Examination Income 2009-0028 (2010.030)

Deemed income, such as personal bonus, etc., constitutes tax liability even if the notice of change in the amount of income has not been received.

In the case of disposal of income as bonus, the corporation that is the person liable for payment of the income tax withheld shall be liable for withholding the income tax on the date the notice on the change of income is served on the corporation, unlike the fact that the person to whom the income accrues is liable for withholding the income tax, regardless of whether the notice on the change of income was served on the corporation.

2010Guhap9069 Global income and revocation of disposition

XX

O Head of tax office

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 443,768,580, global income tax for 2001, global income tax for 2002, global income tax for 291,571,580, global income tax for 2002, global income tax for 372,404,190, total of KRW 1,107,74,350 for 203, global income tax for 2003, global income tax for 2003.

1. Details of the disposition;

A. The Plaintiff served as a representative director from September 26, 200 to April 17, 2005 at Asan-si BBCC-dong 715-21 (hereinafter referred to as “DDD”)

DDD submitted purchase tax invoices corresponding to the above amount on the basis that it purchased goods equivalent to KRW 1,760,500,000 from EE Co., Ltd. (hereinafter “EE”), while reporting value-added tax, etc. from 2001 to 2003 from the business year of 2003.

C. From July 20, 2004 to October 15, 2004, the Defendant conducted a tax investigation on DDD and judged that the above purchase tax invoice was a processed tax invoice issued without a real transaction, and imposed KRW 349,831,000 of value-added tax and KRW 712,54,000 of corporate tax on DD on January 3, 2005, respectively, and notified DDD of the total amount of KRW 665,50,000 of income for the business year of 2001 to the Plaintiff who is the representative director after inclusion in the processing purchase part in the gross income, and as a result, the Plaintiff’s income for the business year of 2002 to KRW 56,50,050,000,000, and KRW 720,500,000 of business income for the business year of 203,000,000 of income amount of 204.

D. The Defendant: (a) on April 8, 2005, issued a disposition of collecting KRW 714,387,500 of the source income tax to DD on the ground that DD failed to perform its obligation to withhold income tax following the notice of change in the income amount in this case.

E. On September 28, 2005, the Defendant: (a) the Defendant, on the 30th of the same month, issued a disposition of deficits on the ground of non-property, etc. with respect to the income tax collected and disposed of to DDDD on the 30th of the same month; (b) the Defendant revoked the disposition of collecting KRW 714,387,50, which was imposed on DDD on December 1, 2008 according to the audit of the Central District Tax Office; and (c) the Plaintiff issued a disposition of imposition of global income tax and penalty tax of KRW 443,768,580, global income tax and penalty tax of KRW 443,768,580, global income tax and penalty tax of KRW 291,571,580, global income tax and penalty tax of KRW 372,404,190, total income tax and penalty tax of KRW 17,744,350 (hereinafter “instant disposition of imposition”).

F. On March 10, 2009, the Plaintiff filed a request for review with the Commissioner of the National Tax Service for the instant disposition, but the Commissioner of the National Tax Service rendered a decision to dismiss the request on March 30, 2010.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) On July 31, 2006, the Defendant imposed income tax of KRW 496,445,970 on the Plaintiff on July 31, 2006, based on the audit records of the Central District Tax Office, and the Plaintiff pointed out that the Central District Tax Office revoked the above disposition upon the Plaintiff’s submission of explanatory materials, and thus the Plaintiff violated the prohibition of duplicate investigation.

(2) Since the global income tax for the year 2001 and the global income tax for the year 2002 were 5 years of exclusion period of imposition, it is unlawful.

(3) In order to directly impose income tax from the disposal of income on the representative director, the Defendant’s disposition of this case was unlawful, without giving notice of change in income amount to the representative director.

(4) The purchase amount of the tax invoice received from the EEE shall be recognized as the construction cost since the subcontractor received the tax invoice in the name of EEE due to the lack of business registration, while DDD paid the actual labor cost to the least F and Ansan, the subcontractor, but the subcontractor received the tax invoice in the name of EEE due to the lack of business registration. Therefore, the Defendant’s disposal without recognizing it as the loss is unlawful.

(5) The Defendant’s disposal of deficit is unlawful even though it did not constitute the grounds for write-off since DD had assets around the time when the notice of change in the income amount of this case was given to DD.

(6) The Defendant’s notification of change of income amount to the Plaintiff, and imposition of the additional additional tax for unfaithful payment from the next day after the date of the additional reporter’s notification, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The assertion of the violation of the prohibition of duplicate investigation

According to Article 81-4(2) of the Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same), the same item of taxation and the same taxable period shall not be re-audited except where there are certain reasons. However, the Defendant cancelled the disposition on July 31, 2006 on the ground that the Plaintiff imposed global income tax of KRW 496,445,970 on the Plaintiff on July 31, 2006, and the Defendant already cancelled the disposition on the ground that it had already been subject to withholding income tax on the Plaintiff. The fact that the Plaintiff imposed the instant disposition on the Plaintiff after the closure of the business of DDD and did not pay the said income tax is without dispute between the parties, and the instant disposition on the disposition on the disposition on the disposal of the deficit of DD as seen earlier was imposed on the Plaintiff, the representative director of the regional tax office, after the disposition on the disposal of the deficit of DD, and thus, it does not violate the principle of re-investigation from the business year.

(2) Claim concerning the exclusion period of imposition

Where the tax authority deems the amount of gross income leaked to the representative as accrued from the bonus and disposes of it as a bonus, the corporation liable to withhold income tax is established on the date when the notice of change in income amount was served on the corporation. Unlike the fact that the person liable to withhold income tax is the receipt date of the labor during the pertinent business year in which the income was generated, regardless of whether the notice of change in income amount was served on the corporation. Thus, the liability to pay global income tax on the person liable to withhold income is established at the time when the taxable period to which the income accrued under the conditions as prescribed by Article 1 (1) 1 of the Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 206) expires. Accordingly, the liability to pay global income tax on the Plaintiff’s taxable year for which the income was reverted and the date the tax period for which the income was recognized as belonging is established at the end of each relevant taxable period, and the starting date of the tax period shall be the filing date and the expiration date of each tax period pursuant to Article 70(1).

On the other hand, it is difficult to see that DDD receives false tax invoices from EE and included them in the calculation of the amount of purchase on the account book. It is an act to evade corporate tax and value-added tax, and it is difficult to see that the Plaintiff, the representative director of DD, who is the representative director of DD, is subject to disposition on recognition and contribution as well as to evade income tax imposed because it is expected that the amount is not revealed because it is not identified that it is for the purpose of evading the income tax to be imposed. Accordingly, the income tax from the disposition on recognition and contribution cannot be deemed as a case where the taxpayer evades national tax by fraud or other unlawful acts,

However, the withholding tax is a system that indirectly realizes the obligation of the source taxpayer to pay taxes on behalf of the government as prescribed by the law, and the obligation of the source taxpayer to pay taxes on behalf of the government, and the obligation of the corporation to pay taxes and the obligation of the individual to pay taxes on behalf of the source taxpayer through the procedure of withholding taxes. If the tax office imposes the obligation of withholding taxes on the withholding agent, the obligation of the source taxpayer cannot be imposed on the withholding agent before the cancellation. Thus, if the withholding agent imposes the obligation of withholding taxes on the withholding agent before the expiration of the exclusion period of imposition on the income tax, the obligation of withholding taxes on the source taxpayer

In this case, on January 5, 2005, before the exclusion period of imposition of the income tax for the year of 2001 and the year of imposition of the income tax for the year of 2002 against the plaintiff, the defendant imposed a withholding duty on DD on the plaintiff on January 5, 2005, which was before the exclusion period of imposition of the income tax for the year of 2001 and the year of imposition of the income tax for the year of imposition of DD, and on April 8, 200, DD did not comply with it, the fact that DD made a disposition of collection of income tax on DD as of April 8, 200, as seen above. Thus, it is reasonable to deem that the defendant imposed income tax on the plaintiff through the notice of change in the income amount and the collection of DDD as of December 1, 208.

(3) The allegation that it was unlawful because it did not give notice of change in income amount to the Plaintiff

In the case of fictitious income for which the withholding agent issues the withholding tax due to the disposition of the tax office, unlike the withholding tax system, solely on the fact that it is the payment of income by the withholding agent, the taxation authority provided the withholding agent with an opportunity to notify the details of the constructive income through the notice of change of income amount and to make the withholding agent voluntarily pay it or appeal it before going through the collection procedure.

Therefore, as long as the withholding agent notified the change of income amount and provided a voluntary payment or appeal opportunity, it is not necessary to notify the original taxpayer of the change of income amount. However, only if the withholding agent cannot give the notice of change of income amount, the original taxpayer must notify the change of income amount.

In this case, as long as the Defendant notified DDR of the change in the amount of income in this case, it is not necessary to give separate notice of the change in the amount of income in order to impose income tax on the Plaintiff. Therefore, the instant disposition of taxation that did not give notice of the change in the amount of income to the Plaintiff is not unlawful.

(4) The construction cost-related assertion

갑 제1, 2, 3호증, 갑 제4호증의 1, 2, 3, 갑 제5호증의 1 내지 8, 갑 제6, 7, 8호 증, 갑 제16호증의 1, 2, 갑 제17호증의 1, 2, 3, 갑 제18 내지 21호증의 각 1, 2의 각 기재, 증인 최FF의 일부 증언 및 변론 전체의 취지에 의하면, 안GG이 작성한 각서에는 DDDDDD의 인감을 소지하면서 HHHHHHH 주식회사(이하 'HHHHHHH'이라 한다) 현장 및 본사 공사와 관련하여 사용하고 타 현장 및 다른 용도로 사용하지 않겠다고 기재되어 있는 사실, 안GG은 DDDDDD건설 주식회사의 상무 명함을 사용한 사실, DDDDDD가 2003. 1. 14. HHHHHHH와 사이에 JJJJJJJJ 주식회사가 발주한 KA05-8 LINE 건설공사 중 부대토목공사를 하도급받은 사실, HHHHHHH이 DDDDDD를 수취인으로 하여 합계 1,187,940,000원의 약속어음 7매 를 발행한 사실, 원고가 운영하던 KKKK 주식회사가 EEEEEE에게 국도 42호선 도로확・포장 공사 중 철근콘크리트공사, 배수공사, 부대공사를 품떼기 하도급을 준 것으로 계약서가 작성되어 있는 사실, DDDDDD가 EEEEEE에게 LLLL 부대 토목공사, 공해방지 기초공사를 품떼기 하도급을 준 것으로 계약서가 작성되어 있는 사실, DDDDDD는 2003. 11. 3. MMMMMMM 대표이사 최FF에게 국도 42호선 보도육교의 하자보수를 요구한 사실, 원고가 서울시 NN구 OO동 76-55 QQ아파트 101동 208호를 최FF의 처인 김ZZ에게 매도한 사실을 각 인정할 수 있으나 DDDDDD가 인건비 공사업자인 안GG, 최FF로부터 실제 공사와 관련하여 공사원가에 포함되는 위 세금계산서를 수취하였다는 점에 대하여 이에 부합하는 갑 제22, 23호증 의 각 1의 각 기재, 증인 최FF의 일부 증언은 믿기 어렵고, 위 인정사실들만으로 이 를 인정하기에 부족하며, 달리 이를 인정할 증거가 없다. 오히려 갑 제1호증, 을 제7호 증의 각 기재 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정 즉, 원고가 그 무렵 DDDDDD 뿐만 아니라 KKKK 주식회사도 운영하였던 점, DDDDDD 의 2002년 수입은 186,000,000원인데 비하여 DDDDDD가 EEEEEE로부터 수취 한 세금계산서는 505,000,000원인 점, DDDDDD 스스로도 EEEEEE로부터 수취한 세금계산서가 허위라는 사실을 인정한 점 등에 비추어 보면, DDDDDD가 EEEEEE로부터 교부받은 세금계산서를 가공의 세금계산서로 보고, 그 금액이 원고에게 인정상여로 귀속되는 것으로 한 이 사건 소득금액변동통지는 적법하다 할 것이다.

(5) Claim regarding write-off

According to the whole purport of the arguments, DDD has 190 won of investment securities of the Specialized Construction Mutual Aid Association around January 5, 2005. On the balance sheet on December 31, 2004, DDD has stated that 2004 accounts receivable for construction works are KRW 500 million and 100 million of assets such as vehicles. The defendant attached DDD's investment certificates of the Construction Mutual Aid Association on February 17, 2005. However, DDD's report of closure of business on September 28, 2005 and the income tax imposed on DDD's respective 349,831,00,00 won and 712,54,000 won and 74,54,000 won were legitimate. Thus, D's assets are collected under D's circumstances where D's assets are no longer collected and D's assets are collected.

(6) As to additional tax

As seen earlier, as long as the notification of the change in the income amount in this case was given to DDD, it is not necessary to give notice of the change to the Plaintiff, and as such, DDD's duty to withhold the income tax and the notification of the change in the income amount was given to DDD pursuant to Article 134 (1) of the Enforcement Decree of the Income Tax Act by the end of the month following the month in which the date of receipt of the notification of the change in the income amount in this case was given, but DDD did not pay the additional report, the disposition of this case imposing the Plaintiff additional tax, including the additional tax, is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.