Busan District Court 2012Guhap5467 (22 March 22, 2013)

National Cycian Examination Division 2012-0158 ( October 25, 2013)

Judgment of a criminal case does not constitute a ground for filing a subsequent request for correction.

It should be interpreted that transactions, acts, etc. which are the basis for calculating the tax base and the amount of tax are transparently disputed in the trial process, and it shall be limited to the cases such as judgments of civil cases in which the existence and legal effects, etc. are objectively verified, and judgments, voluntary adjustment, compulsory adjustment, and settlement in the trial, etc. by confessions who can be easily determined by the protocol, etc.

Article 45-2 of the National Tax Basic Act

2013Nu895 and revocation of a request for rectification of global income tax

AA

Head of North Busan District Tax Office

Busan District Court Decision 2012Guhap5467 Decided March 22, 2013

July 24, 2013

September 11, 2013

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 defendant's rejection of correction against the plaintiff on October 18, 2012 shall be revoked in both the second half-year value added tax OOO and OOOOOOO for the second year of 2006, and the global income tax for the second year of 2006.

1. Details of the disposition;

This Court's explanation is the same as that of the judgment of the court of first instance, and it is also accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

Upon the Plaintiff’s introduction, the Defendant: (a) deemed that the Plaintiff sold copper to BB as non-data; and (b) subsequently, in the relevant criminal judgment, the Defendant was acquitted of some tax evasion activities premised on the former transaction between the Plaintiff and BB; (c) accordingly, the portion of the prosecuted amount - OOOO won among the value-added tax (i.e., the amount charged - OOOO won) and the portion of the global income tax (i.e. the amount charged - the amount charged - the amount of OOOO won) determined as having no legal effect because there was no transaction between the Plaintiff and BB.

1) Therefore, this case’s refusal disposition that deemed that the plaintiff’s request for correction does not fall under the above provision should be revoked on the ground of an ex post request for correction, i.e., transaction or act based on which the tax base and the amount of tax are calculated is determined to be different by the judgment regarding it, and that the plaintiff’s request for correction does not fall under the above provision.

2) In addition, the part of the disposition imposing value-added tax on the Plaintiff on August 1, 201, among the disposition imposing value-added tax imposed by the Defendant, is contrary to the underlying taxation principle and the burden of proof, and thus, the instant disposition of refusal should be revoked.

3) The imposition of value-added tax on the part where the transaction between the Plaintiff and BB is confirmed to have no transaction between the Plaintiff and the BB is in violation of the principle of property right guarantee under the Constitution. Therefore, the instant refusal disposition should be revoked

B. Relevant statutes

[Framework Act on National Taxes]

Article 45-2 (Request for Correction, etc.)

(1) Where any of the following grounds arises, a person who has filed a tax base return by the statutory deadline for return, or who has the tax base and amount of national taxes determined may request the determination or correction within two months from the date he/she becomes aware that such ground has occurred, regardless of the period referred to in paragraph (1):

1. Where transactions, acts, etc. which served as the basis of calculation of the tax base and amount of tax in the initial return, determination or correction are confirmed to be different by a final judgment (including any reconciliation or other acts having the same effect as the judgment) in the lawsuit against it;

C. Determination

The purpose of the ex post facto request for correction is to expand the protection of taxpayers' rights by allowing taxpayers to prove their existence and effects when there is a change in the basis for calculating the tax base and the amount of tax after the establishment of the tax liability. Unlike the general request for correction, it is not permitted for those who have failed to submit the tax base return within the statutory due date of return, and it is not subject to restrictions on the period of general request for correction, and in combination with the principle of substantial taxation and other tax laws, when the transaction or act, etc. which is the basis for calculating the tax base and the amount of tax, becomes final and conclusive as different by the judgment, etc. in the lawsuit related thereto, "when the transaction or act, etc. which is the basis for calculating the tax base and the amount of tax, which is the basis for calculating the tax base and the amount of tax, becomes transparent in the trial process, and in addition, the judgment or decision by itself, even if it is impossible to know the existence and legal effect of the transaction or act, it is limited to a case where the judgment or act becomes final and conclusive through voluntary settlement or resolution.

In full view of the statements in the evidence Nos. 3 and 6 and 7, the court below found the plaintiff guilty on some amount of tax evasion among the facts charged that the plaintiff evaded the second half-year value-added tax in 2006 and the consolidated income tax in 2006, and found the remainder of the amount of tax evasion to be acquitted on the ground that the submitted evidence alone is insufficient to recognize the existence of the act of tax evasion, but the above judgment is merely nothing more than the judgment on the establishment of the act of tax evasion, and it cannot be deemed that the existence of the act of tax evasion and legal effect between the plaintiff and B were different due to the above judgment.

Therefore, the above criminal judgment does not have any transaction between the plaintiff and BB, and the plaintiff's above assertion that the legal effect becomes final and conclusive is without any reason to further examine.

3. Conclusion

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