The early 209 middle 3481

The corporation may impose the comprehensive income tax as long as it omits withholding tax on the income disposed of as bonus.

The disposition of this case is legitimate since the non-party company is liable to pay Class A labor income tax on the amount of income disposed of as a representative's recognition, and as long as it did not withhold the withholding tax, it cannot be deemed that the non-party company actually collected the source income tax on the income of this case from the representative on the sole basis of the fact that the non-party company submitted a revised report on the performance of withholding tax. In addition, it is reasonable to deem that the non-party company has

2011Guhap10196 global income and revocation of disposition

United Kingdom A

The superintendent of the tax office

October 21, 2011

November 18, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of KRW 362,058,880 against the Plaintiff on July 7, 2008 (the Director appears to be a clerical error in July 9, 2008) is revoked.

1. Details of the disposition;

(a) BB consulting Co., Ltd. (hereinafter referred to as "non-party corporation") is a corporation established on October 1, 2002 on the basis of real estate trading at OOri 00-00 on the 00-00 POri-si, POri-si, POri-si, and closed on December 31, 2005.

B. On December 30, 2003, the non-party company purchased the land located in the Cheongdong-si Cheongdong-si Cheongdong-si Cheongdong-si, and completed the construction of the soil site on November 30, 2005, and provided another company with the amount of land for factories and civil engineering works as shown below, and reported and paid corporate tax thereon.

C. From August 17, 2004 to November 5, 2003, the director of the Central District Tax Office found that the non-party company was in the account of the non-party company's return of 8,137,000,000 won out of the land price and the construction line amount received in connection with the above business, and corrected corporate tax by non-Inclusion of 1,057,328,750 won whose place of use is unclear, and included in the gross income (hereinafter referred to as "the income amount in this case") in the non-party company as a bonus for the plaintiff who was the representative director of the non-party company at the time of outflow, and made a notification of change in the income amount (for notification of corporation) to the non-party company on December 3, 2004.

D. On January 6, 2005, the non-party company submitted a revised report to the head of the Suwon Tax Office on the condition of withholding, and filed a revised return on the amount of tax to be paid to the non-party company at 358,121,280, the tax amount to be paid to the non-party company at 358,121, and 280, adding the amount of tax to the non-party 54,038,440, the amount of tax to be paid at 1,057, 328, and 750

E. On November 1, 2005, when the non-party company did not pay the withholding tax even after the period of the above grace period, the head of the Suwon Tax Office notified the non-party company of the income tax for the source portion, but the non-party company discontinued its business on December 31, 2005 while operating the business without paying it. On July 20, 2006, the head of the Suwon Tax Office issued the disposition of deficits under Article 86 of the Framework Act on National Taxes on the grounds of the closure of business and the non-party company's non-property.

F. On January 1, 2003, the director of the Suwon Regional Tax Office, at the regular audit of the head of the Suwon District Tax Office established around 2007, pointed out that in case of profits recognized as such, even if the relevant corporation constitutes the grounds for writing off without property, etc., the income tax should be determined and revoked and the relevant income tax should be collected directly from the relevant income earner. On October 15, 2007, the director of the Suwon District Tax Office revoked the above notice of payment to the non-party company and issued a notification of the change in income amount (for notification of income earner) directly to the Plaintiff on April 2008.

G. Meanwhile, on June 27, 2008, the Plaintiff deducted the amount of tax withheld at the time of filing a final return on the tax base of global income tax for the tax year 2003, but the Defendant denied the tax credit, and issued a revised and notified the Plaintiff on July 7, 2008 of global income tax amounting to KRW 362,058,88,880 (including additional tax) (hereinafter “instant disposition”).

H. The Plaintiff filed an objection and filed an appeal with the Tax Tribunal, but was dismissed on April 29, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 8, 10, Eul evidence Nos. 1, 3 through 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The first argument

The proviso of Article 192 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008) (hereinafter referred to as "the provision of this case") which was amended on December 30, 202 added "the occurrence of reasons for disposal" to "the case where income tax, etc. can be collected directly from income earners." Thus, the above reasons must be interpreted as having occurred at the time of notification of change in income amount. However, the head of Suwon District Tax Office issued a notice of the same payment to the non-party company which is operating a business normally on December 3, 2004 pursuant to the main provision of this case as to the non-party company's legitimate change in income amount and thus, the non-party company did not lawfully cancel the tax payment notice of this case on November 1, 2005, and thus, it was unlawful for the non-party company to cancel the tax payment notice of this case to the non-party company on the ground that the non-party company was not subject to the tax payment notice of this case.

(2) The second assertion

According to the main text of the instant provision, the notice of change in the income amount of the pertinent corporation must be given within 15 days from the date of determination or correction of the corporate income amount. In light of the proviso, even if the notification of change in the income amount was made without delay to the resident pursuant to the proviso, the notification of change in the income amount to the Plaintiff shall be null and void unless it was made after the lapse of 3 years and 5 months from the date of service of the notification of change in the income amount to the non-party company. Thus,

B. Relevant statutes

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

(1) Determination on the first argument

(A) The proviso of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act provides that the amount included in the calculation of earnings shall be deemed to have been reverted to the representative in determining or correcting the tax base of the Plaintiff’s global income. The purpose of the proviso is to ensure that a certain amount of income recognized as a representative under the Corporate Tax Act should be deemed as unpaid bonus for the purpose of preventing an unlawful act under tax law, regardless of its substance. In this case, the representative fails to prove that the above amount of income is reverted to the Plaintiff, regardless of whether it actually reverts to the Plaintiff (see, e.g., Supreme Court en banc Decision 2006Da49789, Sept. 18, 2008). On the other hand, the Defendant is obligated to pay the income tax if it is deemed that the amount of income, which was not imposed on the Plaintiff’s corporate income subject to withholding taxes, was not imposed on the Plaintiff’s corporate income subject to withholding taxes for the reason that it was not imposed on the Plaintiff’s corporate entity.

(B) Article 21(2) of the former Framework Act on National Taxes provides that income tax withheld shall be liable for tax payment at the time of paying the amount of income. Article 22(2) of the same Act provides that income tax withheld shall be determined without any special procedure when a liability for tax payment comes into existence, and that income tax withheld at the same time becomes final and conclusive at the time of paying the amount of income. As such, a tax notice issued by the tax authority to a withholding agent constitutes a disposition of tax collection for taxes determined and conclusive, not a taxation disposition (see Supreme Court Decision 85Meu1548, Nov. 8, 198). Meanwhile, Article 85(3)2 of the former Income Tax Act provides that when a tax payer imposes and collects income tax on income subject to withholding which is not withheld under Article 80 on a person without tax payment, only the amount of penalty tax shall be collected. The purport of the above provision is to prevent double taxation from being imposed and collected by the head of the competent tax office for the purpose of cancelling double taxation as well as the amount of tax withheld prior to the tax payment notice.

(C) Furthermore, according to the proviso of this case, where the location of the corporation is unclear or it is impossible to serve a notice of change in the amount of income, or where there is a reason to write off the amount of income under Article 86 of the National Tax Collection Act, it shall be notified to the relevant stockholder and the resident who has received the disposition of bonus or other income. The legislative intent of this case is to revise that the notice can be given to the relevant stockholder and the resident in order to directly purify income from the income earner in consideration of the fact that it is difficult to collect income tax in the case where the corporation falls under the reason to write off the amount of non-property without property, etc. In light of the amendment history and the contents of the relevant regulations, etc., the occurrence of the above reason to dispose of the loss must not be interpreted to have occurred at the time of the notice of change in the amount of income to the corporation. Therefore, even though the non-party company was not closed at the time of the notice of change in the amount of income, and the delinquent amount was disposed of on December 31, 2005.

(2) Judgment on the second argument

In light of the proviso of this case’s provision, where a corporation is unable to serve a notice of change in the amount of income on the corporation, or where a cause for writing off occurs, it is only a provision prepared to give the person to whom the income accrued in the current year an additional return of global income tax base and an opportunity for voluntary payment by serving it on the person to whom the income accrued (see Supreme Court Decision 2004Du4604, Jul. 13, 2006). Moreover, there is no provision that the notice of change in the amount of income to the corporation should be given within 15 days, unlike the main provision on the notice of change in the amount of income to the corporation (see Supreme Court Decision 90Nu4631, Feb. 26, 1991), etc., in order to impose the income tax on the Plaintiff, the Plaintiff’s assertion that the notice of change in the amount of income to the corporation should be made without delay from the date of determining the amount of income of the corporation is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.