Seocho 2013west 4087 (2014.04.02)

The amount of income disposition belonging to the year 2006 falls under the legislation of non-appealed class, which is, in principle, allowed to apply the exclusion period for imposition 10 years.

With respect to the application of the exclusion period of imposition of income tax and corporate tax on the amount of income disposed of, the exclusion period of imposition shall be imposed on the portion to which it belongs in 2005 at the time of legislation, but the portion to which it belongs after 2006 falls under the law of appeal. However, since the exclusion period of imposition does not exceed the exclusion period of imposition at the time of legislation, it constitutes the law of appeal and it is allowed in principle

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes

2014Guhap53452 Revocation, such as notice of change in income amount

○○ Co., Ltd.

○ Head of tax office

2014.07.25

2014.09.16

1. On September 3, 2013, the Defendant’s notice of change in income amount in the Nos. 1, 2, and 3 attached Table 1, issued against the Plaintiff is revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Order 1 and the defendant's notification of change in income amount in the No. 4 of the attached Table 1, which was made against the plaintiff on September 3, 2013, shall be revoked.

1. Details of the disposition;

A. The plaintiff is a corporation established on September 15, 199 and engaged in the business of selling and exporting and importing documents, and KimA is serving as the representative director of the plaintiff since its establishment.

B. As a result of the consolidated investigation of corporate tax against the Plaintiff from January 30, 2013 to May 12, 2013, the Defendant confirmed the fact that the Plaintiff omitted the report of corporate tax and value-added tax on the brokerage commission fee received from a foreign customer in the course of importing products from a foreign customer in 2004, 2006, and 2010, and delivering them to a domestic customer. From February 2, 2003 to January 2006, the Defendant confirmed the fact that: (a) deducted the relevant input tax amount from the output tax amount; (b) deducted the relevant input tax amount from the output tax amount; (c) deducted the relevant input tax amount from the output tax amount; and (d) deducted the said supply amount from the input tax amount for the input tax amount without real transaction from the input tax amount for the taxable period of value-added tax in deductible expenses.

C. On September 3, 2013, the Defendant included the omitted return amount of the Plaintiff’s brokerage commission in the calculation of earnings, deducted the input tax amount from the receipt of the false tax invoice, and corrected and notified the value-added tax and the corporate tax for each business year from 2003 to 2006, and disposed of only the amount confirmed as the settlement price of revenue equipment out of the omitted amount of the sales commission in the calculation of earnings through other outflow, and disposed of the remainder of the sales commission return and the supply price in the receipt of the false tax invoice (hereinafter “the instant income amount”) as bonus to the Plaintiff’s representative director KimA, who belongs to the Plaintiff, as the bonus (hereinafter “the instant income disposition”). On September 3, 2013, the Defendant notified the Plaintiff of each change in the income amount listed in the attached Table 1 list (hereinafter “Notice of each change in income amount”).

D. On September 16, 2013, the Plaintiff filed an appeal on September 16, 2013, but the Tax Tribunal dismissed the Plaintiff’s appeal on April 2, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 6 (including branch numbers), the purport of the whole pleadings

2. Whether each of the instant reports on changes in income amount is legitimate

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff received a tax invoice different from the fact between 2003 and 2006 or omitted sales commission, and it is difficult to view that the Plaintiff’s representative director was subject to a disposition for tax evasion due to the Plaintiff’s failure to release the concealed income from the company, and thus, it is difficult to view that it was made to evade the income tax to be imposed, and there is no objective evidence to acknowledge otherwise. Thus, the exclusion period for taxation of the income tax accrued from 2003 to 2006 on the Plaintiff’s representative director KimA should be applied pursuant to Article 26-2(1)3 of the Framework Act on National Taxes. Accordingly, since the exclusion period for taxation of the income tax accrued from 2003 to 2006 of the Plaintiff’s representative director KimA’s 203 to 2006 has already been completed on or before September 3, 2013, which is the date of notice of changes in the amount of income of this case, each of the notice of changes in the amount of income that was made after the

(2) The defendant's assertion

(A) From 2002 to 2004, 2006, and 2010, when the Plaintiff imported products from a foreign customer and delivered them to a domestic customer, the Plaintiff prepared books different from the actual transaction partner’s fees, omitted a sales report on the brokerage commission when filing a corporate tax and value-added tax, and received the Plaintiff’s representative director KimA’s business trip from a foreign customer and received cash directly from a foreign customer, or transferred the Plaintiff’s personal account, representative director’s personal account, representative director’s denial account, and the Plaintiff’s employee’s account with intent to evade tax, and thus, the Plaintiff constitutes “Fraud or other unlawful act” under Article 26-2(1)1 of the Framework Act on National Taxes.

(B) The latter part of Article 26-2(1)1 of the Framework Act on National Taxes, which applies from the amount first disposed of pursuant to Article 67 of the Corporate Tax Act after January 1, 2012, which was newly established by Act No. 11124, Dec. 31, 2011 (hereinafter “instant provision”), stipulates that the exclusion period for exclusion of imposition of income tax, etc. on the amount disposed of pursuant to Article 67 of the Corporate Tax Act, if the national tax evaded, refunded, or deducted by unlawful act is corporate tax, shall be ten years. The instant disposition of income against the representative director KimA made by the Plaintiff’s fraudulent or other unlawful act after January 1, 2012, the exclusion period for exclusion of imposition of income tax on the income tax of KimA from the disposition of this case shall be ten years pursuant to the key provision. Therefore, on the same premise, each of the instant notice given by the Defendant to the Plaintiff is legitimate.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

(1) Relevant legal principles and precedents

"Fraud and other unlawful acts" under Article 26-2 (1) 1 of the former Framework Act on National Taxes are interpreted as the same meaning as "Fraud and other unlawful acts" under Article 9 of the Punishment of Tax Evaders Act. "Fraud and other unlawful acts" under Article 9 of the Punishment of Tax Evaders Act refer to deceptive and other unlawful acts which make it impossible or considerably difficult to impose and collect taxes, and the crime of tax evasion is committed by a person liable for tax payment, recognizing that his act constitutes fraud and other unlawful acts, and recognizing that the act constitutes fraud and other unlawful acts and thereby resulting in the evasion of tax (see Supreme Court Decision 2004Do817, Jun. 29, 2006).

Meanwhile, pursuant to the provisions of the Corporate Tax Act, the amount of income disposed as a bonus for the representative of a corporation is deemed to have been paid by the corporation on the date of receiving the notice of change in the amount of income. This does not mean the payment to the representative in reality, but merely means the legal fiction of the payment by the law. Thus, in order to establish the withholding obligation of the corporation that received the above notice of change in the amount of income, the income tax liability of the source taxpayer should be established when he received the above notice of change in the amount of income, which is the time of establishment. If the source taxpayer’s income tax liability has already ceased to exist due to the intention of exclusion period for imposition of income tax, etc., the corporate withholding obligation cannot be established (see Supreme Court Decisions 85Nu451, Mar. 14, 1989; 91Da40931, Sept. 22, 1992

In addition, in case where the Supreme Court received a false tax invoice from the representative of a corporation in excess of the purchase amount on the account book and concealed income, it is difficult to view that a taxpayer under Article 26-2 (1) 1 of the former Framework Act on National Taxes in relation to income tax as a result of such recognition disposal was conducted to evade the income tax imposed because the representative was out of the company and the person to whom the income accrued was not identified as the representative of the corporation. Thus, it cannot be deemed that a taxpayer under Article 26-2 (1) 1 of the former Framework Act on National Taxes in relation to income tax as a result of such recognition disposal constitutes "a case where the taxpayer evades the national tax by fraud or other unlawful act," and the exclusion period for imposition of income tax on the portion belonging to the relevant year becomes five years pursuant to Article 26-2 (1) 3 of the same Act (see Supreme Court Decision 2007Du1382,

In addition, the Supreme Court held that even in cases where the representative of a corporation committed an act such as manipulating the books of a corporation in the course of embezzlement of corporate funds, such an act is merely intended to conceal the fact that the amount of embezzlement is deducted, and it is difficult to see that the income tax on the bonus to be reverted to him/her is evaded due to the expectation that the income disposition by the tax authorities should be made in the future with respect to such embezzlement, and it does not constitute "cases where the taxpayer evades national taxes by fraudulent or other unlawful act" under Article 26-2 (1) 1 of the former Framework Act on National Taxes (see Supreme Court Decision 2007Du20959, Jan. 28, 2010).

(2) Amendment of the relevant laws and regulations

Article 26-2 (1) 1 of the Framework Act on National Taxes provides that "if a taxpayer evades a national tax, obtains a refund or deduction by fraudulent or other unlawful means, it shall be ten years from the date on which the national tax can be imposed." In this case, if a taxpayer evades a national tax, obtains a refund or deduction by unlawful means, if a national tax is a corporate tax, it shall be ten years from the date on which the income tax or corporate tax can be imposed on the amount disposed pursuant to Article 67 of the Corporate Tax Act." In addition, Article 2 of the Addenda provides that "the amended provisions of the latter part of Article 26-2 (1) 1 of the Corporate Tax Act shall apply to the amount disposed of under Article 67 of the Corporate Tax Act for the first time after January 1, 2012."

Meanwhile, according to the purport of Articles 38 and 59 of the Constitution that provides for no taxation without the law, a provision imposing new tax liability or previous tax liability may be applicable only when the requirements for imposition are met after its enforcement (see, e.g., Supreme Court en banc Decision 2008Du17363, Sept. 2, 201). The retroactive application of tax-related provisions that provide for new tax liability or previous aggravated tax liability may only be established by law in cases where it is inevitable to realize the more serious principle of public interest or where it is necessary for public welfare, or where it is necessary to do so, such exception may not be applied to the extent that retroactive application of the aforementioned provisions is prohibited by the law to the extent that there is no reasonable ground for the taxpayer’s trust at the time of the realization of taxation requirements and there is no need to protect the individual’s trust in the process of legislation without the retroactive application of the aforementioned provisions to the extent that retroactive application of the aforementioned provisions cannot be applied by the principle of no retroactive application of the law.

(3) Determination

In light of the aforementioned legal principles, precedents, and the developments leading up to the amendment of Article 26-2(1)1 of the Framework Act on National Taxes, etc., whether the notice of the change in the amount of income in this case is lawful or not shall be divided into the notice of the change in the amount of income for the portion of income accrued in 2003, 204, and 205 and the notice of the change in the amount

(A) Whether the notice of change in the amount of income on the income accrued in 2003, 2004, and 2005 is legitimate

1) Even if the income is actually reverted to the representative, etc. and is subject to the disposition of income, it is difficult to view it as being paid as the name of the earned income, and it is difficult to assume the liability to pay global income tax by deeming it as the "income of a similar nature as above" without the disposition of income. When the disposition of income is taken, it is deemed that it constitutes the "amount treated as a bonus under the Corporate Tax Act" under Article 20 (1) 1 (c) of the Income Tax Act and it is subject to the assessment of global income tax (see, e.g., Supreme Court Decisions 2004Du9944, Jul. 27, 2006; 2006Du187, Apr. 24, 2008).

2) According to the facts found in the process of the disposition, it is difficult to view that the Plaintiff’s omission of brokerage fees received from an overseas customer in the business year 2003, 2004, or receipt of false tax invoices received from BB andCC in the business year 2003, 2004, and 2005 as an act to evade corporate tax by concealing the Plaintiff’s income in light of the circumstances, etc., it can be deemed that the Plaintiff’s representative director and KimA anticipated that the income disposition should take place in the future, and thus, it is difficult to view that the Plaintiff’s income tax was evaded from bonus to be reverted to oneself for 2003, 204, 2004, 205, 300, 205, 205, 205, 205, 30, 205, 205, 20, 205, 30, 205, 25, 20, 205, 3, 3, 4, 2.

3) As seen earlier, the exclusion period has already been set before the key provisions were newly established and enforced with respect to the income tax accrued in 2003, 2004, and 2005 of the KimA. If it is interpreted that the exclusion period for imposition of income tax accrued in 2003, 2004, and 2005 for income tax accrued in 2005 can be recognized as 10 years based on the key provisions as alleged by the Defendant, it is an interpretation that the amended provision constitutes a true legislation that actually completed facts or legal relations and that is subject to regulation, and that is not constitutionally permissible. Moreover, since the evidence submitted by the Defendant alone does not recognize special circumstances, such as serious public interest need to permit the retroactive legislation of income tax accrued in 203, 2004, and 205, based on the key provisions, the exclusion period for imposition of income tax accrued in 205 for KimA cannot be deemed as 10 years.

4) Ultimately, as long as the obligation to pay income tax for the year 2003, 2004, and 2005 of KimA’s 2005 had already been extinguished by the Do of the exclusion period of imposition prior to September 3, 2013, which was the date of notification of the change in the amount of income to the Plaintiff, the Plaintiff’s obligation to withhold taxes cannot be established. As such, the sequence 1, 2, and 3 of the notice of the change in the amount

(B) Whether notice of change in the amount of income on the income attributed to the year 2006 is legitimate

1) The Plaintiff’s omission of brokerage commission from a foreign customer in the business year 2006, or the receipt of a false tax invoice from a foreign customer without a real transaction from BB andCC can be seen as an act of evading corporate tax by concealing the Plaintiff’s income in light of its circumstances, etc. The Plaintiff’s representative director, KimA, expected that the disposition of income by the tax authorities should be made in the future, and it is difficult to deem it to be an act of evading income tax on the bonus attributable to himself/herself in the business year 203, 2004, 2005.

Therefore, the exclusion period for imposition of income tax for the year 2006 of KimA’s 2006 due to the disposition of income in this case shall be five years pursuant to Article 26-2(1)3 of the former Framework Act on National Taxes, and five years from the date following May 31, 2007, which is the due date for filing the report period, shall take place. However, the issues applicable to the first disposal amount pursuant to Article 67 of the Corporate Tax Act after January 1, 2012, which was newly established as Act No. 11124 on December 31, 2011, and were first disposed after January 1, 2012, the exclusion period for imposition of income tax, etc. for the amount disposed of pursuant to Article 67 of the Corporate Tax Act shall be ten years if the national tax was evaded or refunded by unlawful act, and the so-called "income tax for the year 2006 for KimA due to the disposition of this case, which is still subject to the exclusion period for imposition of income tax for the last year 20 years.

Therefore, the exclusion period for imposition of income tax belonging to the year 2006 by KimA from the disposition of income of this case is 10 years according to the issues.

2) On this issue, the Plaintiff asserts to the effect that Article 2(1) of the Addenda of the Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; 201; 3) of the Addenda of the Framework Act on National Taxes applies only to the case where a person obligated to report and a tax authority take a disposition of income with respect to the corporate tax base reported after January 1, 201, pursuant to Article 2(1) of the Addenda of the Framework Act on National Taxes (amended by Act No. 11124, Jan. 1, 2012); however, Article 2(1) of the Addenda of the Framework Act on National Taxes only provides that “the amendment of the latter part of Article 26-2(1)1 of the Framework Act on National Taxes only applies from the amount disposed of pursuant to Article 67 of the Corporate Tax Act for the first time after January 1, 20

3) Ultimately, the Defendant’s obligation to pay pro rata income tax for the year 2006 by KimA was under the condition that the exclusion period was not set at September 3, 2013, which was the date of notification of the change in the amount of income to the Plaintiff, and accordingly, the sequence 4 of each of the notice of change in the amount of income in this case is lawful

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and b)

(s) It is dismissed as it is without merit, and it is so decided as per Disposition.