Early High Court Decision 2015J3587 ( November 30, 2015)

It is difficult to accept the Plaintiff’s Director with the lapse of the exclusion period of national tax (5 years).

In light of the fact that it is difficult to view that the non-party corporation withheld the income tax on the issue amount, and that the non-party corporation did not report the year-end tax settlement on the Plaintiff’s earned income to the competent tax office or paid the withheld tax, it is reasonable to view

Article 73 (Exception to Final Return on Tax Base)

revocation of revocation of imposition of global income tax, etc. by the Government District Court 2016 Guhap7175

(O)

OO Head of the tax office

oly, 2016.28

2016.08.30

1. The Defendant’s imposition of global income tax on April 13, 2015 (including additional tax), global income tax on 000 won (including additional tax), local income tax on 2007, global income tax on 008 (including additional tax), global income tax on 2008, and local income tax on 000 won (including additional tax) on 2008 shall be revoked.

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. From January 16, 2007 to December 31, 2008, the Plaintiff was working as a joint representative director of ○○○○ (hereinafter “instant company”). Upon occurrence of advertising fees of the instant company, the Plaintiff entered into a partnership agreement including that “○○○○ shall be paid KRW 00,000 per month to the Plaintiff between ○○○ and the joint representative director, on March 15, 2007, and that “○○○ shall be responsible for withholding tax and income tax exemption.”

B. The instant company paid ○○○○ in 2007 and ○○ in 2008 to the Plaintiff, but did not pay the withheld tax amount to the tax authority. On April 13, 2015, the Defendant imposed the Plaintiff the imposition of global income tax on the Plaintiff for global income tax ○○ in 2007, the local income tax ○○○ in 2007, the local income tax ○○ in 2007, the global income tax ○○ in 2008, the global income tax ○○ in 2008, the local income tax ○○ in 2008, and the local income tax ○○ in 208 (including additional tax) (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 8, 2015, but was dismissed on November 30, 2015.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 to 3, 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff had no obligation to file a final return on the tax base of wage income at the time of 2007 and 2008. Thus, the exclusion period of the Plaintiff’s global income is not seven years pursuant to Article 26-2(1)2 of the former Framework Act on National Taxes (amended by Act No. 9263, Dec. 26, 2008; hereinafter the same) but five years pursuant to subparagraph 3. Therefore, the instant disposition issued after the exclusion period was expired is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 26-2 of the former Framework Act on National Taxes provides that if a taxpayer fails to file a tax base return within the statutory due date of return, the exclusion period of imposition shall be seven years from the date on which the national tax is assessable, and if not, five years from the exclusion period of imposition shall be set. Article 73 (1) and (4) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) provides that a person with only earned income may not file a final return on the tax base of the income, and that this provision shall not apply to cases where a person liable for withholding fails to pay the income tax by the year-end

In addition to the above evidence and the overall purport of Gap evidence Nos. 3 and 4, the plaintiff was employed in the company of this case in 2007 and 2008, and there was no other income than the above earned income. Since it is recognized that the company of this case had made a year-end settlement on the plaintiff's earned income in 2007 and 2008 on December 31, 2007 and February 28, 2009, the plaintiff who was only earned income may not make a final return on the tax base for each of the above incomes.

Therefore, since the Plaintiff cannot be deemed to be a person obligated to file a tax base return within the statutory due date of return, Article 26-2(1)2 of the former Framework Act on National Taxes does not apply, and the exclusion period of imposition is five years pursuant to Article 26-2(1)3 of the Framework Act on National Taxes. Thus, the disposition of this case, on April 13, 2015, on which the Plaintiff imposed global income tax and local income tax for the year 2007 and 2008, is illegal since the exclusion period of imposition expires.

3. Conclusion

Thus, the plaintiff's claim of this case is justified, and this is accepted.