The lawsuit of this case brought without going through the necessary pre-trial appeals procedure under the Framework Act on National Taxes and the Board of Audit and Inspection Act is unlawful.

Since corporate tax and global income tax are separate dispositions independently from each other, even if a corporation has undergone a pre-trial procedure subject to imposition and recognition of corporate tax, it cannot be deemed that it had undergone a pre-trial procedure for revocation of imposition of global income tax on a person to whom it belongs.

Article 56 of the Framework Act on National Taxes concerning other Acts

2018Guhap23634 global income and revocation of such disposition

The AA

The director of the tax office of Luxembourg

October 26, 2018

November 9, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing global income tax of KRW 421,341,840 on the Plaintiff on May 29, 2018 shall be revoked.

1. Details of the disposition;

A. On June 24, 2010, 201, ○○○○ Co., Ltd. (hereinafter “○○○○○”) was established for the purpose of salvage and dismantling a ship, etc., and the Plaintiff was registered on October 7, 2010 on the corporate register of ○○○○○○ as the representative director on October 1, 2010.

나. 부산지방국세청은 2016. 6. 9.부터 2016. 8. 25.까지 ○○○○에 대한 법인세 통합조사를 실시한 결과, ○○○○이 2012년 중 외국 대형 선박인양업체인 일본 ◎◎◎◎◎와 네델란드 ◇◇◇로부터 인양작업 하도급을 받아 수행하면서 인양대금 조기회수와 인양작업 추가 수주 등의 목적으로 상품권 1,086,300,000원을 구입하여 ◎◎◎◎◎ 등에게 리베이트로 지급한 다음 복리후생비, 소모품비 등에 계상한 후 2012 사업연도 법인 소득금액 계산 시 전액 비용으로 공제하였고, 또한 일본 ◎◎◎◎◎로부터 매입한 인양 폐선박을 주식회사 □□에 매각하고 수령한 대금 1,000,000,000원을 2012. 2. 23. 50,000,000원, 2012. 2. 24. 50,000,000원, 2012. 4. 18. 900,000,000원 등 3회에 걸쳐 모두 현금으로 출금한 것으로 장부상 기재하는 한편 현금 출금 사유로서 실제 매입하지 않은 원재료 구입비 687,468,469원을 계상하고, 실제 지급한 사실이 없는 외상매입금 312,531,531원을 지급한 것으로 회계처리 한 사실을 확인하였다.

다. 이에 따라 부산지방국세청장은 ○○○○의 2012 사업연도 법인세 신고와 관련하여 일본 ◎◎◎◎◎ 등에 지급하고 복리후생비 등으로 비용 계상한 상품권 구입비 1,086,300,000원을 접대비로 보아 접대비 한도계산 후 한도초과액 1,086,300,000원을 손금불산입 기타 사외유출로 처분하고, 유출금 1,000,000,000원을 변칙 회계처리를 통해 사외로 유출되었으나 ○○○○은 그 사용처 또는 귀속자를 명확히 밝히지 못하고 있으므로 가공 원재료비 687,468,469원을 손금불산입 대표자 상여처분하고, 외상매입금 상환을 가장한 법인자금 유출액 312,531,531원을 손금산입 유보처분과 동시에 손금불산입 대표자 상여처분 후 법인세 534,329,637원을 경정・고지할 것을 △△△세무서에 통보하였다.

D. On October 4, 2016, the head of the △△△△△ Tax Office issued a correction and notification of corporate tax of KRW 534,329,630 to ○○○○○ on October 4, 2016 (hereinafter “instant disposition imposing corporate tax”), while disposing of KRW 1,00,000,000 as bonus to the Plaintiff, and notified the Defendant, who is the document in charge of imposing corporate tax, of the details of bonus disposition against the Plaintiff as taxation data.

E. On May 29, 2018, the Defendant was notified by the head of △△△△ Tax Office of the foregoing taxation data, and on the ground that the Plaintiff did not report the amount of KRW 1,00,000,000 for the recognized bonus amount, the Defendant imposed global income tax of KRW 421,341,840, including penalty tax (hereinafter referred to as “instant global income tax imposition disposition”), and the Plaintiff received the said tax payment notice on May 29, 2018.

F. Meanwhile, on December 30, 2016, ○○○○ filed an objection with the director of the competent regional tax office against the instant disposition of imposing corporate tax and the notice of change in income amount, and received a decision of dismissal on January 19, 2017. On April 21, 2017, the Commissioner of the National Tax Service filed a request for an examination against the Commissioner of the National Tax Service, but received a decision of dismissal on June 23, 2017.

G. On August 24, 2018, the Plaintiff filed the instant lawsuit against the Defendant seeking revocation of the instant global income tax imposition disposition without undergoing an examination or a request for adjudication as prescribed by the Framework Act on National Taxes, or a request for examination under the Board of Audit and Inspection Act.

Facts that there is no dispute over recognition, Gap evidence 1 to Gap evidence 4, Eul evidence 1 to Eul 6, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Judgment on the Defendant’s main defense

A. The defendant's main defense

The plaintiff was the actual representative of ○○○○○ and lent the name of the representative upon the request of YB, which is the plaintiff’s birth, to the person who was the plaintiff’s birth, and was never involved in the management of ○○○○○○○○○○○○. Since it was never aware of the fact that ○○○○○○ deposited KRW 1,00,000 into a corporate account and deposited in full, it did not know of the fact that ○○○○○○○○○○○○○○○○○’s corporate account. Furthermore, the Busan regional tax office conducted a corporate integration investigation into ○○○○○○○, and issued a correction notice of KRW 534,329,630 for the business year 20 and disposed of KRW 1,00,00 out of the company to the plaintiff, the tax imposition tax imposed on the plaintiff, which was merely the representative of ○○○○○ under the substance over form of Article 14(1) of the Framework Act on National Taxes, the defendant asserted that the instant global income tax imposed was unlawful.

B. Determination

1) Relevant legal principles, etc.

A) According to Article 56(2) and (4) of the Framework Act on National Taxes, an administrative litigation against a disposition under tax-related Acts shall not be filed without going through a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon, or a request for evaluation or a decision thereon under the Board of Audit and Inspection Act. According to Articles 61(1) and 68(1) of the Framework Act on National Taxes, an appeal against a disposition under tax law shall be filed within 90 days after the relevant disposition is known (where a notice of disposition is received,

B) Meanwhile, corporate tax and global income tax are entirely different from each other, and even if corporate income was generated due to non-deductible of losses, such income is not necessarily attributed to the representative, even if it was reserved to the corporation or leaked out of the company, and thus, it cannot be deemed that the income belongs to the representative only. Thus, even if a corporation undergoes a pre-trial procedure for the disposition imposing corporate tax and the disposition imposing corporate tax, it cannot be deemed that it had gone through the pre-trial procedure for the disposition revoking the disposition imposing global income tax on the person to whom it belongs, and it does not constitute a case where the pre-trial procedure is not necessary (see, e.g., Supreme Court Decision 2005Du4106, Dec. 7, 2006).

2) Determination

A) In light of the above legal principles, the facts that the Plaintiff filed the instant lawsuit against the disposition imposing global income tax in this case and did not undergo an examination or a request for trial under the Framework Act on National Taxes, and a request for examination under the Board of Audit and Inspection Act are as seen earlier. As such, the instant lawsuit is unlawful as it was filed without undergoing the necessary transfer procedure under the Framework Act on National Taxes.

B) On this issue, the Plaintiff asserts that the disposition of global income tax in this case, while revising corporate tax on ○○○ by the tax authority, imposed KRW 1,00,000,00 for processing expenses inevitably upon the Plaintiff’s bonus disposition. As such, the administrative disposition was taken in the process of step-by-step and development, and thus constitutes a case related to each other. The Plaintiff filed an objection against the head of Busan Regional Tax Office on December 30, 2016 with regard to the disposition of imposing corporate tax in this case and the notice of change in the amount of income. On April 21, 2017, the Plaintiff filed a request with the Commissioner of the National Tax Service for review on the Commissioner of the National Tax Service for the same basic facts and legal issues related to the existence of the tax liability, which serves as the basis for the disposition of global income tax in this case, and thus, the lawsuit in this case may be deemed to have

On April 21, 2017, ○○○○○ filed a request with the Commissioner of the National Tax Service for the imposition of the corporate tax in this case and the notice of change in income amount of the head of the △△△△ office on April 21, 2017, and was dismissed on June 23, 2017. However, in light of the legal principles as seen earlier, even if ○○○○ requested a review by the National Tax Service on the subject of the notice of the imposition of the corporate tax in this case and the notice of change in income amount, it cannot be deemed that ○○○○ had gone through the pre-trial procedure of the revocation lawsuit against the Plaintiff, and it does not constitute a case where it is not necessary to go through the overlapping pre-trial procedure. Accordingly, the Plaintiff’

3) Sub-decisions

Ultimately, the Plaintiff’s lawsuit in this case is unlawful as it was filed without going through the necessary pre-trial procedure, because it is apparent that the Plaintiff had not gone through the pre-trial procedure until August 26, 2018, which is the deadline for filing a petition for objection to the instant disposition. Therefore, the Defendant’s principal safety defense

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.