early trial 2014west 4432 ( November 30, 2015)

Whether an additional tax for unjust underreporting may be applied where the profit from the recovery of non-performing loans is omitted and the representative director accounts as a deposit.

In order to avoid corporate tax by underreporting the corporate tax base through accounting books, etc. prepared with false gains from the recovery of non-performing loans, it constitutes an active act by making false records of account books, such as preparation of double-income books and false records.

Additional Tax for Underreporting Article 47-3 of the former Framework Act on National Taxes

2016Guhap5216 Demanding revocation of disposition of imposing corporate tax

○○○ Holdings Inc.

○ Head of tax office

May 26, 2016

June 23, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing corporate tax of KRW 174,092,959 against the Plaintiff on July 8, 2014, the amount of KRW 66,751,123 of the disposition of imposing corporate tax of KRW 174,092,959 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a corporation established on September 25, 2009 and engaged in the business of accepting and transferring non-performing loans.

B. On December 14, 2009, the Plaintiff was awarded a successful bid of KRW 13 (hereinafter “related non-performing loans”) with the amount of KRW 80.8 billion held by the Korea ○○○○○○○○○ and Do○○○○○○○ (hereinafter collectively referred to as “Korea ○○○○”) (hereinafter referred to as “related non-performing loans”) that was an affiliate of the lender group through a public auction procedure on December 14, 2009.

C. Meanwhile, on December 16, 2009, the Plaintiff transferred the non-performing loans equivalent to KRW 443,9 million (hereinafter “non-performing loans in this case”) to the debtor without compensation from the ○○○○○, etc. in the course of concluding a contract for the acquisition of claims for related non-performing loans with ○○, etc.

D. On December 18, 2009, the Plaintiff, the representative director of the Plaintiff, and “the Plaintiff,” concluded an agreement with the effect that, in the process of purchasing related non-performing loans, the former ○○○ and the former ○○, a joint and several surety for the loan of the purchase fund, and the purchase procedure was completed with the efforts of the former ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

E. After that, on December 24, 2009, the Plaintiff consulted with ○○ C&C that the amount of KRW 4.439 billion of the instant non-performing loans would be reduced to KRW 2.0 billion. On January 11, 2010, the Plaintiff was transferred KRW 2 billion from ○○ C&C to the Plaintiff’s ○○○ C&C account.

F. The Plaintiff, on the grounds of the agreement in this case, appropriated the above KRW 2 billion in the account book (open pages) as the representative director’s provisional receipts and accounts, and accounts for the same amount as KRW 2 billion in the previous ○○ through the counter-processing of provisional receipts and payments.

was paid.

G. Around June 2014, the director of the Seoul Regional Tax Office notified the Defendant of the taxation data on the ground that the Plaintiff’s tax return for corporate tax for the year 2010 that the Plaintiff collected from ○○ C&C was omitted from the inclusion in gross income. On July 8, 2014, the Defendant included an unfair under-reported penalty tax against the Plaintiff, and issued a correction and notice of KRW 931,645,000 of corporate tax for the business year 2010 (hereinafter “the imposition of an unfair under-reported penalty tax for the instant case”) on the ground that the amount was out of the company, and was treated as a bonus for the representative director, and notified the change of income amount to ○○○.

H. On September 2, 2014, the Plaintiff filed an appeal with the Director of the Tax Tribunal on the Defendant’s disposition of correction and notification, claiming that the imposition of an unfair under-reported additional tax was unlawful. On November 30, 2015, the Plaintiff was dismissed by the Director of the Tax Tribunal on this part.

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 through 6 (including each number in the case of additional number), and the purport of whole pleadings

2. Whether the imposition of an unfair under-reported additional tax is legitimate

A. Summary of the plaintiff's assertion

The Plaintiff’s disposal of KRW 2 billion received from ○○○ C&C without treating it as the Plaintiff’s profit from recovery of claims on the account book is based on the agreement of this case that the Plaintiff would vest the amount of recovery of the non-performing loans in the Plaintiff’s representative director before the Plaintiff’s representative director. Thus, this does not constitute “unfair methods that make it impossible or considerably difficult to impose and collect taxes, which are the requirements for the imposition of unfair under-reported additional taxes, impossible or considerably difficult.” Therefore, the imposition of penalty taxes for under-reported return is unlawful since the Plaintiff’s imposition of penalty taxes for under-reported return is against the law.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 47-3(1) and (2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same) provides that an amount equivalent to 10/100 of the amount calculated by multiplying the ratio of the amount equivalent to the under-reported tax base to the tax base when a taxpayer falls short of the tax base to be reported by the calculated tax shall be the additional tax, but where a taxpayer under-reported in an unjust manner, an amount equivalent to 40/100 thereof shall be the additional tax. Article 47-2(2) of the former Framework Act on National Taxes and Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012; hereinafter the same applies) refers to an active method of under-reported return of 13rd or under-reported tax base due to the concealment of all or part of the fact that serves as the basis for calculating the tax base or amount of national taxes (see 20. 13).

The facts revealed in the above disposition revealed that the amount of the non-performing loan of this case was reverted to the plaintiff's gross income, and the plaintiff should have been treated as a bonus or dividend for the former representative director, but the plaintiff underreported the corporate tax base for the business year 2010 by accounting books, etc. prepared by false representation, and thus, it was possible to find out that the above accounting book was falsely prepared and omitted in the gross income. Accordingly, it is reasonable to view that the plaintiff evaded corporate tax corresponding to the above by making the representative director's false representation of the amount of the debt of this case by actively preparing a false accounting book not only by simply making a false representation but also by making a false representation of the accounting book, etc., under Article 27 (2) 1 of the former Enforcement Decree of the Framework Act on National Taxes.

It would have been said that it had taken place.

Furthermore, on July 29, 2015, the Plaintiff did not raise any objection, such as filing a request for formal trial, even after having been issued a summary order of KRW 100 million as a result of the violation of the Punishment of Tax Evaders Act by the Gwangju District Court on July 29, 2015 (2015Da8425) with respect to the act of omitting the claim collection profit of KRW 2 billion in the gross income. If the Plaintiff did not have the purpose of tax evasion, it appears that the Plaintiff had the objective of tax evasion, even though it had the opportunity to receive corporate tax through the tax adjustment at the time of filing corporate tax return for the business year 2010 without the purpose of tax evasion, or failed to take such measures

D. Sub-committee

The plaintiff shall be deemed to have underreported the tax base by an unjust method under Article 47-3 (2) 1 of the former Framework Act on National Taxes. Therefore, the imposition of the unjust under-reported additional tax is lawful, and the plaintiff's assertion disputing this is

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.