Co., Ltd. (Attorney Lee In-bok et al., Counsel for the defendant-appellant)

Head of North Daegu Tax Office

December 23, 2016

Daegu District Court Decision 2015Guhap22464 Decided November 17, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of corporate tax of KRW 12,616,170,70 (including additional tax) on the Plaintiff on April 3, 2013 by the Defendant shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, and the reasoning for this Court’s decision is as stated in the first instance court’s decision, except for adding the judgment as described in Paragraph 2 below with respect to the claims asserted by the Plaintiff in the trial. Thus, this Court shall accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ The second sentence of the first instance judgment "12,617,170,700 won" is "12,616,170,700 won".

○ The fifth sentence of the fifth sentence of the first instance judgment is added to “the establishment of a plaintiff” between “the other hand,” and “MM group.”

○ The fourth sentence of the 7th sentence of the first instance court is “Around November 8, 2010” and “Around November 18, 2010.”

○ The “from June 2010 to June 201” in the 7th sentence of the first instance court, “from June 201 to June 9, 201.”

○ Even in the case of Section 12 of the 7th judgment of the first instance court, “The plaintiff’s report of impossibility of compulsory execution (Evidence 5) for the development of the e-mailed city is indicated as “Seoul (Seoul), the place of execution of which is the seat of the headquarters of the development of the e-mailed city,” and the reason for impossibility of execution is as follows: “No movable property of the debtor is occupied by the debtor without the debtor’s residence.” The above reason for impossibility of execution is the fact that the future credit information company had already confirmed in the course of visiting the place of business of the e-urban development at the request of the e-maild City on March 28, 2011, the transfer of the merger of this case by the e-mailed credit information company (Evidence 6). In addition, the plaintiff submitted the data on the completion of collection activities of the credit information company, which is another non-performing loan company of the e-maild city at the time of reporting the tax base and the amount of tax for the business year 20111.”

○ It appears that the “specific perceptions of these circumstances” in the 3 to 4th sentence of the first instance court is “whether it has been appropriated as losses in the account.”

2. Additional determination

A. The plaintiff's assertion

1) In light of the fact that the public sale price for unsold housing units in Sejong-si, Sejong-si, Sejong-si (Seoul-gun, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun), which was entrusted with the development of Jeju-do, deposited in the bank account in the name of the trustee, in the name of the International Asset Trust Co., Ltd. (hereinafter “International Asset Trust”), the previous director of the tax office seized the claim on the ground that there is the balance of the current deposit account before the merger, and that the above bond seizure continues to exist, it cannot be deemed that the impossibility of collecting the claim in this case was objectively determined at the time of the merger, and thus, the previous defendant’s disposition in this case is unlawful on a different premise.

2) Nonparty 1, etc., an employee in charge of finance of C&C, visited the National Tax Service and the competent tax office, etc. from January 201 to July 201 of the same year, and consulted several times on whether the instant claim satisfies the requirements for bad debt under the Value-Added Tax Act. At the time, the relevant tax officials responded that all of the tax officials did not meet the requirements for bad debt. Thereafter, at the time of filing the final return of value-added tax on January 26, 2012, the Plaintiff filed an application for deduction of bad debt tax on the instant claim, and the Defendant accepted the application and appropriated the amount as bad debt amount to the Plaintiff, and appropriated it for the existing delinquent tax amount. The aforementioned tax officials’ answer and the Defendant’s deduction of bad debt tax amount constitutes a public statement of opinion by the tax authorities that “the impossibility of collecting the instant claim at the time of the merger constitutes bad debt amount of the Plaintiff, and thus, the Plaintiff’s corporate tax base and tax amount should be included in deductible expenses for the business year. Thus, even if the Defendant’s return of the instant additional tax amount cannot be imposed against the principle.

B. Determination

1) As to the first argument

According to the evidence No. 20-1 through No. 7, Edi City Development was offered a loan to the above deposit account on Oct. 15, 2010 on the security of unsold apartment in order to solve the financial difficulties while selling the above bamboo, e.g., the Dong Savings Bank and six financial companies. In the process, the international asset trust and real estate security trust agreement was concluded on Jun. 2, 2008. After settling accounts for the debt of Edi City development through the public sale of unsold apartment, the international asset trust settled the debt of Edi City development through the public sale of Edi City 19, and deposited the proceeds of the public sale in the above deposit account. The head of Edi City Development is recognized to have the fact that Edi City was seized to the above deposit account on Oct. 15, 2010 on the ground that Edi City Development was in arrears with national taxes of KRW 69,384,590,00,000, the above credit seizure was not cancelled until now, and the balance of the deposit account at 106,429,63 won.

However, in light of the following circumstances revealed by the evidence and the purport of the entire pleadings, i.e., ① there are many senior security holders, such as the East Savings Bank, etc., in the case of the above unsold apartment, and the possibility of recovering the above national tax claim in the distribution procedure, ② In fact, on November 18, 2010 after the seizure of the above claim, the head of the previous tax office write off the amount of national tax in arrears 8 million won as the cause of the non-property. ③ The failure of the previous tax office to release the above claim until now does not meet the requirements for the cancellation of seizure (payment, appropriation, suspension of public sale, cancellation of the imposition, etc.) under Article 53 of the National Tax Collection Act, and it appears that there is a need to suspend the progress of the statute of limitations of the national tax collection right. In light of the fact that the previous tax office did not cancel the above deposit claim until now, it cannot be accepted as part of the Plaintiff’s assertion that the collection of the claim in this case is objectively confirmed at the time of the merger.

2) As to the second argument

A) Relevant legal principles

In general, in administrative legal relations, in order to apply the principle of protecting trust to the act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual when the public opinion statement of the opinion statement of the administrative agency is justified, third, the individual should have trusted the opinion statement of the opinion and have committed any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the opinion statement of the opinion that is contrary to the above opinion statement, thereby infringing the interests of the individual who trusted the opinion statement of the opinion statement of the administrative agency. Lastly, when taking an administrative disposition in accordance with the above opinion statement of the administrative agency, it shall not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006). In determining whether there is a public opinion statement of the administrative agency one of the above requirements, the decision should be made based on the organization status and duties of the person in charge, detailed circumstances leading to the relevant speech and trust possibility of the other party, etc.

Meanwhile, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates a return, tax liability, etc. as prescribed by the Act without justifiable grounds, and the taxpayer’s intention or negligence cannot be considered, and the land or mistake of the Act does not constitute justifiable grounds (see Supreme Court Decision 2013Du1829, May 23, 2013, etc.).

B) Specific determination

In light of the following circumstances, Gap evidence 10-2, Eul evidence 4-6 and non-party 1's testimony and arguments, which could have been known by non-party 1's witness of this case, i.e., the non-party 2, non-party 3, and non-party 4, who expressed public opinion, are memory only as to the non-party 1's simple oral consultation or discussion on the non-party 1's bad debt tax amount (the plaintiff did not have any evidence to support the non-party 1's request for a payment order to the non-party 1, etc. for a payment order for the non-party 1's bad debt, but there is no evidence to acknowledge it. ② The non-party 1 testified that the non-party 1 had not been aware of the non-party 1's claim for non-party 1's bad debt tax amount at the time of this case's merger or the non-party 1's appraisal order for non-party 1's non-party 2's non-party 1's explanation of this case'.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Forced mobilization of judge scopic (Presiding Judge)