Daejeon District Court-2017-Gu Partnership-107574 ( November 07, 2018)

Cho Jae-2016- Daejeon-3806 ( November 27, 2017)

The claim of this case, which was retired without compensation after conversion into equity according to the plaintiff's rehabilitation plan, constitutes "a claim confirmed to be impossible to recover according to the decision to grant authorization."

The claim of this case, which was retired without compensation after conversion into equity according to the Plaintiff’s rehabilitation plan, constitutes “a claim confirmed as impossible to be recovered according to the decision to grant authorization for the rehabilitation plan,” and cannot be said to have been forfeited because rehabilitation procedures

2018Nu13290 Revocation of Disposition of Imposing Value-Added Tax, etc.

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○ Head of tax office

November 7, 2018

May 30, 2019

June 27, 2019

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of value-added tax of KRW 0,000,000 for the first term of March 14, 2016 (including additional tax) by the Defendant against the Plaintiff on March 14, 2016 shall be revoked.

1. Quotation of judgment of the first instance;

The grounds for appeal by the plaintiff are not significantly different from the allegations in the first instance court, and even if the evidence submitted in the first instance court shows the evidence submitted in this court, the fact-finding and decision in the first instance court are examined together with the plaintiff's allegations, it is recognized as legitimate.

Therefore, the reasoning of the judgment of this court is as follows: “No. 4, 2017. 0. 0. 4”; “No. 27, 2016.11. 27”; “No. 201. 27, 2017.” “No. 201. 27,” “No. 2017. 27,” “No. 2017. 27,” and “No. 27, 2017.” In addition to the judgment of paragraph (2), the reasoning of the judgment of the court is as stated in the reasoning of the judgment of the first instance except for supplementation. Thus, it is cited as it is in accordance

2. Additional determination

A. Summary of the plaintiff's assertion

1) AA was a specially related person who owned 92.6% of the Plaintiff’s shares and controlled the Plaintiff. On the same day as the Plaintiff, AA was decided to commence rehabilitation procedures at the Seoul Central District Court, and then received the authorization for rehabilitation plans after which it received the authorization for rehabilitation plans. AA had consented to partial conversion of investment and free retirement of shares among the instant claims in order to obtain consent from rehabilitation creditors in the status of economic same status as the Plaintiff. AA requested for correction only when a claim for correction was not filed immediately after the said conversion of investment into investment and free retirement was made, and the right of management against the Plaintiff was exceeded. In light of these circumstances, the Plaintiff cannot be deemed to have been exempted from the obligation from AA, and it is unreasonable to recognize AA as a bad debt tax amount and take the instant disposition against the Plaintiff.

2) The Defendant, having the head office AA as the supplier, deducted the amount of KRW 00,00,000 from each output tax amount. The deduction for a branch office AA, in excess of the initial output tax amount, has been processed by deducting the amount of input tax, thereby increasing the amount of input tax. As such, it goes against Article 17-2(1) of the former Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013; hereinafter the same shall apply). Since it is unlawful to deduct the bad debt tax from the sales amount of AA, it is unlawful to deduct the Plaintiff from the Plaintiff’s input tax amount. Meanwhile, the Defendant processed the said amount by adding the amount to the output tax amount without deducting the Plaintiff’s input tax amount from the output tax amount, and is also contrary to this Act and subordinate statutes.

B. Determination

1) As to the assertion related to specially related persons

A) Comprehensively taking account of the overall purport of the arguments in the evidence evidence Nos. 12 and 13, AA was holding 92.67% of the Plaintiff’s shares as of October 11, 2012, as of October 11, 2012, and the Plaintiff, like the Plaintiff, received a decision to commence rehabilitation procedures as of October 11, 2012 and received a decision to commence rehabilitation procedures as of February 22, 2013, the rehabilitation plan was decided on February 22, 2013, and 77% of the principal and interest prior to the commencement of rehabilitation claims in the rehabilitation plan against the Plaintiff, and paid in cash 23% of the total amount of loans and commercial debt stocks with a specially related party.

According to the above facts, it is reasonable to view that AA, a person with a special relationship, made a conversion into equity part of the claims of AA, which is a person with a special relationship, and immediately decided to retire without compensation, to seek rehabilitation of the plaintiff through the smooth progress of the rehabilitation procedure after obtaining authorization from many creditors in accordance with the rehabilitation plan. It is reasonable to view that AA, a person with a special relationship, consented to the rehabilitation plan, was the intention to substantially exempt the plaintiff from its obligations.

B) AA, a supplier, has already paid the value-added tax due to sales, but it becomes impossible to collect the claim, thereby causing losses not only to receive the price including the value-added tax due to sales but also to bear the value-added tax not collected in the transaction with the Plaintiff. The Plaintiff, the supplier, who has already received the value-added tax that he did not incur, has already been deducted from the input tax amount, and such result is contrary to the equity in tax burden. To solve these problems, Article 17-2 of the former Value-Added Tax Act provides that a creditor shall be granted a bad debt tax deduction for a claim which cannot be recovered according to the rehabilitation plan approval plan (Article 17-2 of the former Value-Added Tax Act

In light of the above purport and contents of the provision, it is not determined otherwise on the ground that there are circumstances such as the supplier is in a position of a person with a special relationship with the supplier or the change of management rights with the Plaintiff.

C) The Plaintiff’s assertion on this part cannot be accepted.

2) As to the allegation of illegality of the mutual aid procedure

A) Comprehensively taking account of the overall purport of the pleadings as indicated in the evidence Nos. 5 and 3-1 and 2, the head of the competent tax office of AA (O head office) shall accept a request for correction of AA and notify a correction of the first-year value-added tax in 2013. In addition, the head of the competent tax office of AA head office of the said taxable period may recognize the fact that the amount of KRW 00,000,000 has been deducted from the output tax amount of the head office of AA in the said taxable period, and the amount of KRW 0,00,000,000 from the output tax amount of the AA branch office of the said taxable period, respectively, from the bad debt tax amount of the AA branch under Article 17-2 (1) of the former Value-Added Tax Act. As such, the head of the competent tax office of AA has only been specially deducted from the input tax amount for the taxable period of 1, 2013, where bad debt becomes final.

B) Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 5, Nos. 1 and 4, the Defendant, while rendering the instant disposition to the Plaintiff, added KRW 0,000,000 to the Plaintiff’s output tax amount for the first period period of January, 2013. On June 23, 2016, the Defendant, upon deducting the amount added from the output tax amount for the first period of June 23, 2016, re-revision the amount that deducts the Plaintiff’s input tax amount for the first period of January 2013 as the deducted amount, and notified the Plaintiff thereof. In the process of rendering the instant disposition, the Defendant erred by adding KRW 0,000,000 from the “sale tax amount for the first period of January 20, 2013, which is not the “purchase tax amount for the first period of January 20, 200” to the Plaintiff, but thereafter re-revision the instant disposition to correct it.

(Correction of errors in the course of business process, and there is no substantial change in the original disposition, and there is no substantial change in the original disposition, and there is no influence on the determination of the specific or illegality

C) The Plaintiff’s assertion on this part is without merit.

3. Conclusion

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

(c)