National Tax Service Review and other 2011-0061 ( December 26, 2011)

Whether the obligation of the Plaintiff to withhold income tax and the obligation to pay corporate tax constitutes double taxation

Since the Plaintiff’s obligation to pay income tax and obligation to pay corporate tax are separate obligations that differ from the purpose and object of taxation, it cannot be deemed that the tax burden under such obligation constitutes double taxation.

Article 67 of the Corporate Tax Act

2012Guhap1526 The revocation of revocation of the notice of change in income amount.

XX Co., Ltd

Head of Sungnam Tax Office

May 10, 2012

June 14, 2012

1. The plaintiff's claim is dismissed.

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

On August 25, 2011, the Defendant revoked the part of KRW 000 of the disposition of notice of change in the amount of income belonging to the business year of 2007 against the Plaintiff.

1. Basic facts

(a) Trades, such as roadA;

1) On March 2006, LAA acquired management rights of the Plaintiff (mutual name at the time of acquisition of corporate bonds, etc.) by using bonds, etc., and thereafter, he/she held office as a representative director from September 4, 2007 to November 19, 2007.

2) On October 26, 2006, LA entered into an agreement on acquisition of management rights (hereinafter referred to as "first agreement") with the largest owner of the Ofood Co., Ltd. (hereinafter referred to as "O food") to acquire KRW 800,000 stocks and management rights, etc. of the O food held by the largestA, but the payment of KRW 000 out of the price shall be substituted by assumption of the obligation and to pay KRW 000 in cash.

3) On November 8, 2006, LA purchased YB shares 9,000 shares of YB (total issued shares) from YB, a real owner of YY (hereinafter “YY”). The Plaintiff’s vice president purchased YB shares 10,500 shares of YB (total issued shares 35%) from YB on the same day, and paid the price as the amount borrowed from YA.

4) YY participated in the capital increase increase for the Ofood 19 December 2006, Y accepted 40,000 shares of Ofood 40,000 won per share (00 won per share) borrowed from MaximumA.

5) On January 17, 2007, LAA conspireds with KimD and embezzlement that operates △△ Korea Co., Ltd. (hereinafter “△△ Korea”), and had the Plaintiff pay KRW 000 to △△ Korea as the down payment under the goods supply contract, and immediately thereafter, △△ Korea paid KRW 000 out of the above KRW 000 to △△ Korea as the payment under the first contract.

6) Since February 26, 2007, the Plaintiff entered into a contract with HE to purchase 19,000 O food shares held in title by LA with HA, and entered into a contract to purchase 400,000 won of O food shares held by Y with HA on February 27, 2007 (hereinafter referred to as "second-party contract," including the above stock sales contract entered into with HE and △△△△△△△), and paid 00 won in total to HY, etc. under the second-party contract, and some of them were again paid to HA and YA, and the date, amount, and recipient of the Plaintiff’s payment was made, as indicated in the following table:

7) Meanwhile, while LA was unable to pay the price of KRW 000 as stipulated in the first agreement, the LA agreed to pay the down payment of KRW 000 on Oct. 26, 2006; and the intermediate payment of KRW 000 on Mar. 21, 2007; and the remainder of KRW 000 on Apr. 14, 2007, respectively.

8) Thereafter, on May 4, 2007, LA remitted KRW 000 to the LA’s deposit account, and immediately thereafter, the said KRW 00 was transferred to the Plaintiff’s deposit account via the Plaintiff’s deposit account in △△ Korea. As such, immediately after deposit of KRW 000 out of the Plaintiff’s deposit account, the said KRW 000 was included in KRW 200 on May 4, 2007 as indicated in paragraph (6) and again disbursed to LA through Y.

(b) criminal punishment of the roadside;

HAA was indicted for committing the crime of embezzlement, breach of trust, etc. with respect to the facts set forth in paragraphs (5) and (6) above, and was convicted on February 24, 201 by a court of first and second instances, and the appeal was dismissed and the conviction became final and conclusive.

The court held, through the above conviction, that the LAA embezzled 00 won of the Plaintiff’s funds (related to the facts stated in paragraph (5)), and that, in violation of its duties, it caused the Plaintiff to purchase HaE and Y’s Ofood stocks at a high price by contract 2, thereby causing damage exceeding KRW 000,000, which is the value of the actual stocks, out of the total amount of 000 won actually paid to the Plaintiff (related to the facts stated in paragraph (6)).

C. The defendant's disposition process

1) After conducting a tax investigation with respect to the Plaintiff, the director of the Seoul Regional Tax Office determined that the Guro-A, which was the actual manager of the Plaintiff, embezzled the Plaintiff’s funds of KRW 000 and KRW 000 in 2007. On November 2, 2009, he notified the Plaintiff of the result of the tax investigation that the said embezzled amount would be disposed of as a bonus to GaA as a bonus for the business year of 2007. However, on May 4, 2007, the Seoul Regional Tax Office notified the Plaintiff of the outcome of the tax investigation that it would be disposed of as a bonus for the business year of 2007, which was returned to the Plaintiff on May 4, 2007. Accordingly, on May 10, 2010, the Seoul Regional Tax Office notified the Plaintiff of the content of the bonus amount of KRW 00 ( KRW 000 -00) as a bonus for the business year of 2007 change.

2) After that, on July 20, 201, the director of the Seoul Regional Tax Office revoked ex officio the notice of change in the amount of income on grounds of violation of jurisdiction, and the Defendant notified the Plaintiff of change in the amount of income on December 24, 2011 (hereinafter “the disposition of this case”).

3) Meanwhile, through the denial of wrongful calculation as to the second contract, the Defendant included KRW 000, which was determined as exceeding the arm’s length price out of the purchase price of stocks paid by the Plaintiff under the second contract, in the Plaintiff’s gross income for the business year of 2007, and at the same time, included KRW 00,000 out of the purchase price of

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the disposition of income in this case is lawful

A. The plaintiff's assertion

The disposition of this case is unlawful for the following reasons.

1) As seen earlier, LA returned 00 won out of 000 won embezzled from the Plaintiff to the Plaintiff on May 4, 2007, and even though the above 000 won was not subject to the disposition of income, the Defendant, despite the fact that the above 000 won out of 00 won was again paid to LA through △△△, and the Plaintiff cannot be deemed to have been actually recovered. However, the key issue amount of this case was 00 won out of the proceeds of the second contract, which was paid to LA and Y, was paid to LA again from Y pursuant to the agreement between LA and Y, so the fact that LA received 00 won from △△△△ was entirely separate from the previous embezzlement of LA, and that the Defendant again paid 00 won out of 00 won to the Plaintiff through the embezzlement, and that the Defendant again paid 00 won to the Plaintiff.

2) The key amount of this case’s disposition of income was 000 won as income subject to taxation for the Plaintiff’s withholding. At the same time, the Defendant, through the denial of wrongful calculation as to the second contract, included 00 won exceeding the arm’s length price as income, thereby increasing the Plaintiff’s corporate tax base. The key amount of this case’s income included 00 won in the above included income. Ultimately, the key amount of this case’s income is 000 won as income subject to taxation for the Plaintiff’s withholding tax, and at the same time, the Plaintiff was subject to double taxation for the same taxable object as transfer of stocks under the second contract by the Defendant.

B. Determination

1) As to the plaintiff's first argument

As seen earlier, the key issue amount of this case was 000 won deposited into the Plaintiff’s deposit account on May 4, 2007, and was transferred from the Plaintiff’s deposit account to the Y’s deposit account on the same day. As such, it may be deemed that at least the Plaintiff collected 000 won from GaA for a separate purpose after collecting 00 won of the key issue amount.

However, the following circumstances acknowledged by the facts and the purport of the entire pleadings, namely, ① the acquisition of KRW 00 by embezzlement of the Plaintiff’s funds around January 17, 2007, and the direct and indirect acquisition of the money after having the Plaintiff enter into a second contract and pay the money to the Plaintiff may be deemed to have been for the payment of the price of the LA contract entered into with the leastA. ② In particular, LA would have continued to collect the amount of KRW 00 from the Plaintiff via the largestA and △△ Korea, and then finally collected the amount of KRW 00 from the Plaintiff through the YA in succession on the same day. ③ The second contract, based on which LA would obtain KRW 00,00,00,00, based on which the Plaintiff would be considered as the act of breach of trust, and further, the Defendant did not have any title to the return of the money from the Plaintiff’s final proceeds of the second contract, and the Defendant did not appear to have received the money from the YA due to the act of 000000, supra.

Therefore, the plaintiff's first argument is without merit.

2) As to the second argument by the Plaintiff

A) First of all, this part of the Plaintiff’s assertion is premised on the increase in the Plaintiff’s corporate tax base as much as the amount denied by the Defendant’s denying wrongful calculation regarding the second contract. However, as seen earlier, the Defendant cannot be deemed to have increased the Plaintiff’s corporate tax base as it included KRW 000 exceeding the arm’s length price out of the price paid by the Plaintiff to △△△ pursuant to the second contract in the calculation of earnings and included KRW 000 in the calculation of

B) Furthermore, even if the key issue amount in this case was 000 won as earned income of DoA according to the disposition of this case and the Plaintiff was liable for withholding income tax, and at the same time, even if the Plaintiff was liable for corporate tax due to the increase of the Plaintiff’s tax base as the key issue amount in this case as the wrongful calculation pointing out, the Plaintiff’s obligation to pay income tax and obligation to pay corporate tax are separate obligations different from those subject to taxation, and thus, tax burden pursuant to such obligation cannot be deemed double taxation.

C) Ultimately, the second argument of the Plaintiff is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.