Early High Court Decision 2012J 2750 (No. 28, 2012)

The amount of fraud fraud shall not be other income (the amount received through good offices and property in breach of trust).

The amount of fraud fraud does not correspond to the "money received through good offices and property in breach of trust" under the Income Tax Act, and it does not constitute the "money received through good offices and property in breach of trust", and it cannot be viewed as the "money received through service without employment relations" or "money of a similar nature."

2012Guhap16849 global income and revocation of disposition

AAAA

port of origin

June 5, 2013

July 24, 2013

1. Each disposition taken by the Defendant against the Plaintiff on January 2, 2012, the imposition of KRW 000 global income tax for the year 2006, global income tax for the year 2007, and global income tax for the year 2007, and global income tax for the year 2008 is revoked.

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

The same shall apply to the order.

1. Grounds for disposition;

A. On June 1, 2011, the Plaintiff was sentenced to a suspended sentence of two years and 80 hours of community service order for one year under the following criminal facts, and the above judgment was finalized on June 9, 2011.

B. On January 2, 2012, the Defendant deemed KRW 000, which is a property profit acquired by the Plaintiff’s fraudulent conduct, as other income under the Income Tax Act, and corrected and notified the Plaintiff of KRW 000, global income tax for 2006, global income tax for 2007, and KRW 000, global income tax for 2008 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an objection on February 6, 2012, but was dismissed on March 15 of the same year, and requested to the Tax Tribunal on June 1, 2012, but was dismissed on September 28 of the same year.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 to 5, and Eul evidence 1 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

Article 21 (1) 24 of the Income Tax Act provides "money received through good offices and property in breach of trust" as other income. Although the defendant does not constitute "money received through good offices and property in breach of trust under the Income Tax Act as other income," the disposition of this case imposed by the defendant is unlawful even though it does not constitute "money received through good offices and property in breach of trust under the Income Tax Act as other income."

2) The defendant's assertion

The Plaintiff has committed not only fraud but also occupational breach of trust, and Article 21(1)24 of the Income Tax Act should be deemed as a provision that can be taxed even in the case of acquisition of money or valuables by breach of trust. Even if the provisions of the Income Tax Act applied by the Defendant are inappropriate, the property profits acquired by the Plaintiff may be deemed as other income based on the “other services provided without an employment relationship for allowances or other similar costs,” and thus, the instant disposition is lawful.

B. Relevant statutes

Paper in the Appendix

C. Determination

1) Whether fraud amount constitutes Article 21 (1) 24 of the Income Tax Act

Article 21 (1) 24 of the Income Tax Act provides that "money received through good offices and property in breach of trust" as other income shall be defined on May 31, 2005, and the reason for the enactment is to provide for the tax justice and to supplement the relevant taxation procedure regulations in consideration of the reality that it is impossible to withhold taxes on illegal income, and that the money and goods received through good offices and property in breach of trust shall be defined as taxable object of income tax. Even though withholding taxes on illegal income is impossible in principle, Article 21 (1) 24 of the Income Tax Act provides that the money and goods received through good offices and property in breach of trust shall be defined as limited provisions that only the money and goods received through good offices and property in breach of trust may be taxed as other income, and it is reasonable to deem that the amount of money and goods received through good offices and property in breach of trust shall be defined as "the amount of money and property received through good offices and property in breach of trust" from 00 to 300 O.

2) Whether the amount of fraud falls under Article 21 (1) 19 (d) of the Income Tax Act

According to Article 21 (1) 19 (d) of the Income Tax Act, the allowances received without an employment relationship or other consideration of a similar nature for the service provided without an employment relationship shall be deemed as other income. The above provision is presumed to be premised on a specific service agreement between the parties who receive the consideration. According to the facts acknowledged above, it is clear that the plaintiff is merely taking property profits equivalent to the oil price not actually supplied from the victim ○○ Engineering, and that the plaintiff is not receiving the money for any service agreement between the victim ○○ Engineering, and that it is apparent that the plaintiff did not receive the money for the above property profits acquired by the plaintiff as other income under Article 21 (1) 19 (d) of the Income Tax Act, and where the above provision is applied, the defendant's argument that the disposition of this case is legitimate as a result is not reasonable.

3. Conclusion

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