and the disposition of this case in this case is unlawful on different premise.

C. Determination

1) Article 58(1) of the Attorney-at-Law Act provides that the provisions of the Commercial Act concerning unlimited partnerships shall apply mutatis mutandis to law firms, except as otherwise provided in this Act, and Article 212(1) of the Commercial Act provides that each partner shall be jointly and severally liable to pay the company's obligations when it is impossible to fully pay the company's obligations with the assets of an unlimited partnership company. Meanwhile, Article 39(1)1 of the Framework Act on National Taxes requires a position where the company's secondary liability to pay taxes is practically unlimited employees as of the date on which the liability to pay delinquent national taxes is established and the company's secondary liability is registered as a general partner on its corporate registry in its form (see, e.g., Supreme Court Decision 90Nu4235, Sept. 28, 190). However, the issue of whether a corporation is a general partner under Article 39(1) subparag. 1 of the Framework Act on National Taxes should be proved by data, such as corporate register, and even if such data are proved by the foregoing general partner.

2) In addition to the statement in the evidence No. 3 evidence No. 1 No. 4, the whole purport of the pleadings is added, and (i) the plaintiff was appointed as a member on August 23, 2010 and resigned on February 7, 2011 in the corporate register of the non-party corporation, and (ii) the plaintiff received a total of KRW 000 from the non-party corporation for four months from August 1, 2010 to December 31, 2010. However, there is no evidence to support that the plaintiff is an employment attorney employed by the non-party corporation after receiving monthly pay from the non-party corporation, and there is no evidence to support this. Accordingly, the plaintiff's assertion on the premise that the plaintiff is an employment attorney is not acceptable.

3. Conclusion

If so, the part of the lawsuit in this case seeking revocation of the disposition of additional 000 won is unlawful and dismissed, and the remainder is without merit, so it is dismissed, and it is decided as per Disposition.