Whether the instant taxation disposition was unlawful due to the Nonparty’s withholding of taxes

The instant disposition is lawful, premised on the omission of withholding tax and income tax payment.

Articles 21 and 127 of the Income Tax Act

Daejeon District Court 2013Guhap3131

KimCC, KimD

EE Director of the Tax Office

4.30

9, 2014

1. Circumstances of the disposition;

A. AA around 2007, to the Plaintiffs, BB (hereinafter “B”)

30,000 won each (hereinafter referred to as "the case") shall be 30,1200,000 won in part of the fees received from the person.

The term "fee" was paid as a commission for the purchase of apartment lots.

B. The Defendant: (a) purchased apartment site from BB through AA in 2007 by the Plaintiffs;

In spite of the receipt of the instant fee as a brokerage fee, the filing of global income tax is omitted.

on April 1, 2013, Plaintiff KimCC 1,771,160 won of global income tax for the year 2007;

On June 1, 2013, Plaintiff KimD rendered each decision and notification of KRW 5,262,560 on global income tax on Plaintiff KimD (hereinafter referred to as “the fact”).

in general, "each of the dispositions of this case". This fees shall be paid by BB to A.

A. 374,400,000 won, under the premise that the amount of tax withheld at the time is KRW 14,976,000,000, such withholding tax

The amount of tax shall be divided to six persons who received the above fees, including the plaintiffs.

tax amount of KRW 1,248,00 calculated in bulk shall be paid in the income tax and additional tax of the plaintiffs.

is the amount so deducted.

C. The Plaintiffs are dissatisfied with each of the instant dispositions and filed an objection on June 17, 2013 and June 2013.

6. 21. Each Tax Tribunal filed an appeal on October 8, 2013.

Facts that there is no dispute with recognition, Gap evidence 2 through 4, Eul evidence 1 and 2

Each number, including each number), the purport of the whole pleading

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2. Whether the disposition is legal.

A. The plaintiffs' assertion

BB In the course of purchase of land located in the exercise, AA and 7

A. B entered into an advisory contract in the Won, and BB paid the amount to A.A.

14,976,00 won was withheld. AAA withheld the above services from the plaintiffs in fee of KRW 80,000.

The withholding tax rate was 22% at the time AA pays the above payment to the plaintiffs.

80,000 won (total 17.6 million won) shall be withheld at each of the costs to be received by the plaintiffs, and the remainder

AA, a withholding agent, has paid only the fee of this case. Accordingly, AA, a withholding agent.

The scope of withheld tax amount withheld by AA even if the withheld tax amount was not paid.

Since the Plaintiffs, who are taxpayers, should be exempted from liability, each of the instant dispositions is unlawful.

(b) Related statutes;

(1) Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007)

Article 21 (Other Incomes)

(1) Other income shall include interest income, dividend income, real estate rental income, business income, labor income, pension income, retirement income and quantity.

Income other than the Do income shall be as follows:

16. Brokerage commission on a property right;

Article 127 (Liability for Withholding)

(1) A resident or nonresident shall have any of the following income or income:

Any person eligible for payment shall withhold the income tax on his resident or nonresident under the provisions of this Section.

of the corporation.

5. Other income amount: Provided, That an amount falling under any one of the following items shall be excluded:

(a) The amount under subparagraph 7;

(b) Penalty and compensation pursuant to the provisions of Article 21 (1) 10 (the substitution of contract amount with penalty and compensation;

applicable only to such cases)

(c) An amount under the provisions of Article 21 (1) 23 or 24;

(5) A person liable for withholding taxes under paragraphs (1) through (4) shall be the withholding agent.

(8) In withholding under paragraph (1) 3, the scope of the withholding agent, and other officers for withholding taxes.

Matters necessary for this shall be prescribed by Presidential Decree.

Article 145 (Method of Collection of Tax on Other Incomes through Withholding and Delivery of Withholding Receipt)

(1) When a withholding agent pays other incomes, he/she shall apply the withholding tax rate to such other income amount.

shall withhold the income tax so calculated.

(2) When a withholding agent who pays other incomes pays them under the conditions as prescribed by Presidential Decree.

the receipt stating the amount of such income and other necessary matters shall be delivered to the receiver.

(a) Provided, That other income falling under Article 21 (1) 15 (a) and 19 (a) and (b);

If the amount is not more than that prescribed by the Presidential Decree, the receiver shall deliver the withholding receipt.

Except as requested, delivery may not be given.

C. Determination

1) The tax amount withheld by a withholding agent according to the purpose of the withholding system shall be deemed domestic source.

The withheld tax amount even if the person liable for tax payment did not pay it to the competent tax office.

To the extent, taxpayers are exempted from liability (Supreme Court Decision 83Nu540 delivered on April 10, 1984).

However, even if the source tax is to be collected, such income shall be the global income under the Income Tax Act.

Income to be reported in the tax base, if such income has been omitted;

Any person may be imposed as global income tax (Supreme Court Decision 79Nu347 delivered on September 22, 1981).

Supreme Court Decision 2004Du4604 Decided July 13, 2006, etc.

On the other hand, in general, the burden of proof on the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax.

that the person has a taxation authority, but in light of the empirical rule in the course of a specific proceeding, a taxation requirement company.

If it is found that the other party has been presumed to be actual, the other party is subject to the application of the empirical rule.

Unless it proves that the circumstances are not qualified, the taxation disposition in question shall meet the taxation requirements.

It cannot be readily concluded that it is an unlawful disposition (Supreme Court Decision 2002Du6392 Decided November 13, 2002).

(Supreme Court Decision)

2) The Defendant’s withholding tax and income tax payment for the total amount of KRW 62,400,000 for the instant fee

With respect to each of the dispositions of this case premised on the omission by the plaintiffs, the plaintiffs enter into with AA.

The fees for the subcontract advisory contract shall be KRW 80,000 per original total amount, and the AA shall have already been KRW 17,60,000.

It is argued that this is withheld at source.

The evidence consistent with the plaintiffs' assertion is a factual confirmation in the name of AA made on April 2013 (A).

No. 1: source tax out of the total amount of KRW 80,000,000 paid to you in real estate fees.

of 17,600,000 won, which is 22% of the amount, shall be deducted from BB, and shall so receive:

62,400,000 won after deducting 17,600,000 won from the withholding tax amount to

A. However, the confirmation of the facts must not be made at the time of the contract, but not at the time of the contract, in

AB already closed for use by the Plaintiffs and AA all of its tax amounts

According to this, the plaintiffs and AA are exempted from the obligation to pay income tax.

Therefore, this is not enough to recognize the above facts. Furthermore, the Income Tax Act is not sufficient to collect withholding taxes.

When a without interest is paid other incomes, it shall be calculated by applying the withholding tax rate to such other income amount.

income tax (Article 145(1)), when imposing the obligation to withhold the income tax (Article 145(1)), the person responsible for withholding shall have such income

A receipt stating the amount or other necessary matters shall be delivered to the receiver.

(Article 145, Paragraph 2), however, is provided, that the plaintiffs from B or AA are subject to such provision.

there is no such receipt issued, and otherwise, it is possible to support the plaintiffs' claims.

There is no contract, receipt, etc.

Therefore, the plaintiffs' assertion is difficult to accept.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and it is so decided as per Disposition.

(c)