The starting point of reckoning of filing a subsequent request for correction due to confiscation or collection of illegal income;

Unless there are special circumstances, the starting point of calculating the period of filing a request for correction shall be the date when the taxpayer knows that the cause for filing a request for correction arises, unless there are special circumstances.

Article 45-2 of the Framework Act on National Taxes

2018Guhap50420 Global income and revocation of disposition

Plaintiff, Appellants

AA

a) the Director of the Tax Office

June 20, 2018

July 20, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The defendant's rejection disposition of correction of global income tax against the plaintiff on April 18, 2017 is revoked.

1. Basic facts

A. The Plaintiff was indicted as a crime of violating the Act on the Punishment, etc. of Specific Economic Aggravated Punishment, Etc. ( TV, etc.) on the ground that: (a) during the period from December 2007 to November 11, 208, the Plaintiff served as the Cc branch of bB bank; (b) during the period from around December 2007 to around November 11, 2008, the Plaintiff received a request for convenience in the provision of current account transactions from BB on a total of 11 occasions; and (c) on June 24, 2011, the Seoul Central District Court Decision 2010 High Court Decision 201Gohap00 Decided March 24, 201, sentenced to a penalty surcharge of KRW x on a three-year basis. The Plaintiff’s appeal and appeal were dismissed, and the said judgment became final and conclusive on March 29,

B. On July 21, 2009, the Defendant: (a) considered the remainder of the x members, excluding the x members returned to BB on July 21, 2009, as other income under Article 21(1)24 of the former Income Tax Act (amended by Act No. 2970, Dec. 26, 2008); and (b) notified the Plaintiff of the correction and notification of the x members of the global income tax (including the additional tax) for the global income tax for the year 2007, and the x (including the additional tax) for the global income tax for the year 2008 on June 3, 2013 (hereinafter referred to as the “instant disposition”).

C. The Supreme Court en banc Decision 2014Du5514 Decided July 16, 2015 (hereinafter “Supreme Court Decision”) held that “ even if a liability for tax payment was established once fulfilling the taxation requirements of control and management of illegal income,” if the possibility of loss of economic benefits inherent in illegal income, such as confiscation or collection, has occurred later, and thus becomes final and conclusive as not realizing income, barring any special circumstance, a taxpayer may be deemed to be free from the burden of tax liability upon filing a subsequent request for correction, barring any special circumstance.” In the past, the Supreme Court Decision 2014Du5514 Decided July 16, 2015 (hereinafter “Supreme Court Decision”), which held that “Where a judgment of collection becomes final and conclusive in a criminal case on illegal income resulting from an act of crime, it shall be subject to the Income Tax Act even if the judgment of collection is executed,” the Plaintiff asserted that the amount of tax imposed upon the Defendant on April 7, 2017, was not changed as the final judgment of this case (hereinafter “Plaintiff”).

E. On April 18, 2017, the Defendant notified the Plaintiff of his refusal of the instant claim for correction on the ground that the period for filing a claim for correction expired (hereinafter “instant notification”).

F. The Plaintiff filed an appeal against the instant notification, and the Tax Tribunal dismissed the Plaintiff’s claim on December 28, 2017.

Facts without dispute over the basis of recognition, Gap evidence Nos. 1, 2, 4, 5, 14, and Eul evidence No. 1 (including each number), and the purport of the whole pleadings

2. The plaintiff's assertion

The Plaintiff paid a surcharge on the amount of acceptance of bribe, which is the cause of the instant disposition, constitutes grounds for filing a subsequent request for correction pursuant to Article 45-2(2) of the Framework Act on National Taxes. Inasmuch as the Plaintiff became aware on April 4, 2017 that it is possible to file a request for correction through the Supreme Court’s judgment, the date when the grounds for filing a subsequent request for correction are known is April 4, 2017. Therefore, the instant request for correction was made within two months from the date when the grounds for filing a subsequent request for correction were known. Therefore, it is unlawful to refuse the instant request for correction

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination on the main defense of this case

A. The defendant's assertion

The defendant's notification of his intention to refuse the correction of this case filed after the expiration of the period for filing a claim for correction does not constitute a rejection disposition that is subject to an appeal litigation.

B. Determination

1) Article 45-2(2) of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter the same) provides that "a person who has received the determination of the tax base and amount of national taxes may file a request for correction within two months from the date on which he/she becomes aware that any of the grounds falling under any of the following subparagraphs arises." Thus, a request for correction filed after the lapse of the period for filing the request for correction is illegal and thus the tax authority is not obligated to determine or rectify the tax base and amount of tax or to take a disposition of refusal. Thus, even if the tax authority has rejected the correction,

Since such ex post facto request for correction is based on the post facto reasons that had not existed at the time of the initial return or taxation, such reasons as whether a transaction or act, which is the basis of the calculation of the tax base and the amount of tax, exists after the statutory due date of return of the national tax, or the legal effect thereof vary, etc. may be included in the post facto reasons stipulated in Article 45-2(2) of the former Framework Act on National Taxes, but the reason why the interpretation of the Act differs from the time of the initial return, decision, or

As such, insofar as a change in interpretation of statutes does not constitute grounds for ex post facto request for correction, if a taxpayer files a request for correction on the grounds of the existence of grounds for ex post request for correction rather than on the grounds of such change in interpretation, the starting point of calculating the period for filing a request for correction shall be deemed “the date on which the relevant grounds have known the occurrence,” barring special circumstances,” rather than “the date on which the relevant grounds have become known that the relevant grounds have occurred.” (see, e.g., Supreme Court Decision 2017Du38812, Aug. 23, 2017).

2) The Plaintiff asserts as the ground for a subsequent claim for correction after the payment of the additional collection charge. Even according to the Plaintiff’s assertion, the Plaintiff knew of the payment of the additional collection charge, which is the ground for the subsequent claim for correction on January 17, 2014, along with the day on which the payment of the additional collection charge was made, and the instant claim for correction was filed on April 7, 2017, which is apparent that two months have passed thereafter, and thus, the instant claim for correction was filed after the lapse of the period for filing the claim for correction, and thus, the instant notice of refusal containing the intention of refusal cannot be subject to appeal.

In addition, the Plaintiff asserts that “the day on which he became aware of the grounds for the ex post facto request for correction, April 4, 2017,” but this is premised on the fact that the judgment of the Supreme Court of this case was in question, and thus, it is difficult to accept this claim in light of the above legal principles (the date on which the Plaintiff becomes aware of the judgment of the Supreme Court of this case on April 4, 2017). However, the Plaintiff argues that “the day on which the date on which he becomes aware of the judgment of the Supreme Court of this case on April 4, 2017,” but it does not seem that there exists a reason for the ex post request for correction separately from this day. Therefore, the above assertion is rejected

5. Conclusion

Therefore, since the plaintiff's claim is unlawful, it is decided to dismiss it as per Disposition.