Seoul Administrative Court 2014Guhap75124 ( December 18, 2015)

The embezzlement of the representative who is a real manager is a bonus disposition at the time of the outflow.

The embezzlement of corporate funds by the actual manager of an unlisted corporation is not premised on the recovery at the time of the outflow from the company, and it is subject to the disposition of bonus immediately, and the exclusion period has been extended by the amendment of the statute during the exclusion period under the previous Act and subordinate statutes, which is subject to the extension of the exclusion period of imposition as an in

Article 67 (Disposal of Income)

2016Nu33034. Revocation of disposition of revocation of notice of change in income amount.

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Seoul Regional Tax Office

Seoul Administrative Court Decision 2014Guhap75124 decided December 18, 2015

September 29, 2015

October 20, 2015

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

On December 1, 2012, the Defendant’s revocation of the part exceeding ○○○○○○○○○○○○○ (a balance after reduction and correction on January 19, 2015) out of the amount of income belonging to the year 2006, exceeding the amount of income belonging to the year 2007 (a balance after reduction and correction on January 19, 2015), exceeding the amount of ○○○○○○○○○○○○○○ source out of the amount of income belonging to the year 2008 (a balance after reduction and correction are made on January 19, 2015), exceeding the amount of income belonging to the year 2009 (a balance after reduction and correction are made on January 19, 2015), and the part exceeding the amount of ○○○○○○○○○○○○ source out of the amount of income belonging to the year 2010 (a balance after reduction and correction is made on January 19, 2015).

1. Quotation of judgment of the first instance;

The reasons for the judgment of this court are as follows. Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act are as follows: "No. 16 of the judgment of the court of first instance" are dismissed as "No. 3 of the judgment of the court of first instance."

2. Judgment on the plaintiff's assertion of appeal

A. The plaintiff's assertion

The Plaintiff asserts to the effect that the notice of the change in the amount of income accrued in 2006 among the dispositions of this case was made after five years have elapsed since the exclusion period for taxation for the income tax accrued in 2006, and the tax liability was extinguished, and that on December 4, 2012, which is entered in the complaint and petition of appeal in the petition of this case, it appears that the notice of the change in the amount of income accrued in the year 2006, appears to be an obvious clerical error in light of

B. Determination

1) Former relevant legal principles

In a case where a representative of a corporation received a false tax invoice and received a false tax invoice in excess of the purchase amount on the account book and concealed income, the Supreme Court: (a) it is difficult to see that a taxpayer under Article 26-2 (1) 1 of the former Framework Act on National Taxes who evades the income tax imposed as a representative of the corporation because his/her representative could not be deemed to have been subject to the disposition of excess because he/she could not have been found to have been subject to the disposition of excess; and (b) it cannot be deemed that a taxpayer under Article 26-2 (1) 1 of the former Framework Act on National Taxes who evades the national tax by fraud or other unlawful act; and (c) the exclusion period for imposition of the income tax on the portion belonging to the pertinent year was five years pursuant to Article 26-2 (3) of the same Act, which returned to the principle (see Supreme Court Decision 2007Du113

2) Amendment, etc. to the relevant legislation

Article 26-2 (1) 1 of the Framework Act on National Taxes provides that "if a taxpayer evades a national tax, obtains a refund or deduction by fraudulent or other unlawful means, it shall be ten years from the date on which the national tax can be imposed." However, as amended by Act No. 11124 on December 31, 201, "if a national tax is evaded, refunded or deducted by unlawful means, it shall be ten years from the date on which the income tax or corporate tax can be imposed on the amount disposed of pursuant to Article 67 of the Corporate Tax Act, if the national tax is a corporate tax, it shall be ten years from the date on which the income tax or corporate tax can be imposed on the amount disposed of in accordance with Article 67 of the Corporate Tax Act (hereinafter referred to as " regulations on dispute" in Article 26-2 (1) 1 of the amended Framework Act on National Taxes), Article 2 of the Addenda of the Act provides that "the amended provisions on Article 26-2 (1) 1 of the Corporate Tax Act shall apply from the first date of December 1, 201."

Meanwhile, according to the purport of Articles 38 and 59 of the Constitution that provides for no taxation without the law, a provision imposing new tax liability or previous tax liability may be applicable only when the requirements for imposition are met after its enforcement (see, e.g., Supreme Court en banc Decision 2008Du17363, Sept. 2, 201). The retroactive application of tax-related provisions that provide for new tax liability or previous aggravated tax liability may only be set up under the law where it is inevitable to realize the more serious principle of fair taxation or where it is necessary for public welfare (see, e.g., Supreme Court Decision 81Nu423, Apr. 26, 1983). Furthermore, the principle that retroactive legislation can only be subject to retroactive application of the principle that retroactive application of the law is prohibited by the principle that retroactive application of the law to individuals, such as a legitimate legislation that is already completed by new legislation or legal relations, and the principle that retroactive application of the law can not be applied by the principle that retroactive application of the law.

3) Whether the exclusion period for notification of the change in the income amount reverted to the year 2006 of this case has expired

According to the previous legal principles, if AA, a representative director and a major shareholder of the Plaintiff, omitted the amount of the corporation’s funds embezzled by means of false entry in the books, concealment of property, and fabrication or concealment of income, profit, act, or transaction in the business year 2006, it can be deemed that the Plaintiff’s act of embezzlement is conducted not only by concealing the Plaintiff’s income but also by concealing the Plaintiff’s income, thereby evading corporate tax against the Plaintiff’s corporate tax, and it is difficult to view the Plaintiff’s representative director and the Plaintiff’s income to evade the income tax from the bonus to be accrued to the tax authority in the future. Accordingly, the exclusion period for imposition of the income tax for the year 2006 from the disposition of this case ought to be five years pursuant to Article 26-2(1)3 of the former Framework Act on National Taxes, and the exclusion period for imposition of the income tax for the year 2006 from the date following May 31, 2007.

However, the issues applicable from the amount disposed of under Article 67 of the Corporate Tax Act for the first time after January 1, 2012, which was newly established by Act No. 111124 on December 31, 201, are stipulated that the exclusion period of imposition of income tax, etc. on the amount disposed of pursuant to Article 67 of the Corporate Tax Act shall be 10 years if the national tax evaded, refunded, or deducted by unlawful act is corporate tax. As such, with respect to the income tax attributed to AA for the year 2006 following the notice of the change in the amount of income reverted to the year 2006, the key provision was not yet imposed five years before January 1, 2012, since the five-year exclusion period of imposition for income tax was not yet established with respect to the income tax attributed to AA for the year 2006, but still has yet to be completed, it constitutes a so-called retroactive legislation that is allowed. Therefore, in principle, the issue of the exclusion period of imposition for the income accrued to A 2006 years from the instant change.

Ultimately, AA’s obligation to pay pro rata income tax for the year 2006 was under the condition that the exclusion period does not expire at the time of December 3, 2012, which was the date of notification of change in the amount of income to the Plaintiff by the Defendant, and thus, the notification of change in the amount of income for the year 2006 is lawful.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.