early 2009west4090 ( October 06, 2010)

A legal interest seeking cancellation is vested in a person to whom income substantially accrues if the change in income is notified only to the person to whom income substantially accrues.

If the actual representative of the outflow income is notified of the change in the amount of income without notifying the change in the amount of income of the closed corporation, the legal interest seeking the cancellation of disposition shall not be deemed to be a corporation.

2011Guhap1733 Revocation of Disposition of Imposing corporate tax, etc.

SPland Co., Ltd.

O Head of tax office

July 20, 2011

September 16, 2011

1. The part of the lawsuit in this case seeking cancellation of notice of change in the amount of income shall be dismissed.

2. The Defendant’s imposition of corporate tax of KRW 592,56,90 against the Plaintiff on August 21, 2009 shall be revoked.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Text 2 and the defendant's notification of change in the income amount of KRW 1,676,378,424, which was vested in Park Park on August 21, 2009 with respect to ParkA in 2006, shall be revoked.

1. Details of taxation; and

A. The Plaintiff is a company established on January 6, 2006 and closed its business on November 20, 2006. From June 8, 2006 to November 22, 2006, the director of the Central Regional Tax Office of Jungbu District Tax Office conducted an investigation of suspected facts on the data on the company XXM from June 8, 2006 to November 22, 2006, and subsequently purchased petroleum from the Plaintiff during the 1st taxable period of 2006 to transfer the payment amount of KRW 8,607,71,750 (hereinafter “instant payment”) to the Plaintiff’s deposit account and the borrowed-name deposit account, or notified the Defendant thereof. The detailed details of the instant payment are as set forth in the following table.

(The following table omitted):

B. From November 20, 2006 to January 31, 2007, the Defendant conducted an investigation of suspected persons with respect to the Plaintiff, and confirmed that the Plaintiff issued the processed tax invoices of KRW 4,808,003,00 (value of supply) without real transaction during the first taxable period of 2006. The Defendant corrected and determined KRW 3,017,180,000, which was calculated by deducting the issued amount of the processed tax invoices from the amount of the instant payment (value of supply in a correct manner) (value of KRW 7,825,191,00 from the value of supply in a correct manner), by deeming that the amount of KRW 3,017,180,000 was omitted from the sales declaration.

C. On August 21, 2009, the Defendant applied the standard expense rate under Article 104(2) of the Corporate Tax Act to the omitted amount in filing a return on sales as stated in the preceding paragraph, calculated the Plaintiff’s estimated income amount as KRW 1,676,378,424, and corrected and notified the Plaintiff of KRW 592,56,90 of the corporate tax for the year 2006 (hereinafter “instant disposition imposing corporate tax”). On August 21, 2009, the Defendant notified the Plaintiff of the change in the amount of income that he disposes of KRW 1,676,378,424 as bonus with the Plaintiff’s actual representative pursuant to the proviso of Article 192(1) of the Enforcement Decree of the Income Tax Act (hereinafter “instant income”).

The notice of change in amount was made.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on November 18, 2009, but was dismissed on October 6, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1, 2, 6 through 9, 13 and 14, the purport of the whole pleadings

2. Whether the part of the instant lawsuit claiming revocation of the notice of change in the amount of income is legitimate

According to Article 12 of the Administrative Litigation Act, a suit for cancellation can be filed by a person who has a legal interest in seeking the cancellation of a "disposition, etc.", but for the following reasons, it is judged that there is no legal interest in seeking the cancellation of the notice of change in the amount

O The notice of the change in the income amount of this case is not against the plaintiff, but against ParkA. Therefore, the plaintiff is not the other party to the notice of change in the income amount of this case.

In other words, if the notice of change in the amount of income to a corporation under the main sentence of Article 192(1) of the Enforcement Decree of the Income Tax Act is given, the corporate tax authority is obligated to withhold the income tax only when the notice of change in the amount of income is served on the corporation (see, e.g., Supreme Court Decision 2006Du3803, Aug. 25, 2006). In other words, if the notice of change in the amount of income to the corporation under the main sentence of Article 192(1) of the Income Tax Act is given, the corporate tax is obligated to withhold the income tax, but the notice of change in the amount of income to the person to whom the income is reverted is merely a special provision prepared to give the person to whom the income is attributed an opportunity to return the additional tax base of global income tax and to pay the amount of income tax, and it does not result in the corporate tax withholding obligation.

O In the instant case, only the notice of the change in the amount of the instant income to ParkA was given, and the plaintiff did not receive the notice of the change in the amount of income.

3. Whether the disposition of imposition of the corporate tax of this case is legitimate

A. The plaintiff's assertion

The instant disposition of imposing corporate tax is unlawful, on the basis of the statement of ParkBB of the representative of the XX date, based on the premise that the Plaintiff failed to report the transfer of petroleum sales proceeds to the borrowed name account under the name of the competentCC, etc., but the account under the name of the competentCC, etc. is not the borrowed name account of the Plaintiff.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

However, there is evidence Nos. 3 and 4 that the amount of the instant payment is paid to the Plaintiff from the date XXM to the Plaintiff. However, among the accounts deposited in the instant payment, the remaining account other than the Plaintiff’s name account (hereinafter “the instant borrowed account”) is not the Plaintiff’s borrowed account, there is no dispute between the parties. According to the evidence No. 16, the instant borrowed account is ordinarily paid for petroleum sales to the Plaintiff, including the Plaintiff, in paying the purchase price for petroleum products to the Plaintiff and other petroleum sales companies, first of all, it can be acknowledged that the instant borrowed account including the instant borrowed account, was deposited in 200 and then withdrawn in cash or returned in cash, and then withdrawn and paid in cash, and there is no evidence to prove that the remaining amount of the instant payment was not the sales proceeds other than the Plaintiff’s name among the instant payments.

Furthermore, the disposition imposing corporate tax of this case on the portion corresponding to KRW 4,808,00,03,000, which is the amount issued by the Plaintiff’s processed tax invoice, shall be deemed as income where only the difference between the payment amount of this case and the above KRW 4,808,03,00 was omitted on the premise that it was included in the Plaintiff’s income at the time of filing corporate tax in 2006. As such, insofar as the portion recognized as belonging to the Plaintiff out of the payment of this case is merely KRW 1,774,836,00 and does not exceed the above KRW 4,808,03,00,000, the omitted income would result in the conclusion that the disposition imposing corporate tax of this case is unlawful.

4. Conclusion

Therefore, the part of the lawsuit of this case seeking the revocation of the notice of change in the income amount of this case is dismissed as unlawful, and the part seeking the revocation of the disposition of this case is justified, and it is so decided as per Disposition with the assent of all.