National Tax Service Review Income 2010-0093 (Law No. 22 April 2011)

Since income tax was paid by year-end settlement, the exclusion period of five years should not be considered as non-return.

The exclusion period of income tax on exercising stock purchase options omitted from filing a final return on the tax base of global income tax cannot be said to be the person who received two or more earned income from such two or more persons and paid the income tax by the year-end adjustment.

2011Guhap2472 global income and revocation of disposition

Maximum XX

Head of Namyang District Tax Office

December 13, 2011

January 17, 2012

1. The Defendant’s imposition of KRW 19,871,360 of global income tax for the year 2003 against the Plaintiff on July 6, 2010, and the imposition of KRW 45,356,690 of global income tax for the year 2004 shall be revoked.

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, while working in XX limited liability company (hereinafter referred to as “ XX”), paid the income tax on Class A and Class B earned income accrued to the Plaintiff during the period from 2003 to 2007.

B. Meanwhile, during the above period, the Plaintiff exercised the stock option received from O, the parent company of XX limited liability company, and the income from the exercise of the said stock option was not included in the year-end tax settlement of Class B earned income, and did not separately file a final return on the tax base.

C. On July 6, 2010, the Defendant corrected and notified the Plaintiff of KRW 159,086,190 in total as global income tax for each of the pertinent year on the profits from exercising the stock option from 2003 to 2007 on the grounds that the Plaintiff did not report the profits from exercising the stock option as above.

D. On September 30, 2010, the Plaintiff filed a request for review with the National Tax Service on September 30, 201, and filed the instant lawsuit upon receipt of a decision of dismissal on April 22, 201 (hereinafter “instant disposition”) upon receipt of the instant disposition (i.e., reversion of 2003 as indicated in paragraph (1) and global income detailed and disposition for 2004 as indicated in Disposition 1).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, 2-2, Eul evidence 1-1, 2-2 and 2-1 through 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff constitutes a person with only wage and salary income who has paid the income tax by year-end settlement, the Plaintiff is not obligated to make a final return on the tax base. Therefore, even if the Plaintiff omitted the income return on the profit from exercising the stock option, this is merely an underreporting of income, and accordingly, the exclusion period of five years should be applied to the imposition of income tax on the profit from exercising the stock option. Thus, the instant disposition is unlawful as a taxation

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 26-2 of the Framework Act on National Taxes provides that if a taxpayer fails to file a tax base return within the statutory due date of return, the exclusion period of imposition shall be seven years from the date on which the national tax is assessable, and if not, five years from the exclusion period of imposition shall be set. Article 73(1) and (2) of the Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter the same shall apply) provides that any person with wage and salary income or any person with wage and salary income from two or more persons who has paid the income tax through the year-end tax settlement, the final

2) The Plaintiff, while making a year-end settlement on Class B earned income in 2003 and 2004, omitted the benefits from exercising the stock options received from O, the parent company, as seen above. However, in full view of the overall purport of the pleadings in the items of Evidence Nos. 1 and 2-2, it can be recognized that the Plaintiff, while making a year-end settlement in 2003 and 2004 for the year-end tax settlement in 200 and 19,126,000, 5,134,000 won generated during the year 203, excluding the gains from exercising the stock options, was withheld and paid through the global taxpayers association, and that it was settled and paid with the contents of the year-end tax settlement.

According to the above facts, the plaintiff is a person who has earned income from more than two persons as provided in Article 73 (2) of the Income Tax Act and pays the income tax on the year-end tax settlement (the plaintiff omitted the exercise of stock purchase right in paying Class B earned income through the year-end tax settlement, but such circumstance alone alone does not make the plaintiff be a person who has earned income and is not a person who has paid the income tax through the year-end tax settlement). Therefore, the exclusion period of income tax on the income accrued from exercising the plaintiff's right to choose purchase of stocks shall be five years pursuant to Article 26-2 (1) 3 of the Framework Act on National Taxes. Thus, the imposition period of income tax on the income accrued from July 6, 2010 to 204 imposed on the plaintiff in the year-end tax settlement is limited. Thus, the disposition of this case is unlawful.

3) Article 137 (2) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010) provides that "a person who has paid income tax by year-end tax settlement" refers to a person who has no tax amount to be paid by year-end tax settlement by paying income tax through year-end tax settlement. Thus, even if a person has paid income tax through year-end tax settlement, he/she should make a final tax return if there is tax amount to pay income as the Plaintiff. However, the above provision of the Enforcement Decree provides that even if a person has paid income tax through year-end tax settlement, he/she shall interpret that a person who has the tax amount to be paid by year-end tax return is liable to make a final tax return for a separate item that is not included in the settlement of accounts, and thus, the above provision of the Enforcement Decree of the Income Tax Act cannot be applied to the Plaintiff, and therefore, the defendant's above argument is without merit (when interpreting income tax as the defendant's assertion, it is against the purpose of simplified tax base return for seven years.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.