Kim Young-young (Attorney Kim Young-sung, Counsel for the defendant-appellant)

Head of Mapo Tax Office

25, 2004

1. The defendant's refusal disposition against the plaintiff on August 3, 2003 against "the rejection disposition against the detailed statement of global income and the request for correction of the disposition on August 10, 2000" shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 10, 200, the Defendant rendered a decision and notified the Plaintiff on October 30, 1996 that the Plaintiff transferred the copyright of the computer program related to patient management and medical insurance claim affairs to ASS Korea, a non-party corporation, which operates pharmaceutical products and medical supplies sales business, etc., to 73,028,020 won of global income tax for the year 1996.

B. However, it was confirmed that the above copyright transfer contract was null and void in the Supreme Court Decision 2003Da2390, 2406 (Joint) Decided April 22, 2003 between the plaintiff and the non-party company.

C. Accordingly, the Plaintiff filed a request for correction with the Defendant to the effect that the imposition of the global income tax should be revoked on the basis of Article 45-2(2)1 of the Framework Act on National Taxes. On August 3, 2003, the Defendant rendered the instant disposition rejecting the request for correction on the ground that the Plaintiff’s request for correction falls under the grounds for subsequent request for correction pursuant to the above Acts and subordinate statutes, even if the Plaintiff’s request for correction falls under the grounds for subsequent request for correction pursuant to the above Acts and subordinate statutes.

2. Whether the instant disposition is lawful

A. Relevant statutes

[Framework Act on National Taxes]

(1) In any of the following cases, a person who has filed a tax base return within the statutory due date of return may request the chief of the competent tax office to determine or correct the tax base and amount of the national tax reported initially and amended (where a decision or correction is made pursuant to the provisions of each tax-related Act, referring to the tax base and amount of tax after such decision or correction is made) within two years after the statutory due date of return elapses:

1. Where the tax base and tax amount entered in the tax base return (referred to the tax base and tax amount after such decision or correction is made, if such decision or correction is made under the provisions of each tax-related Act), exceed those to be returned under the tax-related Acts;

(2) Any person who has filed a tax base return within the statutory due date of return, or who has the tax base and amount of national taxes determined, may request the determination or correction within two months from the date on which he/she becomes aware of the occurrence of such cause, regardless of the period referred to in paragraph (1), in any of the following cases:

1. Where any transaction, act, etc. which is the basis of calculation of the tax base and amount of tax in the initial return, determination or correction, becomes final and conclusive as different by a final judgment (including any reconciliation or other act having the same effect as the judgment) in the lawsuit against it;

(1) If the mutual agreement procedures are in progress under the provisions of a treaty concluded to prevent double taxation (hereinafter referred to as “tax treaty”), no national tax may be imposed after the period as provided in the following subparagraphs expires: Provided, That if the mutual agreement procedures are in progress, Article 25 of the Adjustment of International Taxes Act shall apply:

1. If a taxpayer evades any national tax, or receives a refund or deduction by a deceitful or other unlawful way, for ten years from the day on which the national tax is assessable;

2. If a taxpayer fails to file a tax base return within the legal return term, for seven years from the date on which the national tax is assessable;

3. If it does not fall under subparagraphs 1 and 2 above, for five years from the day on which the national tax is assessable; and

(2) Notwithstanding the provisions of paragraph (1), a decision of correction or other necessary disposition may be made by the relevant decision, judgment or mutual agreement before one year elapses from the date on which a decision or judgment under subparagraph 1 becomes final or mutual agreement under subparagraph 2 is reached:

1. Where a decision or judgment is made on an objection, request for examination or adjudgment under Chapter VII, request for examination under the Board of Audit and Inspection Act, or litigation under the Administrative Litigation Act;

2. When an application for mutual agreement is made pursuant to the provisions of the tax treaty, and a mutual agreement is reached, within three years (if the tax treaty prescribes otherwise, such provisions shall prevail) after the day on which the existence of the measure, which was the cause of the imposition of tax in violation of the tax treaty, is known

B. The party's assertion and judgment

(1) The Defendant’s provision on the limitation period of the right to impose national taxes under Article 26-2 of the Framework Act on National Taxes is established in the purport that the tax law relations should be determined as soon as possible, and thus, the right to impose national taxes cannot be extinguished and any disposition to change the amount of tax, including the decision of correction of the specific amount and the decision of correction of the amount of tax. This is the same as this case, and accordingly, the instant disposition is lawful.

On the other hand, Article 26-2 of the Framework Act on National Taxes is only a provision on the exclusion period of "the right to impose tax", and it is not a provision on the exclusion period of "the right to impose tax" with respect to the decision of correction with respect to the revocation of the disposition of imposition at king, and thus, in substance, it shall not be subject to the limitation period of the above exclusion period in the case of correction of reduction, which is the revocation of all or part of the disposition of imposition at king

(2) As seen earlier, Article 26-2(1) of the Framework Act on National Taxes provides that “National taxes may not be imposed after the expiration of the period during which national taxes may be imposed pursuant to the above provision.” In light of the language and text of the above provision and the principle of no taxation without law, which is the protection of property rights of the people, the above provision merely sets the period of the taxation authority that can determine the tax base and amount of national taxes, i.e., the authority of the taxation authority that can determine the period of the imposition of national taxes, and that sets the period of the authority to impose national taxes disadvantageous to the taxpayer, such as the disposition imposing national taxes or the disposition of increased or decreased national taxes for the imposition of existing national taxes, and it does not seem to be the purport of limiting the period of the above provision to the extent of the authority to impose the national taxes, which is meaningful to substantially cancel all or part of the existing national tax imposition dispositions in favor of the taxpayer. Accordingly, it should be deemed that the taxation authority makes a legitimate reduction of tax amount by correcting it at any time without any restriction on the period prescribed in Article 26-2.

(3) If so, the defendant, who received the plaintiff's request for correction of reduction based on Article 45-2 (2) 1 of the Framework Act on National Taxes, made a decision as to whether to correct the above global income tax detail and disposition based on the purport that the disposition of this case should be revoked, notwithstanding the fact that the defendant, who received the request for correction of reduction, made a decision as to whether to correct the above global income detailed and disposition based on the propriety thereof, was correct, but the other part of the court erred by misapprehending the legal principles of Article 26-2 of the Framework Act on National Taxes, and the above period for exclusion of the right

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so accepted and decided as per Disposition.

Judges Sung Pung-tae (Presiding Judge)