Supreme Court-2017-Du-56827 ( December 28, 2017)

A person with a special relationship shall provide a company house to a person with a special relationship free of charge or as a rent below the market price, and when the expenses for the maintenance of the company house are paid, it shall

Where private housing is provided to a person with a special relationship with no compensation or at a rent lower than the market price, the maintenance expenses, management expenses, user fees and other related expenses for private housing used by stockholders (not including minority shareholders) of the corporation, contributing executives of the corporation, or their relatives shall not be selected to apply only one of them.

Article 27 of the Corporate Tax Act, Article 52 of the Corporate Tax Act

2018Nu3015 Revocation of Disposition of Imposing Corporate Tax, etc.

KSS Shipping Co., Ltd.

AA Head of the Tax Office

Seoul Administrative Court Decision 2016Guhap57700 decided December 15, 2016

Seoul High Court Decision 2017Nu30292 Decided July 20, 2017

Supreme Court Decision 2017Du56827 Decided December 28, 2017

June 25, 2018

July 25, 2018

1.The judgment of the first instance shall be modified as follows:

A. Of the instant lawsuit, Defendant AA director of the competent regional tax office shall have imposed corporate tax on the Plaintiff on December 12, 2014 35,780,80,883 won and additional tax 14,061,07 won and corporate tax for 2011; corporate tax for 28,447,596 won and additional tax 8,014,004 won and additional tax for 29,485,471 won and additional tax for 29,475,471 won for 2013, the income amount for 2013, 201, 365, 364, and 772,364, corporate tax for 2011; income amount for 2,421,702 won and additional tax for 681,613, corporate tax for 2013, 267, 392, and 416, 2015, and 201.

B. The plaintiff's remaining claims are dismissed.

2. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

The judgment of the first instance shall be revoked. The determination of the head of a tax office of AA shall be revoked on December 12, 2014. The portion of the corporate tax of 35,780,883 won and penalty tax of 14,061,07 won and penalty tax of 28,447,596 won and penalty tax of 8,014,004 won and penalty tax of 29,485,471 won and penalty tax of 29,489,229,207 won and penalty tax of 148,251,251, and the amount of income of 200,2239,99, corporate tax of 2012 for the Plaintiff shall be revoked, and the amount of income of 205,231,2015, 207, 2013, 203, 2015, 2015, 316, 2013, 2015, 316,27, 2014.

1. Where an administrative disposition is revoked as to the claim for revocation of the portion of the instant lawsuit, which was corrected by the Defendants’ ex officio, the disposition becomes null and void, and the lawsuit seeking revocation against non-existent administrative disposition is unlawful as there is no benefit in the lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012). According to the records of the judgment of remand at the trial after remand, the Defendants: (a) deemed that the Plaintiff acquired the instant real estate with its own funds and provided it to ParkBB at a free or low price to be residing; and (b) deemed that the Plaintiff’s acquisition of the instant real estate at a special relationship with the Plaintiff, and thereafter, falls under the scope of application for wrongful calculation under Article 52(1) of the Corporate Tax Act and Article 88(1)6 of the Enforcement Decree of the same Act; and (c) deemed that the Plaintiff’s alteration of the rent and rent of the instant real estate to be excluded from deductible expenses under Article 89(1) and 27(1) of the former Enforcement Decree of the Corporate Tax Act.

In the calculation, the "political tax amount" column and "justifiable income amount" column are the same as the amount stated in the separate sheet (no dispute exists between the parties concerned). In the lawsuit of this case, the part seeking the cancellation of the disposition of this case in excess of the aforementioned legitimate tax amount and the legitimate income amount is about the part that is no longer effective by the defendants' ex officio correction disposition and thus, it is unlawful.

2. Details of the disposition;

The court's explanation on this part is the same as the reasoning stated in Paragraph 1 of the judgment of the court of first instance. Thus, this part is cited by Article 8 of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

3. Whether the part remaining after ex officio correction by the defendants among the disposition of this case is legitimate

(a) Relevant statutes;

Attached Form 2 is as shown in the relevant statutes.

(b) Whether the taxation right is abused;

The plaintiff asserts that the disposition of this case was made as part of retaliation taxation in order to have attempted to reform the regulation of the ‘taxation and collection' sector at the time of ParkB' as co-chairperson of the Regulatory Committee, and is null and void as it constitutes abuse of taxation right.

The written testimony of the evidence No. 10, No. 27-1, 2, 28, and 29 and the evidence No. 1, 27-29 before remanding alone is insufficient to recognize that the instant disposition was conducted as a part of a retaliation taxation, and there is no other evidence to acknowledge it otherwise. Accordingly, the Plaintiff’s assertion on this part is without merit.

C. Sub-committee

The Plaintiff did not dispute that the act of offering real estate in this case constitutes the subject of the avoidance of wrongful calculation under Article 52(1) of the Corporate Tax Act and Article 88(1)6 of the Enforcement Decree of the same Act, and that the notice of changes in the amount of legitimate tax and income calculated accordingly is the same as the description in the “justifiable tax amount” column and “justifiable income amount” column, so the part of the disposition in this case that remains corrected ex officio by the Defendants is lawful.

4. Conclusion

Therefore, the part of the lawsuit in this case seeking revocation of the corrected portion by the Defendants is unlawful and dismissed, and the remainder of the plaintiff's claim is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal is accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.