Seoul Administrative Court-2013-Gu 6454 ( October 17, 2015)

Where only the sum of additional taxes is entered without expressly stating the type of additional taxes and the basis for calculation of such additional taxes, the disposition of imposition shall be unlawful.

When the principal tax and the additional tax are to be imposed together by a tax payment notice, the individual tax amount and the basis for calculation, etc. shall be described in the tax payment notice separately, and where several kinds of additional taxes are to be imposed together, the amount and the basis for calculation shall be described separately between them.

Article 47 of the Framework Act on National Taxes

2015Nu42901 global income and revocation of disposition

Gangwon A

O Head of tax office

Seoul Administrative Court Decision 2013Guhap64554 decided April 17, 2015

February 24, 2016

March 16, 2016

1. The part against the plaintiff that is revoked under the judgment of the court of first instance shall be revoked.

Of the imposition of global income tax of KRW 71,701,510 on August 1, 2012 by the Defendant against the Plaintiff on August 1, 2012, the part concerning imposition of KRW 28,411,39, and KRW 786,791,520 on global income tax of KRW 278,232,590 on global income tax of KRW 781,09,098, and KRW 237,876,935, and KRW 662,631,420 on global income tax of KRW 200 on global income for the year 207, the part concerning imposition of KRW 278,232,590 on global income tax of KRW 781,00 on global income tax of KRW 781,09,00 on global income tax of KRW 20 on which tax

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance is revoked. The Defendant’s disposition of imposition of global income tax of KRW 71,701,510 for the Plaintiff on August 1, 2012, of KRW 786,791,520 for the year 207, global income tax of KRW 781,098,98,980 for the year 2008, and global income tax of KRW 662,631,420 for the year 2009 shall be revoked.

1. Quotation of judgment of the first instance;

This judgment is based on the reasoning of the judgment of the first instance except for dismissal or addition of some of the grounds for the judgment of the first instance as follows, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

In the 2nd 5th 2nd 5th 6th 2nd 6th 2nd , “(△△△△. Co., Ltd., hereinafter referred to as “Saridi corporation”)” is “(△△△. Co., Ltd., trade name before and after the organizational change, △△△. Est ., before and after the organizational change, hereinafter referred to as “ Saridi corporation”).”

"1,558,831,280 won" (hereinafter referred to as "other income of this case") and "275,163,886 won" (hereinafter referred to as "the financial income of this case") shall be added to "the 10th 2nd 10th 2nd 2nd 10th 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd

○ From the 2nd side to the 8nd 6th , the parts are as follows:

C. Accordingly, on August 1, 2012, the Defendant decided and notified the Plaintiff of global income tax of KRW 71,701,510 (including additional tax of KRW 28,411,339), global income tax of KRW 786,791,520 (including additional tax of KRW 278,232,590), global income tax of KRW 781,098,98,980 (including additional tax of KRW 237,876,935) for the year 2009, global income tax of KRW 662,631,420 (including additional tax of KRW 163,812,225) for the year 207 (hereinafter “instant disposition”).

○ 3rd page 7, "..............." add the following:

The plaintiff has two children, and riverB got married around 2009, and riverCC married around 201.

At the bottom of 00 up to 3 pages "................" are as follows:

The report was filed, and the income deduction was made as a domestic resident when the year-end settlement report on the above earned income was filed.

The following items are added to the fourth 4th 10th 10th 10th 10th 10th 2th 2th 2th 8th 2th 2th 2th 3th 20

6) The main contents of the business are to perform construction works by receiving a subcontract from the original contractor with respect to the construction works in the region of Saudidi. From 2007 to 2010, there are D Saudidivia Limited Liability Company (hereinafter referred to as "D"), EE Constructionravia Limited Liability Company (hereinafter referred to as "E"), and FF Heavy Industries Co., Ltd. as a major company that subcontracted the construction works in the region of Saudididi. The major subcontracting contracts entered into by Saudidi Corporation during the above period are as follows:

Date of contract

Customer

Contract Terms

Contract Price

Entry and Departure of the Plaintiff at the time of conclusion

September 23, 2007

GG Saudi Lt.

3 years;

US$ 18,497,338

Stay in Korea

July 15, 2008

D

3 years;

US$ 42,000,000

Stay in Korea

July 6, 2009

EE

3 years;

146,250,00 Syuriland

Stay in Korea

7) The Plaintiff is the sole registration director of Saudidi Corporation. In addition, the Plaintiff owned 100% shares of Saudidi Corporation before April 5, 2008, and held 80% shares since April 25, 2008 (the shares of 20% Saudidi Corporation are owned by the Plaintiff). The major decision-making of Saudidi Corporation was made solely by the Plaintiff without a separate board of directors resolution or a general meeting of shareholders.

○ At the bottom of 4 9, the following shall be added:

9) The Plaintiff transferred most of 5.8 billion won, among the income earned from the corporation located in Saudidi and Katar, to the Plaintiff’s account and borrowed-name account in Korea, and managed and used financial products such as the Plaintiff, his spouse, his children’s insurance premium of KRW 2 billion, and living expenses.

○ at the bottom of 4 0 8 '(based on recognition)' shall add 51 through 55 'A' and 7 through 9 'B' to the column.

○○ 5 pages 7, and “A family member who lives in this country from time means a family member who lives in the same way and lives in the same daily life (see Supreme Court Decision 2010Du8171, Sept. 30, 2010).”

○ 5. From 8 to 14.

Examining the following circumstances known from the above facts of recognition in light of the legal principles as seen earlier, the Plaintiff constitutes “resident who has a domicile in the Republic of Korea” under the Income Tax Act.

① From 2007 to 2010, the taxable period related to the instant disposition, the Plaintiff resided with his spouse after completing the resident registration in the apartment owned by the Plaintiff, and the Plaintiff’s spouse was staying in each country for 188 days annual, and 327 days annual, respectively. The Plaintiff married his/her husband’s riverB around 2009 and his/her husband’s riverB around 201. The Plaintiff married his/her father’s riverB around 201, and the Plaintiff resided in his/her domicile near the Plaintiff’s domestic address.

② On the other hand, the Plaintiff did not own tangible assets in Saudidi, but owns a large number of real estate in Korea. During the instant disposition period, the Plaintiff received benefits while serving as the representative director of HH, a domestic corporation, and made income deduction corresponding to a domestic resident at the time of filing a year-end tax settlement report on the said income. The spouse of the Plaintiff sharing the same livelihood with the Plaintiff is holding a commercial building located in OOdong in Seoul, OOdong.

③ A majority of the main contracts that the Plaintiff entered into during the taxable period of the instant disposition was the Plaintiff’s stay in the Republic of Korea. The Plaintiff alone did not make a separate resolution of the board of directors or the general meeting of shareholders. As such, the Plaintiff appears to have made an important business decision-making in the Republic of Korea regarding the management of the private interest corporation. Therefore, it cannot be deemed that the Plaintiff’s circumstance that the Plaintiff is the representative director of the private interest corporation constitutes “when the Plaintiff has an occupation ordinarily required to reside abroad for more than one year” under Article 2(4)1 of the Enforcement Decree of the Income Tax Act.

○ From the 5th end to the 7th end, the following shall be added:

(Final) In conclusion, the Plaintiff’s other income in this case based on the Korea-U.S. Tax Treaty on the premise that the Plaintiff is a non-resident under the Korea-U.S. Income Tax Act has a taxation right only on Saudidididididididididididi, which is the resident state of the Plaintiff, 10% of the total dividend amount for the dividend income among the financial income in this case

○ 8 9 pages 100,000, the following shall be added:

Most of the incomes earned from Saridi corporations and Katar corporations were remitted to Korea and used in the domestic living relationship, such as insurance premiums and living expenses of the plaintiffs and their families;

In ○ 8th 10th 11th 10, “In consideration of the fact that major customers of private law are Korean companies” are as follows.

Considering the circumstances such as the fact that the major business partners of the Saudidi Corporation are local corporations established by the Korean company, and a considerable number of major decision-making related to Saudidi Corporation appears to have been made in the Republic of Korea as seen earlier.

○ 10. 6 The following shall be added to 6 pages:

4) Whether a duty payment notice is illegal

A) Legal principles

As to the imposition of additional tax, there is no provision on the method of the tax payment notice in the Framework Act on National Taxes or individual tax laws. However, even though additional tax is imposed as a principal tax item (main sentence of Article 47(2) of the Framework Act on National Taxes), the essence thereof is a kind of administrative sanction imposing obligations prescribed in the tax law to taxpayers who violate the tax law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims. If multiple kinds of additional tax are imposed with respect to the same item, each imposition of additional tax should be deemed separate taxation by type. Therefore, if the principal tax and additional tax are imposed together by a single tax payment notice, it should be stated separately in the tax payment notice from the principal tax and the additional tax amount and the calculation basis thereof. In addition, if several kinds of additional taxes are imposed together, it is natural to enable the taxpayer to know the contents of each taxation disposition by itself by classifying the amount of tax and the calculation basis thereof between them (see, e.g., Supreme Court Decision 200Du1374, Dec. 18, 2001).

Meanwhile, if it is evident that a taxpayer was not at all hindered in the determination of whether he/she is dissatisfied with the disposition or filing an objection by a notice of tax notice sent by the tax authority prior to the disposition, it shall be deemed that the defect of the tax notice is cured. However, it is limited to a document that can supplement the defect of the tax notice in advance is required to be delivered to the taxpayer prior to the notice of tax payment in accordance with Acts and subordinate statutes, so that the tax notice can be completed in entirety (see, e.g., Supreme Court Decision 2005Du5505, Oct. 13, 2005).

B) Determination

In full view of the purport of the entire pleadings, each notice of tax payment for global income tax notified by the Defendant to the Plaintiff as a whole is not divided into the additional tax on negligent tax returns and the additional tax on negligent tax returns, and only the aggregate amount is specified separately from the principal amount, and it is not specified in the grounds for calculation of each additional tax. In light of the legal principles as seen earlier, the notice of tax payment for the instant case is defective, and there is no evidence suggesting that the document to supplement the defect of the above notice of tax payment was delivered to the Plaintiff. Accordingly, since each of the instant dispositions was procedural defect in the notice of tax payment, the notice of tax payment for additional tax exemption should be revoked with no need to further examine the existence of justifiable grounds for exemption of additional tax exemption.

2. Conclusion

The plaintiff's claim shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance which has different conclusions is unfair, the part against the plaintiff as to each of the above additional taxes in the judgment of the court of first instance shall be revoked, and the remaining appeal of the plaintiff shall

.