Whether the submission of a tax base return and the exemption of additional tax not submitted (negative)

If a tax invoice is not submitted by the time the final return of the tax base is filed, even if the tax invoice is submitted by the previous return of the tax base, it shall not be exempted from the liability for additional tax not to be submitted.

Articles 49 and 50 of the Framework Act on National Taxes, Article 22(2)1 of the Value-Added Tax Act, Article 22(3)1 of the Value-Added Tax Act

[Judgment of the court below]

The Head of the Maternization Tax Office

Seoul High Court Decision 79Gu716 delivered on July 9, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are examined.

According to the provisions of Article 16 (1) of the Value-Added Tax Act (amended by Act No. 2934, Dec. 5, 1978) which enters into force at the time of the occurrence of taxation requirements for the unpaid additional tax, an entrepreneur registered as a taxpayer provides goods or services, to deliver the tax invoice to the recipient. Under the provisions of Article 20 (1) and (2) of the same Act, an entrepreneur shall submit the tax invoice delivered under Article 16 (1) of the same Act to the Government along with the scheduled or final return, and the tax invoice not filed along with the scheduled return may be submitted together with the final return for the taxable period whereto belongs the pertinent scheduled return period. Article 22 (2) 1 of the same Act provides that the unpaid tax amount for the portion delivered by an entrepreneur fails to submit the tax invoice to the Government under the above provisions, 2/100 of the value of supply if the taxpayer fails to submit the final return for the pertinent taxable period, or 10/100 of the value of supply as an additional tax, which is not submitted separately.

On the other hand, Article 45 of the Framework Act on National Taxes (amended by Act No. 3097, Dec. 5, 1978) which was enforced at the time when the initial tax base return becomes effective at the time when the tax base return is filed, provides that if a taxpayer finds any omission or error in the stated matters after filing a tax base return, he may submit a revised tax base return as prescribed by the Presidential Decree within 30 days (ten days in the case of value added tax imposed on the basis of Article 2 subparagraph 1 (f)) after the statutory period for the return of such national tax and within 30 days (ten days in the case of value added tax on the basis of Article 2 subparagraph 1 (f)), and Article 49 of the same Act provides that the government shall exempt the additional tax to be imposed on the person who files a revised tax base return under Article 45 of the same Act within the modified limit due to the lack of the initial tax base return. Article 46 of the same Act provides that if the tax amount already paid falls short of the amount equivalent to the revised tax base return, the additional tax to 50/10 of the payable amount.

Upon comprehensive review of the above provisions, additional taxes under Article 22 (2) 1 of the Value-Added Tax Act and additional taxes under Article 22 (3) 1 of the Value-Added Tax Act and unpaid additional taxes under Article 22 (3) 2 of the same Act shall not be reduced or exempted unless otherwise provided for in Acts and subordinate statutes, as they differ from each other. As for a person who submits a revised tax base return under Article 49 of the Framework Act on National Taxes, additional taxes to be imposed within the modified limit shall not be construed to the effect that they are under-reported additional taxes but shall include unpaid additional taxes. Such interpretation is reasonable in light of the fact that there is a provision that additional taxes under Article 50 of the same Act are under-reported at the time of submission of the tax base return, and that there is no provision that additional taxes under Article 22 (2) 2 of the Value-Added Tax Act shall be reduced by 10 percent of the unpaid additional taxes under Article 22 of the same Act before the submission of the tax base return for the final return, which does not exceed 10 percent of the amount of the additional taxes for the final return.

Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Young-young (Presiding Justice)