Whether withholding obligation exists or not

In the case of a corporation that runs a finance and insurance business, such corporation has a withholding obligation.

The contents of the decision shall be the same as attached.

1. 원고에 대하여 피고 ㅇㅇ세무서장이 1995. 7. 1. 부과한 1994 사업년도분 법인세 금1,304,600원 중 금521,840원을 초과하는 부분 및 피고 ㅇㅇ세무서장이 1995. 6. 16. 부과한 1994 사업년도분 법인세 금57,489,280원 중 금22,995,710원을 초과하는 부분을 취소한다. 2. 원고의 피고들에 대한 나머지 청구를 기각한다. 3. 소송비용은 이를 5분하여 그 2는 원고의, 나머지는 피고들의 부담으로 한다.

1. Details of the imposition;

The following facts are either disputed between the parties, or there is no other counter-proof as to Gap evidence 1-2, Eul evidence 2, Eul evidence 3-1, 23, Eul evidence 4, and Eul evidence 6 through 14.

가. 원고 은행은 은행업과 신탁업을 겸영하는 법인으로서 원고 은행의 ㅇㅇ동지점과 ㅇㅇ지점은 소외 ㅇㅇ기금(이하 소외 기금이라 한다)과 특정금전신탁계약을 체결하고 소외 기금으로부터 금전을 수탁받아 위 신탁재산을 운용한 후 그로부터 발생된 신탁의 이익을 소외 기금에게 지급하였다.

나. 그런데 피고들은, 원고 은행의 ㅇㅇ동지점과 ㅇㅇ지점이 1994년의 사업연도에 있어 소외 기금에게 지급한 신탁의 이익 중 그 원천이 채권・증권의 이자에 해당하는 부분, 즉 원고가 수탁받은 금전을 채권・증권에 운용하여 발생한 이자에 해당하는 부분을 소외 기금에게 지급할 때 소외 기금으로부터 법인세를 원천징수・납부하고 지급조서를 제출하였어야 함에도 원고 은행의 ㅇㅇ동지점과 ㅇㅇ지점이 이를 이행하지 아니하였다고 하여 소외 기금에게 지급한 신탁의 이익 중 각기 그 원천이 채권의 이자에 해당하는 부분에 대하여 피고 ㅇㅇ세무서장은 1995. 7. 1. 법인세 금1,304,600원(원천징수불성실 가산세 금521,840원, 지급조서미제출 가산세 금782,760원), 피고 ㅇㅇ세무서장은 1995. 6. 16. 법인세 금57,489,280원(원천징수불성실 가산세 금22,995,710원, 지급조서미제출 가산세 금34,493,570원)을 부과하였다(이하 이 사건 부과처분이라 한다).

2. Whether the disposition is lawful;

(1) The parties' assertion

The defendants asserted that the disposition of this case was lawful on the grounds of the above disposition and the applicable provisions of law, and the plaintiff alleged that the disposition of this case was unlawful on the following grounds.

Article 39 (1) of the Corporate Tax Act (amended by Act No. 4804, Dec. 2, 194; hereinafter the same) provides that if a person who pays interest income (including the revenue amount of financial and insurance business prescribed by the Presidential Decree) under Article 142 (1) 1 of the Income Tax Act (hereinafter referred to as "tax withholding agent") pays the amount, he shall withhold corporate tax equivalent to the amount calculated by applying a certain ratio to the amount paid and pay it to the Government not later than the 10th of the month following the month in which the collection date falls. Article 100-4 (1) of the Enforcement Decree of the Income Tax Act provides that interest income under Article 39 (1) of the Income Tax Act shall not include income falling under any of the following subparagraphs from financial and insurance business income of the corporation which is engaged in financial and insurance business (excluding commercial bills, which shall be subject to withholding, and even if such income is not subject to the said Article 17 (1) 2 of the Income Tax Act, it shall not be subject to withholding income from the above trust interest paid to the Plaintiff.

Basic Act

*Article 14 / [Real Taxation]

2) The provisions on the calculation of tax base in tax-related Acts, notwithstanding the name or form of income, profit, property, act or transaction, shall apply according to the substance.

Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994)

* Article 4 【Trust Income】

1) This Act shall apply to income accrued to trust property, deeming that a beneficiary to receive the profits of the trust (where a beneficiary is not specified or does not exist, the truster of the trust or his/her heir) holds the trust property.

2) Revenues and expenditures accruing to the trust property of a corporation under the application of the Trust Business Act and the Securities Investment Trust Business Act (hereinafter “trust company”) shall not be considered as revenues and expenditures accruing to the corporation.

Corporate Tax Act

* Article 39 [Withholding]

1) When a person who pays interest income (including income amount of finance and insurance business prescribed by the Presidential Decree) under Article 142 (1) 1 of the Income Tax Act, and shares of securities investment trust proceeds under Article 18 (1) 6 of the same Act to a domestic corporation . B (hereinafter referred to as a “tax withholding agent”) pays such amount, he shall collect corporate tax equivalent to the amount paid by applying the following tax rates (hereinafter referred to as “tax withholding”) and pay it to the Government not later than the tenth day of the month following the month in which the date of collection falls. In this case, the provisions of Article 146-2

1. 20/100 for interest income amount: Provided, That 25/100 for interest accruing from a non-business loan as provided in Article 17 (1) 11 of the Income Tax Act;

2) The provisions of paragraph (1) shall apply to the interest income amount accruing to the trust property of a trust company as prescribed by the Presidential Decree, notwithstanding the provisions of Article 4.

* Article 100-4 of the Enforcement Decree [Scope of Income Subject to Withholding]

1) Interest income amount, shares of securities investment trust proceeds or other income amount provided for in Article 39(1) of the Act shall not include income falling under any of the following subparagraphs:

2. Income reverted to the trust property of a trust company (excluding the interest income withheld at source under Article 105-5 (1));

3. Amount of revenue of a corporation carrying on the financial insurance business as prescribed by the Ordinance of the Ministry of Finance and Economy: Provided, That this shall not include interest and discount amounts on bonds or securities (excluding commercial bills, but including certificates of deposit issued by financial institutions which can be transferred to other persons, and development trust certificates issued by trust companies under the Trust Business Act and development trust beneficiary certificates issued by trust companies);

* Article 100-5 of the Enforcement Decree [Tax Withholding on the Interest Amount of Bonds Reverting to Trust Property]

1) The term “those as determined by the Presidential Decree” under Article 39(2) of the Act means interest, discount amount, and profits from redemption on bonds or securities (including certificates of deposits issued by financial institutions that can be transferred to others, but excluding bonds or securities which are exempt from corporate tax; hereafter the same shall apply in this Article) under Article 17(1) of the Income Tax Act.

2) A trust company (including a truster company under the Securities Investment Trust Business Act) shall pay by month the tax amount equivalent to the period for which the trust property of the concerned bonds or securities is reverted to the trust property of the concerned bonds or securities calculated by applying mutatis mutandis the provisions of Article 91-3 (1), from among the withholding tax amount under Article 39 (2) of the Act, which is to be withheld and paid through paying the profits accruing from trust under Article 17 (1) 5 of the Income Tax Act and the shares of securities investment trust proceeds

*Enforcement Rule 50 【Scope of Financial Insurance Business】

For the purpose of Article 100-4 (1) 3 of the Decree, the term “corporation which runs the finance and insurance business as prescribed by the Ordinance of the Prime Minister” means:

15. Credit Management Fund under the Credit Management Fund Act;

* Article 63 [Duty to Submit Written Evidence of Payment]

1) If a person who pays the income falling under any of the following subparagraphs pays it, he shall submit the payment record to the Government by the end of the month following the month in which the payment is made, as prescribed by the Presidential Decree:

2. The income amount indicated in Article 142 (1) 1 through 6 of the Income Tax Act; and

Income Tax Act (pre-amended by Act No. 4903 of Dec. 22, 1994)

* Article 142 / [Liability for Withholding]

1) Any person who pays the following income or revenue amount to a resident or nonresident in Korea shall withhold the income tax on such resident or nonresident under the provisions of this Section:

1. Interest income amount;

2. Dividend income amount (excluding the dividend income amount added to the gross income pursuant to the proviso to Article 18 (2));

3. Business income amount as prescribed by the Presidential Decree;

4. Employment income amount of Class A;

5. Other income amount.

6. Retirement income amount of Class A; and

* Enforcement Decree Article 190 【Scope of Business Income subject to Withholding】

1) For the purpose of Article 142(1)3 of the Act, the term “business income as prescribed by the Presidential Decree” means the income accruing from the following businesses:

1. Businesses falling under any of the following items among the service businesses under subparagraph 4 of Article 36:

2. Projects falling under any of the following items among the social and private service businesses under subparagraph 1 of Article 37:

3. Free occupation under each subparagraph of Article 38;

4. Other projects determined by the Ordinance of the Ministry of Finance.

*Article 17 / [Interest Income]

1) Interest income shall be the following incomes generated in the year concerned:

1. Interest and discount amount of bonds or securities issued by the State or the local government;

2. Interest and discount amount of bonds or securities issued by a domestic corporation;

3. Interest and discount amount of deposits (including installment savings, installment savings, deposits, and postal transfer; hereinafter the same shall apply) received in Korea;

4. Profits accruing from the mutual credit fraternity or credit installments as prescribed by the Mutual Saving and Financing Act;

5. Profits accruing from any trust (excluding mutual aid and securities investment trust other than bonds) received from a domestic corporation;

6. Interest and discount amount of any bonds or securities issued by a domestic branch or business office of a foreign corporation;

7. Interest and discount amount of bonds or securities issued by a foreign corporation;

8. Interest of deposits and profits of trust received abroad;

9. Profit with repurchase agreement of bonds or securities as prescribed by the Presidential Decree;

10. Profit margins on a savings insurance as prescribed by the Presidential Decree;

11. Profits accruing from a non-business loan.

* Article 20 / [Business Income]

1) The business income shall consist of the following incomes generated in the year concerned:

8. Income generated from finance, insurance, real estate, and business services;

* Article 36 of the Enforcement Decree [Scope of Financial, Insurance, Real Estate, and Business Services]

Income under Article 20 (1) 8 of the Act shall mean income generated from the following businesses:

1. The pawning business, the price business, and the foreign currency transfer business;

* Article 39 of the Enforcement Decree [Scope of Business]

The scope of businesses under Article 20 of the Act shall be based on the Korean Standard Industrial Classification Table publicly announced by the Commissioner of the Statistics Korea, except as otherwise provided in this Decree.

(5) Determination

(A) Existence of withholding duty

Article 4 of the Framework Act on National Taxes, Article 39 (1) and (2) of the Corporate Tax Act, and Article 100-4 (1) 2 and 3, and Article 100-5 of the Enforcement Decree of the same Act concerning the calculation of the tax base are applied according to the substance of the provisions such as Article 14 (2) of the Framework Act on National Taxes. Unlike non-specified money trust (joint operating trust) which is wholly determined by the trustee and jointly manages the trust property of an unspecified number of trusters, the method of operating the trust property should be designated by the truster to manage and operate the trust property separately from other trust property. In the case of a specified money trust, it is reasonable to determine the type of income generated from the trust property based on the source of income generated from the trust property and impose the income from the trust property separately from interest, dividends, real estate income, etc. Therefore, if the trust property is designated as the method of operating the trust property, the trust company, such as bonds and securities, to which the trust property belongs, shall be deemed to be subject to withholding tax under Article 17 (1) of the Income Tax Act.

According to Article 63 (1) 2 of the Corporate Tax Act and Article 142 (1) 1 of the Income Tax Act, a corporation that pays interest income under the Income Tax Act requires the Government to submit a written statement of payment. According to Articles 17 (1) 3 and 20 (1) 8 of the Income Tax Act, Article 36 (1) and Article 39 of the Enforcement Decree of the same Act, even a bond or security interest issued by a domestic corporation falls under the income of a domestic corporation that runs a financial business, if it falls under the income of a domestic corporation that runs a financial business, it is not the interest income under the Income Tax Act

In addition, the payment record submission system and the withholding tax system are different from each other, and therefore, it should be determined in accordance with the relevant law that is based on which the purpose of which income is to be the object income subject to submission of the payment record or the source income subject to withholding. Thus, even if the interest interest of the bonds out of the revenue amount of the finance and insurance falls under the source income subject to withholding under Article 39 (1) of the Corporate Tax Act amended on December 31, 193, Article 39 (1) of the Corporate Tax Act as amended on December 31, 1993, it shall not be required to submit the payment record unless there is any express provision that it is included in Article 63 (1) 2 of the same Act (see Supreme Court Decision 91Nu407 delivered on May 24, 191), and it shall be deemed that the interest on the bonds, etc., "the trust interest of the instant case," which

Therefore, since the part concerning additional tax to be submitted without filing a payment record among the plaintiff's revocation of the disposition of this case is well-grounded, the above part of the disposition of this case is revoked, and the remaining claim is dismissed as it is so decided as per Disposition.