Lighting-2015-Mining-1221. Lighting-2015-luminous-122

Action demanding cancellation, such as refusal of request for correction

Even if the tax authority has rejected a request for correction that is not based on the tax law of taxpayers, it shall not be deemed a rejection disposition that is subject to appeal litigation.

Article 88 (Calculation Type, etc. of Wrongful Acts)

Article 45-2 (1) of the Framework Act on National Taxes

Revocation, such as rejection of request for correction

1.AAA Company 2.BB Company

Head of tax office

oly 2015.23

oly 2015.10

1. All of the plaintiffs' primary and conjunctive claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

1. On August 16, 201, the first disposition of rejecting a claim for rectification filed by the Defendant against the Plaintiff AA Co., Ltd. on November 14, 201, which was rendered by the Defendant to the Plaintiff A Co., Ltd. on November 14, 201, the amount of losses for the business year 2009 increased from KRW 1,148,502,253 to KRW 3,154,630,448, the amount of losses for the business year 2010 to KRW 2,124,368,182, and the amount of losses for the business year 2010 to KRW 2,124,368,182, which remains in the business year 2006 to KRW 431,217,429 to KRW 2,141,051,586, is revoked.

2. On August 16, 2011, the Defendant first rendered a preliminary decision against Plaintiff BB Co., Ltd. on November 14, 201, the Defendant’s losses for the business year 2009 increased to KRW 503,972,249 from KRW 359,303,584, and the remaining remaining in the business year 2007 from KRW 793,608,150 to KRW 1,075,371,832 shall be revoked.

1. Basic facts

A. Status of the plaintiffs

Plaintiff AA Co., Ltd. is a company established for the purpose of construction, management, and operation of each DD Corporation, while Plaintiff AA Co., Ltd. is a company established for the purpose of construction, management, and operation of each D Corporation.

B. The plaintiffs' subordinated borrowings

On June 30, 2009, the Plaintiff AA Co., Ltd. entered into a subordinated loan agreement (hereinafter collectively referred to as “instant subordinated loan”) with a specially related CCTV loan company (hereinafter referred to as “CC”) with the maximum amount of KRW 20.21 billion, with the maximum amount of KRW 1.26 billion, Plaintiff BB Co., Ltd. with the maximum amount of KRW 11.266 billion.6 billion.

C. The defendant's tax investigation on the plaintiffs

From June 28, 2011 to July 12, 2011, the Defendant issued a notice of the result of the tax investigation to rectify the corporate tax base for the business year 2009 and 2010 (hereinafter “Notice of the result of the tax investigation of this case”) to the Plaintiffs by adding the interest paid for the business year 2009 and 2010, which corresponds to the difference between the interest rate of the instant subordinated loan and the said market price, to the Plaintiffs, after conducting an investigation on the portion of corporate tax against the Plaintiffs, the Plaintiffs were deemed to fall under a wrongful calculation that lacks economic rationality.

On August 12, 2011, the Plaintiffs submitted to the Defendant an application for early decision on the results of the above tax investigation.

D. Defendant’s decision of correction of tax base

On August 16, 201, the defendant applied for early decision as above: (a) on August 16, 201, the defendant decided to revise the corporate tax base for the business year 2009 (hereinafter “instant decision of correction”) by adding the interest expense for the business year 2006, 128, 195, and interest expense for the business year 2010 to deductible expenses; and (b) reduce the corresponding amount to the corresponding amount; (c) on the basis that each tax base is increased to the corresponding amount; (d) on the part of the Plaintiff BB corporation, the amount of interest expense for the business year 2009, 14,668,665, interest expense for the business year 2010, 281, 281, 2009, 2010, and 3,834,202, and 3339.

E. The plaintiffs' tax appeal

On November 10, 201, the plaintiffs appealed to the Tax Tribunal on November 10, 201, and asserted that the plaintiffs would increase the deficits and the balance of the deficits and losses (hereinafter referred to as the "claim in the appeal of this case") as stated in the claim in the above trial proceedings.

Accordingly, on December 12, 2012, the Tax Tribunal denied subordinated loans in this case due to wrongful calculation.

A decision was made to re-examine whether the merchant or not and correct it according to the result.

F. Notification of the result following the defendant's decision of appeal

On November 14, 2014, according to the above decision of the Tax Tribunal, the defendant issued a notification of the result of the decision of request for a trial (hereinafter referred to as "the subsequent notification of this case") with the same content as the correction of the tax base of this case.

2. The plaintiffs' assertion

The plaintiffs' subordinated loan does not constitute a wrongful calculation agent. Accordingly, even though the plaintiffs filed a claim to correct the tax base by increasing the amount of losses and deficits as stated in the purport of the claim, such as the notice of the tax investigation result of this case, the defendant's rejection of the above request for correction of the tax base based on the decision of correction of the tax base of this case is illegal, and ② as a preliminary claim, the plaintiffs filed a claim to correct the tax base by increasing the amount of losses and deficits as alleged in the appeal of this case or the amount of non-deductibles as stated in the reexamination process after the decision of the Tax Tribunal, it is unlawful that the defendant refused the above request for correction of the tax base based on the subsequent notification of this case.

3. Whether the lawsuit in this case is lawful

We examine ex officio.

A. Relevant regulations and legal principles

Article 45-2(1) of the Framework Act on National Taxes provides that "a person who has filed a tax base return by the statutory due date of return may file a claim with the head of the competent tax office within five years after the statutory due date of return elapses for the determination or correction of the tax base and amount of the national tax which has been filed first and revised by the statutory due date of return," and Article 45-2(5) of the Framework Act on National Taxes and Article 25-3 of the Enforcement Decree of the Framework Act on National Taxes provide that

In addition, unless there is any express provision that recognizes the right to demand correction under the Framework Act on National Taxes or individual tax-related Acts, the right to demand correction cannot be acknowledged. Thus, even if the tax authority rejected a request for correction not based on the tax-related Acts of the person liable for payment, it cannot be deemed a rejection disposition that is subject to appeal litigation (see Supreme Court Decision 2007Du18284, Feb. 25, 2010).

B. Judgment on the main claim

The notice of the result of the instant tax investigation that the Plaintiff claims as the subject matter of a claim for correction is not a determination or correction of the tax base and tax amount under Article 45-2(1) of the Framework Act on National Taxes, and thus cannot be deemed the subject matter of a claim for correction under the Framework Act on National Taxes. Furthermore, the Plaintiffs cannot be deemed to have filed a claim for correction under the Framework Act on National Taxes, since there was no submission of the written request for correction to the Defendant, who is the chief of the competent tax office, for the increase of the deficit or the balance of the deficits, such as the written request for correction, as stated in the purport of the claim. Furthermore, the written request for correction of the tax base in this case is merely the subject matter of the claim

C. Determination on the conjunctive claim

The argument in the appeal of this case is merely an argument in the trial proceeding and cannot be viewed as an application for correction against the defendant who is the chief of the competent tax office. The subsequent notice of this case is merely a subsequent notice following the decision of the tax appeal and does not constitute a rejection disposition against the request

Therefore, since there is no rejection disposition against the plaintiffs' claim for correction under the Framework Act on National Taxes, this part of the claim is unlawful.

4. Conclusion

Therefore, since the plaintiffs' primary and conjunctive claims are all inappropriate, it is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-young, et al.

Judges ○○