Gwangju High Court-2013-Nu-1699 ( October 08, 2015)

Cut-2012-B-2332

Income tax claim of this case does not constitute rehabilitation claim.

If the notice of change in the amount of income is served after the commencement of rehabilitation procedures for the relevant corporation, the withheld amount of income tax claims are generated after the commencement of rehabilitation procedures and do not constitute rehabilitation claims under the Debtor Rehabilitation Act.

Article 118 of the Debtor Rehabilitation Act

2015du8444 Revocation of disposition of revocation of rectification notice of corporate tax, etc.

AAA Development Corporation

00. Head of tax office

Gwangju High Court Decision 2013Nu1699 Decided January 8, 2015

June 11, 2015

The part of the judgment of the court below against the defendant shall be reversed, and the judgment of the court of first instance concerning this part shall be revoked, and the lawsuit shall be dismissed

The plaintiff's appeal is dismissed.

One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Plaintiff’s ground of appeal

Whether a tax claim constitutes a rehabilitation claim as “property claim arising from the cause prior to the commencement of rehabilitation procedures” under Article 118 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) is determined on the basis of whether the taxation requirements prescribed by the Act have been met prior to the commencement of rehabilitation procedures and the relevant tax claim has been established. In cases where a tax authority disposes of a corporation’s outflow from the company as a representative’s bonus and notifies of the change in the amount of income, the liability to pay withholding income tax is established at the time when the notice of change in amount of income was served. Therefore, if the notice of change in amount of income was served after the commencement of rehabilitation procedures for the relevant corporation, the pro rata income tax claim arising from the cause subsequent to the commencement of rehabilitation procedures is not deemed a rehabilitation claim as prescribed by the Debtor Rehabilitation Act (see, e.g., Supreme Court Decision 2012Du2336

According to the reasoning of the judgment below, the notice of change in the amount of income of this case on the ground that the omitted amount of the plaintiff was leaked out to others than the company is made after the decision is rendered to commence the rehabilitation procedure for the plaintiff. In light of the above legal principles, the income tax of this case does not constitute rehabilitation claims.

Although the reasoning of the lower judgment is somewhat inappropriate, the lower court’s conclusion rejecting the Plaintiff’s assertion premised on the fact that the withheld income tax of this case constitutes a rehabilitation claim is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the

2. As to the Defendant’s ground of appeal

According to the records, the Defendant’s revocation ex officio of the disposition of correction and notification of the corporate tax and value-added tax on April 10, 2015, which was after filing the instant final appeal in accordance with the purport of the lower judgment. Therefore, regarding the revoked portion of the instant lawsuit, it was illegal as it did not have any interest in the lawsuit because it did not have any interest in the lawsuit.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed. Since this part of the judgment of the court below is sufficient for this court to directly judge, the judgment of the court of first instance corresponding thereto shall be revoked, and this part of the lawsuit shall be dismissed. The plaintiff's appeal shall be dismissed. One-third of the total costs of the lawsuit shall be borne by the plaintiff, and the remainder shall be borne by the defendant. It is so decided