Cho Jae-2016-west-3522 ( November 25, 2016)

Whether a later request for correction is applicable

The plaintiff's request for correction is unlawful since the plaintiff's request for correction was made after two months from the date on which the plaintiff's request for correction was made after the date on which the grounds for request for correction are known and affixed, and thus, even if the defendant did not notify his refusal within two months, it cannot be deemed that there was a rejection disposition

Article 45-2 of the former Framework Act on National Taxes and Article 25-2 of the former Enforcement Decree of the Framework Act on National Taxes

Revocation of Disposition Imposing global income tax

00

00. Head of tax office

on October 28, 2017

on October 26, 2017

1. The instant lawsuit shall be dismissed.

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

The defendant's refusal to correct and correct the global income taxx,xx, andxxx members belonging to the year 2007 that belongs to the plaintiff on October 10, 2015 shall be revoked.

1. Details of the disposition;

A. From a third party on April 207, the Plaintiff, an executive officer or employee of the Committee deemed as a public official, was issued a bribe equivalent to the cashxx,xx,xx,xx, andxx number from January 2008 to July 2008, cashx,xx,xx,xx number, and cashxxx, from around August 2008 to around September 2008.

B. As to the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), a public prosecution was instituted with CC District Court 201 high-classxxxx, and the above court found the Defendant guilty of the facts charged on November 1, 201, and sentenced the Plaintiff to collect additional collection of the amount of the accepted bribery X,xxx, andxxxxxxxx. The Plaintiff appealed and appealed against the above judgment, but all of which was dismissed [d High Court Decision 2011Noxxx (Separation) decided April 27, 2012; Supreme Court Decision 2012Doxxxxx Decided September 13, 2012];

C. On June 1, 2013, the Defendant imposed the global income tax on the bribe received by the Plaintiff, and then notified the Plaintiff of the correction and notification of the x, xx, xx, xx (including the additional tax; hereinafter the same shall apply), x, x, and xx (hereinafter referred to as “previous taxation”) for the portion attributable to the Plaintiff in 2008.

D. On January 6, 2014, the Plaintiff paid the full amount of the penalty surchargexx,xx, andxxx to the e District Prosecutors’ Office.

E. However, according to the Supreme Court’s ruling up to the time, if illegal income, such as a bribe, exists, it does not necessarily mean that the taxable income is lawful and effective as long as it actually takes control over and manages the profit in light of the economic aspect. Thus, in principle, illegal income is subject to taxation, and even if taxable income, such as a bribe, is additionally collected to the State, it is merely a result of additional punishment against a criminal act. Thus, such circumstance does not constitute a ground for subsequent request for correction as stipulated under Article 45-2(2) of the Framework Act on National Taxes (see, e.g., Supreme Court Decisions 81Nu136, Oct. 25, 1983; 97Nu19816, Feb. 27, 198). However, the Supreme Court modified the existing en banc Decision 2014Du5514, Jul. 16, 2015; and thus, the Supreme Court subsequently declared the amount of tax to be confiscated by a taxpayer’s request for correction.

F. In accordance with the purport of the above Supreme Court decision, the Plaintiff filed a request for correction to the head of a tax office on August 10, 2015 for the reduction of the tax amount increased by the previous tax assessment in whole, on the ground that the Plaintiff’s income from the bribe received in 2007 and 2008 should be excluded from the income amount of the said period. However, the Defendant, who has the jurisdiction over the above request for correction, did not notify the Plaintiff as to whether to accept the request

G. On December 2015, when a request for correction is filed at each affiliated tax office, including the defendant, in accordance with the purport of the above Supreme Court decision, the Commissioner of the National Tax Service issued "a plan to handle civil petitions for grievances in accordance with the Supreme Court decision related to brain water" to the effect that when such request for correction is filed within the deadline for filing a request for correction, it shall be received immediately, and if such request for correction is filed after the deadline for filing a request for correction expires, it shall be corrected ex officio by filing a civil petition for grievance in accordance with the Regulations on the Protection of Taxpayer Affairs, but when such request for correction is filed after the expiration of the statutory period

H. On January 18, 2016, the Plaintiff filed a civil petition for grievance with the head of a tax office having jurisdiction over the same content as the above request for correction. On February 2, 2016, the Defendant, upon which the above civil petition for grievance was transferred, accepted part of the Plaintiff’s civil petition for grievance, and revoked the part concerning X,x,x, andxx in the previous tax assessment, but notified that the part concerning the portion regarding the portion regarding the portion regarding the x,x, andxx in the year 2007 tax assessment cannot be revoked after seven years have elapsed from the exclusion period for imposition.

(i) On May 3, 2016, the Plaintiff filed a civil petition for grievance with the Anti-Corruption and Civil Rights Commission on May 3, 2016 to the effect that the portion pertaining to the global income tax x,xx, andxx members should also be revoked. However, the Anti-Corruption and Civil Rights Commission notified the Plaintiff of the decision not to accept the civil petition for grievance on May 17, 2016.

(j) On September 20, 2016, the Plaintiff filed an appeal with the Tax Tribunal seeking revocation of the part on the global income tax for the tax year 2007, among the previous tax dispositions. The Tax Tribunal dismissed the Plaintiff’s appeal on November 25, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1 through 3 (including each number), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The parties' assertion

1) Plaintiff

Article 45-2(2)5 of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter the same shall apply) and Article 25-2(4) and 2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 2783, Feb. 7, 2017; hereinafter the same shall apply), when the Supreme Court changed the existing precedents and rendered a judgment that the payment of a penalty surcharge constitutes grounds for a subsequent request for correction, the Plaintiff shall, on July 16, 2015, assert that a contract related to the effect of transaction, act, etc., which served as the basis for calculating the duty base and the amount of duty, is rescinded by the exercise of the right to rescission or is revoked by the exercise of the right to request for correction, and on the premise that the Plaintiff’s subsequent request for correction is rejected or revoked by an unavoidable cause after the formation of the relevant contract, the Defendant shall lawfully respond to the Plaintiff’s request for correction within 201.

2) Defendant

The defendant asserts that since the grounds for the subsequent request for correction on January 6, 2014, which was made by the plaintiff on August 10, 2015, the plaintiff's request for correction, which was made on August 10, 2015 after the lapse of two months from the deadline for filing the request for correction, is unlawful, it cannot be deemed that there was an administrative disposition subject to appeal even if the defendant did not respond thereto.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 45-2(2) of the former Framework Act on National Taxes provides that an application for rectification shall be filed within two months from the date on which the grounds for a subsequent request for rectification arise, if the grounds for a subsequent request for rectification arise (see, e.g., Supreme Court Decision 2012Du28254, Nov. 27, 2014). Meanwhile, since the period for filing a request for rectification after the expiration of the statutory due date of return of national tax, the grounds such as whether a transaction or act, which is the basis for calculating the tax base and amount of tax, exists or the legal effect thereof vary after the statutory due date of return of national tax, may be included in the grounds for subsequent request for rectification under Article 45-2(2)5 of the former Framework Act and Article 25-2 subparag. 4 of the former Enforcement Decree of the Framework Act on National Taxes, but such grounds are not included in the grounds that the statutory interpretation of the statutes differs from the time of the initial report, decision, or rectification (see, e.g., Supreme Court Decision 2014Du14).

With respect to the instant case, in principle, income from the Plaintiff’s receiving a bribe in around 2007 and 2008 is subject to income tax. However, since the Plaintiff’s tax liability, upon receiving a surcharge in a criminal procedure, became final and conclusive on January 6, 2014 as income resulting from the receipt of a bribe, it shall not be deemed that the cause for filing a subsequent request for correction has occurred only on July 16, 2015, which was modified by the Supreme Court en banc Decision, as otherwise alleged by the Plaintiff, since the grounds for filing a subsequent request for correction exist, it shall not be deemed that the Plaintiff’s request for correction was the ground for filing a subsequent request for correction. Ultimately, even if the Plaintiff’s request for correction was made on August 10, 2015, which was two months after the date of filing a request for correction from January 6, 2014, which was the date of filing a subsequent request for correction, it shall not be deemed that the Defendant did not comply with the Plaintiff’s request for correction.

Therefore, the lawsuit of this case is unlawful as it is against the non-existent disposition.

2) As to this, the Plaintiff, ex officio, revoked ex officio by recognizing that the Defendant had the grounds for filing a subsequent request for correction for the correction and notification of the amount of KRW 133,90,490, which reverts to the year 2008, among the previous taxation, on the ground that the part pertaining to the portion belonging to the year 2007 can not be revoked after seven years have elapsed from the exclusion period of imposition. In general, even if the exclusion period of imposition expired, the Plaintiff asserts that the revocation of ex officio

Unless there exist special circumstances, such as the right to request a change in individual laws and regulations, or the right to request a change in the relevant laws and regulations, with respect to an administrative disposition, which has arisen as the period for filing a lawsuit has already lapsed, the right to request a change in the relevant administrative disposition cannot be deemed to have been the right to request a change in the relevant administrative disposition (see, e.g., Supreme Court Decisions 2005Du1104, Apr. 26, 2007; 2014Du43264, Feb. 9, 2017).

As seen earlier, even after the lapse of the period for filing a complaint, the former Framework Act on National Taxes recognizes a taxpayer’s right to request a change in the existing tax assessment within two months from the date when the grounds for filing a subsequent tax assessment arise and the amount of tax on the initial tax assessment cannot be maintained as is. Moreover, a request for correction made after the lapse of the period is not a legal right to request a correction, but a request for the exercise of ex officio cancellation by the tax authority. Considering the above facts of recognition, the Commissioner of the National Tax Service, after the change of the Supreme Court en banc Decision, should implement the “plan for processing civil petitions for grievances pursuant to the Supreme Court decision regarding brain water” before and after the lapse of the period for filing a complaint, and even if the period for filing a request for correction for the period for filing a subsequent tax assessment has not expired, the taxpayer would be relieved by ex officio revocation of the previous tax assessment in accordance with the purport of the above Supreme Court en banc Decision. However, the Defendant’s right to request a correction after the lapse of the period for filing a complaint is rejected.

3) In addition, the Plaintiff asserts that the denial of the Plaintiff’s request for correction is unfair in light of the request of concrete feasibility, even though the tax amount under the previous tax assessment loses the factual and legal basis, which serves as the premise.

All administrative litigation procedures, including the filing of a request for correction under the former Framework Act on National Taxes, include the definition of specific cases and the principle of harmonious pursuit of legal stability. In the case of a subsequent request for correction, legislative and statutory interpretation that allows a request for correction within two months from the date on which the grounds for the request for correction occur, are not included in the grounds for a subsequent request for correction, all the above interpretation is based on the ideology of the administrative litigation procedure. Therefore, the result that the plaintiff's request for correction in this case is rejected is only based on the result that the plaintiff's request for correction in this case is rejected, and it is unreasonable

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and thus it is decided as per Disposition.