The early appellate court 2014west2326

The starting point of the exclusion period prescribed by the special provisions of this case shall be the date of adjudication, not the final date of adjudication.

It is reasonable to regard the starting point of the exclusion period stipulated by the special provisions of this case as the adjudication date rather than the final date of the judgment, and it is natural to interpret the main text of the special provisions of this case as setting the closing period only.

Articles 21 and 26-2 of the Framework Act on National Taxes

2015Guhap5967 global income and revocation of disposition

LAA

00. Head of tax office

July 3, 2015

August 19, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of global income tax of KRW 12,754,910 against the Plaintiff on February 12, 2014 shall be revoked.

1. Details of the disposition;

A. From 2006 to 2010, the Plaintiff received tax consulting service fees of KRW 975,184,080 (=221,184,080 in 2006 + KRW 203,450,000 in 2007 + KRW 205,700,000 in 2008 + KRW 196,000,000 in 209 + KRW 150,000 in 209 + KRW 150,000 in 209 (hereinafter referred to as the “instant income”); and the Plaintiff filed and paid comprehensive income tax by classifying them as other income.

B. On February 22, 2012, the Defendant deemed the instant income as not other income but business income. On the premise of this premise, the Plaintiff determined the comprehensive income tax to be paid by the Plaintiff, and imposed and notified the Plaintiff of the total global income tax (including additional tax) which deducts the already paid tax amount (hereinafter referred to as “the first disposition”), KRW 209,539,470 on the Plaintiff (hereinafter referred to as “the first disposition”), and the part of the imposition imposition of the principal tax, “the imposition of the existing principal tax,” and the part of the imposition of additional tax, “the imposition of additional tax (206 to 2010)”

Taxation

Year

Principal Tax

Additional Tax

Total Amount

Weapons

Impossibility of Report

Good Faith in Payment

Aggregate Additional Tax

206

25,629,180

2,275,370

10,479,770

12,754,910

38,384,090

2007

31,296,430

5,510,890

13,220,660

18,731,550

50,027,980

208

31,928,750

5,635,810

9,540,310

15,176,120

47,104,870

209

31,761,800

5,711,590

6,022,030

11,733,620

43,495,420

2010

24,307,500

4,272,580

1,947,030

6,219,610

30,527,110

Consolidateds

144,923,660

21,130,870

2,275,370

41,209,800

64,615,810

209,539,470

C. However, the tax notice of the initial disposition stated only the aggregate amount of the penalty tax without stating the type of the penalty tax and the basis for calculation of the penalty tax.

D. On May 15, 2012, the Plaintiff filed an appeal with the Tax Tribunal on May 15, 2012, and filed a lawsuit seeking revocation of the initial disposition with this court on October 23, 2012, where the procedure of the appeal was in progress (2012Guhap35368).

E. On January 15, 2013, when the above lawsuit was pending, the Defendant revoked ex officio the imposition of the existing penalty tax (the part of the year 2007-2010) and on the same day, imposed and notified the Plaintiff again from 2007 to 2010 (the amount to be imposed is the same as the previous imposition of penalty tax (the part of the year 2007-2010); hereinafter the same shall apply). The imposition of penalty tax (the period 2007-2010) is classified by the type of penalty tax, and the calculation basis of each penalty tax is also stated.

F. The Plaintiff changed the purport of the claim in the above lawsuit to exchange the part seeking revocation of the previous imposition disposition of penalty tax (2007 to 2010) with seeking revocation of the additional tax (2007 to 2010).

G. On February 8, 2013, this Court rendered a judgment dismissing the part seeking revocation of the previous disposition of imposition of additional tax (2006) upon the Plaintiff’s claim on the ground that the tax payment notice does not distinguish the previous disposition of imposition of additional tax by type, additional tax for unfaithful return, and additional tax for unfaithful return, and only the total amount of additional tax is stated without stating the grounds for calculation of additional tax. The part seeking revocation of the previous disposition of imposition of principal tax and the additional tax (2007-2010) was dismissed.

(hereinafter referred to as the above judgment of the first instance court in the related case).

H. On February 28, 2013, the Plaintiff lodged an appeal against the part of the first instance judgment against the Plaintiff (Seoul High Court 2013Nu8242).

I. However, the Defendant did not file an appeal against the judgment of the first instance court related to the instant case, and the said appellate court did not file an incidental appeal. On March 19, 2013, when the said appellate court had been pending the said appellate court revoked ex officio the previous disposition of imposing additional tax (2006), and on February 6, 2014, the Defendant again imposed additional tax amounting to KRW 12,754,910 for the Plaintiff (hereinafter “instant disposition”). The notice of tax payment of the instant disposition is classified by the additional tax for negligent return and the additional tax for negligent payment, and the details of calculation thereof are also stated in the notice of tax payment.

(j) The Plaintiff, who is dissatisfied with the instant disposition, filed the instant lawsuit via the Tax Tribunal’s inquiry procedure.

C. Meanwhile, the appellate court rendered a judgment dismissing the Plaintiff’s appeal on February 12, 2014 (hereinafter “relevant appellate court’s judgment”).

Facts without any dispute, Gap's evidence 1 through 6, Eul's evidence 1 to 3, the whole purport of the pleading, and the whole purport of the pleading.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case shall be revoked since the exclusion period of imposition of penalty tax on global income tax for the year 2006 was elapsed after the lapse of the exclusion period.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same shall apply)

According to Articles 26-2(1)3 and 21(1)1 and 11 of the Income Tax Act and Article 5(1) of the Income Tax Act, the exclusion period of the imposition of a national tax, in principle, is five years from the date on which the relevant national tax can be imposed. The establishment date of the tax liability to impose an additional tax on the global income tax is the date on which the taxable period of the global income tax for the relevant year ends, and the taxable period of the global income tax is from January 1 to December 31 of each year.

Examining the aforementioned facts in light of the aforementioned legal principles and statutes, the exclusion period of imposition of the global income tax for the Plaintiff in 2006 is five years from January 1, 2007, which is the day following the end of the taxable period of the global income tax in 2006, and barring any special circumstance, the instant disposition issued on February 12, 2014 is made after the lapse of the exclusion period of the imposition of the national tax under Article 26-2(1)3 of the former Framework Act on National Taxes.

In regard to this, the Defendant asserts that the instant disposition was based on the judgment of the first instance court of the relevant case, and that the said judgment was finalized on March 19, 2013, and that the instant disposition was made on February 12, 2014, and thus, the instant disposition was made one year before the date when the judgment prescribed by Article 26-2(2)1 of the former Framework Act on National Taxes (hereinafter “the instant special provision”) becomes final and conclusive.

However, according to the special provisions of this case, in a case where a judgment is rendered on a lawsuit under the Administrative Litigation Act, a decision of correction and other necessary dispositions may be made according to the relevant judgment until one year passes from the date on which the judgment becomes final and conclusive. In a case where the tax authority rendered a tax disposition again within one year from the date on which a judgment revoking a tax notice for the reason of illegality of the duty payment notice was rendered and confirmed, and where the tax authority rendered a tax disposition again by mistake, such disposition is made in accordance with the relevant judgment. Thus, the exclusion period under Article 26-2(1)3 of the former Framework Act on National Taxes is not applied (see Supreme Court Decisions 2001Du9059, Jan. 25, 2002; 93Nu485, May 10, 1996).

As seen earlier, the judgment of the first instance court on this case was rendered on February 8, 2013, but the Plaintiff appealed the part against the Plaintiff among the said judgment, and the judgment of the relevant appellate court rendered on February 12, 2014 was rendered. The part of the judgment of the first instance in the relevant case against the Plaintiff, as well as the part of the judgment of the first instance, which accepted the Plaintiff’s claim, and revoked the imposition of additional tax (2006) was revoked by the Plaintiff’s appeal, and became final and conclusive by the appellate court, and became final and conclusive on February 12, 2014 by the said judgment of the appellate court (see, e.g., Supreme Court Decisions 2009Da35842, Jul. 28, 2011; 2012Da116864, Dec. 24, 2014). However, the disposition of this case was imposed on the global income before the lapse of the tax period and the special provisions of this case were imposed on May 26, 2015.

The plaintiff can apply the special provisions of this case only to cases where the judgment under the Administrative Litigation Act has become final and conclusive. However, as long as the defendant voluntarily revoked the imposition of the existing additional tax (2006) during the proceeding of the pertinent appellate court, the part revoking the previous imposition of additional tax (2006) in the judgment of the court of first instance in the relevant case shall be deemed to have become null and void by the revocation of the above authority before the final and conclusive judgment, the above special provisions of this case shall not be applied on the premise that

However, even if the first instance judgment revoking the tax imposition disposition was rendered and the tax authority voluntarily cancelled the tax imposition disposition while the judgment became final and conclusive, such reasons alone cannot be deemed null and void (the judgment can only be invalidated if the lawsuit is withdrawn before the judgment became final and conclusive or the judgment is revoked by retrial). As seen earlier, the part revoking the previous imposition disposition of additional tax (2006) in the judgment of the first instance in the related case shall be deemed final and conclusive on February 12, 2014, which is the date the appellate court rendered the judgment. Accordingly, the Plaintiff’s above assertion on a different premise is without merit.

Next, the Plaintiff asserts that the exclusion period of the imposition of national taxes under the special provisions of this case is calculated from the following day after the judgment under the Administrative Litigation Act becomes final and conclusive. If the judgment of the first instance court of this case becomes final and conclusive on February 12, 2014, the exclusion period under the special provisions of this case is calculated from February 13, 2014. The disposition of this case was rendered on February 6, 2014, which is the date prior to the initial date, and thus, it cannot be deemed that the disposition was made during the exclusion period under the special provisions of this case.

However, in light of the following points, it is reasonable to view the starting point of the exclusion period stipulated by the special provisions of this case as the adjudication date rather than the final judgment date. Therefore, the plaintiff's assertion on the other premise is without merit.

① The legislative intent of the special provisions of this case is to prevent unreasonable cases where a decision or judgment is made after the lapse of the exclusion period for taxation due to a prolonged delay in the procedure of litigation of administrative appeal, request, administrative litigation, etc. against a taxation disposition (see, e.g., Supreme Court Decisions 94Da3667, Aug. 26, 1994; 96Nu68, Sept. 24, 1996). However, even where a judgment is rendered pursuant to the Administrative Litigation Act, if it is interpreted that the exclusion period prescribed by the special provisions of this case can only be imposed after the commencement of the exclusion period prescribed by the special provisions of this case where the judgment is determined, for example, in multiple revocation litigation against a taxation disposition, the exclusion period of five years as prescribed by Article 26-2(1)3 of the former Framework Act on National Taxes has expired.

In the event that a decision to revoke a partial tax disposition on the ground of procedural defect and dismiss the remaining claims is rendered, the part of the decision against the tax authority in accordance with the principle of non-payment of appeal shall be prevented, and where the tax authority lost the judgment in the appellate trial, even though the decision is acceptable with respect to the part of the decision of the court of first instance, it cannot be imposed by supplementing procedural defect until the decision of the appellate court is rendered, and only when the decision of the court of first instance against the first instance becomes final and conclusive after the decision of the appellate court becomes final and conclusive, it would result in the conclusion that a tax disposition may be imposed in accordance with the special provisions of this case by supplementing procedural defect and supplementing procedural defect, regardless of the legislative intent of the special provisions of this case. This would hinder prompt stability of tax law

② Of the special provisions of this case, Article 85-5(1)3 of the former Framework Act on National Taxes does not require a judgment to become final and conclusive on the following grounds: “Where a judgment becomes final and conclusive” or “where a final and conclusive judgment is rendered” (Article 85-5(1)3 of the former Framework Act on National Taxes provides that “where the Commissioner of the National Tax Service may disclose the list of large and habitual delinquent taxpayers, he/she shall be punished under Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as “the person whose judgment of conviction has become final and conclusive as a crime under the Punishment of Tax Evaders Act”) and shall be clearly demanded that “the

③ The main text of the special provisions of the instant case provides that “A decision of correction or other necessary disposition may be made according to the relevant decision or judgment before one year elapses from the date a decision or judgment under subparagraph 1 becomes final or mutual agreement under subparagraph 2 is reached.” According to the foregoing text, it is natural to interpret the said provision as setting the closing period only for the exclusion period.

3. Conclusion

Therefore, the disposition of this case was imposed within the exclusion period stipulated by the special provisions of this case, and the plaintiff's assertion on different premise is without merit, and the claim of this case is dismissed. It is so decided as per Disposition.