2015-China-4570 ( October 15, 2016)

In principle, the price for services provided by a partner attorney-at-law of a law firm shall be regarded as the revenue of the law firm.

In principle, it is reasonable to regard the fees for the services provided by a member attorney-at-law of the law firm as the revenue of the law firm. Since it is reasonable to see that the fees for the claim for damages of this case are deposited into the account in the name of the plaintiff and that the person to whom the fees for this case

Articles 20 and 127 of the Income Tax Act (Liability for Withholding)

2016Guhap64648 (A) The revocation of revocation of the imposition of earned income tax

Law Firm AA

BB Director of the Tax Office

December 8, 2016

February 9, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of wage and salary income tax (A), KRW 1,351,659,540 for the year 201 against the Plaintiff on April 3, 2015, and KRW 62,220,920 for the wage and salary income tax (A) for the year 2012, shall be revoked.

1. Details of the disposition;

A. XX airfield and Y airfield neighboring residents and aircraft noise-related lawsuit between the Republic of Korea (hereinafter referred to as “instant lawsuit seeking compensation for damages”) were initiated as indicated below. At the time of appointment of the Plaintiff as a resident’s attorney, Nonparty ○○, a representative attorney of the Plaintiff, performed the lawsuit.

B. On December 29, 2010, the instant lawsuit for damages became final and conclusive on January 20, 201 (Y airfield-related lawsuit) and accordingly, the Republic of Korea deposited KRW 18,071,454,120 for damages and litigation costs arising from the instant lawsuit for damages over 15 times from March 11, 201 to July 6, 2012 (= KRW 624,484,810 for compensation related to the airfield + KRW 17,168,70 for compensation related to the Y airfield + KRW 17,168,70 for compensation related to the Y airfield + KRW 30,681,430 for the relevant litigation costs related to the Y airfield + KRW 247,578,320 for the litigation costs related to the Y airfield-related lawsuit in the overseas bank account under the Plaintiff’s name.

C. The Defendant deemed that 4,012,952,227 won, such as fees that the Plaintiff did not pay to the residents in the damages stated in the above paragraph (b) was omitted from the amount of income (hereinafter “instant fees, etc.”), on May 2, 2014, the Defendant issued a notice of change in the amount of income by disposing of the Plaintiff’s amount that was released as bonus to ○○, who is the person to whom the Plaintiff accrued, in 2010, KRW 19,50,50,160, value-added tax of 2, 2010, KRW 1,000,300,270, and value-added tax of KRW 501,717,980 in 201 (hereinafter “prior disposition”).

D. On April 3, 2015, the Defendant issued a notice of change in the amount of income stated in the above sub-paragraph (c) that the Plaintiff did not pay the withheld labor income tax and did not submit a payment record of earned income by the deadline stipulated in Article 164 of the Income Tax Act. On April 3, 2015, the Defendant issued a notice of correction and notification of KRW 1,351,659,540 for the Plaintiff, and KRW 62,220,920 for the earned income tax in 2012 (hereinafter collectively referred to as the “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 13, 2015, but was dismissed on March 15, 2016.

F. Meanwhile, the Plaintiff, who is dissatisfied with the preceding disposition, filed a lawsuit against the Defendant as Suwon District Court 2014Guhap54937, which sought revocation of the preceding disposition, but the court of the first instance rendered a judgment dismissing the Plaintiff’s claim on November 12, 2015. The Plaintiff appealed with Seoul High Court 2015Nu70746, but the said appellate court rendered a judgment dismissing the Plaintiff’s appeal on October 5, 2016, and currently the Plaintiff is still pending in the final appeal (hereinafter “prior appeal”).

[Ground of Recognition] A without dispute, Gap evidence 1-2, Gap evidence 12, 13, Eul evidence 1-1-2, Eul evidence 2-2, Eul evidence 2-1 through 3, Eul evidence 3-1, 2, Eul evidence 5, 6, Eul evidence 10-1 through 11, Eul evidence 1-5, Eul evidence 1-1 through 12-1, Eul evidence 12-1 through 11, Eul evidence 13-1 through 9, the purport of whole pleadings

2. Determination on this safety defense

Since the plaintiff has already asserted the illegality of the disposition of this case in the preceding case, the subject matter of this case is identical to the prior case, and even if the subject matter of this case is not the same, the issues are common, and thus, the lawsuit of this case is unlawful as a overlapping lawsuit.

However, in order for the instant lawsuit to be deemed unlawful in violation of the principle of prohibition of double lawsuit, it shall be filed prior to the instant lawsuit with the same content as the instant lawsuit and the parties, and shall continue to exist in the court. As such, in the previous case, the Plaintiff filed a lawsuit against the Defendant seeking revocation of the prior disposition, and the pending lawsuit is in progress, as seen earlier, the instant lawsuit shall be deemed to be different from the subject matter of the lawsuit, and it shall not be deemed to constitute a overlapping lawsuit solely on the fact that there is a prior legal relationship with the Defendant. Therefore, the Defendant’s defense against this is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the lawsuit for damages of this case was filed in the name of the plaintiff, in substance, ○○, a representative attorney of the plaintiff, who operated △△ branch office, was independently accepted and proceeded with the lawsuit for damages of this case, and thereafter, ○○○ was dismissed from the representative of the plaintiff and operated a separate personal office, it is virtually impossible for the plaintiff to have his resignation confirmed daily from his mandators due to the characteristics of the class action, and thus, ○○ continued to proceed with the lawsuit in the form of sub-agent. Since the plaintiff deposits all the fees of this case, etc. received as the judgment on the lawsuit for damages of this case became final and conclusive into ○○ account, the plaintiff was not the actual owner of the fees of this case, etc., and the taxpayer is also ○○ in accordance with the principle of substantial taxation.

Therefore, the prior disposition taken on the premise that the person to whom the instant royalty, etc. belongs is the Plaintiff is erroneous, and the prior disposition is made on the premise that the taxpayer is a legitimate taxation, and thus, the prior disposition should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) 원고는 2002. 9. 13. 설립 당시 □□시 □□동 000-0에 주사무소를, 서울 △△구 △△동 0000-0에 △△분사무소를 두었고, 2003. 12. 8. ▽▽시 ▽▽구 상동 000에 ▽▽분사무소를 추가로 설치하였다가 2004. 6. 28. 위 ▽▽분사무소를 폐쇄하면서 ■■시 ■■동 000-0에 ■■분사무소를 추가로 설치하였다.

2) In the inside of the Plaintiff, the principal office and branch offices independently accepted cases, employ employees, open and manage passbooks in the name of the Plaintiff, and operated by the so-called separate accounting system. The △△ branch offices have operated independently.

3) On June 28, 2010, the Plaintiff dismissed ○○ from office as the Plaintiff’s representative, and around July 31, 2010, the △△ branch office was closed, and the △○○ opened an individual law office around August 2010. The ○○ withdrawn from office on March 28, 2011, and the fact was registered on April 12, 201.

4) From March 11, 2011 to July 18, 2012, the Plaintiff transferred the instant fee, etc. to a bank account in the name of ○○ or ○○○, which is an employee of ○○ or ○○○○○.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, 12, 13, Gap evidence 14-1, 2, Eul evidence 4 and 6, the purport of the whole pleadings

D. Determination

In full view of the following circumstances revealed by the evidence, details of dispositions, relevant statutes, and facts of recognition as seen earlier, it is reasonable to deem that the person to whom the instant fee belongs is the Plaintiff, and thus, prior disposition based on such premise is lawful. Therefore, the Plaintiff’s above assertion based on the premise that prior disposition is unlawful is not acceptable.

1) Article 52(1) of the Attorney-at-Law Act prohibits a partner of a law firm from performing attorney-at-law duties in an independent position, separately from a corporation to which he/she belongs, by prescribing that a partner of the law firm is unable to perform

In principle, the fact that each office was operated by the so-called separate accounting method, such as the plaintiff's independent acceptance of cases and the employment of employees is as seen earlier, but this is merely an agreement with respect to the distribution of economic benefits arising from the attorney-at-law's practice handled by the members of the law firm, and the right to the delegation of a lawsuit, etc. is not deemed to belong to the law members of the law firm as a matter of law. Thus, the consideration for the services provided by a member attorney-at-law of the law firm shall be deemed to belong to the law firm as the revenue of the law firm. There is no special circumstance to view that even in the claim for damages of this case, ○○ is only the title holder of the

2) On June 28, 2010, the Plaintiff dismissed ○○ as the Plaintiff’s representative, and around July 31, 2010, the △△ branch office was closed, and the fact that ○○○ opened and operated an individual office from around August 2010 was as seen earlier. However, since ○○ retired from the Plaintiff’s corporation on March 28, 201, it is reasonable to deem that ○○ maintained its status as the Plaintiff’s member until the time when the claim for damages was finalized.

3) The Plaintiff asserts that it is difficult for the Plaintiff to receive confirmation of his daily resignation from his mandators due to the nature of a class action, and it was inevitable for the Plaintiff to proceed with the case as a sub-agent of the Plaintiff. However, in light of the fact that ○○○ was present in the preceding case as a witness and testified to the effect that ○○ would not make it difficult for the Plaintiff to receive a written consent of resignation from a majority of the parties, but rather make it difficult for ○○ to pay the judgment amount to the parties concerned, it is reasonable to deem that the Plaintiff first reverted damages and litigation costs arising from the winning of the lawsuit in question to ○○○, and then intended to pay the case fees, etc. to ○○○.

Even if the Plaintiff’s assertion is acknowledged, insofar as the Plaintiff maintained the legal status of the instant lawsuit until a final and conclusive judgment is rendered, and the Plaintiff received damages for which payment was ordered in a judgment, such circumstance alone cannot be deemed as having been practically reverted to ○○○.

4) The principle of substantial taxation, which is declared under Article 14(1) and (2) of the Framework Act on National Taxes, is a practical principle to realize the principle of equality, which is the basic ideology of the Constitution, in tax law relations. In a case where unreasonable form or appearance that differs from the substance is taken with respect to the facts requiring taxation for the purpose of evading tax burden, the main purpose of this principle is to regulate unfair tax avoidance acts and to realize tax justice by enhancing equity in taxation (see, e.g., Supreme Court en banc Decision 2008Du8499, Jan. 19, 2012) by imposing tax on the Plaintiff at a place where the taxable capacity exists, notwithstanding its form or appearance, and thereby, to realize tax justice (see, e.g., Supreme Court Decision 2008Du8499, Jan. 19, 201

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Relevant statutes

/ Attorney-at-Law

Article 52 (Restrictions on Services of Partners, etc.)

(1) Any partner or associate attorney-at-law who is not a partner shall be prohibited from rendering the services of attorney-at-law on his/her own account or

【National Tax Basic Act

Article 14 (Real Taxation)

(1) If the ownership of the income, profit, property, act or transaction subject to taxation is nominal and a third person to whom it belongs exists, the tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply to the actual income, profit, property, act or transaction, regardless of its title or form.

(3) Where it is recognized that benefits provided for in this Act or other tax-related Acts are obtained unfairly by means of indirect means via a third party or through two or more acts or transactions, this Act or other tax-related Acts shall apply, deeming that the relevant party has made a direct transaction or has engaged in a single act or transaction consecutively in accordance with the economic substance thereof.

/ Income Tax Act

Article 20 (Earned Income)

(1) Earned income shall be the following income, generated in the relevant taxable period:

3. The amount treated as a bonus under the Corporate Tax Act;

Article 127 (Liability for Withholding)

(1) Any person who pays any of the following income to a resident or nonresident in Korea (limited to a person prescribed by Presidential Decree, such as a business operator, in cases of a person who pays income under subparagraph 3) shall withhold income tax from such resident or nonresident pursuant to the provisions of this Section:

4. Wage and salary income: Provided, That income falling under any of the following items shall be excluded:

Article 128 (Payment of Withholding Tax Amount)

(1) A withholding agent shall pay income withheld at source to a tax office having jurisdiction over withholding, the Bank of Korea, or a postal service agency by no later than the 10th of the month following the month in which such

(2) Notwithstanding paragraph (1), a withholding agent prescribed by Presidential Decree, in consideration of the number of regular employees, type of business, etc., may pay withholding taxes, other than those under any of the following subparagraphs, by the 10th of the month following the last half of

1. Withholding taxes for bonus, dividends, and other income disposed of pursuant to Article 67 of the Corporate Tax Act;

2. Withholding taxes for dividend income disposed of pursuant to Articles 9 and 14 of the Adjustment of International Taxes Act;

3. Withholding taxes under Article 156-5 (1) and (2).

Article 164 (Submission of Statements of Payment)

(1) Any person liable to pay income tax pursuant to Article 2 shall submit a payment record, as prescribed by Presidential Decree (including a corporation, a person who acts on behalf of paying income, or who is delegated or entrusted with the authority to pay income pursuant to Article 127 (5), a tax association under Article 150, a tax association under Article 7 or Article 9 of the Corporate Tax Act or a business unit taxable person under the latter part of Article 8 (3) of the Value-Added Tax Act) to an individual liable to pay income falling under any of the following subparagraphs in Korea, by the last day of February of the year following the taxable period to which the date of payment belongs (referring to the last day of the taxable period for the relevant income in cases of income subject to Article 131, 135, 144-5 or 147; hereafter the same shall apply in this paragraph) of the relevant income falls under the date of payment (referring to the business income under subparagraph 3, earned income or retirement income under subparagraph 4, income of a religious person among other income under subparagraph 6 and salary income under subparagraph 7, by March 10, closing, closing or dissolution of the following month or dissolution:

4. Labor or retirement income;

【Enforcement Decree of the Income Tax Act

Article 49 (Receipt Date of Earned Income)

(1) The receipt date of wage and salary income shall be the following dates:

1. The day when he provides 300 labor, u u300;

2. The date when bonus u u u 3000 has passed the surplus disposal of the corporation concerned;

3. The day when a corporation reports the amount of income for the relevant business year or the head of a tax office provides the corporation with labor during the relevant business year u300, u300, which occurred due to the determination or correction of the amount of income. In such cases, where the monthly average amount is more than two years, the day when the corporation provides labor during the relevant business year;

4. Article 192 (Notice on Change of Amount of Income Resulting from Disposal of Income) of the date the excess amount, u300 is paid or scheduled to be paid pursuant to the proviso to Article 22 (3) of the Act;

(1) Any dividend, bonus or other income disposed of (including cases deemed disposed of pursuant to Article 25 (6) of the Enforcement Decree of the Adjustment of International Taxes Act) after the head of a tax office or a director of a regional tax office determines or revises the corporate income amount under the Corporate Tax Act shall notify the relevant corporation, by a notice on change of income amount determined by Ordinance of the Ministry of Strategy and Finance, within 15 days from the date of the determination or correction thereof, by the head of a tax office or the director of a regional tax office who makes the determination or correction of corporate income: Provided, That where the location of the relevant corporation is not clear

m. Corporate Tax Act

Article 19 (Scope of Losses)

① 손금은 자본 또는 출자의 환급, 잉여금의 처분 및 이 법에서 규정하는 것은 제외하고 해당 법인의 순자산을 감소시키는 거래로 인하여 발생하는 손비(����)의 금액으로 한다.

(2) Losses referred to in paragraph (1) shall be losses or expenses incurred in connection with the business of a corporation which are generally accepted as ordinary or directly related to profit, except as otherwise expressly prescribed by this Act and other Acts.

(4) Matters necessary for the scope and types of losses under the provisions of paragraphs (1) through (3) shall be prescribed by Presidential Decree.

Article 40 (Business Year of Profit and Loss)

(1) The fiscal year of accrual of earnings and losses of a domestic corporation shall be the fiscal year which includes the date on which the concerned earnings and losses are settled.

Article 67 (Disposition of Income)

When filing a report on the corporate tax base on the income for each business year pursuant to Article 60 or determining or revising the corporate tax base pursuant to Article 66 or 69, the amount included in the calculation of earnings shall be disposed of to the person to whom it belongs, as prescribed by Presidential Decree, such as bonus, dividends, other external outflow and internal reservation.

【Enforcement Decree of the Corporate Tax Act

Article 43 (Non-Inclusion of Bonuses in Calculation of Losses)

(1) Bonuses paid by a corporation to officers or employees in the disposition of profits (excluding piece rates falling under the provisions of any subparagraph of Article 20 (1)) shall not be included in the calculation of losses. In this case, remuneration paid to members who invest through work and labor in unlimited partnerships or limited partnerships shall be deemed as bonuses from the disposition of profits.

(2) Where a corporation pays bonuses to executives in excess of the amount paid according to the standards for payment of benefits determined by the articles of incorporation, the general meeting of shareholders, the general meeting of members or the resolution of the board of directors, such excess amount shall not be included