Cho Jae-2016-3774 (2017.04.06)

The judgment of a criminal case shall not be included in the judgment that constitutes grounds for ex post facto request for correction.

Since transactions in private law are not immediately null and void or cancelled only with a final and conclusive judgment of a criminal case, the judgment of a criminal case is not included in the judgment constituting grounds for filing a subsequent claim for correction.

Request for correction, etc. under Article 45-2 of the Framework Act

2017Guhap22160 The revocation of the revocation of the revocation of the global income tax rectification

00

The Director of the Z Tax Office

October 27, 2017

November 17, 2017

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The defendant's rejection disposition against the plaintiff on September 30, 2016 is revoked in relation to a request for correction of the disposition imposing global income tax for the year 2009 through 2013 as stated in the Schedule 1.

1. Details of the disposition;

A. The Plaintiff, as the chief knowledge of Buddhist Inspection BB, located 00,000 0,000 0,000 - 00,000 - 00,000 -, was granted a donation receipt of KRW 13,040,960,00 to 3,892 from January 1, 200 to December 31, 2013.

was conducted.

B. On September 1, 2014, the Defendant conducted an investigation into the tax offense against the Plaintiff, and issued to 3,253 persons during the period specified in the above paragraph (a) a false receipt of donations equivalent to KRW 10,886,460,00,00 to 3,253, the Defendant determined and notified the Plaintiff of the amount indicated in the [Attachment 1] List as global income tax according to the issuance of a false receipt of donations as global income tax, and filed the Plaintiff with the investigative agency for a charge of violating the Punishment of Tax Evaders Act.

C. The Plaintiff was indicted on June 11, 2015 by violating the Punishment of Tax Evaders Act (Act No. 10412) in Busan District Court Decision 2014Da10412, and was convicted on June 11, 2015 by the court of first instance, but the appellate court rendered a judgment not guilty of some charges of violating the Punishment of Tax Evaders Act against the Plaintiff on February 16, 2016 (the Busan District Court Decision 2015No2042, hereinafter “instant criminal judgment”), and the above judgment became final and conclusive on June 23, 2016 as it became final and conclusive (Supreme Court Decision 2016Do3582).

D. On August 8, 2016, the Plaintiff filed a claim for correction with the Defendant to the effect that the instant criminal judgment constitutes grounds for later filing a claim for correction as prescribed by Article 45-2(2)1 of the Framework Act on National Taxes, and thus, the Plaintiff revoked the disposition imposing global income tax as stated in the “attached Table 1” column.

E. On September 30, 2016, the Defendant rejected the Plaintiff’s request for correction (hereinafter “instant disposition”), and the Plaintiff filed an appeal, but the Tax Tribunal dismissed the Plaintiff’s request on April 6, 2017.

Facts that there is no dispute over recognition, Gap evidence 1, 2 (including each number, hereinafter the same shall apply), Eul evidence 1 through 3, and 5, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the first declaration, determination or correction under Article 45-2(2)1 of the Framework Act on National Taxes, the criminal judgment is also included in the case where the transaction or act, etc., which forms the basis of calculating the tax base and the amount of tax, becomes final and conclusive as different by a judgment on the lawsuit related thereto. Thus, the instant disposition rejecting a request for rectification of global income tax based on the instant criminal judgment is unlawful.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

The purpose of Article 45-2(2) of the Framework Act on National Taxes is to expand the protection of taxpayers’ rights by allowing taxpayers to file a request for reduction of the tax base and amount of tax when there is a change in the basis of calculation of the tax base and amount of tax due to the occurrence of a certain later cause after the establishment of the tax liability. The term “when a transaction or act, etc., prescribed in Article 45-2(2)1 of the Act, becomes final and conclusive as different by a judgment in the relevant lawsuit” refers to a case where the existence of transaction or act, etc., which is the basis of calculation of the tax base and amount of tax, becomes final and conclusive as a result of a dispute over the transaction or act, etc., which is the basis of calculation of the tax base and amount of tax, becomes final and conclusive by a judgment in the relevant lawsuit (see, e.g., Supreme Court Decision 2009Du2379, Jul. 28, 2011).

Meanwhile, the purpose of the ex post facto request for correction is to expand the protection of taxpayers’ rights by allowing taxpayers to file a request for reduction by proving the relevant fact when there is a change in the basis for calculating the tax base and the amount of tax after the establishment of the tax liability. In addition, unlike the general request for correction, the term of general request for correction is limited to a person who fails to file a tax base return within the statutory due date of return, and the principle of substantial taxation and other tax laws, etc., "when the transaction, act, etc., which is the ground for calculating the tax base and the amount of tax becomes final and conclusive as different by the judgment, etc. in the lawsuit related thereto," which is "when the transaction, act, etc., which is the ground for calculating the tax base and the amount of tax, becomes final and conclusive as different by the judgment, etc." means only the judgment of the civil case in which the existence and legal effect, etc., are clearly disputed in the trial process, but only the judgment or decision itself, etc., can easily be interpreted by means of voluntary settlement or settlement, etc.

Furthermore, the taxation procedure under the Framework Act on National Taxes is to determine taxable income for proper and fair taxation, while the criminal judgment is not only to determine the scope of existence or absence of the criminal fact, but also to resolve disputes over the taxable matter. Since private transactions are not immediately invalidated or cancelled only with a final and conclusive judgment in a criminal case, it is reasonable to view that the judgment in a criminal case is not included in the judgment constituting the grounds for requesting correction.

Therefore, the plaintiff's assertion based on the premise that the criminal judgment of this case constitutes grounds for ex post facto request for correction is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.