Daejeon High Court 2006Nu1874 (Law No. 16, 2007)

Cheongju District Court 2005Guhap1805 (O4, 2006)

If the exclusion period for income tax has been exceeded, there may not be a withholding obligation following the notice of change in income amount.

Where the representative of a corporation disposes of income by personal contributions, if the income tax liability of the original taxpayer ceases to exist due to the exclusion period for imposition, etc., the tax liability following the notice of change in the corporate income amount shall also be extinguished, and the exclusion period for imposition of the income tax disposed of as personal contributions from the processing purchase shall be five years.

The contents of the decision shall be the same as attached.

쇠지지지 3000 쇠은은은은은 3000 아은은은은은은 3000 아은은은은은 3000 아은은은은 3000 아은아은은 3000 이 300207 head11382, etc.

쇠지지300 쇠지지지 3000 쇠지지鹬 AA

쇠지지 300 쇠鹬 3000 BB

Article 300 u300 u300 n u3000 n u3000 u3000 Daejeon High Court Decision 2006Nu1874 decided May 16, 2007

쇠은은 개은은 개은은 3000 개은은은 3000 아은은은이 3000 개이 이 3000 개은이 30004 April 29.

44 44 44 44 44 45 44 444 64 44

The part of the judgment of the court below concerning the notification of the change in the amount of income for the business year 195, 1996, and 197 shall be reversed, and that part of the case shall be remanded to the Daejeon High Court.

The remaining appeals are dismissed.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the first ground for appeal

Article 67 of the former Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007; hereinafter the same) provides that "in reporting, determining or revising the corporate tax base, the amount included in the calculation of earnings shall be disposed of as prescribed by Presidential Decree, such as bonus, dividend, other outflow from the company, and internal reservation according to the person to whom the income belongs," and the proviso of Article 106 (1) 1 of the former Enforcement Decree of Corporate Tax Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008; hereinafter the same) provides that "in cases where the reversion is unclear, it shall be deemed to be reverted to the representative."

In return, determination, or correction of the corporate tax base, income disposition under Article 67 of the former Corporate Tax Act provides that the amount included in the calculation of earnings has been reserved or leaked inside the corporation. If the amount was leaked out of the company, it is a procedure under the tax law that determines the type of income with which the person to whom the income belongs and the type of income has already been included in the specific taxable year. However, it is clear that the amount included in the calculation of earnings has been leaked out of the company, and therefore, the taxation data alone can sufficiently anticipate the case of "unreverted and unrevertable amount" in which it cannot objectively determine who to whom the person to whom it belongs, so even though Article 67 of the former Corporate Tax Act is included in the calculation of earnings, it shall be deemed that Article 67 of the former Corporate Tax Act provides that "the amount included in the calculation of earnings shall be disposed of to the person to whom it belongs," and thus, it shall be deemed that the type and content of the income disposition delegated by Presidential Decree is unclear (see, e.g., Supreme Court Decision 97Da9796, Sept. 28, 2008).

In the same purport, the decision of the court below is just under the premise that the proviso of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act is not an invalid provision beyond the delegation scope of the parent law, and there is no violation of law such as omission of judgment as alleged. The grounds for appeal cannot be accepted.

2. On the second ground for appeal

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and judged that Cho K and Kim J are the representative of the plaintiff who is the representative of the plaintiff who is a nominal representative director and who is the object of the disposition to recognize the representative as the representative. In light of the relevant legal principles and records, the recognition and judgment of the court below is just in light of the relevant legal principles and records, and there is no violation of the rules of evidence or misapprehension of legal principles as otherwise alleged in the ground of appeal, and the argument of the court

3. On the third ground for appeal

The amount of income disposed of as a result of the recognition of the representative of a corporation pursuant to the provisions of the Corporate Tax Act is deemed to have been paid by the relevant corporation on the date of receipt of the notice of change in the amount of income; however, it does not mean that the relevant corporation actually pays the amount of income to the representative, but merely means the legal fiction of the law. Thus, in order to establish the withholding obligation of a corporation that received the above notice of change in the amount of income, it must be deemed that the income tax liability of the original taxpayer was established at the time of receipt of the above notice of change in the amount of income, and if the said obligation of the original taxpayer has already ceased to exist due to the intention of exclusion period for imposition of the income tax, the corporate withholding obligation cannot be established. Thus, the subsequent notice of change in amount of income is unlawful (see, e.g., Supreme Court Decisions 85Nu451, Mar. 14, 1989; 2007Du209

Based on its adopted evidence, the court below acknowledged the following facts: (a) the Plaintiff received purchase tax invoices equivalent to KRW 10,331,942,292 from H Development and 26 enterprises without real transactions during the 1995 business year to 2001, and included the purchase amount in deductible expenses for the purpose of calculating the income amount of each business year; (b) the Defendant, on the ground that the purchase tax invoices were false tax invoices, excluded the purchase amount from deductible expenses; and (c) issued a notice of change in income amount (hereinafter referred to as “the notice of change in income amount”) on August 11, 2003, on the ground that it is difficult for the Plaintiff to collect false tax invoices from its business partners without real transactions to include the purchase amount in deductible expenses; and (d) determined that the Plaintiff’s act of tax evasion and corporate tax evasion constitutes a fraudulent act of Article 9-17 of the former Framework Act on National Taxes (amended by Act No. 732, Dec. 13, 2006; hereinafter the same shall apply) to the extent it was legitimate.

However, we cannot accept the judgment of the court below for the following reasons.

Even based on the facts acknowledged by the court below, the plaintiff's excessive appropriation of the purchase amount on the books after receiving the false tax invoice as above can be seen as an act to evade corporate tax by concealing the plaintiff's income in light of its circumstances. It is difficult to view that KimG as an act to evade the income tax imposed on the plaintiff's representative because the plaintiff's income concealed as above was out of the market as above, and since it is not known that the plaintiff was subject to disposition as the plaintiff's representative, it is difficult to view that the "tax payer under Article 26-2 (1) 1 of the former Framework Act on National Taxes" of Article 26-2 (1) of the former Framework Act on Income Tax as a result of such recognition and disposition constitutes "a case where the taxpayer evades national tax by fraud or other unlawful act," and therefore, the exclusion period for imposition of income tax on the portion of 195, 196, 1997 shall be considered to have been 5 years pursuant to Article 26-2 (1) 3 of the Framework Act on National Taxes.

Nevertheless, the court below determined that the notice of change in the income amount for the business year 195, 1996, 199, and 197 was made before the expiration of the exclusion period for imposition of income tax of KimG and thus is lawful. In so doing, the court below erred by misapprehending the legal principles as to the notice of change in income amount and the exclusion period for imposition of national taxes, and the ground of appeal pointing this out has merit.

4. Conclusion

Therefore, the part of the judgment below regarding the notice of change in the amount of income in the business year 195, 1996, and 197 shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeals shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.