Seoul Administrative Court 2015Guhap69232, 2016)

Appellate Court 2014west 1239 (O5.01)

The plaintiff's VN business constitutes "communication business" other than "information service business.

The plaintiff's VN business is the main business of providing time facilities to subscribers, etc. and delivering non-udio transmission elements, etc. to each other by using the facilities. Thus, the plaintiff's business constitutes a "communication business". The disposition of the corporate tax of this case that denies depreciation by applying 8 years, which is the standard service life of the plaintiff's machinery and equipment, rental terminal, etc., is legitimate.

Article 23 of the former Corporate Tax Act (Non-Inclusion of Depreciation Costs in Calculation of Losses)

2016Nu47361 Revocation of Disposition of Corporate Tax Imposition

○○ Information and Communications Company

○ Head of tax office

Seoul Administrative Court Decision 2015Guhap69232 decided April 22, 2016

December 16, 2016

on October 10, 2017

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the order of additional cancellation shall be revoked.

The Defendant’s disposition of imposition of corporate tax of KRW 416,47,580 for the business year 2008 against the Plaintiff on November 1, 2013 in excess of KRW 325,624,881 among the disposition of imposition of KRW 325,624,880 for the business year 209, in excess of KRW 465,841,263 of the disposition of imposition of KRW 465,74,740 for the business year 2009, in excess of KRW 465,841,263 of the disposition of imposition of KRW 932,598,980 for the business year 2010, in excess of KRW 703,729,928 of the disposition of imposition of KRW 628,239,020, in excess of KRW 494,306,186 of the disposition of imposition of corporate tax of KRW 332,832,040.

2. The remaining appeal by the plaintiff and the defendant are dismissed, respectively.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The imposition of each of the value-added taxes and the corporate tax on November 1, 2013, which the Defendant rendered to the Plaintiff on November 1, 2013, shall be revoked.

2. Purport of appeal

A. The plaintiff

The judgment of the court of first instance that lost the plaintiff shall be revoked. Each disposition of value-added tax on November 1, 2013 as stated in the separate sheet against the plaintiff on November 1, 2013 by the defendant shall be revoked in all of the disposition of imposition of value-added tax on the second to 2008 and each disposition of imposition of corporate tax for the second to 2005 through 2012.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

1. Quotation of the reasons for the judgment of the first instance;

This judgment is based on the reasoning of the judgment of the court of first instance, except for adding the following matters to the reasoning of the judgment of the court of first instance, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the

(1) The following parts shall be added to the pages 6, 19 and below:

(D) In addition, the Plaintiff asserts that his act cannot be assessed as the Plaintiff’s act, since he faithfully performed his duty of care to prevent unlawful acts by EA and EB, which are actual actors. However, in light of the content and circumstances of the act committed by the actual actors, the evidence presented by the Plaintiff, including evidence Nos. 9, 10, 11, and 12, is insufficient to recognize that the Plaintiff had fulfilled his duty of care and supervision to prevent unlawful acts by the actual actors, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s above assertion is without merit.

E) The Plaintiff asserts that, even if the validity of the fraudulent act of thisA and the rightB, which is an executor, belongs to the Plaintiff, the penalty tax, which is a sanction for neglecting the obligation to report corporate tax, cannot be imposed on the Plaintiff, a bona fide victim.

Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an administrative sanction imposed as prescribed by the Act is not imposed, and where there are extenuating circumstances where it is unreasonable to expect the taxpayer to fulfill his/her obligations, etc. (see, e.g., Supreme Court Decision 2009Du3682, Oct. 27, 201).

However, even though the plaintiff knew that the act of improper act was committed by the executor, if the plaintiff supervised the actor's business with due care within the scope of control of the plaintiff's employee, the executor could have become aware of the act of improper act of the executor and prevented or corrected it. Thus, only because the plaintiff knew that the act of improper act was committed by the executor, it cannot be deemed that the plaintiff has a justifiable reason in violation of the duty to report and pay taxes under the law. Therefore, the plaintiff's assertion is without merit."

(2) On face 11, the following shall be added to the pages 11:

C. Imposition of additional corporate tax for the business year from 2008 to 2012

1) The additional tax under the Corporate Tax Act is a kind of administrative sanction, which would be imposed when a taxpayer corporation imposes a duty of sincere return of tax base and payment of tax amount in order to ensure the propriety of taxation, and the taxpayer corporation neglects its performance as a security measure.

Such sanctions may not be imposed in cases where a taxpayer is not aware of his/her duty due to a conflict of opinion due to an intention in the interpretation of tax-related Acts beyond a simple scope of a law or beyond the scope of misunderstanding, and there is a circumstance where the taxpayer can be justified, or where there is a circumstance where it is deemed that the performance of his/her duty cannot be easily anticipated to the parties, such as when there is a circumstance where the taxpayer is deemed to have been negligent in performing his/her duty (see, e.g., Supreme Court Decision 2008Du2330, Feb. 10, 201).

2) The case holding that it is not easy to determine which business constitutes a business under the Korean Standard Industrial Classification by providing the following combined services such as the transaction approval service of credit cards, automatic transfer service, automatic purchase service, digital signature, and credit card purchase service, and the following circumstances, which can be seen by adding the above evidence and the overall purport of arguments, i.e., depreciation costs of fixed assets as seen above, and the provisions of the corporate tax law related to inclusion in deductible expenses can be deemed part of the Korean Standard Industrial Classification and the provisions of the Corporate Tax Act that specify the contents of the Corporate Tax Act in determining the lifespan of the assets subject to depreciation. However, there is room for controversy as to the interpretation of the Korea Standard Industrial Classification because it is not directly classified as the category of business under the Korean Standard Industrial Classification because it is not a type of business under the Korean Standard Industrial Classification because it can not be seen as a business under the Korean Standard Industrial Classification because it can not be seen as a legitimate ground for misunderstanding of the Korean Standard Industrial Classification's business under the Korean Standard Industrial Classification's own computer Network.

(iii)the calculation of the amount of penalty to be cancelled;

The amount of the penalty tax to be revoked is related to the increased corporate tax amount due to the inclusion of depreciation costs in the instant case in the corporate tax for 208 through 2012 / [2] 15,639,353 [15,39,535 x 10%) in the case of the corporate tax for 208 / [2] 75,213,346, total 90,639,353 + 746, 284, 286, 284, 209 [3, 47, 147, 149, 278, 486, 47, 486, 47, 475, 965, 47, 975, 47, 965, 97, 475, 97, 209

Therefore, the part of the disposition of this case which exceeds 325,624,881 won [=416,47,580 - 90 - 90,852,699] among the disposition of this case of this case of 416,47,580 won of corporate tax for the business year 2008; 465,841,263 won of the disposition of 545,434,740 won of corporate tax for the business year 2009 [45,434,740 - 79,593,477]; 932,598,980 won of corporate tax for the business year 2008; 703,729,928 won of corporate tax for the business year of 2008 / [203,639,20839,209,3639,20829,3629,3639,206364,20

2. Conclusion

Therefore, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed due to reasons. Since the judgment of the court of first instance is partially unfair, the part against the plaintiff in the disposition of imposition of corporate tax for the business year 2008 through 2012 among the part against the plaintiff in the judgment of the court of first instance is revoked, and the corresponding part of the disposition is revoked, and the remaining appeal of the plaintiff and the defendant are dismissed as it is so decided as per Disposition.