Seocho 2013west 2834 ( October 14, 2014)

In the application of the special exclusion period, it is difficult to view that a disposition different from a tax unit is included in the "other necessary disposition."

In the application of special exclusion period, even if there is a difference in the tax items or re-disposition for the same taxable unit, the legal evaluation of the same factual basis varies, etc. in comparison with the case of re-disposition for the same factual basis, the degree of infringing the plaintiff's trust. Therefore, the plaintiff's trust in the excluding exclusion period should be protected.

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes

2015Guhap50856 Revocation of Disposition of Corporate Tax Imposition

AA

○ Head of tax office

June 12, 2015

July 10, 2015

1. On November 8, 2013, the Defendant revoked the disposition of imposition of corporate tax of KRW 000,000 against the Plaintiff for the year 2007.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a corporation that was established on February 24, 2006 and runs an electronic components manufacturing business and trade business.

B. On July 8, 2006, the Plaintiff entered into a contract with the △△ Electronic Co., Ltd. (hereinafter referred to as “△△ electronic”) under which ○○○○○○○○○○○ (excluding value-added tax ○○○○○) is to be provided with the △△ Electronic Co., Ltd. (hereinafter referred to as “instant contract”). On May 30, 2007, △△ Electronic Co., Ltd. completed the supply by transporting the above facilities to the Plaintiff’s factory located in the △△△△○○○ in accordance with the terms of the instant contract, and received the total amount of ○○○○○○

(C) On May 30, 2007, the Plaintiff issued a supply value tax invoice of KRW 1, 2007 (hereinafter “the original tax invoice”) from △△△ electronic, but reported the first value-added tax in 2007. On August 20, 2007, the Plaintiff received the revised tax invoice stating the supply value of KRW 00 and tax amount (hereinafter “instant revised tax invoice”) from △△ electronic, and issued the revised tax invoice on December 12, 2007 to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on December 7, 2007. The lower court rejected the Plaintiff’s request for correction on January 4, 2008 (hereinafter “the previous tax invoice”). However, the Plaintiff’s request for revocation of the previous tax invoice was not subject to the final judgment on August 20, 2008.

E. On May 1, 2012, the Defendant, having jurisdiction over the location of the Plaintiff’s head office, decided to refund KRW 00 and KRW 000 for the first period of value-added tax (1) in 2007 according to the instant final judgment. Moreover, on November 8, 2013, the Defendant, when calculating the amount of corporate tax for the business year 2007, excluded the amount of the above value-added tax equivalent to the value-added tax added in deductible expenses from deductible expenses, and notified the Plaintiff of the correction and notification of the corporate tax 00 (including additional tax) for the business year 2007 (hereinafter

F. The Plaintiff appealed and filed an objection on January 22, 2014, but the commissioner of a regional tax office notified the Plaintiff of the decision to dismiss the Plaintiff on February 24, 2014. The Plaintiff filed a request for adjudication on May 20, 2014, but the Tax Tribunal notified the Plaintiff of the decision to dismiss the request on October 14, 2014.

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 4 (including the relevant branch numbers), Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Relevant statutes;

It is as shown in the attached Form.

B. Determination

1) Whether the exclusion period has expired

According to Article 26-2(1)3 and (4) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007; hereinafter referred to as the "former Framework Act on National Taxes") and Article 12-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893 of Feb. 28, 2007), if a taxpayer evades a national tax or obtains a refund or deduction by fraudulent or other unlawful means, or a taxpayer fails to file a return by the statutory due date of return, a national tax on which the tax base and tax amount are reported may not be imposed after five years have elapsed from the date following the due date of return or the due date of submission of the tax base and tax amount of the national tax. Meanwhile, a domestic corporation liable to pay corporate tax shall report the tax base and tax amount to the head of the competent district tax office within three months from the end of each business year under Article 60(1) of the former Corporate Tax Act.

The exclusion period of corporate tax for the business year 2007 (which appears to have been from January 1, 2007 to December 31, 2007) of the Plaintiff is five years from April 1, 2008 to March 31, 2013, which is the day after the filing deadline for the report. According to the above facts of recognition, the Defendant issued the instant disposition against the Plaintiff on April 1, 2008, which should have come to the lapse of five years from April 1, 2008 to November 8, 2013, and thus, the instant disposition was unlawful.

2) Whether the special exclusion period is applied

A) Defendant’s assertion

In 207, the Plaintiff calculated the value of supply of the instant ○○○○○○○○○, which was purchased in the year of 2007, and included the value-added tax amount in deductible expenses. Among which ○○○○○○○ was refunded to the Plaintiff as the input tax amount of value-added tax according to the final judgment of this case, the amount equivalent to the input tax amount of the said value-added tax should not be included in deductible expenses pursuant to Article 21 subparag. 1 of the former Corporate Tax Act. The instant disposition constitutes “necessary disposition” under Article 26-2(2) subparag. 1 of the former Framework Act on National Taxes, since it was merely a correction of the error in the disposition of imposition of corporate tax against the Plaintiff for the business year 2007 according to the final judgment of this case. Since the Defendant issued the instant disposition within one

B) Determination

(1) According to Article 26-2(2)1 of the former Framework Act on National Taxes, even after the expiration of the exclusion period, a decision of correction or other necessary disposition may be made according to the pertinent decision, etc., prior to the lapse of one year from the date when the judgment, etc. on a lawsuit under the Administrative Litigation Act became final and conclusive. In light of the language and text of the above provision, a person who is entitled to taxation can only make a decision of correction or other necessary disposition according to the pertinent decision, etc., and may not make a new decision or decision of increase that does not comply with the judgment, etc., within one year from the date when the judgment, etc. becomes final and conclusive (see, e.g., Supreme Court Decision 200

(2) Considering the above legal principles and the following circumstances, the disposition of this case where the value-added tax and the tax items related to the previous disposition are different does not apply to the special exclusion period under Article 26-2 (2) 1 of the former Framework Act on National Taxes. Thus, the defendant's assertion is without merit.

(A) The initial period of exclusion under Article 26-2(2)1 of the former Framework Act on National Taxes, when the procedure of litigation, such as an administrative appeal or administrative litigation, has expired after the imposition of the national tax, and the decision has become final and conclusive after the expiration of the period of exclusion, was newly established with a view to preventing any unreasonable situation that makes it impossible for the tax authorities to make a decision or a disposition in favor of taxpayers, and allowing them to make a decision or other necessary disposition in favor of taxpayers, in cases where the decision or judgment becomes final and conclusive after the period of exclusion expires. The provision on the period of exclusion is not applicable only to cases where the provision on the period of exclusion is deemed to be for taxpayers and is deemed to be for taxpayers, and thus only to implement a decision or judgment favorable to taxpayers (see, e.g., Supreme Court Decision 93Nu4885, May 10, 196).

(B) The interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and among them, exceptions or special provisions require more strict interpretation. However, since "revision" means increase or decrease of the amount of tax to be imposed in this regard, there is a lot of room to regard the "decision of correction" under Article 26-2 (2) 1 of the former Framework Act on National Taxes as a premise for the same taxation unit under the same language and text. In the case of "other necessary measures" under the same subparagraph, it shall be deemed that the term "decision of correction" is similar to that of the decision of correction in light of the context listed only in the above "decision of correction" and the principle of strict interpretation as seen earlier. Therefore, it is difficult to view that the "other necessary measures" includes a different tax unit.

(C) The scope of binding force of a final and conclusive judgment in a tax lawsuit is limited to the taxable unit that is the subject of the judgment, and even if the judgment was made in relation to a separate taxation unit during the grounds of the judgment, such judgment cannot be deemed binding. Therefore, such judgment cannot be deemed the basis for the decision of correction or other necessary disposition as it constitutes “relevant judgment” under Article 26-2(2)1 of the former Framework Act on National Taxes (see, e.g., Supreme Court Decision 2012Du6636, Oct. 11, 2012). In the instant final and conclusive judgment, the determination was made with regard to the fact that the Plaintiff’s input tax amount to be deducted from the output tax amount for the first time value-added tax in 207 was ○○○. Such determination is related to the Plaintiff’s calculation of corporate tax amount for the business year of 207, while the corporate tax for the business year 2007 is separate from the value-added tax for the year 1, 2007.

(D) The special exclusion period is recognized as an exception to the exclusion period, which is recognized in consideration of the difficulty of protecting taxpayer’s trust and exercising the right of defense due to the loss of tax-related data, and thus, it shall be deemed that the exclusion period is limited to cases where the necessity of protecting taxpayer’s trust or the possibility of losing data is low. However, the disposition of this case is not only the Plaintiff did not appeal the previous disposition, but also subject to corporate tax for the business year 2007, the type of value-added tax and tax items related to the previous disposition of this case is entirely different. Therefore, even if there is a difference in tax items or re-disposition for the same taxation unit, if the same legal assessment of the same factual basis varies, it is more serious to infringe the Plaintiff’s trust, and thus, the Plaintiff’s trust with respect

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition.

shall be ruled.