Whether a disposition for increase has been legitimate by imposing an exclusion period upon the National Tax Tribunal's decision

A disposition that was re-issued within one year by applying the special period of exclusion period according to the decision of the National Tax Tribunal is legitimate in that the special case is not a provision applicable only to a taxpayer, but is contrary to the principle of prohibition of disadvantageous change.

Article 79 of the Framework Act on National Taxes: Prohibition of Unfair Objections and Disadvantages

[Supreme Court Decision 2008Du3906 (No. 15, 2008)]

1.The height is dismissed.

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

Although examining all of the records of this case and the judgment of the court below and the grounds of appeal, it is clear that the appellant’s grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal, and thus, the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by

[Seoul High Court Decision 2007Nu11667, Oct. 11, 2008]

1. In accordance with the Plaintiff’s expansion of the purport of the claim, the part of the disposition imposing corporate tax of KRW 104,910,957 on the Plaintiff on March 26, 2004, which the Defendant rendered against the Plaintiff, is revoked.

2. All appeals filed by the plaintiff and the defendant are dismissed.

3. The costs of appeal following the extension of the plaintiff's purport are assessed against the defendant and the costs of appeal are assessed against each party.

1. Purport of claim

The Defendant against the Plaintiff:

(a)the imposition of the corporate tax of KRW 1,501,912,629 on August 8, 2006;

B. The portion exceeding KRW 3,187,207 of the disposition of imposition of corporate tax of KRW 104,910,957 on March 26, 2004 (the plaintiff sought revocation of the portion exceeding KRW 23,639,222 from the first instance court, but extended the purport of the claim as above in the trial);

(c)the imposition of KRW 37,393,501 of the corporate tax for the business year 1999 on March 24, 2005;

D. The portion exceeding 95,863,704 won among the disposition of imposition of 649,115,470 won of corporate tax for the business year 2000 on March 24, 2005

E. The portion exceeding KRW 45,230,914 of the disposition of imposition of KRW 296,754,251 of the corporate tax for the business year 2001 on March 24, 2005;

(f)the imposition of KRW 106,921,195 of the corporate tax for the business year 2002 dated March 24, 2005;

(g) a disposition of imposition of withholding income tax of KRW 10,946,81 on May 1, 2003; a disposition of imposition of KRW 29,910,267 on withheld earned income of KRW 199; a disposition of imposition of KRW 32,237,461 on withheld earned income of KRW 200; a disposition of imposition of KRW 24,97,65 on withheld earned income of KRW 201;

h. Each disposition of imposition of KRW 41,381,322 on March 26, 2004 on withholding income at source in 2002 shall be revoked.

(g)Paragraphs (g) and (h) and selectively)

(i) a disposition of imposition of withholding income tax of KRW 10,946,81 on March 26, 2004; a disposition of KRW 29,910,267 on withheld earned income of KRW 1999; a disposition of imposition of KRW 32,237,461 on withheld earned income of KRW 200; a disposition of imposition of KRW 24,97,65 on withheld earned income of KRW 201;

(j) revoke each disposition of imposition of tax of KRW 41,381,322 on earned income accrued in the year 2002 on September 9, 2005.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's disposition of KRW 909,896,229 of the imposition of corporate tax of KRW 1,501,012,629 against the plaintiff on August 8, 2006 shall be revoked. The part of the disposition of KRW 1,501,012,629 against the plaintiff shall be revoked

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasons for the court's explanation of this case are as follows: 1,51, 621, 83 Won and 200, 200, 30, 200, 200, 30, 200, 50, 200, 200, 30, 415', 20, 20, 30, 50, 200, 20, 300, 200, 50, 200, 300, 50, 500, 200, 200, 300, 200, 50, 200, 200, 50,000, 20,000, 30,000,000,000,000,000,00,000,000,00,00,00

2. Parts to be dried;

'2.c. (1)(b)(2)(2)(2)(2)(20)(20, 18, 23)(3)(2)(20, 18, 23)(3)(2)(1))(1)

(B) Whether Article 26-2(2) of the Framework Act on National Taxes applies special exceptions to the exclusion period

(1) Article 26-2 (1) of the Framework Act on National Taxes limits the exclusion period of the imposition of national taxes to five years from the date on which the national taxes may be imposed, unless a taxpayer evades a national tax by fraud or other unlawful means or fails to submit a written tax base within the statutory due date of return, and Article 26-2 (2) of the Framework Act on National Taxes provides that, notwithstanding the exclusion period under paragraph (1), where a decision or judgment is made on an objection, request for examination, request for adjudgment, request for examination under the Board of Audit and Inspection Act, request for examination under the Board of Audit and Inspection Act,

② As to this case, since the period of exclusion from corporate tax for the 1997 corporate tax is until March 31, 2003, which was five years from April 1, 1998, the day following the deadline for filing corporate tax, the period of exclusion has already lapsed on August 8, 2006, when the defendant issued a disposition of revising corporate tax for the 1997 business year, but the above disposition of revising the amount was made at the time one year has not passed since the decision was made by the National Tax Tribunal on May 2, 2006, the special provisions on the exclusion period under Article 26-2 (2) of the Framework Act on National Taxes shall apply to the disposition of revising the amount of the above increase. Thus, the above disposition of revising the amount shall not be deemed null and void on the ground of the limitation period (see Supreme Court Decisions 200Du6237, Jul. 23, 2002; 200Du3684, May 39, 1996).

3. Additional determination

A. The plaintiff's assertion

The plaintiff reported the value of basic inventory assets in the business year 1997 to KRW 466,00,00, and the value of the last inventory assets in the business year to KRW 310,549,851, respectively. The defendant calculated the value of the inventory assets at the end of the business year 1997, based on the inventory status table (Evidence B-3) prepared by the plaintiff in the business year 1997, with the value of the inventory assets at the end of the business year 1,551,621,583, while the basic value of the inventory assets at the end of the business year 1997 was recognized as the reported amount, but the basic value of the inventory assets at the end of the business year 1997 was stated as KRW 3,109,768,810, as well as the national tax investigation and court trial at the end of the business year 1997, and the amount of the inventory assets at the end of the business year 197,097, and 197.

B. Determination

(1) First, according to the evidence of evidence Nos. 11, 12, and 24 as to the value of inventory assets as of the end of the business year 197, the prosecution accepted the results of the investigation conducted by an accounting firm under the suspicion of tax evasion, which was submitted by the plaintiff, under the premise that the inventory value as of the end of the business year 1997 was KRW 3,109,768,810, and the court issued a summary order recognizing the indictment and issued the summary order, and the National Tax Tribunal also decided to change the value of inventory assets as of the end of the business year in accordance with the above summary order.

However, the above decision of the National Tax Tribunal is unlawful against the principle of prohibition of disadvantageous alteration under Article 79 (2) of the Framework Act on National Taxes and thus, the defendant's disposition of corporate tax increase for the business year 1997 dated August 8, 2006 is null and void. Thus, the disposition of corporate tax increase for the plaintiff in this case is valid to the extent that the disposition of corporate tax increase for the business year 1997 against the plaintiff in this case is still valid to the extent that the amount of inventory value at the end of the business year is considered as KRW 1,551,621,583. Furthermore, there is no reason to view the result of the follow-up decision of the

(2) Next, it is insufficient to view that the Plaintiff’s basic inventory value in the business year 1997 reaches KRW 3,562,00,000, different from the value reported by the Plaintiff, solely with respect to the basic inventory value in the business year 1997, and there is no other evidence to acknowledge otherwise.

(3) If so, the plaintiff's assertion that the defendant should make an estimated taxation on the premise that the end value of the inventory and the basic inventory value based on the imposition of corporate tax for the business year 197 should be based on the premise that it is false.

4. Conclusion

Therefore, among the lawsuits in this case, the part of the plaintiff's claim for cancellation of tax withholding income tax for the year 198 from March 26, 2004 to 2002 is unlawful and dismissed. The part of the claim for cancellation of tax withholding tax for each of the tax withholding income for the year 1997, which exceeds 591,116,400 won among the disposition imposing corporate tax for the plaintiff 1,501,629 on August 8, 2006 and the part exceeding 3,187,207 won among the disposition imposing corporate tax for 104,910,957, March 26, 2004, which exceeds 198,000 won among the disposition imposing corporate tax for the year 194,910,957, 1998, and all of the remaining claims are dismissed. The decision of the court of first instance with the same conclusion is without merit, and all of the appeals of the plaintiff and the defendant are dismissed.

[Seoul Administrative Court 2006Guhap27618, 2007)]

1. Of the instant lawsuit, the Plaintiff’s imposition of withholding income tax of KRW 10,946,881 on March 26, 2004, the Plaintiff’s imposition of withholding income tax of KRW 29,910,267 on earned income for the year 1999, the imposition of withholding income tax of KRW 32,237,461 on earned income for the year 200, the imposition of withholding income tax of KRW 32,237,461 on withheld income for the year 200, the imposition of withholding income tax of KRW 24,97,665 on withheld income for the year 201, and the request for revocation of the imposition of KRW 41,381,322 on withheld income for the

2. The defendant's assertion against the plaintiff

A. On August 8, 2006, the portion exceeding KRW 591,116,40 of the disposition of imposition of corporate tax of KRW 1,501,01,012,629 in the business year 197 is revoked.

B. The imposition disposition of KRW 104,910,957 of the corporate tax for the business year 1998 on March 26, 2004 in excess of KRW 23,639,222 of the amount shall be revoked.

3. The plaintiff's remaining claims are dismissed.

4. Three-minutes of litigation costs are assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

(2) The imposition disposition devolving on the Plaintiff of KRW 1,50,000 on August 24, 2005, KRW 37,393,50 on March 24, 2005, KRW 209, KRW 963,00 on March 24, 200, KRW 97, KRW 963,50 on March 24, 200, KRW 209, KRW 964, KRW 967, KRW 297, KRW 296, KRW 297, KRW 296, KRW 296, KRW 297, KRW 296, KRW 296, KRW 296, KRW 296, KRW 296, KRW 296, KRW 296, KRW 296, KRW 296, KRW 296, KRW 295, KRW 2914, KRW 5, and KRW 5) shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry of evidence 1 to evidence 11, evidence 13 to evidence 18-7, evidence 1 to evidence 18-6, evidence 1 to evidence 6-1 to evidence 6-3, evidence 6-1 to evidence 18-3.

A. Conduct of a special tax investigation against the plaintiff, imposition of corporate tax on February 3, 2003, and imposition of withholding income tax on May 1, 2003

(1) Conduct of a special tax audit

From June 20, 2002 to December 31, 2002, the director of the regional tax office of ○○○ has conducted a special tax investigation against the Plaintiff. As a result of the tax investigation, the Plaintiff was found to have omitted sales of KRW 61,05,735 in the business year 1998 and notified the Defendant, a representative of the district tax office having jurisdiction over the disposition of inclusion in deductible expenses and disposal of deductible expenses by each business year, based on the judgment that the Plaintiff undergoes the tax investigation that the last inventory in the business year 1997 differs in the quantity according to the inventory inspection table and in the account books. As seen in Table 1 below, as seen in the following table 1, 198 to 2001: (a) the provisional public sale application was filed in total; (b) the amount of KRW 5,765,421,564 in the business year 198, and omitted sales of KRW 61,05,735 in the business year 198.

Table 1

Business year

Account Titles

February 3, 2003

Imposition of Corporate Tax

May 1, 2003

Withholding Labor

Imposition of Income Tax

5. Omission of horse inventory

the application for a public auction

Omission of Sales

Electric street park:

1997

1,241,071,732

61,055,735

591,116,401

1998

2,330,567,904

478,706,789

1,034,538,400

199

2,135,446,672

79,168,364

633,941,850

924,416,534

200

479,499,387

893,866,941

589,138,511

195,201,160

201

819,907,601

309,047,029

326,446,283

Total

1,241,071,732

5,765,421,564

61,055,735

973,035,305

2,601,950,580

2,480,602,377

1) The phrase “the last inventory appropriation amount” of the previous public auction application is included in the calculation of losses, and a reservation disposition is made, but the basic inventory amount in the current period is increased and excluded from the calculation of losses.

2) The original regional tax office determined the omitted amount of sales in 1998 as KRW 61,05,735,000, but the Defendant assessed corporate tax by recognizing the omitted amount of sales as KRW 55,055,735 as of February 3, 2003 as follows.

(2) Disposition of imposition of corporate tax on February 3, 2003

Accordingly, on February 3, 2003, the defendant made tax adjustment as follows, and imposed corporate tax for the business year from 1997 to 2001 on the plaintiff as seen in the attached Table 1.

(A) year 1997: 1,241,071,732 of the last inventory omitted was excluded from deductible expenses and disposed of as reservation.

(B) year 1998: A public auction application was filed to include KRW 2,30,567,904 in deductible expenses, and KRW 5,055,735 in gross income, and to dispose of it as a representative bonus, and to dispose of it as a representative bonus, and to dispose of KRW 1,241,071,732 in gross income, and KRW 79,168,364 in gross income, and value-added tax 5,05,066 in gross income and its reservation.

(C) year 199: (a) the provisional public sale application was disposed of as non-deductible and reservation of KRW 2,135,446,672; and (b) the provisional public sale application was disposed of as inclusion in deductible expenses and reservation of KRW 893,86,941 among them.

(D) year 200: (a) the provisional public sale application was disposed of as non-deductible expenses and as a representative bonus; and (b) the said provisional public sale application was disposed of as non-deductible expenses and reserved expenses of KRW 893,86,941 of the last inventory.

(E) year 2001: A public auction application was filed in the amount of KRW 819,907,601 and disposed of as a representative bonus.

(3) Disposition imposing withholding income tax on May 1, 2003

The defendant, as seen above on May 1, 2003, disposed of each of the provisional auction applications for the business years from 1998 to 2001 as a representative bonus, and imposed tax on the earned income tax for the year from 1998 to 2001 as shown in Table 1.

B. Determination of re-audit by ○○ Regional Tax Office, imposition of corporate tax on March 26, 2004, imposition of corporate tax on March 24, 2005, imposition of withholding income tax on March 26, 2004, imposition of withholding income tax on March 26, 2004, and imposition of withholding income tax on September 9, 2005

(1) On April 8, 2003, the Plaintiff filed an objection with the ○○ Regional Tax Office on the imposition of corporate tax for each business year from 1998 to 2001. On November 20, 2003, the ○○ Regional Tax Office decided to re-examine whether it is appropriate that the application for a provisional public sale was made as a full representative bonus disposition, and whether there was a balance of the last inventory amount other than the book in the year 1997, which would be appropriated as sales cost until 2000, and how the goods were disposed, by appropriating the amount of the processed purchase in the book.

(2) The defendant conducted a reinvestigation according to the re-audit decision of the ○○ Regional Tax Office, and conducted a reinvestigation as set forth in Table 2 below, and conducted a disposition as a representative bonus for the applicant for a provisional auction as to the amount of KRW 4,762,06,564 as well as KRW 1,03,415,00 as provisional payment for ○○ Electronic Co., Ltd., a related company, and changed the disposal of income by reservation. The defendant calculated the interest recognized as to the increased provisional payment (import interest) and determined to include the increased provisional payment as the provisional payment in gross income and to exclude the relevant interest in deductible expenses. The defendant imposed corporate tax as of March 26, 2004, imposed corporate tax as of March 24, 2005, imposed as corporate tax as of March 26, 2005, imposed as well as imposed as withholding income tax as of March 26, 2004, imposed as of September 9, 2005.

Table 2

1998

1999

200

201

guidance.

The provisional payment by the representative director

2,330,567,904

1,132,031,672

479,499,387

819,907,601

4,762,006,564

The provisional payments made by affiliated companies

1,003,415,000

1,003,415,000

(3) Disposition of imposition of corporate tax on March 26, 2004 (decision of increase in amount)

On March 26, 2004, the defendant changed the disposition to make a reservation against KRW 2,330,567,90 by the provisional public auction application, which was disposed of as the bonus for the business year of 1998 as the initial representative, for the income amount corresponding to the business year of 2,330,567,90 won, and the increased representative director recognized KRW 2,330,567,649 as the amount of provisional payment (import interest) and disposed as the representative bonus, and disposed as the representative bonus, and disposed of KRW 249,227,645 as the interest paid by the director in relation to the provisional payment as the non-business year of 198 as the bonus, and made a disposition to increase the corporate tax of KRW 231,173,567 to the plaintiff in the business

(4) Disposition of imposition of corporate tax on March 24, 2005 (decision of increase in amount)

On March 24, 2005, the defendant imposed corporate tax for the business year from 1999 to 2002 as follows.

(A) In 199: A provisional public sale application, which was disposed of as a bonus from the initial representative, was modified to a reservation on KRW 2,135,446,672 (=1,132,031,672 +1,003,415,00) and was disposed of as a bonus in addition to the increased representative director’s recognition interest (import interest) 304,196,506 as to the amount paid by the increased representative director; and was disposed of as a representative and as a bonus; the related company’s interest (import interest) 11,628,217 as to the amount paid by the related company as a bonus in gross income and disposed of as other outflow from the company; was disposed of as a bonus; was disposed of as a non-deductible amount of KRW 77,572,384 as interest paid by the related company; and was disposed of as a tax adjustment to the Plaintiff; and was disposed of as a tax adjustment in the business year of 1999.

(B) In 200: A provisional public sale application, which was disposed of as a bonus from the initial representative, was amended to a reservation against KRW 479,49,387; the representative director's recognition interest (import interest) on the increased representative director's provisional payment was additionally added to gross income and disposed of as a bonus; the related company's recognition interest (import interest) 110,375,626 as a bonus; and disposed of as other outflow from the company by inclusion in gross income; the related company's interest (import interest) 110,375,626 as a bonus; and the related company's interest on the provisional payment was disposed of as other outflow from the company; the company's interest paid in relation to the provisional payment was disposed of as a bonus in deductible expenses; and the tax adjustment was made to the plaintiff; and the company issued a disposition to increase corporate tax in 200

(C) year 2001: A provisional public sale application, which was disposed of as a bonus from the initial representative, changed the disposition as a reservation against KRW 819,907,60,01; the representative director's recognition interest (import interest) on the increased representative director's provisional payment in the calculation of earnings and disposed of as a bonus; the related company's recognition interest (import interest) 10,375,626 on the paid amount as a bonus in the calculation of earnings and disposes of it as other outflow from the company; and the related company's inclusion of the paid interest related to the paid amount as a bonus in the calculation of earnings and 69,05,170 won related to the paid amount as a bonus in the calculation of losses and other tax adjustment to be disposed of as a outflow from the company; and the Plaintiff issued a disposition to increase corporate tax in the amount of KRW 321,40

(D) year 2002: A disposition was made to increase corporate tax for the business year 2002 to the Plaintiff in the amount of KRW 158,407,958,958 by adding the interest rate (interest on revenue) on the provisional payment of the increased representative director to the gross income and disposing of it as the bonus of the representative; adding the interest rate of KRW 66,451,206 related to the provisional payment of the non-business amount to the gross income; adding the interest rate of KRW 66,451,206 related

(5) Disposition imposing withholding income tax on March 26, 2004 (decision to reduce)

The defendant, as seen above on March 26, 2004, changed the reservation disposition against the applicant for a provisional auction in 1998 through 2001, and disposed of the interest recognized (import interest) as a bonus for the representative director increased in each business year as a bonus in the calculation of earnings and disposing of the interest recognized as a representative for the provisional payment by the representative director increased in each business year as a bonus, and imposed a disposition to reduce the withholding labor income tax for the year 1998 through 2001 as 18,402,240, 169, 200, 169,000, 169,09,920, 2000, 2001, 182,198,038.

(6) Disposition imposing withholding income tax on September 9, 2005

On September 9, 2005, the defendant issued a disposition of imposition of KRW 144,540,683 of the wage and salary income tax for the year 2002 by the representative director who increased the year 2002 as a bonus in the calculation of the income amount as a representative bonus.

(c) Disposition of imposition of December 5, 2005 (decision to reduce).

On December 5, 2005, the defendant made ex officio the tax adjustment on the income for the business year of 1998, 200, 2002 as follows, and decided to reduce the corporate tax amount.

(a) Year 198: Interest paid in relation to the provisional payments which are not related to the affairs, in the calculation of earnings and disposal of 5,055,735 won in the calculation of earnings and the bonus disposition by the representative of the customer as the confirmation of the customer, shall be limited to 52,085,735 won in the calculation of earnings, and shall be changed to be disposed of

249,227,645 won was changed to 246,316,70 won on the ground of the reduction of 246,316,70 won on the ground of the reduction of 249,227,645 fee, and the corporate tax was adjusted to reduce 252,153,045 won

(2) year 200: A decision was made to reduce corporate tax of 2,445,163 won in the business year 2000 by changing the paid interest amount of 80,119,038 won to 76,342,581 won on the ground of understating the paid interest, such as discount fees, etc.

(3) On March 24, 2005, the corporate tax was additionally excluded from deductible expenses in the disposition of imposition of corporate tax as of March 24, 2005, and 65,450,206 won of the interest paid in relation to the provisional payment related to the other outflow of company was changed to 5,565,878 won on the ground of the reduction of interest, etc., and the tax adjustment was made to reduce corporate tax for the business year 2002 to 3,760,695 won.

D. Determination by the National Tax Tribunal on May 2, 2006, imposition of corporate tax on August 8, 2006, and imposition of withholding income tax on September 1, 2006

(1) The plaintiff filed a request for a judgment with the National Tax Tribunal on May 2, 2006. ① The Tribunal shall calculate the amount of inventory assets at the end of the 1997 business year to KRW 3,109,768,810, and the value of the basic inventory assets at the end of the 1999 business year (the value of inventory assets at the end of the 1998 business year) to KRW 2,135,627,105, and ② Of the total amount of 1998 through 2001, the amount of 4,762,06,564 paid by the representative director for the business year of KRW 97,970,60, 296, 306, 197, 296, 305, 296, 309, 309, 199, 295, 309, 297, 309, 297

(2) Disposition of imposition of corporate tax on August 8, 2006

On August 8, 2006, the defendant conducted a reinvestigation according to the decision of the National Tax Tribunal, and conducted a tax adjustment on the income belonging to the year 1997 to 2002 as follows, and imposed corporate tax on the plaintiff for the business year 1997 to 2002.

(A) year 1997: 1,556,04,587 won of the last inventory omitted was included in deductible expenses; 1,108,688,038 won was reserved; 447,356,549 won was disposed of as other outflow from the company; and 909,896,228 won was increased for the business year 1997.

(B) year 198: Sales promotion expenses, payments, public charges, taxes, advertising expenses, payment fees, interest expenses, insurance premiums, etc. out of KRW 2,330,57,90, 1998, which were paid as expenses such as sales promotion expenses, taxes, advertising expenses, interest expenses, insurance premiums, etc. and which were confirmed not to have been actually incurred from provisional payments, shall be excluded from non-deductible expenses and disposed of as non-deductible expenses, and 1,735,321,609,000 as non-deductible expenses, among which the representative director recognized the amount to be paid as 230,867,649, 179, 179, 6130,000 won as bonus and disposed as 51,739,000 won as total bonus, 170,739,7167, 167, 1967, 167, 297, 167, 1977, 167, 7167

(다) 1999년도 : 1999년도 가공매출원가 2,135,446,672원 중 판매촉진비, 지급임차료, 세금공과금, 광고선전비, 지급수수료, 이자비용, 보험료 등의 비용으로 지출된 것으로서 실제 가지급금으로 발생한 사실이 없다고 확인된 385,091,590원만큼 손금불산입에서 제외하여 1,750,355,082원만 손금불산입하고 유보로 처분하고, 대표이사 가지급금에 대한 인정이자(수입이자) 317,024,612원 중 201,118,626원만큼 긱금산입에서 제외하여 115,905,986원만 익금산입하고 대표자 상여로 처분하며, 대표이사 가지급금 중 워고의 대표이사인 이○○의 부동산임대사업(개인사업자)용 건축신축 등에 지출된 금원에 대한 인정이자(수입이자) 101,762,588원을 익금산입하고 기타 사외유출로 처분하고, 유보로 처분하였던 1998년도 기말재고누락분 1,251,017,770원을 손금산입하고 유보로 처분하고, 1999사업연도 법인세 885,744,472원을 감액하는 처분을 하였다.

(D) In 200: A public auction application in 200 for the year 479,49,387 was paid as sales promotion expenses, payment rental fees, taxes, public charges, advertising expenses, advertising expenses, payment fees, interest expenses, insurance premiums, etc., which was confirmed that no actual provisional payment had occurred, shall be excluded from non-deductible expenses, and 139,35,659,659,000 won as non-deductible expenses, and the representative director's interest recognized as 31,481,62 won as 314,481,410 won as a bonus and disposed of as a representative bonus, among 479,49,387 won, and 340,143,728,659,662 won as 139,53,000 won as a non-deductible expenses and disposed of as a revenue for the real estate rental business (individual construction business) of the representative director of the plaintiff's representative director, the representative director of the company of the company of the company.

(E) From 819,907,601, an application for a provisional sale in 2001 was made for sales promotion expenses, payment rent, tax, public charges, advertising expenses, advertising expenses, payment fees, interest expenses, insurance premiums, etc. among KRW 819,9,90,60, and was actually paid for expenses such as sales promotion expenses, public charges, advertising expenses, payment fees, interest expenses, insurance premiums, etc., and was excluded from non-deductible expenses and disposed of as non-deductible expenses of KRW 308,508,521 as non-deductible expenses, and the representative director's interest recognized as non-deductible expenses and disposed of as non-deductible expenses of KRW 376,07,216 out of the total amount of KRW 483,090,768, the amount of which was recognized as 376,077,5520,000 as a bonus and disposed as a representative bonus. Of the provisional payment, the Plaintiff's representative director's income was disposed of as income for 3931,197,39301.

(f) year 2002: The representative director's interest (interest on income) as to the provisional payment was excluded from the inclusion in the calculation of 274,214,144,603 won, and disposed of as a bonus of 148,054,459 won and as a representative. Of the amount paid by the representative director, 145,717,010 won as to the amount paid for the construction, etc. for the real estate rental business (individual entrepreneur) of this ○○○○, which is the representative director, was included in the calculation of earnings and disposed of as other outflow from the company, and reduced corporate tax of 2002 to 47,726,068.

(G) Sub-decisions

In full view of the imposition disposition of the corporate tax of this case, the following Table 3 is as follows.

The △△△△△△ shall reduce the reduction disposition.

Date of Disposition

Amount of corporate tax imposed;

1997

1998

199

200

201

202

Total

3 February 2003

591,116,401

478,706,789

633,941,850

589,138,511

309,047,029

2,601,950,580

Mar. 26, 2004

231,173,567

231,173,567

24, 2005

289,196,123

327,265,170

321,408,621

158,007,953

1,096,277,872

December 5, 2005

△△252,153,045

2,445,163

△△,000,695

△△258,358,903

August 8, 2006

909,896,228

△△△52,816,354

△△85,744,472

△△△264,843,048

△△33,701,399

△△△,07,06,068

△△△△974,935,113

Total

1,501,012,629

104,910,957

37,393,501

649,115,470

296,75,251

106,921,195

2,696,108,003

(3) Disposition imposing tax on earned income withheld on September 1, 2006 (decision to reduce)

As seen above on September 1, 2006, as the bonus disposition of the representative in 1998 through 2002 decreased, the Defendant imposed a disposition of reducing the withheld labor income tax for the year 1998 through 2002 as follows: 10,946,81 won in 1998; 29,910,267 won in 199; 32,237,461 won in 200; 24,97,65, 602; 41,381,322 won in 201; and comprehensively taking account of the disposition of imposing the withheld labor income tax, the Defendant imposed a disposition of reducing the withheld labor income tax for the year 1998 through 2002.

△△△△△△, the meaning of reduction, and the portion of the reduction shall be withheld as a result of the reduction.

Date of Disposition

Amount of tax imposed on wage and salary income tax (if any), withheld;

1998

1999

200

201

202

Total

May 1, 2003

1,034,538,400

924,416,534

195,201,160

326,446,283

2,480,602,377

6 March 2004

△△△△948,092,636

(86,445,764)

△△806,014,294

18,402,240

△△△26,101,240

(169,09,920)

△△△144,248,245

(182,198,038)

1,924,456,415

(978.414.565)

.9, 2005

144,540,683

△△277,727,920

(144,540,683)

9.1, 2006

75,498,883

(10,946,881)

△△△8,491,973

(29,910,267)

△△△136,862,459

(32,237,461)

△△△157,200,373

(24,997,665)

△△△103,159,361

(41,381,322)

△△△561,213,049

(139,473,596)

Final Imposition Tax Amount

10,946,881

29,910,267

32,237,461

24,997,665

41,381,322

139,473,596

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

(1) Upon the imposition of corporate tax for the business year 1997, the Plaintiff’s account book and documentary evidence were destroyed and lost for the business year 1997 due to the loss of the Plaintiff’s account book and documentary evidence, and the base inventory amount for the business year 1997, and the corporate tax was imposed for the business year 1997 by calculating only the last inventory amount according to the last inventory status table. According to the Defendant’s disposition imposing corporate tax, the Plaintiff’s red profit rate for the business year 63.3% exceeds 30% of the national average red profit rate for the same type of business. In addition, in the calculation of corporate tax, the income for the business year 1997 was distorted for the business year due to the failure to investigate the propriety of the base inventory, the current purchase price and the sales price of the same business year 1997, and in the absence of any other corporation of the same business year, the amount of corporate tax imposed for the business year 2008.7.

(2) The imposition disposition of corporate tax for the business year 1998 did not reflect 241,612,440 won of the disaster loss caused by flood disaster on August 8, 1998, and thus, it shall be calculated by including it in deductible expenses.

(3) In relation to the assessment of corporate tax for the business year 1999, the tax base was calculated by adding the amount of KRW 2,135,446,672 to the deductible expenses on the account books on the grounds that the application for provisional sale had not been actually imported, but failed to include false purchase prices on the account books. However, the above amount was calculated by adding the amount to the gross income of the basic inventory value and the end inventory value, and the 385,092,000 won, which is part of which is a related company, is calculated differently from the items paid by the Plaintiff.

(4) With respect to the disposition of imposing corporate tax for the business year 200: ① (i) the Defendant included the difference in the carried-over inventory in the deductible expenses in the business year 1999; (ii) included only the amount of inventory assets remaining in the table of inventory assets disposed of as non-deductible in the business year 2000 in the deductible expenses for the business year 893,867,000; and (iii) included the amount in the deductible expenses in the deductible expenses for the business year 2000; (iv) included in the deductible expenses for the business year 479,49,000, which is the amount appropriated in the application for a short sale; and (v) included in the deductible expenses for the business year 340,35,000 won, excluding the amount actually incurred from the provisional payment; (v) included in the gross income in the gross income in excess of 139,35,000 won in the deductible expenses; and (v) included in the gross income amount of 000, 14000,0000,000,2000, more inventory assets used in the net assets.

(5) With respect to the disposition of imposing corporate tax for the business year 2001, ① a reservation disposition is made in the calculation of losses only for KRW 146,970,00,000, which is the difference in the previous stock, and ② a supplement disposition is made in the calculation of losses for KRW 819,907,000, which is the amount appropriated for the current short sale, and only KRW 511,39,000, which is confirmed to have not actually accrued from the provisional payment, shall be excluded from the calculation of losses. ③ The asset-related expenditure of the representative director out of the funds paid for the business year 2001, shall not be included in the calculation of losses; ③ The provisional payment for the ○○ Electronic Co., Ltd., Ltd., a related company (short-term loan) is the amount of advance payment of KRW 589,415,000,000, which is not related to the calculation of losses, and thus, the portion related to the portion related to the interest paid for the business year 2014.

(6) Upon the imposition of corporate tax for the business year 2002, ① the representative director of the business year 1998 through 2001 appropriated the amount of KRW 4,762,06,564 as carried forward in the business year 2002 and calculated the corporate tax for the business year 2002. As seen earlier, the representative director’s tax adjustment and income amount for the business year 1998 through 2001 as to the amount of the amount paid by the representative director is unlawful. As such, the disposition imposing corporate tax for the business year 2002 is also unlawful, and the disposition imposing corporate tax for the business year 2002 is also unlawful, and ② the expenses for travel and transportation, which are expenses for the business, not included in the account book even in the amount of the corporate tax paid by the representative director of the business year 202, shall be included in the calculation of losses.

(7) With respect to a disposition imposing tax on earned income for the year 198 to 202, ① the above disposition of imposing tax on earned income for the year 198 to 201 as bonus for each business year from May 1, 2003, the representative director has reserved the tax amount for each business year as of March 26, 2004, and the change has been made as bonus for the business year 20 to 30 years as of March 26, 204, each disposition of imposing tax on the representative director for the year 200 to 205 to 30 years as of May 1, 2003, each disposition of imposing tax on the above 206 to 29 years as of March 26, 204 is deemed to have already been cancelled and new disposition of imposing tax on the representative director for the year 20 to 206 years of taxation for the year 30 years of taxation for the year 205 to 29 years of taxation for the above disposition of withholding tax.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the imposition of corporate tax for the business year 1997

(a)whether it is possible to impose an estimated tax

① Under Article 32(3) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998; hereinafter referred to as the "former Corporate Tax Act"), the head of the district tax office having jurisdiction over the place of tax payment or the head of the competent regional tax office having jurisdiction over the place of tax payment shall determine or correct the tax base and amount of corporate tax on income for each business year pursuant to paragraphs (1) and (2) on the basis of account books and other documentary evidence: Provided, That where the amount of income cannot be calculated by account books or other documentary evidence for reasons prescribed by the Presidential Decree, it shall be estimated as prescribed by the Presidential Decree. Article 93(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998; hereinafter referred to as the "former Enforcement Decree of the Corporate Tax Act") provides for a case where the amount of income can be estimated by calculating the amount of income under subparagraph 1, where there is no necessary account books or documentary evidence or material part is insufficient or false.

In full view of the above provisions, corporate tax base and tax amount should be determined based on the actual amount revealed by the method of the on-site investigation. It is exceptionally permitted only when there is no taxpayer’s account book or documentary evidence in order to determine or correct the tax base and tax amount by the method of the on-site investigation, or when there is no other way for the tax authorities to clarify the actual amount of income without credibility because there is no lack of the taxpayer’s account book or documentary evidence or any other material recorded therein. Thus, even if some of the account books or documentary evidence kept by the taxpayer is included in the false part, if the tax base can be calculated based on the clear fact that all of the remainder is consistent with the facts, the tax base and tax amount should not be determined by the method of the on-site investigation (see, e.g., Supreme Court Decision 95Nu6809, Jan. 26, 196). In addition, if it is recognized that there is an error or omission in the reported amount due to other evidence and it can be corrected by other data (see, e.g., Supreme Court Decision 2009Du272727.

② Comprehensively taking account of the overall purport of the Plaintiff’s statements in public health account books, Gap evidence No. 11, Eul evidence No. 5, Eul evidence No. 6-1, and Eul evidence No. 11, the Plaintiff initially reported corporate tax to the Defendant by means of account books, etc., and was subject to imposition of corporate tax in this case. In the above special tax investigation, it is unclear that the Plaintiff’s inventory value at the end of December 31, 1997, which was the basis for the calculation of the Plaintiff’s inventory value at the end of the pertinent business year, was not prepared for the purpose of preparation, but it was also approved by the president including the person in charge of inventory value at the time of the special tax investigation. The Plaintiff cannot be deemed to have made efforts to calculate the amount of inventory value at the end of the pertinent business year by calculating the value of inventory assets at the end of the pertinent business year based on the method of calculating inventory value at the end of the pertinent year, which was no more than that of inventory value at the time of the initial tax investigation. As such, the Plaintiff’s inventory value of inventory value was no more than that was found.

(B) Whether Article 26(2) of the Framework Act on National Taxes applies special exceptions to the exclusion period

(1) Article 26-2(1) of the Framework Act on National Taxes limits the period of exclusion of the imposition of national taxes to five years from the date on which the national taxes may be imposed, unless a taxpayer evades a national tax by fraud or other unlawful means or fails to submit a written tax base within the statutory due date of return. Notwithstanding the period of exclusion under paragraph (1), where a decision or judgment is made on an objection, request for examination, request for adjudgment, request for examination under the Board of Audit and Inspection Act, request for examination under the Board of Audit and Inspection Act, or litigation under the Administrative Litigation Act, the relevant decision or decision may be made, or made, by decision

② In the instant case, the exclusion agency against the corporate tax for the business year 1997 was from April 1, 1998 to March 31, 2003, the date following the deadline for corporate tax return. Thus, it is apparent that the Defendant had already been subject to exclusion at the time when August 8, 2006, issued a disposition to rectify corporate tax for the business year 1997. However, since the National Tax Tribunal’s decision was made on May 2, 2006 and the disposition to increase under the above decision was made on August 8, 2006, and one year has not passed since the above decision was made on August 8, 2006, it is questionable whether to apply special provisions for the exclusion period under Article 26-2(2) of the Framework Act on National Taxes.

③ There is a broad-area theory that the special-purpose provisions of exclusion period can be applied for the taxpayer only, and the double-area theory that the special-purpose provisions of exclusion period can be applied for the tax authorities. In light of the legislative intent of the special-purpose provisions for exclusion period, the simple-area theory is that the special-purpose provisions of exclusion period can be applied only to the case where the disposition of taxation that became the object of exclusion is reduced or cancelled by the ruling or the ruling, and that the special-purpose provisions of exclusion period can be applied only to the case where the disposition to implement the decision or the decision of the tax authorities concerned is the disposition to implement the decision or the decision of the taxpayer. The double-area theory does not allow correction or other necessary measures only to implement the favorable decision or execution of the decision of the taxpayer.

In the Supreme Court Decision 93Nu485 Decided May 10, 1996, the Supreme Court held that "where the provisions of Article 30-2 (2) of the Local Tax Act (the provisions of Article 26-2 (2) of the Framework Act on National Taxes are the same as those of Article 26-2 (2) of the same Act) are deemed to be solely for taxpayers and only for the purpose of executing a favorable decision or judgment, it is legitimate to take another disposition to correct the error in the notification saving weather on the ground that no ground exists to deem that the provision of Article 30-2 (2) of the Local Tax Act (the provisions of Article 30-2 of the former Local Tax Act are the same as those of the taxpayer), unlike the prescription period, the provisions of Article 30-2 of the former Local Tax Act are not applied to the taxpayer for the purpose of the exclusion of the imposition, since the tax authority has already determined the exclusion period from the date of the determination or ruling on the objection to the imposition, and thus, the provisions of Article 30-2 of the former Local Tax Act cannot be applied only to the taxpayer for the exclusion period.

④ However, the position of the two-area theory seems to be as follows. First, if the delay in litigation about the defective taxation has already expired, it is natural that the taxation authority that issued the defective taxation should lose the opportunity to correct the defect. Second, the legislative intent of the special law for the initial exclusion period should be followed even in the administrative re-transmission procedure dealing with the illegality of the taxation, if the taxpayer's assertion is accepted, it is made after the expiration of the exclusion period of the taxation right, the tax authority should be newly established to implement the ruling or decision if it is impossible to take the decision or other necessary measures due to the expiration of the exclusion period of the taxation right, and third, if the tax authority cancels the entire taxation disposition due to the impossibility of calculating the amount of taxation, it can be allowed to correct the defect such as the defect after the expiration of the exclusion period, and fourth, if the taxation authority is in accordance with the principle of no taxation without law, it is more likely that the exclusion period of the taxation without the law would violate the strict exclusion period of the taxation without the law, and fifth, if the exclusion period of the taxation without the special law would violate the exclusion period of the taxation.

⑤ Although the National Tax Tribunal’s decision on August 8, 2006 regarding the instant case had not been more than one year from the date of the above decision, the special provisions on the exclusion period under Article 26-2(2) of the Framework Act on National Taxes should not be applied to the Plaintiff, which was unfavorable to the Plaintiff on February 3, 2003. Therefore, the special provisions on the exclusion period under Article 26-2(2) of the Framework Act on National Taxes should be applied to the increased amount of KRW 909,896,228, which exceeds the initial disposition, among the increased amount of KRW 1,501,01,629, August 8, 2006, shall be null and void even with the exclusion period

(C) Whether the principle of prohibition of disadvantageous change is applied

① 국세기본법 제79조 제2항에서는 국세심판관회의 또는 국세심판관합동회의는 심판청구에 대한 결정을 함에 있어서 심판청구를 한 처분보다 청구인에게 불이익이 되는 결정을 하지 못한다고 규정하고 있다.

② However, a disposition to rectify corporate tax for the business year 1997 dated August 8, 2006 is a disposition according to the decision of the National Tax Tribunal rendered on May 2, 2005 for the so-called principle of prohibition of disadvantageous alteration, which is disadvantageous to the defendant rather than the original disposition made on March 3, 2003. As such, the portion of increase in KRW 909,896,228, in excess of the original disposition made on August 8, 2006, among the corrective disposition made on August 8, 2006, shall be deemed null and void as a disposition contrary to the principle of prohibition of disadvantageous alteration (see Supreme Court Decision 2003Du278, Dec. 9, 2004).

(D) Sub-committee

Therefore, among the disposition of increase in corporate tax for the business year 1997 dated August 8, 2006, the portion of increase in KRW 909,896,228, which exceeds the original disposition, i.e., KRW 1,501,01,012,629 (i.e., KRW 1,501,629, KRW 909, KRW 896,228, and KRW 100) (i.e., KRW 1,501, KRW 629, KRW 629, KRW 896, KRW 100), among the disposition of increase in corporate tax for the business year 197 and the disposition of increase in corporate tax for the business year 197, the exclusion period is over and the disposition is null and void as a disposition contrary to the principle of prohibition

(2) As to the imposition of corporate tax for the business year 1998

(A) Whether a disaster loss was included in deductible expenses

In full view of the purport of the arguments in evidence Nos. 20, 11 and 11, the plaintiff suffered damage due to inundation, such as digital printing machines 21, GRMAST 656 NaX, GRINK 638 BOX, accounting books, documents, etc. on August 8, 1998, when the plaintiff suffered damage due to flood, and the plaintiff's 2 head of Seocho-gu Seoul Metropolitan 2 head office and the investigation agent confirmed the above damage. The plaintiff's damage amount is the total amount of KRW 976,880,00,00 based on the purchase price, which is the total amount of KRW 241,612,440, and the total amount of KRW 240,00 based on the market price, and there is no evidence to acknowledge that the above loss was reflected in the calculation of income for the business year of 198. Thus, it is reasonable to view that the plaintiff's actual loss was included in deductible expenses.

(b) the calculation of a reasonable amount of tax;

① In full view of the purport of the entire arguments as to corporate tax for the 1998 business year 198, Gap evidence 1-1, and Gap evidence 14-4 with the exception of additional tax, the plaintiff first reported to the defendant on March 31, 1999 and the defendant made a disposition of reduction or correction to the plaintiff on August 8, 2006 as follows: "report 5" and "Report on August 8, 2006"; the defendant's disposition of reduction or correction to the plaintiff on February 3, 2003 to the plaintiff on February 3, 2003; there is no counter-proof evidence; if the disposition of imposition of corporate tax for the business year 1998 on February 3, 200 to the plaintiff on February 3, 200; if the tax base is included in deductible expenses, the amount of the above disaster loss 241,612, and X 40 won, the amount of tax calculated on August 29, 2008.

Table 5

Gu Sector

No.

Reporting (Initial)

August 8, 2006

Calculation of due tax amount

Current net income on the settlement

01

129,465,353

129,465,353

129,465,353

Amount of income adjustment;

Deposits into the Fund

02

102,328,098

3,306,213,196

3,306,213,196

Inclusion in Loss

03

2,955,138,283

3,196,750,723

Amount and tax base (=01 +02 +03)

Tax Rate

05

28%

28%

28%

calculated tax amount

06

52,902,166

122,551,274

54,899,791

Additional Tax

07

1,120,000

36,381,849

2,311,582

Total determined tax amount (=06+07)

08

54,022,166

158,933,123

57,211,373

Gong

S.

tax

Amount

Voluntary Tax Payment Amount

09

21,345,997

21,345,997

21,345,997

Income Tax Amount

10

9,063,950

9,063,950

9,063,950

Voluntary Tax Amount

11

11,292,219

11,292,219

11,292,219

Tax amount not paid in voluntary report;

12

12,320,000

12,320,000

12,320,000

Socs (=09 +10+11 +12)

13

54,022,166

104,910,957

54,022,166

Tax amount to be collected after deduction (=08-13)

14

3,189,207

(2) Article 41 (1) 1 of the former Corporate Tax Act provides that an amount equivalent to 10/100 of the calculated tax amount corresponding to the shortage shall be collected as additional tax if the amount falls short of the tax base amount to be reported; and subparagraph 3 of the same Article provides that an amount calculated by applying the interest rate prescribed by the Presidential Decree in consideration of the period from the day following the due date of payment to the date of notification to the due date of payment shall be collected as additional tax if the amount falls short of the amount equivalent to 10/100 of the unpaid tax amount; and Article 113-3 of the former Enforcement Decree of the Corporate Tax Act provides that an amount equivalent to 10/100 of the unpaid tax amount shall be collected as additional tax if the amount falls short of the amount equivalent to 10/100 of the unpaid tax amount; and Article 113-4 of the former Enforcement Decree of the Corporate Tax Act provides that the interest rate to be applied in calculating an additional tax for a period exceeding two years from the day preceding the due date of payment, the date of payment or the notification date.

However, as shown in Table 5, the Plaintiff already paid an additional tax of KRW 1,120,00 at the time of filing a corporate tax for the 1998 business year. As such, the total amount of the additional tax for the 1998 business year corporate tax shall be the aggregate of the additional tax of KRW 1,120,00 which has already been paid and the additional additional tax for unfaithful return. The additional tax for negligent tax returns to be paid shall be 19,762 won [(4,89,791]-52, 99, 902, 166] calculated by subtracting the amount of the initial calculated tax from the reasonable calculated tax amount, 199,79,625 won [excluding the additional tax] for the 1998 business year (excluding the additional tax), 205,000 won for the total amount of the additional tax to be paid to KRW 1,97,6250,000 for 205,000 for the 195 days following the business year 19.

③ If so, the total determined amount of corporate tax for the business year 1998 is KRW 57,211,373 (=54,89,791 +2,311,582). The amount of tax to be additionally collected is 3,187,207, which deducts the amount of voluntary tax payment already paid before the disposition of February 3, 2003 from the total determined amount of tax, the amount of tax to be collected, the amount of tax to be paid, the amount of tax to be paid, the amount of tax to be paid, the amount of tax to be paid, and the amount of tax to be paid additionally, 3,187,207 (=57,211,373 won-5,022,166). This is a legitimate amount of tax to be imposed for the business

(C) Therefore, the portion exceeding KRW 3,187,207 of the disposition of imposition of corporate tax of KRW 104,910,957 of March 26, 2004 in excess of KRW 3,187,207 of the disposition of imposition of KRW 104,910,957 of the business year 1998 should be revoked. However, the part exceeding KRW 23,639,222 of the disposition of imposition of corporate tax of KRW 104,910,957 of March 26, 2004 should be revoked.

(3) As to the imposition of corporate tax for the business year 1999

(A) Whether there is an error in the calculation of the provisional auction application

On February 3, 2003, when imposing corporate tax for the business year 1999 on February 3, 2003, the reason why the provisional public sale application made tax adjustment of KRW 2,135,446,672 was due to the increase in sales cost by appropriating the current purchase price falsely in the account book. This is not related to the basic inventory price or the last inventory value (if it is why it is, the sales cost = basic inventory price + the last inventory price + the last inventory-end inventory), and there is no evidence to prove that there is an error in calculating the basic inventory price or the last inventory value of the business year 1999, and there is no reason to prove that the provisional public sale application was paid with expenses such as sales promotion cost, payment rental fee, taxes, public charges, advertising expenses, interest expenses, insurance premium, etc., and there is no fact that the actual provisional payment was actually made, and thus, the plaintiff's assertion that the provisional sale application was excluded from the corporate tax amount for the business year 385,095,90.

(B) Whether there is an advance payment among the provisional payments to ○○ Electronic Co., Ltd.

Modern Doctrine