requirements to constitute grounds for filing a subsequent request for rectification

The grounds for later filing a claim for correction refers to the time when the transaction, act, etc., becomes final and conclusive as different by the judgment on the lawsuit related thereto, and only the time when the loss falls under this judgment shall not be a judgment corresponding thereto, and in order to fall under the grounds for later filing a claim for correction,

Article 26-2 of the National Tax Basic Act

Article 45-2 of the National Tax Basic Act

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed;

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

1. Purport of claim

A. The defendant's rejection disposition against the plaintiff on March 29, 2003 against the plaintiff on February 13, 2003 ("the complaint and the request for amendment of the purport of the claim" on February 3, 2003) is revoked.

B. The defendant's rejection disposition against the plaintiff on December 22, 2003 against the plaintiff is revoked as of January 22, 2001.

2. Purport of appeal

same as the entry.

3. Purport of incidental appeal;

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant's rejection disposition against the plaintiff on December 22, 2003 against the plaintiff on January 22, 2001 shall be revoked.

1. Scope of the trial;

원고가 제1심에서 원고의 2003.2.13.자 감액경정청구(이하,'이 사건 경정청구'라고 한다)에 대한 피고의 2003.3.29.자 거부처분(이하, 이 사건 처분이라고 한다)의 취소와 함께 원고의 2001.1.22.자 감액경청청구에 대한 피고의 2003.12.22.자 거부처분(이하 2003.12.22.자 거부처분이라 한다)의 취소를 구한 데 대하여, 제1시믄 이 사건 처분의 취소 청구는 인용하고, 2003.12.22.자 거부처분의 취소 청구는 기각하였고, 이에 대하여 피고가 이 사건 처분의 취소 청구 부분에 관하여 항소하고, 원고가 2003.12.22.자 거부처분의 취소 청구 부분에 관하여 부대항소를 하였다. 그런데 환송 전 당신은 피고의 항소를 기각하는 한편, 2003.12.22.자 거부처분 취소 청구 부분의 소에 관하여는 이를 부적법하다고 보아 제1심 판결 중 위 부분을 취소하고, 위 부분의 소를 각하하는 판결을 하였는바, 이에 대하여 피고만이 상고를 하고, 원고는 상고를 하지 않음으로써 2003.12.22.자 거부처분 취소 청구 부분은 확정되었다.

Therefore, only the part against the defendant of the judgment before remanding the case is reversed by the judgment of remand, that is, only the part requesting revocation of the disposition of this case is subject to the judgment of this court.

2. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of Gap evidence 1 through 4, evidence 5-1, 2, 3, evidence 6-1 through 9, evidence 7-1 through 24, evidence 9, evidence 1-1, 2, and evidence 2-1 through 6.

A. The Plaintiff is a corporation with the business year from January 1 to December 31, 12.31, which is a corporation with the purpose of education, publication, and cultural business, and wholesale and retail business of books and learning sites, and is engaged in the recruitment of members of learning sites, provision of learning sites, and relevant educational services, separate from the Plaintiff’s employee or the Plaintiff.

B. In filing a return of the corporate tax base and the amount of tax for the business year 1996, the Plaintiff calculated and reported the corporate tax of March 31, 1997 as KRW 12,719,243,291, by including the amount of membership fees paid by the learning-based teachers to the members management services, such as the transfer of learning points and learning guidance for the following month from the members, as well as the amount calculated by the percentage of the total amount of the membership fees paid to the learning-based teachers in the next month (hereinafter “the amount affecting the calculation of the corporate tax for the business year 1996”), while paying the fees to the learning-based teachers as the service fees for the month in which the membership fees are paid.

C. Accordingly, the director of the Gwanak Tax Office (Presidential Decree No. 16467, Sep. 1, 1999; Presidential Decree No. 16467; hereinafter the defendant was changed to the defendant; hereinafter the defendant) investigated corporate tax from 1992 to 1998 against the plaintiff during the period from 1997 to the business year. Since the method of calculating the plaintiff's fee is contrary to the principle of profit-sharing expenses, the payment fee appropriated as deductible expenses in December of each year shall be calculated in January of the following year. The plaintiff shall calculate and notify the corporate tax for the period from 1992 to 1995, and the corporate tax for the business year from 1996 to 12,617,360,525 won was corrected to reduce the amount equivalent to 19,445,647 won as additional corporate tax for the period of the request for review from 197 to 199,200 won, the additional amount of reward paid to the student during the period of inclusion in deductible expenses.

D. From the business year 197 corporate tax, the Plaintiff filed a lawsuit with the Seoul Administrative Court seeking revocation of the disposition of corporate tax for the business year 1992 from September 1, 1997 against the Defendant, while filing a lawsuit against the Defendant seeking revocation of the disposition of corporate tax for the business year 1996 from the business year 1992.

E. Meanwhile, the Plaintiff changed the standard of aggregate of monthly membership fees, which serves as the basis of the fees paid to learning-based teachers, from January 1 to the last day of January 1997, to the entrance amount from January 1 to the next day of the class trip of the month. The reason was that the learning-based teachers received membership fees from the last day of the month but they deposited on the next business day due to a legal holiday or the lapse of banking business hours, it was to clarify the provision that they were placed on the account book so that they would be subject to the calculation of the fees paid for the relevant month, and that they would be subject to the calculation of the fees paid for the relevant month. The Plaintiff changed the above provision as above to make the total amount of the fees paid for the monthly membership fees paid from January 1, 1997 to December 3 of the same month, 199 to the deductible expenses for the pertinent business year after December 196, 199 to the Plaintiff’s new amount of fees paid for tax investigation as deductible expenses for the pertinent business year of December 196, 1996.

F. On November 24, 200, the Plaintiff rendered a judgment of rejection on the ground that the Seoul Administrative Court rendered a quoted judgment on the part of corporate tax for the business year 1995 from 1992, on the ground that the Plaintiff was the subject of a claim for revocation of the disposition of revocation of the reduction in the amount of tax for the business year 1996 (the above dismissed judgment was not appealed but became final and conclusive around that time). Although the Defendant filed an appeal and appeal against the remaining part of the Seoul Administrative Court's judgment on the Seoul Administrative Court's appeal except the above dismissed judgment, but all appeals and appeals were dismissed, and the above judgment became final and conclusive on January 24, 2003 (hereinafter referred to as "the final judgment of the Supreme Court became final and conclusive" in the above judgment of the Supreme Court of Korea).

G. When the final and conclusive judgment of this case was rendered as above, on February 13, 2003, the Plaintiff applied for the correction claim of this case to the Defendant for the reduction of the Defendant’s increased disposition on corporate tax for the business year 1996, by calculating the payment fee and the period of attribution of profit and loss of commission fee to the Defendant.

H. However, on March 29, 2003, the Defendant rendered the instant disposition to the effect that the request for reduction was rejected on the grounds of the expiration of the exclusion period for the imposition of national taxes and the expiration of the request period for correction. On June 27, 2003, the Plaintiff dissatisfied with the request for examination against the instant disposition was filed with the Commissioner of the National Tax Service, and the Commissioner of the National Tax Service dismissed the request for examination on December 22, 2003.

3. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

(A) According to the final and conclusive judgment of this case, the Plaintiff’s fee paid to the learning site teachers for the business year 1997, which was appropriated as salt in the business year 1997, should be appropriated as deductible expenses for the business year 1996. As such, the amount of 6,126,507,541 won paid to the teachers for the business year 1995, which was originally appropriated as deductible expenses in the business year 1996, was appropriated as deductible expenses for the business year 1995, and the cause for reduction to the corporate tax for the business year 196 as much as the deducted amount was generated. In addition, the Defendant’s request for correction of this case was accepted, but the disposition of this case was unlawful.

(B) The final and conclusive judgment of this case constitutes grounds for follow-up rectification as stipulated in Article 45-2(2)1, 4, or 5 of the Framework Act on National Taxes (amended by Act No. 7582, Jul. 13, 2005; hereinafter the same) with respect to the instant payment fee, and the time when the Plaintiff’s claim for correction of this case was filed falls under grounds for follow-up rectification as stipulated in Article 45-2(2)1, 4, or 5 of the Framework Act on National Taxes. From January 24, 2003 to January 24, 2003, when the time of filing

(2) The defendant's assertion

For the following reasons, the Plaintiff’s request for correction of the instant case cannot be accepted.

(A) In the disposition of imposition of corporate tax for the business year 1996, the defendant cannot make any decision or make any disposition to change the tax base or amount of tax against the defendant, even though the exclusion period is excessive. Since the plaintiff's request for correction of this case was limited to the exclusion period, the disposition of this case on the ground

(B) The final and conclusive judgment of this case is related to the legal judgment of the time when the loss is reverted to the business year 1992 or 1995, so it does not fall under the judgment under Article 45-2 (2) 1 of the Act in relation to the corporate tax for the business year 1996, nor does it fall under the grounds under Article 45-2 (2) 5 of the Act and each subparagraph of Article 25-2 of the Enforcement Decree of the Act

(C) After the limitation period of the imposition right expires, it shall be deemed that an ex post request for correction cannot be made under Article 45-2(2) of the Act.

(D) In relation to commission fees, the final and conclusive judgment of this case does not constitute grounds for filing a subsequent claim for correction, since it is not different from fact-finding in the final and conclusive judgment of this case.

(E) Even if there are grounds for income adjustment of payment fees, as alleged by the Plaintiff, the commission fees appropriated as earnings in the Defendant’s adjusted disposition of increase shall be considered, and if the performance fees for the learning site teachers in 195 were returned from the deductible expenses for the business year 1996 to the deductible expenses for the business year 1995, there is no room for corporate tax reduction for the business year 196

B. Relevant statutes

Article 26-2 of the National Tax Basic Act

Article 45-2 of the National Tax Basic Act

Article 25-2 of the Enforcement Decree of the Framework Act

C. Determination

(1) Whether the exclusion period of the instant claim for correction is observed

According to Article 45-2(1) of the Act, a person who has filed a return of tax base within a statutory period for filing a return of tax base may request the head of the competent tax office to determine or correct the tax base and amount of national tax for which the return of tax base was filed and the return of tax base was filed within two years (three years after the amendment by Act No. 6303, Dec. 29, 2002) after the statutory period for filing a return of tax base exceeds the tax base and amount of tax to be reported, or the amount of the deficit or amount of tax to be reported falls short of the deficit or the amount of tax to be reported.

However, the claim for correction of this case was made from March 31, 1997, which was the legal return term of corporate tax in the business year 1996, on February 13, 2003, after the above exclusion period has elapsed more than two years. Thus, the claim for correction of this case is lawful even though the exclusion period does not constitute the so-called "reasons for request for ex post facto correction" as stipulated in Article 45-2 (2) of the Act.

(2) Whether it constitutes grounds for ex post request for correction

(A) According to Article 45-2(2)1 of the Act, where any transaction, act, etc., which is the basis of calculation of the first return, decision, or corrected tax base and the amount of tax, becomes final and conclusive by a ruling on the relevant lawsuit, a claim for correction may be filed within two months from the date on which he/she becomes aware of the occurrence of the cause, regardless of the period stipulated in

Article 45-2 (2) 1 of the Act refers to "when a dispute arises in connection with a transaction or act, etc., and the decision becomes final and conclusive as different by the court's decision" (see Supreme Court Decision 2005Du7006, Jan. 26, 2006). Thus, the final and conclusive judgment of this case, which revoked the disposition of this case on the ground that the defendant's method of attribution of deductible expenses is unlawful for different periods based on the facts at the time of filing the plaintiff's corporate tax return, should not be included in the judgment under Article 45-2 (2) 1 of the Act.

(B) According to Article 45-2(2)4 of the Act, when the tax base and amount of the national tax initially returned for the taxable period other than the taxable period subject to the pertinent decision or rectification exceed those to be returned under the tax laws, due to the determination or rectification, the grounds for later filing a request for correction.

Therefore, in order to constitute a ground for the above-mentioned request for correction, it should be "the tax base and amount of the national tax initially reported exceeds those to be declared under the tax laws." However, it cannot be deemed that the final and conclusive judgment of this case is "when the tax base and amount of the national tax initially reported by the plaintiff exceed those to be declared under the tax laws," and it cannot be deemed "when the tax base and amount of the national tax reported by the plaintiff exceed those to be declared under the tax laws," and therefore, at the time of the request for correction of this case, there is no ground for the request for correction after the latter request for correction under Article 45-2 (2) 4 of the Act.

(C) Meanwhile, Article 45-2 (2) 5 of the Act provides that "when a cause prescribed by the Presidential Decree, which is similar to subparagraphs 1 through 4, occurs after the statutory deadline for return of the national tax concerned," and Article 25-2 of the Enforcement Decree of the Act provides that "when the cause prescribed by the Presidential Decree, occurs after the statutory deadline for return of the national tax concerned," "when the permission or other disposition of the government agency, which is the basis for the calculation of the tax base and the amount of tax, is cancelled for the first declaration, determination or correction," and "when the contract related to the validity of the transaction, act, etc., which is the basis for the calculation of the tax base and the amount of tax, is cancelled by the exercise of the right for return or the first declaration, determination or correction, or due to unavoidable reasons that occurred after the formation of the contract concerned," and "when the cause concerned becomes extinct after the first declaration, determination or correction, the tax base and the amount of tax can not be calculated due to other unavoidable reasons," which falls under subparagraphs 1 through 3.

However, in light of the contents of Article 45-2 (2) 5 of the Act and Article 25-2 (1) 1 through 4 of the Enforcement Decree of the Act, it is deemed that the defendant's method of reverting losses late every month only once the period of reverting losses is illegal, and thus the final judgment of this case does not fall under the grounds for ex post facto request for correction under Article 45-2 (2) 5 of the Act and Article 25-2 (1) 1 through 4 of the Enforcement Decree of the Act in relation to the corporate tax of 1996.

(3) Sub-determination

Therefore, the instant claim for correction is deemed to be lawful by setting the exclusion period against the exclusion period. Thus, the instant disposition by the Defendant refusing to correct the instant claim is lawful (On the other hand, the final judgment of this case is not different from the fact-finding on the commission fees, and even if the final judgment of this case is deemed to fall under the grounds for subsequent claim for correction in relation to the commission fees, as alleged by the Plaintiff, even if the commission fees are identical in nature to the payment fees, and the final judgment of this case constitutes the grounds for subsequent claim for correction in relation to the payment fees of this case, it is difficult to view that the final judgment of this case falls under the grounds for subsequent claim for correction as well as the grounds for subsequent

4. Conclusion

Therefore, the plaintiff's claim seeking revocation of the disposition of this case is dismissed as it is without merit, and the part against the judgment of the court of first instance which has different conclusions is unfair, so it is revoked, and the plaintiff's claim corresponding to that part is dismissed. It is so decided as per Disposition.