Cho High Court Decision 201Da3281 ( November 13, 2012)

Whether a joint lessee's house constitutes a company house excluded from the scope of wage and salary income

Since the provision of a joint lessee's house can be the same as the provision of a single lessee's house in substance, it is reasonable to view that it constitutes a provision of a company house excluded from the scope of labor income.

2013Guhap20104 Action Demanding the cancellation of the refund of earned income tax;

Korea AAA Corporation

Head of the tax office

May 30, 2013

June 27, 2013

1. The Defendant’s disposition to recover each earned income tax of KRW 2008, KRW 000 for the Plaintiff on June 18, 2012, and KRW 000 for the year 2009, and KRW 000 for the year 2010, as well as the disposition to recover each earned income tax of KRW 000 for the Plaintiff on June 27, 2012, and the disposition to recover each earned income tax of KRW 2008 for the Plaintiff on June 27, 2012, KRW 00 for the year 2009, and KRW 00 for the year 2010.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is a public corporation established for the purpose of building and managing AA, who is accompanied by dependent family members, and when the lease deposit is within the support limit under the above criteria, the plaintiff directly enters into a lease contract (referred to as the "house provided by this method" hereinafter), and when the lease deposit exceeds the support limit amount, the plaintiff provides the tenant's home by the method of concluding the public lease contract with the remainder at each of the employees (hereinafter referred to as the "joint lessee's house provided by the above method"), and the detailed contents of the above two methods are as follows.

(The following table omitted):

B. The Plaintiff: (a) provided a single lessee’s housing was excluded from the scope of the wrongful calculation under the Corporate Tax Act; and (b) did not pay corporate tax or labor income tax on the housing that was excluded from the scope of wage and salary income under the Income Tax Act; (c) on the provision of a joint lessee’s housing, the Plaintiff deemed the amount borne by the Plaintiff as a provisional payment irrelevant to the business; (d) reported and paid corporate tax by deeming the recognized interest as a taxable income; and (e) on the basis that the employee received a company housing as the wage and salary, withheld the labor income tax from the employee and reported and paid

C. The Supreme Court Decision (2004Du7993 Decided May 11, 2006) was rendered that the provision of a company house subsidy is not subject to the avoidance of wrongful calculation under the Corporate Tax Act in cases where the provision of a company house subsidy is actually the same as that of a company house, and the corporate tax already paid on December 30, 201 with respect to the provision of a joint lease incident was refunded, and the above judgment also applied mutatis mutandis to the wage and salary income tax, and it should be interpreted that the provision of a joint lease housing should also be deemed as a company house that is excluded from the scope of wage and salary income, on the ground that the provision of a joint lease housing subsidy to the Defendant ought to be deemed as a company house that is excluded from the scope of wage and salary income.

D. The Defendant: (a) determined on May 4, 2012 that the Plaintiff’s respective request for correction was reasonable; (b) decided on May 1, 2012 to refund each of the above request for correction to the Plaintiff’s Busan Urban Construction Project Association on May 15, 2012; and (c) concluded that the joint lease is not a company house that is excluded from the scope of wage and salary income; (d) on June 11, 2012, the amount of wage and salary income tax refunded to both major companies of the Plaintiff on June 11, 2012; (b) KRW 2008; (c) KRW 000 for the year 209; and (d) KRW 000 for the year 200; and (d) the amount of wage and salary income tax paid to the Plaintiff Busan Urban Construction Project Association on the same day; and (d) took each of the above dispositions to collect each of the above dispositions to recover the amount of KRW 200 for the year 2000 for 2000.

E. Accordingly, on July 20, 2012, the Plaintiff Yang mountainous district and the Busan Urban Construction Agency filed an appeal seeking revocation of the instant disposition with the Tax Tribunal, but all the claims were dismissed on November 12, 2012 and November 13, 2012.

[Based on Recognition] The non-contentious facts, Gap evidence 4-2, Eul evidence 1 to 6-2, and Eul evidence 1-6, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Supreme Court precedents regard the provision of a company subsidy as the same provision as the provision of a company house excluded from the object of the denial of wrongful calculation under the Corporate Tax Act, and the interpretation of the above Supreme Court precedents is valid in interpreting the corresponding provision of the Enforcement Decree and the Enforcement Rule of the Income Tax Act, which provides the same contents as the Enforcement Rule and the Enforcement Rule of the Corporate Tax Act. Therefore, a joint lessee's house

2) The imposition of the labor income tax on the amount of the subsidy is a discrimination without reasonable grounds and is in violation of the principle of tax equality in the case of a person who separates the employee who received the single rental house from the employee who received the joint rental house.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

Article 38 (1) 6 of the Enforcement Decree of the Income Tax Act, and Article 38 (7) of the Act stipulate that the profits from the provision of the housing for rent and the profits from the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent are included in the income subject to wage and salary income tax. However, the proviso of Article 88 (1) 6 of the Enforcement Decree of the Income Tax Act provides that the housing for rent and rent are excluded within the scope of wage and salary income if the workers are provided with the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent and the provision of the housing for rent are not applied.

3. Conclusion

Therefore, since the plaintiff's claim is well-grounded, all of them shall be accepted, and it is decided as per Disposition.