early 2012Gu3280 ( November 12, 2012)

The user bears part of the lease deposit, and the house jointly leased with the employee constitutes the leased house excluded from the earned income.

Since the provision of a common rentr's house can be the same as the provision of a private rentr's house in substance, it is reasonable to deem that the provision of a private house excluded from the scope of wage and salary income constitutes an unlawful disposition of the defendant.

Article 20 of the Income Tax Act, Article 38 of the Enforcement Decree of the Income Tax Act

2013Guhap1085 Revocation of Disposition rejecting a request for rectification of earned income tax

oo

o Head of the Oral Tax Office

June 26, 2013

August 16, 2013

1. The Defendant’s rejection disposition against the Plaintiff on April 30, 2012 with respect to each of the tax withheld income of KRW 000 for the year 2008, KRW 000 for the year 2009, and KRW 000 for the year 2010 is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, a public corporation established for the purpose of building and managing a road, provides the lessee’s housing by way of concluding a lease agreement directly by the Plaintiff (hereinafter referred to as “multi-user’s housing”) if the lease deposit is within the scope of support under the above criteria. If the lease deposit exceeds the scope of support, the Plaintiff provided the remainder as the joint lessee’s housing (hereinafter referred to as “joint lessee’s housing”) at each employee’s expense. The details of the above two methods are as follows.

Classification

Family Dong-Jin Park

Housing rent (influoral)

Housing Lease Deposit

Concept of Support

Support in the case of leasing a house within the limit of regional support by the company;

support in the case of leasing a house exceeding the limit of regional support by the company

(In-kind support)

(Spot support + Partial Liability of the staff)

Type of contract

Lessee: Company

(Lease of Company Name)

Lessee: Company + Employees

(Lease of Common Names)

Qualifications for support

○ An employee who has served for more than one year,

- Persons without any family living together in the service area;

- They will be married for not more than 3 months from the date of application

(Submission of Resident Registration and Family Relationship Certificate, which is Moveed after Retirement)

- Assistance only to one parent, if any;

Exclusion from Assistance

○ A house with poor credit preservation

A house exceeding the scale of national housing: Provided, That where three persons live together or support for at least three years, the exclusive use area of 126 square meters may be supported (not less than one month in a certified copy of resident registration).

The upper limit of support

(00 thousand won)

1st class place

2nd class area

3rd class area

9,000

7,500

5,000

Recognition Taxation

Non-Taxation

Recognition of Total Amount of Support

Method of Repayment

○ Change or Temporary Repayment of Full Amount (which may be converted to purchase funds at the time of housing purchase)

- Retirement: Not more than one month prior to the date of payment of retirement/housing purchase, transfer, temporary retirement, etc.

- Leave: On the date of retirement / on the date of unfair benefits, etc.: on the date when the grounds accrue.

B. On the other hand, the Plaintiff’s rental loan or housing in addition to the support of the lessee’s home, such as the above A.

The support system for housing funds (hereinafter referred to as "housing funds support system") shall be separately established, and the details thereof shall be as follows:

Classification

Housing-Raising Funds

Rental Housing Lease Funds

Concept of Support

Support for funds necessary for a homeless who has a dependent to purchase a house under his/her own name (spouse).

Subsidization of rental money for rental housing;

Contracts

Forms

Buyer: Employees (spouse)

Lessee: Staff member;

Qualifications for support

When a house is prepared in the name of a person or his/her spouse as a homeless employee who has no dependent among employees with continuous service for at least one year;

○ In the case of the intra-company father, only one assistance shall be granted to one parent.

○ An employee who has served for more than one year,

- Non-permanent staff members accompanied by dependants

- They will be married for not more than 3 months from the date of application

- Assistance only to one parent, if any;

* It is irrelevant to the working area

The upper limit of support

50 million won

Support

Interest Rate

1-year maturity of National Bank of the immediately preceding year

Rate of fixed time deposit (2010: 3.2%)

(Provided, That on October 31, 99, 200,000 won shall apply to previous employees)

1-year maturity of National Bank of the immediately preceding year

Rate of fixed time deposit (2010: 3.2%)

Recognized Taxation

Taxation on Amount of Support

Taxation on Amount of Support

C. The Plaintiff’s offer of a single lessee’s housing is excluded from the subject of the avoidance of wrongful calculation under the Corporate Tax Act, and the Plaintiff did not pay the corporate tax or the labor income tax regarding the provision of a private house excluded from the scope of earned income under the Income Tax Act. However, regarding the provision of a joint lessee’s housing, the Plaintiff deemed the amount borne by the Plaintiff as a provisional payment irrelevant to the business, and reported and paid corporate tax by adding the recognized interest to gross income and adding the interest paid to deductible expenses, and the employee deemed the profits earned by the provision of a

D. After the Supreme Court Decision (Supreme Court Decision 2004Du7993 Decided May 11, 2006) was rendered that the provision of a company house subsidy is not subject to the avoidance of unfair act and calculation under the Corporate Tax Act, where the provision of a company house subsidy is deemed to be identical to that of a company house in substance, the Plaintiff was entitled to the corporate tax already paid on the provision of a joint rental house on December 30, 201. The above judgment is interpreted to apply mutatis mutandis to the wage and salary income tax, and the provision of a joint rental house should also be deemed to be a company house excluded within the scope of the wage and salary income, on April 13, 2012, the Plaintiff requested the Defendant to request a refund of the wage and salary income tax paid by the HH business entity for the year 200, 000 won in 209, 2000, and 000 won in 2010.

E. On April 30, 2012, when the Defendant entered into a lease contract with an employer as a joint lessee, the Defendant: (a) deemed that the lease deposit to be borne by the corporation is a profit derived from a free loan of the housing lease fund; and (b) did not constitute a company house excluded from the wage and salary income under the proviso of Article 38(1)6 of the Enforcement Decree of the Income Tax Act; and (c) rejected the Plaintiff’s

F. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on July 20, 2012, but was dismissed on November 12, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 4, 5, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

According to the Supreme Court precedents, the provision of a private house subsidy is deemed to be the same as the provision of a private house excluded from the object of the avoidance of wrongful calculation under the Corporate Tax Act. This interpretation is valid as it is, so the relevant provision of the Enforcement Decree and the Enforcement Rule of the Income Tax Act providing the same contents as the Enforcement Decree and the corresponding provision of the Enforcement Rule of the Corporate Tax Act. Therefore, the joint lessee’s house shall be deemed to fall under a lessee’s house excluded from the scope of wage and salary income. In addition, the imposition of labor income tax on the amount of subsidy is against the principle of tax equality as a discrimination with no reasonable grounds to distinguish between

2) The defendant's assertion

The issue of whether the company subsidy is subject to the avoidance of wrongful calculation from the standpoint of the company, and whether it is included in the earned income from the standpoint of the employees is separate issues, and the company and employees jointly leased the house. However, if an employee rents a house to reside, the company lends the standard amount pursuant to the company's regulations to the employee without interest, and unlike the private rent house, it constitutes "the profit that the employee gains by receiving a loan from the employee at low interest or free of charge" under Article 38 (1) 7 of the Enforcement Decree of the Income Tax Act, unlike the private rent house, falls under "the profit that the employee gains by receiving a loan from the company

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

Article 38 (1) 6 and 7 of the Enforcement Decree of the Income Tax Act provides that the profits earned by acquiring a house and the profits earned by an employee by borrowing the money necessary for purchasing or renting a house (including the land attached to the house) shall be deemed as constituting the earned income subject to the imposition of wage and salary income tax. However, the proviso of Article 38 (1) 6 of the Enforcement Decree of the Income Tax Act provides that where an employee is provided with a company house prescribed by Ordinance of the Ministry of Strategy and Finance, it shall be excluded within the scope of wage and salary income, and Article 15-2 (1) of the Enforcement Rule of the Income Tax Act provides that "where an employee is provided with a company house excluded within the scope of wage and salary income, he/she shall provide an employee or executive (hereinafter referred to as "employee, etc.") under the same proviso

It is a problem whether the "house" defined in Article 15-2 (1) of the Enforcement Rule of the Income Tax Act is directly leased to the employee and provided free of charge to the employee, in that the plaintiff and the employee are joint tenant and the employee bear part of the lease deposit money.

(4) Article 88(1)6 of the Enforcement Decree of the Corporate Tax Act provides that the case where a company provides a house for rent to an employee (including a house for rent prescribed by Ordinance of the Ministry of Strategy and Finance) shall not be subject to the avoidance of unfair calculation under the Corporate Tax Act. Article 42-3 of the Enforcement Rule of the same Act provides that a corporation directly leases a house to an employee and provides such house shall be excluded from the object of the avoidance of unfair calculation. Although corporate tax and wage income tax may not be applied to the Income Tax Act because the purpose of imposition, object, method of imposition, etc. of the house is different, the following circumstances can be acknowledged by comprehensively considering the overall purport of arguments and evidence, i.e.,, the Plaintiff, a public corporation that installs and manages a road, is obliged to provide a house for the employees who were jointly provided with a house for rent to the same employees who were provided with a house for rent at the same time without due to the fact that the Plaintiff’s house for rent at the same time is not subject to the provision of a house for rent at the same time.

3. Conclusion

Therefore, since the plaintiff's claim is well-grounded, all of them shall be accepted, and it is decided as per Disposition.