Daegu District Court 201Guhap2912 ( December 23, 2011)

Cho Jae-chul2010-Gu2352 (Law No. 105,04)

A withholding agent, who is not a custodian, shall pay for employment income of a rehabilitation company.

Although a custodian is responsible for collecting tax on earned income for the employer of a rehabilitation company, the company is not dissolved even after the commencement of rehabilitation procedures, so the withholding agent is not a custodian but a rehabilitation company, and the taxpayer of the withheld earned income tax is also a sacrifice company.

Article 179 of the Debtor Rehabilitation and Bankruptcy Act

2012Nu295 Revocation of Disposition of Imposing income tax

XX Stock Company Management KimA

Head of the Tax Office

Daegu District Court Decision 2011Guhap2912 Decided December 23, 2011

August 24, 2012

September 14, 2012

1. The plaintiff's appeal is dismissed.

2. The conjunctive claim added at the trial is dismissed.

3. The costs of the lawsuit shall be borne by the Plaintiff after the appeal.

1. Purport of claim

In the first place, the Defendant’s collection disposition of KRW 000 for wage and salary income tax of 2007 and KRW 000 for wage and salary income tax of 2008 against the Plaintiff on December 24, 2009 shall be revoked. In the first place, the Defendant confirms that the notice of change in the amount of income on September 11, 2009 against the Plaintiff is null and void (the Plaintiff added the conjunctive claim at the trial).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant's disposition of collecting 000 won earned income tax of 2007 and 000 won earned income tax of 2008 for the plaintiff on December 24, 2009 shall be revoked.

1. Details of the disposition;

A. XX (hereinafter referred to as the "company of this case") filed an application for commencing rehabilitation procedures on March 3, 2009 with the Daegu District Court 2009hap11 on March 3, 2009 and received a decision to commence rehabilitation procedures on September 7, 2009, and the plaintiff was appointed as the administrator of the company of this case from the Daegu District Court.

B. Around July 2009, the Defendant conducted a corporate integration investigation with respect to the instant company, and confirmed that the instant company treated the remaining amount of KRW 000,000,000, which was appropriated for the settlement statement of the business year 2008, as electric cumulative losses, and filed a report with the representative director by omitting the claim against the representative director.

C. Accordingly, on September 11, 2009, the defendant included the amount of the provisional payment of KRW 000,000 in the company of this case as a bonus for each representative in the business year of 2007, and 000,000,000,000 won for the remaining amount of the provisional payment of KRW 1,00,000 as well as the recognized interest on the provisional payment of KRW 1,00 (hereinafter the above provisional payment of KRW 00,000,000,000,000 for the remaining amount of the provisional payment of this case, and "the total amount of the provisional payment of this case and each recognized interest" of the above provisional payment of this case, and disposed of it as a bonus for each representative in the business year of 2008 of the company of this case, and notified the company of the change in the amount of income (hereinafter referred to as "notification

D. Upon receipt of the notice of the change in the income amount of this case, the company of this case or the plaintiff did not pay the source of this case, and the defendant, on December 14, 2009, imposed on the plaintiff the collection of 00 won of the wage and salary income tax of 2007 and 000 won of the wage and salary income tax of 2008 for the tax withholding for the tax year 2008 (hereinafter "each of the above collection dispositions of this case", and "the income tax of this case" in total for each of the wage and salary income tax of 207 and 208 for the tax withholding for the above year 207.

E. On July 1, 2010, the Plaintiff, who was dissatisfied with the instant collection disposition, filed an appeal with the Tax Tribunal on July 1, 201, but was dismissed on May 4, 201.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 4 (including Gaz number; hereinafter the same shall apply), Eul evidence 1 to 5, the purport of the whole pleadings

2. The plaintiff's assertion

For the following reasons, the revocation of the collection disposition of this case and the preliminary confirmation of the invalidity of the notification of the change in the income amount of this case is sought.

① The bonus deemed reverted to the representative under Article 67 of the Corporate Tax Act and Article 106 of the Enforcement Decree of the Corporate Tax Act includes not only cases where the attribution is unclear but also cases where the attribution is clear. Thus, the bonus is a priority claim only when it falls under any of the cases or is withheld under Article 179 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”). Even if it is deemed that it is reverted to the representative due to the unclear accrual of earnings, it falls under the bonus deemed reverted to the representative under the Debtor Rehabilitation Act. In this case, there is no evidence to prove that the provisional payment was reverted to the representative KimA, and thus, the instant provisional payment constitutes a priority claim, and thus, the instant income tax claim is also a priority claim only when it is withheld.

As the pertinent income tax on the instant provisional payment, etc. was not withheld, the instant income tax claim constitutes a rehabilitation claim, not a public-interest claim, and the Defendant did not report the instant income tax claim as a rehabilitation claim within the reporting period. Therefore, the instant income tax claim was forfeited. Accordingly, the instant collection disposition based on the instant income tax claim, which was extinguished due to the forfeiture of rights, was unlawful.

② Since this case’s income tax claim was right as above and the company of this case was exempt from the obligation to pay the income tax of this case under Article 251 of the Debtor Rehabilitation Act, the defendant, pursuant to Article 86(1)4 of the National Tax Collection Act and Article 192(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter “former Enforcement Decree of the Income Tax Act”), notified the company of the change in the amount of income to the individual KimA, who is the representative director of the company of this case, to whom the income belongs. Accordingly, the collection of this case’s income tax claim based on the income tax claim of this case, which was not notified to the representative director KimA, is unlawful.

③ Since the instant company received the rehabilitation plan approval order on September 7, 2009, the subsequent notification of tax payment should be made to the Plaintiff, who is the administrator of the instant company, but the Defendant did not make the notification of change in the amount of income of the instant company on September 11, 2009 and did not make the Plaintiff a notification of change in the amount of income of the instant company. Therefore, the instant notification of change in the amount of income becomes null and void due to the lack of legitimate service,

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Judgment as to the plaintiff Nos. 1 and 2

A. According to Article 179(1)9 of the Debtor Rehabilitation Act, a withheld tax, for which the time limit for payment has not yet arrived at the time the rehabilitation procedures commence, shall be a public-interest claim, and any bonus tax deemed reverted to the representative under Article 67 of the Corporate Tax Act shall be limited to the amount withheld at source.

According to Article 67 of the Corporate Tax Act and Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act, where it is obvious that the amount included in gross income has been leaked out of the company, it shall be disposed of as dividends, bonuses from the disposition of profits, other income, and other outflow from the company according to the person to whom it reverts. If the person to whom it belongs is an officer or employee, it shall be disposed of as bonus to the person to whom it reverts, and if it is unclear, it shall be deemed that it is reverted to the representative. Meanwhile, according to Article 192 (2) of the Enforcement Decree of the Income Tax Act, the bonus disposed by the Corporate Tax Act shall be deemed to have been paid on the date when the corporation receives a notice of change in income amount, and pursuant to Articles 21 (2) and 22 (2) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan.

B. Considering the legislative intent of Article 179(1)9(1)9(a) of the Debtor Rehabilitation Act, bonus reverted to a representative under the proviso of Article 179(1)9(a) of the same Act and bonus belonging to the person to whom it reverts if the person to whom it belongs is an executive (including a representative) or employee, it is clearly distinguishable from its meaning; since tax withheld is deemed that the rehabilitation company collects it from the taxpayer and keeps it for the State, it would not interfere with the reorganization of the rehabilitation company, even if it is classified as public-interest bonds, it shall be withheld at the time of payment to the representative; however, it shall be deemed that it is a public-interest claim regardless of whether it has been withheld at source; however, if it is obviously unclear whether it is a bonus reverted to the representative and thus, it shall be deemed that it belongs to the public-interest claim under Article 106(1)1(b) of the Enforcement Decree of the Corporate Tax Act (see Article 179(1)9(1)6(a) of the same Act) of the same Act).

C. In the case of this case, when adding up the statements in the evidence Eul evidence Eul Nos. 6 to 10, the company of this case dealt with the provisional payment amount of this case which was paid to the representative director KimA during the business year 2008, but was falsely accounted as the provisional payment amount of 00 won (the provisional payment amount of this case) on December 31, 2008, which was the end of the business year 2008, after conducting an investigation into the consolidated payment of this case on December 31, 2008, which was the end of the business year 2008, with the amount of the provisional payment of this case as losses for electrical error. The company of this case calculated the provisional payment amount of this case as losses for electrical error. The company of this case, when submitting a rehabilitation plan to the court to approve the sacrifice plan, arbitrarily adjusted its claims and obligations, and the defendant cannot recognize the fact that the provisional payment amount of this case was paid to the representative director KimA as losses for the purpose of determining the sacrifice plan.

According to the above facts, the provisional payment of this case is reverted to KimA, the representative director of the company of this case, and falls under the bonus for the person to whom the provisional payment belongs if the person to whom the provisional payment belongs is an executive officer or employee. Thus, even if the income tax claim of this case was not withheld, it shall be deemed as a priority claim under the Debtor Rehabilitation Act. Therefore, the plaintiff's claim Nos. 1 and 2 are not reasonable without need for further review.

5. Judgment as to the third proposal by the plaintiff

A. Where a tax authority’s disposition of income and a notice of change in the amount of income is given, the tax withholding agent is deemed to have paid the relevant amount to the person to whom the income recorded in the notice was given on the date of receipt of the notice of change in the amount of income, and at the same time it becomes final and conclusive, such notice of change in the amount of income is subject to appeal litigation as an act of the tax authority directly affecting the corporate tax liability, which is the withholding agent. Furthermore, as a tax payment notice issued by the tax authority as a result of the failure to perform the tax liability withheld by the corporate tax withholding agent constitutes a disposition ordering the payment of the amount of income, which is a final and conclusive disposition, even if there is a defect in the notice of change in the amount of income, it shall not be succeeded as it is as it is, unless there is a defect in the notice of change in the amount of income, which is a prior disposition, even if there is a defect in the notice of change in the amount of income, as to the tax liability to collect income, and it shall not be contested in an appeal litigation against the collection disposition (see Supreme Court Decision 20049Du1439, Jan.

Meanwhile, in imposing a tax by a tax payment notice, it is necessary to objectively determine the taxpayer’s identity in accordance with the formal description of the tax payment notice, and if the taxpayer’s indication in the tax payment notice is not clear enough to identify the taxpayer’s identity, service by the tax payment notice shall not have the effect as a lawful tax payment notice (see, e.g., Supreme Court Decision 92Nu14083, Apr. 27, 1993).

Furthermore, the duty of withholding tax on wage and salary income for the employer of the rehabilitation company shall be imposed by the manager, but the company shall not be dissolved even after the commencement of rehabilitation procedures, so the withholding agent is the rehabilitation company, not the manager, and the taxpayer of the withheld wage and salary income tax shall be the sacrifice company.

B. In the instant case, the following circumstances are revealed by the facts recognized as above and each evidence, i.e., (i) the notice of change in the instant income amount was served to 146-2, Nam-gu, Nam-gu, Seoul, the location of the instant company, but the above location was also the Plaintiff’s address, the manager of the instant company, (ii) the representative KimA was appointed as the manager of the instant company, and the former representative director and the manager of the instant company were the same; (iii) although the notice of change in income amount was written to Do, Doo as the representative, who is not the representative of the instant company, is not the owner of the instant company, and the KimA was not the owner of the instant company’s income amount, and thus, it cannot be deemed that the notice of change in the amount of income amount was unlawful in view of the fact that the notice of change in the amount of income amount was written to Doo as the representative of the instant company, and thus, it cannot be deemed that the notice of change in the name or employee status of the Plaintiff received the notice of change in the amount of income amount (5).

6. Conclusion

Therefore, the plaintiff's primary and conjunctive claims in this case shall be dismissed in its entirety without any grounds. The judgment of the court of first instance on the primary claims in this case shall be just and the plaintiff's appeal shall be dismissed without any grounds, and the plaintiff's conjunctive claims in this case shall also be dismissed. It is so decided as per Disposition by the court below.