[1] Whether taxation can be conducted on the basis of subordinate laws when a decision of unconstitutionality was rendered on the grounds of comprehensive delegation of the parent law (negative)

[2] Whether new data should be submitted (affirmative) and whether the grounds for disposition should be exchanged and changed (affirmative)

[1] The Constitutional Court Order 94HunBa14 delivered on November 30, 1995 ruled that Article 32 (5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994) provided the taxation requirements related to the disposition of income falling under the basic matters pertaining to the rights and obligations of the citizens, but comprehensively delegated it to the Presidential Decree, which is subordinate law, without any basis. Thus, if it is imposed on the basis of Article 94-2 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994), it goes against the principle of no taxation without the law because it constitutes a taxation without the basis by Presidential Decree, which is a provision stipulating the kinds of taxable income and the person liable for tax payment.

[2] Since the subject matter of a taxation revocation lawsuit is objective existence of the tax amount determined by the tax authority, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the pertinent disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it does not necessarily mean that the tax authority can determine the legitimacy of the disposition only by the data at the time of the disposition or claim only the reasons for the disposition.

[1] Article 32 (5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994); Article 94-2 (1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994); Article 47 (2) of the Constitutional Court Act / [2] Article 19 of the Administrative Litigation Act

[1] Constitutional Court Order 94Nu14 delivered on Nov. 30, 1995 (Gong13193, 40), Supreme Court Decision 96Nu1627 delivered on Apr. 26, 1996 (Gong1996Sang, 1767) / [2] Supreme Court Decision 87Nu1079 delivered on Jun. 7, 198 (Gong1988, 1038), Supreme Court Decision 87Nu647 delivered on Apr. 11, 1989 (Gong1989, 758), Supreme Court Decision 88Nu7255 delivered on Dec. 22, 199 (Gong190, 376), Supreme Court Decision 89Nu38989 delivered on Apr. 23, 199 (Gong1990, 1989; Supreme Court Decision 90Nu3984989 delivered on Apr. 19, 1990)

Daegu Construction Co., Ltd. (Attorney Kim Sang-hoon, Counsel for the plaintiff-appellant)

Head of North Busan District Tax Office (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Busan High Court Decision 95Gu4872 delivered on May 16, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the defendant included the omission in sales of the plaintiff company's corporate tax base and interest for provisional payment in gross income as belonging to the non-party 1 who is the representative director of the plaintiff company in accordance with Article 32 (5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994; hereinafter the same shall apply) and Article 94-2 (1) 1 of the Enforcement Decree as belonging to the non-party 1, and disposes of the same as bonus, while the plaintiff company, a withholding agent, did not withhold and pay it, even though it notified the change in the income amount of the above No. 96, June 30, 1994, the court below determined that the above judgment of the court below was just and 96Nu920 of the above No. 9691 delivered on June 30, 194, which did not affect the judgment of the court below as unconstitutional.

In addition, the ground of appeal argues that Article 94-2 of the Enforcement Decree of the Act is merely an enforcement order or an administrative rule and thus can continue to apply the same provision regardless of the decision of unconstitutionality as to the mother law. However, the above decision of the Constitutional Court was made on the ground that it comprehensively delegated the Presidential Decree, which is a subordinate law, without presenting any standard, while setting the taxation requirements related to the disposition of income corresponding to the basic matters pertaining to the rights and obligations of the people under Article 32 (5) of the Act. Accordingly, if it is imposed on the basis of the above Enforcement Decree of the Act, it ultimately becomes subject to taxation by the Presidential Decree, which is a provision by which the type of taxable income and the person liable for tax payment are deemed to be a taxpayer without the basis of the mother law, which eventually

2. Since the subject matter of a taxation disposition is objective existence of the tax amount determined by the tax authority, the tax authority may submit new data that can support the legitimacy of the tax base or amount of tax recognized by the relevant disposition during the lawsuit, or exchange or change the reason within the scope that maintains the identity of the disposition, and it is not always possible to determine the legitimacy of the disposition or to assert only the reason for the disposition (see Supreme Court Decisions 87Nu647, Apr. 11, 1989; 88Nu7255, Dec. 22, 1989; 89Nu5386, Mar. 23, 1990, etc.). Thus, the submission of such data and the change of the reason for the disposition should not be made until the closing of argument (see Supreme Court Decision 89Nu3854, Mar. 27, 190; 200Nu954, Apr. 25, 191).

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)