Incheon District Court-2017-Gu Partnership-576 (26 July 2018)

Cho Jae-2017-China2346 (Law No. 19, 2017)

(As stated in the judgment of the court of first instance) Whether the period of filing a lawsuit under Article 20 of the Administrative Litigation Act has lapsed upon receipt of notice of a re-audit decision, etc.

(As in the judgment of the court of first instance, there is no objective evidence to prove that the plaintiff made a follow-up disposition in accordance with the decision of this case and notified the plaintiff thereof, and it cannot be deemed that the period of filing an administrative litigation has lapsed, and the plaintiff cannot be deemed as the actual representative of the corporation

Article 61 of the Framework Act on National Taxes

Seoul High Court 2018Nu60692 Revocation of global income tax

○ ○

○ Head of tax office

8.07.05

2018.26

1. The imposition of global income tax of KRW 0,00,000 on the Plaintiff on January 3, 2005 and the imposition of KRW 000,000,000 on global income for the year 2002 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

A. From July 27, 1999 to July 27, 2002, the Plaintiff was registered as the representative director of △△△△△ (hereinafter “instant company”).

B. The head of △△ District Tax Office issued a notice of change in income amount of KRW 00,00,000,000 for the Plaintiff’s salary for the business year 2001 as deductible expenses, and included KRW 0,000,000,000 in gross income for the business year 2002 as deductible expenses. The amount of KRW 00,000,000 in gross income for the business year 2001 as well as KRW 0,000,000 in gross income for the business year 2002 as deductible expenses. Accordingly, on January 3, 2005, the Defendant issued a notice of change in income amount of KRW 0,000,000 corresponding to the registration period of the Plaintiff’s representative director as bonus for the Plaintiff who is the representative director, and accordingly, issued a disposition of imposition of global income tax for the Plaintiff in 201 as global income tax for 200,0000,000 won for the business year 2.

C. On March 24, 2005, the Plaintiff filed an objection against each of the dispositions of this case, asserting that the name of the Plaintiff was lent to the Defendant upon the request of the Do governor Do governor Do governor, a private village, and that the actual representative of the company of this case was Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor. The Defendant rendered a decision on April 12, 2005 that "the decision of this case was made in accordance with the contents of decision by requesting a reinvestigation to conduct a reinvestigation on the Do governor Do governor Do governor Do governor which notified changes in the amount of income (hereinafter referred to as "the decision of this case"). The summary of the decision of this case was that the Plaintiff worked in HH Tourism Co., Ltd. from January 20, 201 to January 30, 2004, and the director of Do governor Do governor did not work as the representative director of the company of this case, and that the amount paid to the Plaintiff was much omitted in the sales period of 20 business year.

D. On April 12, 2017, the Plaintiff filed an appeal with the Tax Tribunal for the revocation of each of the dispositions of this case. On May 31, 2005, the Tax Tribunal rendered a decision to maintain each of the dispositions of this case in accordance with the results of reexamination according to the decision of this case on May 31, 2005, and rendered a decision to dismiss the Plaintiff’s appeal on the ground that the appeal filed after the lapse of 90 days from that time it notified the Plaintiff.

2. Determination on this safety defense

The Defendant’s lawsuit of this case seeking revocation of each of the dispositions of this case, such as being dismissed on the ground that a request for adjudication on each of the dispositions of this case was filed after the expiration of the period for filing a request for adjudication, is unlawful, does not meet the legitimate requirements for transfer

I argue that it is legal.

According to Article 56(2) and (3) of the Framework Act on National Taxes, the administrative litigation seeking the cancellation of illegal taxation shall not be filed without going through a request for examination or adjudgment and a decision thereon, and shall be filed within 90 days from the date the decision on the request for examination or adjudgment is notified. According to Articles 61(2), 66(7) and 68(2) of the Framework Act on National Taxes, when intending to file a request for adjudgment after filing an objection with the head of a tax office, etc. who made the taxation, he/she shall file a request for adjudgment within 90 days from the date the decision on the objection is notified: Provided, That where the decision is not notified within 30 days from the date

구 국세기본법(2007. 12. 31. 법률 제8830호로 개정되기 전의 것)에 따라 이의신청에대한 결정의 한 유형으로 실무상 행해지던 재조사결정은 당해 결정에서 지적된 사항에 관하여 처분청의 재조사결과를 기다려 그에 따른 후속 처분의 내용을 이의신청에 대한 결정의 일부분으로 삼겠다는 의사가 내포된 변형결정에 해당하는 것으로 처분청의 후속 처분에 의하여 그 내용이 보완됨으로써 비로소 이의신청에 대한 결정으로서의 효력이 발생하므로, 재조사결정에 따른 심판청구기간은 이의신청인이 후속 처분의 통지를 받은 날부터 기산된다(대법원 2010. 6. 25. 선고 2007두12514 판결 등 참조).을 제3, 4호증의 기재에 의하면, 피고가 2005. 9. 22. ◆◆지방국세청장에게 이 사건 결정에 따른 재조사결과의 전산입력 누락에 관한 전산입력 현황을 보고하면서 재조사종결일을 2005. 5. 31.로, 재조사결과를 기각으로 전산입력하였음을 보고한 사실, 국세청 전산망에 이 사건 결정에 따른 재조사의 결과가 기각으로, 처리기한이 2005. 6.11.로 입력되어 있는 사실을 인정할 수 있으나, 피고가 이 사건 결정에 따른 후속 처분을 하고 원고에게 이를 통지하였음을 인정할 만한 객관적이고 구체적인 자료가 없는 이상, 위와 같은 피고 내부의 전산자료 등에 의하여 인정되는 사정만으로 곧바로 이 사건 결정에 따른 후속 처분이 이루어지고 원고가 이를 통지받았음을 인정하기에 부족하고, 달리 이를 인정할 만한 자료가 없다. 따라서 원고가 피고로부터 이 사건 결정에 따른 후속 처분을 통지받지 못하여 이의신청에 대한 피고의 종국적인 결정을 받지 못한 상태에서 2017. 4. 12. 조세심판원에 심판청구를 하였으므로, 원고의 심판청구는 그 제기기간이 지나기 전에 이루어진 것이어서 적법하고, 원고가 2017. 6. 7. 이 사건 소를 제기한 후 조세심판원으로부터 원고의 심판청구를 각하한다는 결정을 받았으므로, 원고의 이 사건 소는 적법한 전심절차를 거쳐 제소기간 이내에 제기된 것이어서 적법하다.

3. Determination on the legitimacy of each of the dispositions of this case

A. The plaintiff's assertion

Since the Plaintiff is not the actual representative of the instant company, the instant disposition based on the bonus disposition against the Plaintiff is unlawful. Even if the Plaintiff is the actual representative of the instant company, in the case of a bonus omission disposition, the first quarter sales of 2002 held by the Plaintiff are merely 00,000,000 won in the case of a bonus omission disposition. The calculation of the total omission in sales for the business year exceeding 10 times by dividing the total omission in sales during the business year of 2002 is contrary to the bonus disposal method as prescribed in Article 54 of the Enforcement Rule of the Corporate Tax Act, and thus, the portion of the determination and notice of global income tax for the year 200,000,000 is unlawful

B. Determination

Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17826, Dec. 30, 202) provides that if it is clear that the amount included in the calculation of earnings has been leaked other than the company when the tax authorities determine or correct the corporate tax base, it shall be the dividends, bonuses by the disposal of profits, other income, and other outflow from the company: Provided, That if it is unclear, the representative shall be the de facto operator of the company, and even if he was registered as the representative director of the company, he shall not be deemed to have actually operated the company, and even if he was so registered as the representative director of the company, he shall not be deemed to have actually operated the company during the period of 200 billion won (see, e.g., Supreme Court Decisions 200Du10461, Dec. 23, 2010; 2014Du4764, Nov. 10, 2016).

Therefore, each of the dispositions of this case on the premise that the plaintiff is the representative of the company of this case is unlawful (if the defendant did not take any subsequent disposition in accordance with the decision of this case and notified the plaintiff thereof, and accordingly, each of the dispositions of this case is maintained for more than 10 years without a final decision on the objection, the defendant's failure to take any subsequent disposition in accordance with the decision of this case for a long period of time and neglecting the tax legal relation in a flexible state is in itself contrary to the binding force of the decision of this case. The defendant's failure to take any subsequent disposition of this case is maintained due to the defendant's failure to take any subsequent disposition of this case.

There may be room to regard it as an illegal cause.

4. Conclusion

The plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.