There is no justifiable reason to exempt the Plaintiff from penalty tax

The Plaintiff’s income is justifiable to regard the total amount transferred from the instant company to the account under the name of Loo and Kimo as the Plaintiff’s income, and the circumstances that the tax agent lost the taxation data received from the taxpayer or made a false report at will do not constitute justifiable grounds to exempt the penalty tax.

Article 47-2 (Additional Tax on Non-Filing)

2015Guhap9068 Nullification of a disposition imposing additional tax

KimA

BB Director of the Tax Office

oly 11, 2016

November 8, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

On December 1, 2014, the Defendant confirmed that the imposition of penalty tax on the Plaintiff was null and void, respectively, of KRW 30,019,578 for the year 2009, KRW 104,626,67 for the year 2010, KRW 147,87,925 for the year 201, KRW 73,772, and KRW 166 for the year 201.

1. Details of the disposition;

A. From October 2009 to October 2010, the Plaintiff has received a certain ratio of gross sales as allowances, while serving as a general manager ofCC (hereinafter “instant company”).

B. From 2009 to 2012, the Defendant filed a return on the total income tax corresponding to the Plaintiff’s receipt of KRW 4,145,253,720 of the allowances in the name of his/her husband and wife KimE in the name of his/her UD and KimE. In filing a global income tax return in 201 and 2012, the Defendant unfairly included the personal money transaction, business administration, expenses related to household affairs, etc. irrelevant to the business in the necessary expenses.

On the ground that the amount of income reported under the name of UD and KimE was corrected as the amount of income of the Plaintiff and denied expenses incurred in unfairly processing expenses. On December 1, 2014, the Plaintiff imposed global income tax for the year 2009 through 2012, KRW 929,70,703,930 on the Plaintiff. Of these, the portion of additional tax for the year 2009, 30,019,578, 104,626,677, 925, and the portion of tax for the year 2010 reverted to 147,87,925, and the portion of tax for the year 2012 reverted to 73,72,166 (hereinafter referred to as “each of the instant dispositions”).

[Ground of recognition] Unsatisfy, Eul evidence Nos. 3 and 7, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Business related to the instant company constitutes multi-stage sales business, and its profit structure is different.

Since the UD and KimE, which are registered as a stage salesperson, have accrued profits even if they do not engage in a separate business activity, they cannot be deemed as the Plaintiff’s revenue. Moreover, since KimE served as a financial manager of the Plaintiff, it is not merely nominally lent to the Plaintiff. Moreover, in relation to the portion of applying the rate of unfair non-return tax, it is not the case of not filing a comprehensive income tax on the portion of applying the rate of unfair non-return, and thus, it is not the case of not filing a comprehensive income tax on the “unlawful” at least, so the tax rate prescribed in Article 47-2(2) of the former Framework Act on National Taxes (amended by Act No. 1

2) In relation to the portion of 2009 and 2010 portion, since the Plaintiff, even though delegated the FF tax accounting corporation with the global income tax return in excess of the taxation data, but the tax agent did not lose it and make a proper report, it is unreasonable to impose penalty tax on the Plaintiff without filing a tax return or an indefinite penalty tax. Moreover, it is unreasonable to exclude all necessary expenses included in the tax return filed in 201 and 2012 from necessary expenses because the Plaintiff made a false report on some of the expenses incurred by the tax agent at his/her own discretion, even if they were to

3) Since the foregoing defects are serious and clear, each of the instant dispositions is null and void.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The part claiming that the full amount of allowances received through the accounts such as UD cannot be viewed as the Plaintiff’s income

A) The following circumstances, which are acknowledged through the overall purport of the statements and arguments in Gap evidence Nos. 1-20, 21, 43, and Eul Nos. 1-8, are as follows: ① the plaintiff received the allowances for his share ( approximately 3% of the total sales) from the company in the name of UD and KimE; the defendant is equivalent to the plaintiff's share in the amount of the money; ② the plaintiff voluntarily received the allowances to be received from the company in the course of tax investigation into UD and KimE; ③ the party entering into the contract with the company in this case and conducting the business in this case was not the plaintiff and KimE; ③ even if some of the allowances received by the plaintiff were paid to KimE, this is not the plaintiff's final payment, but the plaintiff's donation to KimE; and the plaintiff's entire amount of the money transferred from the company in the name of UD and KimE is justified.

B) In addition, according to the relevant laws and regulations, “unlawful act” under Article 47-2(2) or 47-3(2) of the former Framework Act on National Taxes refers to the active act that makes it impossible or considerably difficult to impose and collect taxes due to an act falling under each subparagraph of Article 3(6) of the former Punishment of Tax Evaders Act (amended by Act No. 13627, Dec. 29, 2015; hereinafter the same), and even if the Plaintiff appears to have received allowances from the instant company using the account in the name of UD, E because it was impossible to open the financial account due to the so-called bad credit standing as alleged by the Plaintiff, the Plaintiff did not return and pay all comprehensive income tax under his/her own name, and the Plaintiff’s act constitutes a case where: (a) the Plaintiff’s act significantly difficult to levy and collect all or part of the tax base or the amount of national tax, which serves as the basis for calculating the tax base or the amount of tax; and (b) the Plaintiff’s act constitutes a case where Article 4(3) of the Punishment Act is imposed.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Part on the assertion that there is a justifiable reason to exempt the penalty tax

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, where a taxpayer violates various obligations, such as a return and tax payment, as prescribed by the Act without justifiable grounds, the taxpayer’s intentional or gross negligence is not considered, and the site, mistake, etc. under the Act does not constitute justifiable grounds that do not cause the breach of duty (see, e.g., Supreme Court Decision 2012Du7370, Mar. 13, 2014). However, the circumstance that the taxpayer’s agent lost the taxation data received from the taxpayer or made a false report at his/her discretion as asserted by the Plaintiff does not by itself constitute justifiable grounds, and there is no other evidence to acknowledge that the Plaintiff has justifiable grounds to exempt the penalty tax. Accordingly, this part of the Plaintiff’s assertion is without merit.

3) The part on the assertion that the defect is so serious and clear as to be void.

Even if there is a defect as alleged by the Plaintiff in each of the dispositions of this case, the Plaintiff is found to have three

As long as money transferred to an account under the name of UD and KimE in the course of an investigation was recognized as one’s own revenue and it was also secured in a contract consistent therewith, such defect can only be revealed only when the facts of the relationship between the instant company and the Plaintiff and the amount of the allowances received, etc. Therefore, even if the defect is serious, it cannot be deemed apparent even if it is an illegal disposition that misleads the facts of taxation (see, e.g., Supreme Court Decision 2011Du2723, Feb. 23, 2012). Accordingly, the Plaintiff’s assertion on this part is groundless.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.