Whether the statute of limitations for the collection of this case expired

The part, the prescription of which is suspended by a tax payment notice, shall commence without interruption of prescription with respect to the portion on which the tax payment notice was notice and the remaining amount limited to such amount.

2015Guide 62256 Nullification of a disposition taken to collect corporate tax (collection of withholding tax)

AAA, Inc.

BB Director of the Tax Office

2015.07.14

2015.15

1. On June 17, 2014, the Defendant confirmed that the disposition taken by the Plaintiff to collect the corporate tax of KRW 52,385,805,220 for the year 200 against the Plaintiff is null and void.

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

The same shall apply to the order.

1. Details of the disposition;

A. On July 25, 200, the Plaintiff entered into a contract with Malaysia, a corporation, to purchase 21,911,622 shares of CCM.com (hereinafter “instant shares”). The details of each transferor under the above contract are as follows.

B. On August 4, 2005, the director of the tax office of BB rendered a disposition of collecting corporate tax amounting to KRW 23,949,00,507 (Withholding) for the year 2000, deeming that the Plaintiff, among the investors of the mother fund, is liable to withhold capital gains tax on investors who are residents of the country that did not conclude a tax agreement with the Republic of Korea among the investors of the parent fund, as corporate tax.

C. On November 2, 2005, the Plaintiff dissatisfied with the above collection disposition and filed a request for review with the Board of Audit and Inspection on November 2, 2005. On September 13, 2007, the Board of Audit and Inspection made a decision that the sales contract shall adjust the amount of tax to KRW 390,000,000, which is the closing price of the Stock Exchange, on July 25, 2000 where the sales contract finally became final and conclusive. BB director corrected the amount of tax collected at KRW 835,312,290, out of the amount of tax collected and notified by the initial decision according to the above review decision (hereinafter referred to as “the amount of reduction, correction, and remaining parts”).

D. (1) On December 7, 2007, the Plaintiff filed a lawsuit seeking revocation of the previous disposition, but this court rendered a judgment dismissing the Plaintiff’s claim on June 10, 2009. ② The Plaintiff appealed with Seoul High Court 2009Nu0000. On January 8, 2011, the said court rendered a judgment to the effect that on the ground that the time of transfer of DNA Telecomcom Holdings shares in the previous disposition should be deemed as July 26, 2000 and its value should be evaluated, the Plaintiff’s previous disposition should be revoked. ③ The Plaintiff and the Defendant appealed with the Supreme Court 201Du0000, the lower court’s judgment should be reversed to the effect that the Plaintiff should be deemed as the subject of review and delivery of shares and capital gains from the Plaintiff’s members under the private law, and that the Plaintiff should be deemed as the subject of review and delivery of shares and capital gains from the Plaintiff’s members under the substantive law of the established organization.

E. On June 17, 2014, the Defendant: (a) deemed the person liable to pay the instant capital gains to whom the instant shares actually accrue (the original person liable to pay the said capital gains) as the parent fund (the same does not apply to the case where a tax treaty was concluded between the Do of England and the Republic of Korea established by the mother fund); and (b) rendered a disposition of collecting KRW 52,385,805,220 for the Plaintiff (hereinafter “instant collection disposition”).

2. Whether the collection disposition of this case is valid

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Determination

1) Article 27(1) of the former Framework Act on National Taxes (amended by Act No. 6299, Dec. 29, 200; hereinafter the same) provides that "the right to collect a national tax shall expire if it is not exercised for five years from the time it is possible to exercise it." Article 12-4(2)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 17036, Dec. 29, 2000; hereinafter the same) provides that "the national tax collected from a withholding agent shall be the time when the State can exercise its rights after the statutory due date of payment of withholding tax can be exercised." Meanwhile, Article 98(1) of the former Corporate Tax Act (amended by Act No. 6293, Dec. 29, 200; hereinafter the same) provides that "the right to collect a national tax from a foreign corporation with no domestic place of business shall be withheld at a certain ratio of the amount of income for each business year and shall be determined as transfer proceeds from 10 to 10.

2) As to this, the Defendant asserts that the extinctive prescription period of the right to collect the national tax on capital gains of this case was resumed due to the previous disposition of this case and the response to the previous lawsuit of this case, and that the period of ten years from December 31, 2013, which the Plaintiff withdrawn from the appeal. In a case where part of the claim can be specified, some of the claim does not take effect, and this does not change in the state tax credit, and the part whose prescription is interrupted by the duty payment notice shall proceed without interruption of prescription with respect to the remaining tax amount limited to the notified portion of the tax payment and the amount thereof (see Supreme Court Decision 84Nu649, Feb. 13, 1985). Accordingly, the Defendant’s assertion that the extinctive prescription period of the right to collect the national tax of this case was expired for the first time in the lawsuit of this case and the right to collect the capital gains of this case cannot be seen as being in accordance with the Plaintiff’s first argument and the right to collect the national tax of this case.

B) In addition, the Defendant asserts to the effect that the special exclusion period under Article 26-2(2)1 of the former Framework Act on National Taxes shall apply mutatis mutandis to the collection disposition, and that the collection disposition in this case was lawful as it was conducted within one year from December 31, 2013 when the Plaintiff withdraws the appeal in the prior lawsuit in this case. In full view of the aforementioned facts and the overall purport of the pleading as seen earlier, comprehensively taking account of the following circumstances known, Article 26-2(2) of the former Framework Act on National Taxes, which provides for the special exclusion period for the right to impose national taxes, does not apply or apply mutatis mutandis to the right

① Under the principle of no taxation without law, or under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. Article 26-2(2) of the former Framework Act on National Taxes provides that the tax authority cannot exercise its right to impose taxes after a certain period of time is a major exception to Article 26-2(1) of the same Act, which provides for the result favorable

② The limitation period of the right to impose tax is the duration prescribed by the Act as to the right to impose tax in order to promptly determine the legal relationship, and there is no suspension or interruption of a period different from the statute of limitations. On the other hand, where a situation in which no right to impose tax continues for a long time, the statute of limitations is acknowledged as a legal relationship as it is, and the interruption or interruption of prescription is recognized as being recognized as a legal relationship. As such, the limitation period of the right to impose tax and the statute of limitations of the right to impose tax differs fundamentally from the purport and nature thereof,

Article 26-2 (2) of the former Framework Act on National Taxes provides that if the tax authority has already imposed the exclusion period at the time when it intends to impose a new disposition based on the decision or decision after the decision or decision has already been rendered by the tax authority, the decision or decision shall be unreasonable, and if the tax authority imposes a new disposition due to the concern about the expiration of the exclusion period, the tax authority shall increase the burden on the taxpayer. Therefore, it comes from two exceptions. On the other hand, Article 28 of the former Framework Act on National Taxes recognizes the suspension and the suspension of prescription in certain cases, and the necessity of such a disposition is not same. On the other hand, the taxation authority can only make a new decision or decision of correction that does not comply with the previous decision or decision of correction under Article 26-2 (2) of the former Framework Act on National Taxes after the decision or decision becomes final and conclusive, and it shall not be deemed that the previous decision or decision of correction is null and void after the decision or decision of correction under Article 26-2 (2) of the former Framework Act on National Taxes (see, 20).

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.