Cho Jae-2017-west-2823 (Law No. 21, 2017)

The omission of reporting by receiving special interest as a borrowed account is a fraudulent or other unlawful act.

The exclusion period of imposition for 10 years is applicable since the receipt of special interest as the borrowed account and omission of report constitutes fraudulent or other unlawful acts.

The exclusion period of the imposition of national taxes under Article 26-2 of the Framework Act on National Taxes

2017Guhap80349 global income and revocation of such disposition

Park ○

○ Head of tax office

April 6, 2018

April 20, 2018

1. The plaintiff's claim is dismissed.

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

The imposition of global income tax of KRW 23,100,000 and penalty tax of KRW 19,068,290 on the Plaintiff on January 2, 2017 shall be revoked.

1. Details of the disposition;

A. From June 10, 2009 to December 16, 2009, ParkA deposited 528 million won interest on deposits in an account under the name of JungB, Inc. (hereinafter “CC Savings Bank”).

B. On March 16, 2015, the head of ○○ Tax Office deemed that KRW 66 million (excluding KRW 462 million, which was confirmed to have been deposited in the Plaintiff’s account; hereinafter referred to as “the instant money”) out of the above KRW 528 million was the interest income of the Plaintiff, and imposed global income tax (including additional tax) 26,840,430 for the year 2009 on the PlaintiffB. He filed a lawsuit seeking cancellation of the disposition, and the court rendered a decision revoking the disposition on the ground that “the instant money is the income attributed to the Plaintiff, not the Plaintiff,” which is the income attributed to the Plaintiff,” which was finalized on December 20, 2016 (hereinafter referred to as “instant judgment”). The judgment became final and conclusive on December 20, 2016.

C. On January 2, 2017, the Defendant imposed global income tax (including additional tax) 42,168,290 won on the Plaintiff on January 2, 2017, deeming that the exclusion period for imposition of ten years is applicable, deeming that the Plaintiff’s omission of the instant report by using the account in the name of JungB constitutes “Fraud or other unlawful act” (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, entry of evidence Nos. 1 and 2, purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Since the plaintiff did not evade national taxes due to "Fraud or other unlawful acts", the ten-year exclusion period is not applicable, and the judgment in this case is not the plaintiff but the court's judgment on the JungB, so the exclusion period (one year from the date the judgment becomes final and conclusive) does not apply. The disposition in this case was made after the lapse of the exclusion period of five years and was unlawful.

B. Facts of recognition

1) TheCC Savings Bank decided to attract deposits from bond holders in order to make it difficult to operate the Fund normally due to a sudden decline due to a bad loan continued in 2009, and requested Park Park-A to mediate deposits, and Park Jong-A shall pay the Plaintiff a higher special interest in addition to the public interest so that Park Jong-A may pay the Plaintiff a higher special interest in addition to the public interest. The Plaintiff accepted the proposal.

2) On June 10, 2009, from June 10, 2009 to December 16, 2009,CC Savings Bank deposited KRW 528 million in the account under the name of Jung designated by the Plaintiff as a special interest. The deposited money was withdrawn in cash or check within several days from the date of deposit or deposit in the form of “cash payment” and “alternative payment.”

3) As a result of the tax investigation conducted with respect to the Plaintiff from January 31, 2012 to February 29, 2012, the director of ○○ Regional Tax Office: (a) deemed that KRW 462 million was deposited into the Plaintiff’s account out of KRW 528 million deposited in the Plaintiff’s name; and (b) imposed global income tax (including additional tax) 209,83,870 on the Plaintiff on May 1, 2012. At the time of the tax investigation, the Plaintiff prepared and submitted a confirmation document to the effect that, by means of sending money to ○○ Regional Tax Office, ParkA received KRW 462 million,000,000,000,000,000,000 from January 31, 2012 to February 20, 2012, the Plaintiff received KRW 520,000,000 from ○○ Regional Tax Office.

4) 원고는 2012. 11. 1. '위 1)항과 같은 경위로 CCCC저축은행에 약 20억 원을 예금하고 특별이자 명목으로 2억 5,300만 원을 받아 금융기관의 임원으로부터 당해 저축에 관하여 법령 또는 약관 기타 이에 준하는 금융기관의 규정에 의하여 정하여진 이자 외에 금품을 수수하였다'는 특정경제범죄가중처벌등에관한법률위반(저축관련부당행위)죄로 벌금 1,500만 원, 추징 2억 5,300만 원을 선고받았다[광주지방법원 20XX고단XXXX, 20XX고단XXXX(병합)]. 그 판결은 그 무렵 확정되었다.

5) On March 16, 2015, the head of ○○ Tax Office: (a) considered KRW 66 million, excluding KRW 462 million, which was confirmed to have been deposited in the Plaintiff’s account, as indicated in the instant judgment, as the interest income of CheongB; and (b) imposed comprehensive income tax on siB; (c) but was revoked by the instant judgment.

6) At the time of filing the global income tax return in 2009, the EB is subject to 6% tax rate, and the Plaintiff is subject to 35% tax rate.

[Reasons for Recognition] Facts without dispute, Gap 3, 4, 10 evidence, Eul 1, 5, and 7 evidence, the purport of the whole pleadings

C. Determination

In full view of the following facts and circumstances, it is reasonable to view that the Plaintiff’s omission of the report, even if having received the instant money by using the Plaintiff’s account at fixedB, constitutes “Fraud or other unlawful act.” Since the instant disposition was made within the exclusion period of ten years, the Plaintiff’s assertion cannot be accepted.

1) In light of the difference between the tax rate applied to the Plaintiff and the PartyB, and the circumstances under Section 2 below, it seems that the Plaintiff’s receipt of cash in the name of special interest and name by means of an account under the name of the Party B was the purpose of tax avoidance, such as the avoidance of progressive tax rates,

2) The Plaintiff received special interest and nominal money using the borrowed name account, and deposited most of them into the Plaintiff’s account by withdrawing money in the form of cash payment and substitute payment on or within the day of deposit.

Since global income tax becomes final and conclusive by calculating the tax base and the amount of tax and filing a return thereon, the tax authority is difficult to impose tax unless the Plaintiff files a return on the money paid to the borrowed account. Moreover, even if the Plaintiff may directly transfer from the account under the name of the YB to his/her own account, it is difficult to track cash flow by depositing the money in the form of cash payment and substitute payment, which can be seen as the active act that significantly makes it difficult to impose and collect taxes.

3) The fact that the Plaintiff received special and nominal money from theCC Savings Bank is confirmed in the course of the prosecution’s investigation into theCC Savings Bank. It was difficult for the tax authority to confirm the money in the name of special and nominal interest that the Plaintiff did not report if there was no prosecutorial investigation. In addition, the tax investigation against the Plaintiff was imposed only on the amount of KRW 462 million deposited in the Plaintiff’s account. In addition, with respect to the instant money other than this, the tax was imposed on the Plaintiff, the nominal owner of the account, but it was revealed that it was reverted to the Plaintiff in the lawsuit instituted by the JungB.

4) Although the Plaintiff asserts that the instant money is a deposit interest and it is different from the interest of non-business loans that cannot be understood as sources of income, it is reasonable to regard the instant money as an interest of non-business loans, since it falls under “the interest other than the interest prescribed by statutes, terms and conditions, and other regulations of financial institutions equivalent thereto” as stated in the foregoing b. 4.

4. Conclusion

The claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.