Whether the grounds for filing a later request for correction are applicable

The criminal judgment of this case is nothing more than that of determining the existence and scope of the criminal facts of Defendant ○○○, and it cannot be readily concluded that the construction contract of this case, which was the basis of calculating the tax base and amount of tax, was different from that of the construction contract of this case by the criminal judgment. Thus, it cannot be deemed that the judgment constitutes the grounds for post

Article 45-2 (Request for Correction, etc.)

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on August 21, 2005 regarding the imposition of corporate tax, value-added tax and income tax in 1998 shall be revoked.

1. Details of the disposition;

A. On January 25, 1998, the Plaintiff, a business operator operating ○ Construction Business, etc., reported and paid KRW 788,604,490 of value-added tax for the second period of 197 and KRW 9.5167 of corporate tax for the business year 1998 on March 31, 199. However, the head of the ○○ Tax Office (the head of the tax office having jurisdiction over the place of tax payment before October 4, 2001) notified the Plaintiff of KRW 19,789,430 of corporate tax for the business year 1998 (the first revision), and notified the correction of KRW 28,588,980 (2) on August 7, 2001, the correction of KRW 288,588,980 of value-added tax for the second period of 197 (the second correction), and notified the Plaintiff of KRW 301,781,700,81.

B. On July 21, 2005, when the plaintiff, ○○ Construction Co., Ltd. (hereinafter "non-party company"), from March 21, 1998 to December 2, 199, subcontracted the plaintiff's construction of ○○ Railroad Stack and new construction of ○○○ Group Co., Ltd., (hereinafter "non-party company") to the plaintiff, the defendant's claim for correction was made for 507,060,000 won over the actual construction price, and the defendant's claim for correction was made for 40,000 won to the defendant 2, 1998, 200, 2000 won and 408.7, 196, 207, 197, 209, 709, 79, 208, 209, 79, 200, 79, 79, 79, 2008.

C. Accordingly, on September 29, 2005, the Plaintiff filed a request for a national tax trial with the National Tax Tribunal. However, on January 2, 2006, the National Tax Tribunal rendered a judgment against the Plaintiff on January 2, 2006, that the instant criminal judgment was not a judgment on a transaction or act, which was based on the calculation of the tax base and tax amount as provided by Article 45-2 (2) 1 of the Act, and it is difficult to view it as a ground for a subsequent request for correction. Accordingly, the period of general request for correction under Article 45-2 (1) of the Act is applied to the deadline for filing the report of return of the corporate tax under Article 45-2 (1) of the Act, which was the date of filing the second final return of value-added tax for the year 1998, within two years after the date of filing the request for correction within two years after the date of filing the final return of value-added tax for the second time period of the year 199.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1 to 7, Gap evidence 3-6, Eul evidence 1-1 to 3, Eul evidence 2-1, 2-2, Eul evidence 3-1, 2-2, Eul evidence 4-1, 2, 5-1, 5-2, and 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Concerned's assertion

(1) The plaintiff's assertion

The instant disposition rejecting the instant claim for correction on the ground that the “judgment on a lawsuit concerning a transaction or act, etc., which served as the basis for calculating the tax base and the amount of tax under Article 45-2(2)1 of the Act falls under only the case of a lawsuit related to national tax, is an unduly narrow interpretation of the said provision, and thus, should be revoked on the ground that it violates the purpose of the Act and the precedents.

(2) The defendant's assertion

(A) The report of excessive sales of the construction price of this case is not final and conclusive by the criminal judgment of this case due to changes in the tax requirements, but it is not an original reason that has already existed at the time when the report of corporate tax and value-added tax was filed, and the above criminal judgment is merely a determination of the existence and scope of criminal facts by the judgment between the State and ○○○, and is not a party who files a lawsuit, and thus is not a party who files a lawsuit, and thus, it is not a judgment on the lawsuit as to transactions or acts that serve as the basis for calculating the tax base and the amount of tax prescribed in the Act. Therefore, since the claim for correction of this case is not a subsequent request for correction

(B) The amount equivalent to Class A earned income tax in 1998 shall be dismissed on the ground that the Defendant did not impose the tax base return, and the Plaintiff does not constitute the person who submitted the tax base return within the statutory due date, and thus, it is inappropriate to apply for correction.

(C) Even if the claim for correction in the instant case constitutes grounds for the subsequent request for correction as stipulated in Article 45-2(2) of the Act, the Defendant cannot make a decision of correction on the amount of tax reduced after five years of the exclusion period of the right to impose the national tax provided in Article 36-2 of the Act. Thus, the instant disposition is lawful.

(D) Even if the construction cost of this case was reported excessive sales, it cannot be specified in the taxable period, and thus, the defendant is bound to render a rejection disposition against the correction order of this case, so the disposition of this case is lawful.

B. Relevant statutes

former Framework Act on National Taxes (amended by Act No. 6303 of Dec. 29, 2000)

Article 45-2 (Request for Rectification, etc.)

(1) Any person who files a return on the tax base within the statutory due date of return, may request from the chief of the competent tax office the determination or correction of the tax base and amount of the national tax initially returned within one year after the statutory due date of return, in any of the following cases:

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 the tax base return within the legal return term, or who has the tax base and amount of the national tax decided upon, may request the decision or rectification within two months from the date of occurrence of such cause, regardless of the period as referred to in paragraph (1) above, in 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;

Article 26-2 (Period for Excluding Assessment of National Tax)

(1) No national tax may be levied after the period provided for in the following subparagraphs expires: Provided, That 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"), Article 25 of the Adjustment of National Taxes Act shall apply:

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

4. Notwithstanding the provisions of subparagraphs 1 through 3, in cases of the inheritance and gift taxes, it shall be for ten years from the date on which it is assessable: Provided, That it shall be fifteen years from the date on which it is assessable, in any of the following cases:

(a) Where a taxpayer evades inheritance tax or gift tax, or is refunded or deducted by fraudulent or other unlawful means;

(b) Where a return is not filed in accordance with Articles 67 and 68 of the Inheritance Tax and Gift Tax Act; and

(c) Where a person who has filed a return under Articles 67 and 68 of the Inheritance Tax and Gift Tax Act makes a false or omitted return as prescribed by the Presidential Decree (limited to the portion which is reported falsely or omitted);

(2) Notwithstanding the provisions of paragraph (1), a decision of correction or other necessary disposition may be made according to the relevant decision, judgment or mutual agreement before one year passes from the date 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 the objection, request for examination, request for adjudgment, request for examination under the Board of Audit and Inspection Act, or litigation under the Administrative Litigation Act under Chapter VII;

C. Determination

First, we examine whether the criminal judgment of this case cited by the plaintiff as the ground of the claim for correction of this case constitutes "when the transaction, act, etc., which is the basis of calculating the tax base and the amount of tax as provided in Article 45-2 (2) of the Act, becomes final and conclusive differently by the judgment, etc. in the lawsuit related thereto (the defendant asserts that the claim for correction of this case is not a subsequent claim for correction, but a ordinary claim for correction, and is illegal for one year after the deadline for the request for correction. However, the lawsuit of this case is not a ground for subsequent request for correction, and thus, the lawsuit of this case does not constitute a ground for subsequent request for correction, and thus, the lawsuit of this case seeking revocation of the disposition of refusal of the plaintiff's request for correction of reduction of tax amount is illegal, and thus, the lawsuit of this

After the return of the tax base or the determination of the tax base and the amount of tax, a request for correction based on the latter reasons is exceptionally permitted to protect a taxpayer when a significant change occurs to the facts forming the basis of the tax base and the amount of tax, regardless of his/her own intent. Unlike the general request for correction, the general provisions allow a person who fails to submit the tax base return within the statutory deadline, and does not be subject to restrictions on the time limit for filing the general request for correction. In full view of the principle of substantial taxation, the principle of rights and obligations, the principle of establishing rights and obligations, and other provisions of tax law, etc., "when the transaction or act, etc., which is the basis of calculation of the tax base and the amount of tax, becomes final and conclusive as different by the judgment, etc. in the relevant lawsuit," the "judgment, etc." refers to a case where the transaction or act, etc., which is the basis of calculation of the tax base and the amount of tax, becomes transparent in the trial process, and the judgment or other judgment, or the judgment or decision, other than this, can be easily interpreted through voluntary settlement or resolution.

However, the criminal judgment of this case is not guilty on the grounds that it cannot be deemed that the above defendant obtained property benefits equivalent to the price of the construction work in excess of the actual construction work price or caused property damage to the non-party company. The criminal judgment of this case is not guilty on the grounds that it cannot be seen that the defendant's act of acquisition of financial benefits of the non-party company from March 1998 to December 1999, concluded a subcontract with the non-party company with the non-party company, and the defendant's act of management support of the non-party company, which was the head of the non-party company, had entered the contract amount with the non-party company several times in the process of concluding the contract amount increase contract several times, and paid the price to the non-party company, had the plaintiff company obtain economic benefits equivalent to the price of the construction work in excess of the actual construction price, or caused property damage to the non-party company. Thus, the judgment of this case cannot be seen as the grounds for criminal judgment or calculation of the tax base of this case cannot be seen as the grounds for criminal judgment or calculation in the judgment.

Therefore, the plaintiff's assertion based on the premise that the criminal judgment of this case constitutes the grounds for ex post facto request for correction under Article 45-2 (2) 1 of the Act is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.