Gwangju District Court-2018-Gu Partnership-10347 ( September 20, 2018)

The imposition of corporate tax and the notice of change in income amount are separate dispositions, and the gratuitous transfer of the sample house is subject to rejection of unfair calculation.

Since the imposition of corporate tax and notice of change in the amount of income are separate dispositions separate from each other, they shall undergo a prior trial procedure, and the gratuitous transfer of the sample house in this case shall not be deemed to have economic rationality

Article 52 of the Corporate Tax Act

2018Nu556 Revocation of Disposition of Imposing Corporate Tax, etc.

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○ Head of tax office

Gwangju District Court Decision 2018Guhap10347 Decided September 20, 2018

March 28, 2019

1. The revocation of the disposition of imposition of corporate tax for the business year 2012 by the Plaintiff ○○○○, a stock company among the judgment of the first instance;

The part of the Gu shall be revoked, and this part of the lawsuit shall be dismissed.

2. All appeals filed by the Plaintiff ○○○○, Inc. and appeals filed by the Plaintiff ○○, Inc. are dismissed.

section 3.

3. The total cost of litigation between the plaintiff ○○○ and the defendant is the plaintiff ○○○.

The costs of appeal between the plaintiff ○○ and the defendant are assessed against the plaintiff ○○ and the defendant respectively.

shall be borne.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows. Thus, it is identical to the corresponding part of the judgment of the court of first instance except for dismissal or addition of some contents. Thus, it is justified in the judgment of the court of first instance that rejected the plaintiffs' assertion on the merits presented at the court of first instance even if the plaintiff's assertion on the merits presented at the court of first instance is not significantly different from that of the court of first instance, and all of the evidence presented at the court of first instance and the court of first instance are examined.)

Parts to be removed or added

○ From the 5th to the 6th bottom to the 9th one shall be as follows:

1) Whether the procedure of the previous trial is complied with

A) Defendant’s assertion

The defendant asserts that the plaintiff ○○○ filed a request with the Tax Tribunal for the notice of change in the amount of income regarding the plaintiff ○○○ in relation to the development of the plaintiff ○○, but did not file a request for a trial with the Tax Tribunal for the imposition of corporate tax for the 2012 business year against the plaintiff ○○○○ in relation to the development of the plaintiff ○○○, and that this part of the

B) Relevant legal principles

In tax administration, two or more administrative dispositions for the same purpose were taken in the course of step-by-step and development, and are related to each other, and the tax authority has changed the taxation disposition subject to such administrative litigation while continuing the tax administrative litigation and common grounds for illegality exist, or where several persons are jointly liable for the same administrative disposition due to the same administrative disposition, one of them granted the Commissioner of the National Tax Service and the Tax Tribunal an opportunity to re-determine the basic facts and legal issues as before the preceding disposition or when they go through legitimate pre-trial procedure, and where there are justifiable reasons such as where it seems that the taxpayer would be harsh to go through the pre-trial procedure and it would be apparent that the taxpayer may file an administrative lawsuit claiming the revocation of the taxation disposition even without going through the pre-trial procedure (see, e.g., Supreme Court Decision 2007Du25817, May 28, 2009); however, filing an administrative lawsuit claiming the revocation of the taxation disposition without going through the pre-trial procedure (see, e.g., Supreme Court Decision 2012Du61818).

In addition, even in cases where several kinds of taxation were conducted in the same tax source, each taxation disposition is separate and independent, so it is reasonable to separately determine whether to file a request for review, which is the requirement for administrative litigation against each taxation disposition (see Supreme Court Decision 82Nu195, Dec. 26, 1984).

C) In the instant case:

According to the background of the above disposition, Plaintiff ○○○ was only subject to the procedure of a prior trial on the notice of change in income amount of this case concerning ○○○○, the imposition of the value-added tax in this case on Plaintiff ○○○○○○○, and the imposition of an unfair under-reported additional tax on Plaintiff ○○○○○, but did not undergo the prior trial procedure regarding the imposition of corporate tax for 20

The corporate tax is imposed on the corporate income for each business year in which the amount included in the corporate income is deducted from the deductible expenses, while the notice of the change in the amount of income is a procedure to inform the person to whom the income accrued if the amount included in the corporate income was leaked outside the company and the withholding agent (in this case, the plaintiff 00 ○○○○) that the withholding tax liability was established. If the taxation authority's disposition of income and the notice of the change in the amount of income is given, the corporate tax is deemed to have paid the income to the person to whom the income recorded in the notice was reverted on the date of receipt of the notice of the change in the amount of income, and at the same time the withholding tax liability is established. Meanwhile, since the amount of income is part of the taxable income of the person to whom the income accrued, if the corporation fails to pay the amount of withholding tax generated by the disposition of income, the person to whom the income

As such, the imposition of corporate tax and notice of change in the amount of income falls under a separate disposition different from the purpose and object of the corporate tax, even if both the imposition of corporate tax for the 2012 business year of sulfur Development and the notice of change in the amount of income were imposed on the premise that the processing cost should be appropriated, in order to institute an administrative litigation, each disposition must be

Furthermore, even if the Tax Tribunal rendered a judgment on the basic facts and legal issues as to whether the excessive inclusion of earnings by Plaintiff ○○○○’s assertion in the pre-trial proceedings on the notice of change in income amount of this case, there is no reason to deem that it would be harsh to allow Plaintiff ○○○○○ to undergo the pre-trial proceedings on the disposition of imposing corporate tax for the business year 2012 on Plaintiff ○○○○○○.

Therefore, even if the plaintiff ○○○ was subject to the prior trial procedure on the notice of change in the income amount of this case against the plaintiff ○○○○○, it cannot be deemed that the necessary transfer principle was satisfied with respect to the imposition of corporate tax for the 2012 business year against the plaintiff ○○○○○, and therefore, the part of the plaintiff ○○○○’s claim for revocation of the imposition of corporate tax for the 2012 business year among the lawsuits of this case is unlawful.

○ The 7th line is as follows:

B. Whether the disposition of imposing corporate tax for the business year 2012 against the Plaintiff ○○○○ is legitimate - assumptive judgment

○ 4 lines from the seventh bottom to the "acquisition" shall be regarded as "acquisition".

○ From 8th to 10th lines are as follows:

C) Furthermore, the evidence submitted up to the trial alone is insufficient to recognize that the costs of treating civil petitions, such as ○○○, and the house guarantee fee (○○○○○○) paid out of the said financial statements by Plaintiff ○○○○○’s lending from ○○○○. Accordingly, it is difficult to view that Plaintiff ○○○○ has the above short-term debt liability against ○○○○○○.

○ From 10 up to 8 lines are as follows:

B) On January 1, 2011, Plaintiff ○○○ acquired the said model house at ○○○○○○○○, and thereafter, on September 6, 201, 201, Plaintiff ○○○ assumed the obligation to pay the construction cost of the said model house with the completion money for the said model house.

2. Conclusion

Therefore, the part of the lawsuit of the plaintiff ○○○○ seeking the revocation of the disposition imposing corporate tax for the business year 2012 among the lawsuit of the plaintiff ○○○○○○ is unlawful, and thus, the remaining claims of the plaintiff ○○○○○○○○○ and the claims of the plaintiff ○○○○○○○ are all dismissed as they are without merit. Since the judgment of the court of first instance is partially unfair, the part of the judgment of the court of first instance that the plaintiff ○○○○○○ sought the revocation of the disposition imposing corporate tax for the business year 2012 is revoked and the part of the judgment of the court