The validity of the enforcement decree enacted without basis by the mother law

The provisions of the Enforcement Decree of the Corporate Tax Act, which is a basis for the difference between the corporation's income amount determined by the government and the corporation's income amount, as a bonus for the corporation's representative, was enacted before the enactment of the relevant provisions under the Corporate Tax Act, without any basis, which is invalid in violation of the no taxation without

Article 83 of the Enforcement Decree of Corporate Tax Act, Article 33 of the Corporate Tax Act

Plaintiff

Head of Daegu Central Tax Office

(1) Each taxation disposition of KRW 16,044, which the Defendant imposed on the Plaintiff as of September 14, 1970, imposed on the Plaintiff as of September 14, 1964, including (a) the aggregate of the Class-II earned income tax for the period of 2,3,44 in 1964, KRW 928,29 (b) 1,23,846, 328,846, 6,471, 471, 196, 196, is revoked.

(2) The plaintiff's remaining claims are dismissed.

(3) Costs of lawsuit are assessed against the defendant.

(1) The disposition of the Defendant’s taxation of KRW 5,348 shall be revoked at the time of January 1969, which the Defendant imposed on the Plaintiff as of September 14, 1970.

Litigation costs shall be borne by the defendant.

Article 83 (2) 2(c) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 3319, Jan. 1, 1968) applies to the amount written in the purport of the claim, which is the difference between the estimated amount of tax base and the reported amount of the non-party company, which is less than the estimated amount of tax base for the portion of tax base for the income in 1964-1969, the non-party Daegu-si Office and the non-party Daegu-gu Office located in 276, Daegu-si, Daegu-si, and the non-party company, the head of the tax office of the non-party Daegu-si, the head of the tax office estimated the amount of tax base for the portion of tax base for the income in 1969, and the non-party company, the representative of the non-party company, tried to collect the Class A employment income tax for the bonus from the above non-party company, the withholding agent, and there is no dispute between the plaintiff and the actual beneficiary.

However, before January 1, 1969, the provisions of the Corporate Tax Act (No. 2050, Dec. 17, 1968) Article 33 (4) (this provision is later amended to No. 2125, Jul. 31, 1969; hereinafter the same shall apply) was enforced, and there is no legal basis for establishing an order to make it possible to consider the difference between the estimated amount and the reported amount of corporate income when the prior government makes a estimation of corporate income for the taxation of corporate tax as the bonus for the representative of the corporation (the defendant cannot be asserted as the basis of Article 20 (1) of the Corporate Tax Act). In other words, it is not possible to employ the defendant as the representative of the above non-party company, who is the representative of the above company, which is the premise of the taxation disposition of this case, as bonus, and the provisions of Article 83 (2) 2 (c) of the Enforcement Decree of the Corporate Tax Act, which is the basis for calculating the income amount of the corporation, at least 9 percent (2).

Thus, the plaintiff's claim part of the plaintiff's main lawsuit, which is viewed as seeking revocation in the purport of seeking nullification of the above invalid part, shall be justified, and the remaining claims shall not be accepted, and the burden of litigation costs shall be decided as per Disposition in accordance with Article 14 of the Administrative Litigation Act and the Civil Procedure Act and the proviso of Article 89 and Article 92 of the Civil Procedure Act.

Judges Lee Jae-ho (Presiding Judge)