Seoul Administrative Court 2013Guhap62633 ( June 13, 2014)

As long as the tax base reported on each disposition in the year to which such disposition is reverted falls short of the tax base to be reported under the relevant tax laws, it is liable to

Even if the imposition of an unfair under-reported additional tax is unlawful, as long as the tax base reported by the Plaintiff in the year to which each of the dispositions of this case belongs falls short of the tax base to be reported under the relevant tax laws, the Plaintiff

2014Nu54815 Revocation of Disposition of Imposing global income tax

- Appellants

Gangwon A

BB Director of the Tax Office

Seoul Administrative Court 2013Guhap62633 ( June 13, 2014)

December 11, 2014

January 15, 2015

1.The judgment of the first instance shall be modified as follows:

A. On May 1, 2012, the part that exceeds KRW 0,000,00 in the imposition of an unfair under-reported additional tax for the year 2008, which was made by the Defendant against the Plaintiff, exceeds KRW 00,000 in the imposition of an unfair under-reported additional tax for the year 2008, exceeds KRW 00,000 in the imposition of an unfair under-reported additional tax for the year 2009, and the part that exceeds KRW 00,000 in the imposition of an unfair under-reported additional tax for the year 200,000 in the imposition of an unfair under-reported additional tax for the year 2010, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. The total costs of the lawsuit shall be five minutes, and four minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The Defendant’s disposition on May 1, 2012 against the Plaintiff: ① imposition of KRW 00,00,000 for unjust underreporting for the year 2008; imposition of KRW 00,000 for unjust underreporting for the year 2009; imposition of KRW 00,000 for unjust underreporting for the year 2010; ② imposition of KRW 00,000 for erroneous underreporting for the year 2008; imposition of KRW 00,000 for erroneous underreporting for the year 2008; imposition of KRW 00,000 for erroneous underreporting for the year 2009; and imposition of KRW 00,00 for erroneous underreporting for the year 2010.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the court of first instance shall be revoked. On May 1, 2012, the defendant revoked the disposition of imposition of 00,000,000 won for the additional payment for the year 2008, the disposition of imposition of 00,000 won for the additional payment for the year 2009, and the disposition of imposition of 00,000,000 won for the additional payment for the year 2010, respectively.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim as to the revocation is dismissed in entirety.

1. The part citing the judgment of the court of first instance

The reasoning of the judgment of this court is as follows: (a) whether the dispositions of this case were legitimate; (b) the Plaintiff’s assertion, (c) relevant laws and regulations; and (d) the Plaintiff’s assertion of illegality of the imposition of the imposition of the unjust under-reported additional tax; and (ii) as to the assertion of illegality of the imposition of the unjust under-reported additional tax, the grounds of the judgment of the court of first instance are as follows: (a) in addition to the partial dismissal as prescribed in paragraph (2), the relevant part of the judgment of the court of first instance (as for the second to tenth, 10th, 5th, 12-17th, the second to the judgment of the court of first instance). Therefore, it is cited by Article 8(2)

2. Parts to be dried;

(a) He shall do so in the first instance court No. 6 of the judgment No. 19 of the first instance court's 19 of the first instance court's 19 of the second instance judgment's 19 of the first instance court's

B. In light of the following circumstances, the part of the 6th 20th 20th 20th 1st 20th 6th 20th 6th 6th 201, stating that “The circumstance alleged by the Defendant alone is that the circumstances alleged by the Defendant up to the appellate trial alone

C. In light of the fact that joint operators of the relevant joint operators, who are the persons to whom the income accrued, should bear the liability to pay taxes, the portion of the first instance judgment shall be as follows.

The pertinent joint business proprietor, who is the source of income, is liable for tax payment. The Plaintiff did not report and pay the amount corresponding to the Plaintiff’s share in the instant joint business proprietor’s name, and the circumstances alleged by the Plaintiff alone do not deem that it is impossible to report and pay the said amount in the Plaintiff’s name. (4) Furthermore, tax laws are administrative sanctions imposed in accordance with individual tax laws in cases where a taxpayer violates various duties, such as reporting and payment of taxes prescribed by the Act without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims (see, e.g., Supreme Court Decision 2013Du17633, May 16, 2014).

3. The part concerning the defendant's argument on the appellate trial

A. The defendant's argument

Even if the imposition of penalty tax for unfair underreporting is illegal as alleged by the plaintiff, as long as the tax base reported by the plaintiff in the year to which each of the dispositions of this case belongs falls short of the tax base to be reported in accordance with the relevant tax laws, the plaintiff is liable to pay penalty tax for general underreporting. Therefore, the part of the imposition of penalty tax

B. Determination

(1) Since the subject matter of a lawsuit seeking revocation of a tax disposition is objective existence of legitimate tax amount, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the pertinent disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition (see, e.g., Supreme Court Decisions 97Nu2429, Oct. 24, 1997; 2001Du1994, Oct. 11, 2002). Furthermore, inasmuch as it is difficult for a taxpayer to be unaware of various obligations, such as reporting and tax payment, under the tax law, it is unreasonable for him/her to be reasonably present, or to expect him/her to fulfill his/her obligations, the tax authority is subject to imposition of liability for nonperformance under the tax law unless there are justifiable grounds, and thus, it can be deemed that there is a justifiable reason that prevents the imposition of additional tax constitutes a reason for exemption of penalty tax (see, e.g., Supreme Court Decision 2012Du131531, Feb. 213, 2013).

(2) In light of such legal principles, the assertion that the Plaintiff is liable to pay the penalty tax for underreporting at least for the omission of the Plaintiff’s income amount corresponding to the Plaintiff’s share in the instant joint venture business (hereinafter referred to as “point income”) by the Defendant for a new disposition in the appellate trial is within the scope of maintaining the identity of the imposition of the penalty tax for underreporting at the beginning of the instant case and the disposition for underreporting is within the scope of maintaining the identity of the disposition. Therefore, in light of the aforementioned circumstances, even if the evidence submitted by the Plaintiff and the circumstances of the allegation were to be considered in full, it is not recognized that there is a justifiable reason to prevent the Plaintiff from imposing the penalty tax for underreporting the income in question, and there is also lack evidence to acknowledge otherwise.

(3) Therefore, it is reasonable to determine that the Plaintiff is obligated to pay for the omission of the pertinent income at least the general under-reported additional tax. According to the purport of Gap evidence No. 1 (Additional No. omitted) and the entire pleadings, the general under-reported additional tax to be borne by the Plaintiff in relation to the omission of the pertinent income may be acknowledged as follows: ① KRW 0,000,000 for the portion reverted to the year 2008 (the amount less than ten won according to Article 47(1) of the Management of the National Funds Act; hereinafter the same shall apply); ② KRW 00,000,000 for the portion reverted to the year 209, ③ KRW 00,000 for the portion reverted to the year 2010, and there is no counter-proof.

C. Sub-committee

Ultimately, the Plaintiff’s claim for revocation of each of the dispositions of this case is with reason to the extent that it seeks revocation of the part exceeding the above 16,040,000 won out of the disposition of imposition of KRW 34,804,670 on the imposition of KRW 8,701,160 on the imposition of KRW 208; ② the part exceeding the above 14,634,070 on the imposition of KRW 58,536,315 on the imposition of KRW 58,536,50 on the imposition of KRW 14,634,07 on the imposition of KRW 64,00 on the imposition of KRW 64,040,00 on the imposition of KRW 200 on the imposition of KRW

4. Conclusion

Therefore, the plaintiff's claim for the cancellation of this case is accepted within the scope of the above "3.C.", and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance differs from the partial conclusion, it is decided to revise the judgment of the court of first instance in receiving part of the defendant's appeal, and it is so decided as per Disposition.