The initial date in counting the withholding tax and the additional additional additional payment for arrears;

The tax amount to be deducted when the original taxpayer performs the additional reporter's actual payment due to the bonus disposition refers to the amount of tax paid actually, and the date when the additional reporter's actual payment due is the date following the additional reporter's actual payment due

Article 20 of the Income Tax Act

Article 76 (Voluntary Payment of Final Return)

【Tax Item】

Income;

[Types of Decision]

Part of a parosh

[Documents Number]

Seoul Administrative Court 2006Guhap35749 (2007.08)

【Special Trial Number】

National High Court Decision 2005No1692 (Law No. 7.05, 2006)

【Name】

The initial date in counting the withholding tax and the additional additional additional payment for arrears;

【Summary】

The tax amount to be deducted when the original taxpayer performs the additional reporter's actual payment due to the bonus disposition refers to the amount of tax paid actually, and the date when the additional reporter's actual payment due is the date following the additional reporter's actual payment due

[Contents of Decision]

The contents of the decision shall be the same as attached.

[Related Acts]

Article 20 of the Income Tax Act

Article 76 (Voluntary Payment of Final Return)

1. The Defendant’s imposition disposition of global income tax of KRW 1,214,67,920 against the Plaintiff on January 3, 2005, each of which exceeds KRW 363,481,386, and global income tax of KRW 338,254,170, and KRW 141,060,943, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 10% is borne by the Plaintiff, and 90% is borne by the Defendant.

The Defendant’s imposition of global income tax of KRW 1,214,67,920 on January 3, 2005, in excess of KRW 273,919,460 on global income tax of KRW 338,254,170 on global income tax of KRW 111,110,564 on global income tax of KRW 273,919,460 on January 3, 200, respectively, shall be revoked.

1. Details of the disposition;

A. From February 15, 1997, the Plaintiff served as the representative director of ○○ Industry Co., Ltd. (hereinafter “Non-Party Co., Ltd”) for the purpose of non-intermediating construction business.

B. After conducting a tax investigation with respect to the non-party company, the head of the ○○ Tax Office having jurisdiction over the location of the non-party company: 5.239.136.980 won (420,409,000 won for the business year of 1999, for the business year of 2000, for the business year of 3,609,343,980 won, for the business year of 2001, for the business year of 2001, for the business year of 1,209,384,000 won) included in the non-party company's deductible expenses; and disposed of the above amount as the bonus for each corresponding year against the plaintiff who is the representative director of the non-party company, and on July

C. On August 5, 2004, the non-party company submitted a revised report on the performance of withholding tax to the head of ○○ Tax Office, but did not withhold the amount equivalent to the Class A earned income tax on the above income from the plaintiff. The plaintiff did not pay the additional reported amount until August 31, 2005, which was the due date for the additional payment of global income tax, although there was business income other than the earned income in 200 and 2001, but did not pay the additional reported amount by August 31, 2005. On December 1, 2004, the head of ○○ Tax Office notified the non-party company that the non-party company was the competent agency at the domicile of 181,848, 111,350, and 505,522,510 won for the year 200.

D. As of January 3, 2005, the Defendant decided and notified the Plaintiff of the amount of global income tax of KRW 171,421,100 for the year 199 as global income tax of KRW 1,214,67,920 for the year 200 (including additional tax for unfaithful payment of KRW 940,758,460 for the additional tax, and January 1, 2002 for the initial date of calculation of the additional tax) (hereinafter the original disposition).

E. On May 30, 2005, the Plaintiff filed an appeal against the initial disposition with the National Tax Tribunal. On July 5, 2006, the National Tax Tribunal revoked the imposition of global income tax for the year 199 from the initial disposition, and made a decision to dismiss the remainder of the claims (the remainder of the initial disposition, which is the penalty tax portion for each payment in arrears).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 3, Gap evidence 4, 5, and 6-1, 2, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Main argument

The Plaintiff notified the non-party company, a withholding agent, of the source global income tax for the year 200 and 2001, and the said withholding tax was deducted from the final return tax amount by final return pursuant to Article 76(3)4 of the Income Tax Act (amended by Act No. 6292 of Dec. 29, 2000; hereinafter the same shall apply). Thus, the instant disposition against which the Plaintiff imposed an additional tax on the Plaintiff is unlawful.

(2) Preliminary assertion

Even if a family affairs can impose additional tax on the Plaintiff, the initial date of calculation of the additional tax shall be deemed to be from the day following the end of the month following the receipt of the notice of change in the amount of income. Thus, the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the main argument

(A) Article 21(2) of the Framework Act on National Taxes provides that income tax withheld shall be liable for tax payment at the time of paying the amount of income. Article 22(2) provides that income tax withheld shall be determined without any special procedure when a tax liability becomes effective, and such income tax withheld at the time of paying the amount of income becomes final and conclusive at the same time when a tax liability becomes final and conclusive. Thus, a tax notice issued by a tax authority to a withholding agent constitutes a disposition of tax collection, not a tax disposition, but a final and conclusive tax disposition (see, e.g., Supreme Court

Meanwhile, according to Articles 70(1), 73(1), and 76 of the Income Tax Act, where a source taxpayer gains other income subject to cumulative taxation than that subject to withholding, a final tax base return for global income shall be filed every business year, and the tax amount shall be paid after deducting the withholding tax amount under Article 127 of the Income Tax Act from such calculated tax amount.

(B) In this case, the plaintiff's earned income in 200 and 2001 for the non-party company is subject to withholding under the Income Tax Act, and the plaintiff has business income during the above period, and thus, the non-party company omitted the tax withholding on the above earned income, and the plaintiff did not make a total return by the deadline for filing a return. The plaintiff did not pay the total amount by the deadline for filing a return. On the other hand, the defendant can impose the global income tax and additional tax on the plaintiff who is the income earner. On the other hand, the "tax withholding amount under Article 127 of the Income Tax Act" which can be deducted from the global income tax imposed on the plaintiff as the source taxpayer is deducted at the stage of determining the scheduled amount of tax to be paid by the taxpayer, and as in this case, the so-called prepayment withholding tax is imposed on the global income tax to be paid by the taxpayer and the amount of tax actually paid by the taxpayer is determined to be paid by the taxpayer. Thus, on other premise, the plaintiff's primary assertion of this case is without merit.

(2) As to the conjunctive assertion

(A) In a case where the tax authority deemed that the gross income amount belongs to the representative, etc. and disposed of it as a bonus, unlike the fact that the withholding agent is liable on the date when the notice of change in the amount of income was served on the corporation, with respect to the corporation that is the payer of the relevant amount of income, if the income is disposed of regardless of whether or not the notice of change in the amount of income was served on the corporation, it constitutes "amount disposed of as bonus under the Corporate Tax Act" under Article 20 (1) 1 (c) of the Income Tax Act and is subject to taxation on the amount of income. The pertinent amount of income is the receipt date of the labor provided during the pertinent business year in which the disposition is subject to taxation, and thus the liability to pay global income tax on the person to whom the income belongs is established is established when the taxable period that

Meanwhile, Article 134(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005) provides that the additional return and payment deadline of the tax base and the amount of tax on the income resulting from a change in the disposal of income after the lapse of the final return deadline for global income tax base shall be postponed by the end of the month following the month following the month when the notice of change in the amount of income was received, and the additional additional payment shall be imposed as an administrative sanction on the taxpayer neglects the payment of the tax by the statutory due date. In light of the purport of Article 134(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005; see Supreme Court Decision 2004Du9944, Jul. 27, 2006).

(B) In the instant case, the non-party company’s obligation to withhold taxes is established around July 2004 with the day on which the notice of change in income was served, and at the same time determined. The Plaintiff is obliged to additionally report and pay the tax base and tax amount according to the notice of change in income until August 31, 2004, which is the end of the month following the month in which the notice of change in income was received pursuant to Article 134(1) of the Enforcement Decree of the Income Tax Act. Since the non-party company failed to perform this, it should be subject to sanctions for late payment as of September

However, the disposition of this case, as seen earlier, calculated penalty tax in bad faith due to the initial date of January 1, 2001 (the wage and salary income tax for the year 2000) and January 1, 2002 (the wage and salary tax for the year 2001). Thus, the part that exceeds the legitimate tax amount calculated by applying the initial date of the additional tax to the initial date of September 1, 2004 is unlawful. Accordingly, the plaintiff's conjunctive assertion pointing this out is with merit.

(C) Furthermore, on September 1, 2004, calculated the additional tax for unfaithful payment after deducting the due tax amount from the due date of the disposition of this case by January 3, 2005, which was the date of the disposition of this case, by January 3, 2005, the additional tax for unfaithful payment for the year 200 shall be 89,561,925 won (i), and the additional tax for unfaithful payment for the year 2001 shall be 29,950,370 won (iii), and the due tax amount shall be 363,481,386 won (ii), the due tax amount for the additional tax for the year 200, the amount of 141,060,943 won (iv) for the year 201.

(3) Sub-decisions

Therefore, the amount exceeding KRW 363,481,386 among the disposition of imposition of global income tax of KRW 1,214,67,920 for the year 200 and KRW 338,254,170 for the global income tax of KRW 338,254,170 for the year 200 should be revoked accordingly.

3. Conclusion

If so, the plaintiff's claim is partly accepted within the scope of the above recognition.