The legitimacy of the assertion that the non-deductible of education and training expenses disposition is five years of exclusion period of imposition

It is difficult to see that the exclusion period for corporate tax should be applied 5 years, not 10 years, since it is difficult to include it in the loss with active intent to make it impossible or significantly difficult to impose and collect taxes from the beginning beyond a simple illegal act.

The exclusion period of the imposition of national taxes under Article 26-2 of the Framework Act on National Taxes

Article 26 (Non-Inclusion of Excessive Expenses in Loss)

[Seoul Administrative Court 2006Guhap43993, 2007)]

1. The Defendant’s disposition of imposition of KRW 23,182,130 of corporate tax for the business year 1999 against the Plaintiff on April 11, 2006 and KRW 18,798,910 of corporate tax for the business year 2000 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. From March 22, 1994, the Plaintiff, a corporation operating a wholesale retail business for golf products, paid ○○, an employee from August 22, 1999 to December 2, 200, a total of KRW 46,317,00 education and training expenses, KRW 21,60,000, and KRW 67,917,000 (the key amount in this case), and filed a corporate tax base return by including this in deductible expenses.

B. On April 11, 2006, the Defendant decided and notified the Plaintiff of KRW 23,182,130 of the corporate tax in the business year 1999 and KRW 18,79,910 of the corporate tax in the business year 2000 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Eul Nos. 1 and 2 in each of subparagraphs 1 through 10

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The key issue amount of this case was paid to a person who actually worked for the purpose of studying abroad for marketing research at the successor training institute, and the head of this case was inevitably dismissed as ○○○○ University was specially employed as a local subsidiary after completing the management study master plan course at the ○○ University. Thus, it is reasonable to impose corporate tax by excluding the key issue amount in deductible expenses. However, since the Plaintiff paid the key amount of this case with the intention to evade tax from the beginning to the loss, it is not included in deductible expenses, the exclusion period of corporate tax imposition should be applied more than 10 years, but not more than 5 years. Thus, the disposition of this case was made after the lapse of the exclusion period of five years.

(b) Related statutes;

Article 26-2 of the Framework Act on National Taxes, the exclusion period for national tax imposition

(1) National taxes may not be assessed after the expiration of the period prescribed in the following subparagraphs:

1. Where a taxpayer evades a national tax, or receives a refund or deduction by fraudulent or other unlawful means, for ten years from the date on which the national tax is assessable;

2. If the taxpayer fails to file a written tax base return within the legal return term, for seven years from the day 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

Article 26 of the Corporate Tax Act (Non-Inclusion of Excessive Expenses in Expenses)

The amount of losses which is deemed excessive or unreasonable under the conditions as prescribed by the Presidential Decree from among those falling under any of the following subparagraphs shall not be included in the calculation of losses for each business year of a domestic corporation

1. Personnel expenses;

2. Welfare expenses;

3. Travel expenses, education and training expenses;

Article 46 of the Enforcement Decree of the Corporate Tax Act

Travel expenses or education and training expenses paid to controlling stockholders who are not officers or employees shall not be included in the calculation of losses in the calculation of the income amount of the business year concerned.

C. Determination

(1) Article 26-2(1)1 of the Framework Act on National Taxes provides that "where a taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means, the exclusion period of imposition of the national tax concerned shall be ten years from the date on which the national tax can be imposed." "Fraud or other unlawful acts" refers to a deceptive scheme which makes the imposition and collection of the tax impossible or considerably difficult (see, e.g., Supreme Court Decision 99Do5355, Apr. 21, 2000). Meanwhile, in the crime of tax evasion, the term "criminal intent" means that a person liable to pay tax commits or attempts to commit a fraudulent act while recognizing that his act constitutes fraud or other unlawful acts and recognizing the fact that the result of tax evasion occurs (see, e.g., Supreme Court Decision 2003Do1851, Sept. 24, 2004).

(2) However, comprehensively taking account of the overall purport of arguments as to Gap evidence Nos. 2 and 3, and Gap evidence Nos. 4-1 and 6-5, the plaintiff retired from ○○ University on March 1, 1998, and the plaintiff paid ○○○○○ University on July 1, 1998, while he was employed as an agent for the plaintiff on August 25, 1999 to May 18, 2001. The plaintiff acquired ○○○ University's degree after studying the United States to ○○○○○ University on behalf of ○○○○○○ University on behalf of ○○○○○ University on behalf of ○○○○○ University on behalf of ○○○○ University on behalf of ○○○○○○○ University on behalf of her head, the plaintiff could not be deemed as having any other issue in terms of education and training, or not having any other issue in terms of education and training.

(3) Therefore, the exclusion period for imposition of five years, not less than 10 years, shall apply to the corporate tax for the 1999, 2000 business year related to the issues amount of this case. Thus, the disposition of this case was made on March 31, 200 and March 31, 2001, which was the initial date of the exclusion period for imposition of five years, respectively, and it was unlawful since the disposition of this case was made on April 11, 2006, since the exclusion period has expired.

3. Conclusion

If so, the plaintiff's claim is accepted on the ground of the reason.

[Supreme Court Decision 2007Du24876, Oct. 01, 2008]

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Even if an argument on the grounds of appeal is not included in the grounds prescribed in the subparagraphs of Article 4(1) of the Act on Special Cases Concerning the Trial Procedure, or is included in the grounds for appeal, the appeal may be dismissed without examining any further, but the statement of the grounds may be omitted in the judgment (Articles 4 and 5 of the Act on Special Cases Concerning the Trial Procedure).

As a result of examining all of the records of this case, the judgment of the court below, and the grounds of appeal, it is clear that the above grounds for non-trial conduct constitute grounds for appeal, the appeal shall be dismissed. It is so decided as per Disposition by the assent of

[Seoul High Court Decision 2007Nu11964 ( November 07, 2007)]

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposing corporate tax of KRW 23,182,130 for the business year 1999 against the Plaintiff on April 11, 2006 and corporate tax of KRW 18,798,910 for the business year 200 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons why a member should explain this case are as follows: 2 9 - - 9 - - 2 - 9 - '2' among the reasons for the judgment of the court of first instance; 2 - 18,799,910 - - 18,79,910 ; '18,799,910 ; '198, 1998, 7 1.' - 4 - - 1998, 6 - - 11 - 4 - - 10 - 4 - - 4 - 4 - - - 4 - - 4 - - - - 3 - 4 - - 4 - - 1 , 201 - , '4 - - - 1 - - 4 - - - - - 1 - - 4 - - - - - - - - - '. 4 - - '. '. '. .'.'. . .'

2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.