early 2009west069 ( December 17, 2009)

5 years for the exclusion period of imposition of the income tax on the disposal of the revenue

In case where a taxpayer evades the national tax due to a fraud or other unlawful act, it shall not be deemed to fall under "the case where the taxpayer evades the national tax by means of a fraud or other unlawful act, and the exclusion period of imposition shall be five years after the principle of exclusion period of imposition. Therefore, the disposition of imposition is illegal as the exclusion period of imposition

2010Guhap12688 global income and revocation of disposition

Park AA

○ Head of tax office

June 28, 201

July 14, 2011

1. The Defendant’s imposition of KRW 194,806,490 of global income tax for the year 2000 against the Plaintiff on September 8, 2008 and the imposition of KRW 399,779,360 of global income tax for the year 2001 are 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. △△com Co., Ltd. (hereinafter “△△△com”) was established on December 3, 199 for the purpose of developing, manufacturing, and distributing wired and wireless telecommunications equipment at ○○○○-dong 14-34, 199, and was dissolved on December 1, 2008. The corporate registry was registered as the representative director from the time of establishment to the time of dissolution.

B. As indicated below, △△com purchased and traded with △ stock company (hereinafter “△ stock company”) during the second and second taxable periods of 200, January 2001, and included it in the calculation of the corporate tax base and tax amount for each taxable year, upon receipt of the relevant purchase tax invoice among them.

(The following table omitted):

C. Meanwhile, on May 1, 2008, the head of Samsungcom determined △△△ as partial data, and deemed the transaction related to the table in the preceding paragraph as the processing transaction, and imposed KRW 413,822,620 on 200 and KRW 413,82,620 for the corporate tax for the year 200 and the value-added tax for the year 1, 2001. On June 9, 2008, the Plaintiff was disposed of as a result of the Plaintiff’s disposal on September 8, 2008, by recognizing the sum of value-added tax on the supply price for the processing and purchase transaction related to Seosank as an amount added to value-added tax on the supply price for the processing and purchase transaction related to △k (hereinafter “each disposition of this case”). The Defendant imposed global income tax for the year 2001 and global income tax for the year 209,779,360 for the year 202 (hereinafter “each disposition”).

D. On December 8, 2008, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal dismissed the said appeal on December 17, 2009.

[Ground for Recognition: Facts without dispute, Gap 2, 11, 12 evidence, Eul 1 through 3 (including additional numbers), the purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Since the Plaintiff transferred the stocks and management rights of △△com from the end of September 200 to the end of October, 100, the Plaintiff was registered as a representative director in the corporate register of △△com, and since the actual representative director is ParkA, the other party to the disposition of the above disposition of the income should be ParkA, the pertinent disposition of this case rendered to the Plaintiff, which is only the representative director in the name of the Plaintiff, is unlawful.

(2) Each of the instant dispositions is unlawful as it calculated the amount of income solely on the basis of the processed purchase without considering the total processing sale.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the limitation period under the Framework Act on National Taxes has expired prior to each of the dispositions of this case shall naturally have the effect of the extinguishment of a right even if the taxpayer did not invoke it (see Supreme Court Decision 89Nu2035, Dec. 12, 1989).

(2) On the other hand, in case where the tax authority deemed that the total amount of gross income leaked out of the company is reverted to the representative and disposed of as bonus, the relevant income payer is liable for withholding taxes on the date on which the notice of change in income amount was served on the corporation. Unlike the fact that the withholding agent is liable for withholding taxes on the date on which the notice of change in income amount was served on the corporation, with respect to the person to whom the income accrues, if the disposition of income is made regardless of whether the notice of change in income amount was served on the corporation, it constitutes "amount disposed as bonus under the Corporate Tax Act" under Article 20 (1) 1 (c) of the Income Tax Act, and thus, the relevant income amount is subject to withholding taxes on earned income pursuant to Article 39 (1) of the former Income Tax Act and Article 49 (1) 3 of the former Enforcement Decree of the Income Tax Act. Thus, the global income tax liability of the person to whom the income accrues is the date of receipt of the labor during the relevant business year subject to imposition.

Therefore, the plaintiff's liability to pay global income tax on the income accrued in 200 and the income accrued in 2001 due to the above recognized contribution disposition is established at the end of the pertinent taxable period, and the starting date of the exclusion period shall be the day following the due date of filing the global income tax for the year to which the corresponding taxable period belongs pursuant to Article 70 (1) of the former Income Tax Act.

(3) Even if the transaction between △△ and △△ is the processing transaction, it can be deemed that the excessive appropriation of the purchase amount on the books by receiving a false tax invoice and concealing the income of △△com to evade corporate tax. It is difficult to view that the Plaintiff was made in order to evade the income tax to be imposed on the Plaintiff because it was anticipated that the income of △△△com concealed as the representative of △△△com was out of the company and the person to whom the income accrued was not identified. Thus, it cannot be deemed that the taxpayer under Article 26-2 (1) 1 of the Framework Act on National Taxes, which was related to income tax from such recognition and contribution, falls under the "where the taxpayer evades national tax by fraud or other unlawful act", and therefore, the exclusion period for imposition of the income tax for the year 200 and 201 should return to the principle of exclusion period for taxation for the income tax for the year 200 and 201 pursuant to Article 26-2 (1) 3 of the Framework Act on National Taxes.

(4) Therefore, each of the dispositions of this case is unlawful as it was already made after the exclusion period of imposition expires.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.