(영문) 서울고등법원 2012.5.2.선고 2011누17808 판결

The Defendant’s disposition of imposition of global income tax of KRW 443, 768, 580 for the year 2001 against the Plaintiff on December 1, 2008, and global income tax of KRW 291, 571,580 for the year 2002 is revoked.

2. The remaining appeal filed by the Plaintiff is dismissed.

3. 30% of the total costs of litigation shall be borne by the Plaintiff, 70% by the Defendant.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The global income tax on the part of the Defendant on December 1, 2008 that reverts to the Plaintiff on December 1, 2008.

443, 768, 580 won, global income tax for the year 2002 291, 571, 580 won, global income tax for the year 2003

372, 404, 190 won shall be revoked.

Reasons

1. Details of disposition;

A. The plaintiff from September 26, 200 to April 2005, 2005

17. Until now, the representative director was in office.

나. ●●●는 2001 사업연도부터 2003 사업연도까지 부가가치세 등을 신고하면서 ■■■ 주식회사 ( 이하 ' ■■■ ' 이라고 한다 ) 로부터 1, 760, 500, 000원 상당의 물품을 구입한 것으로 하여 그 금액에 해당하는 매입세금계산서를 제출하고, 그 매입액을 손금산입하였다 .

C. From July 20, 2004 to October 15, 2004, the Defendant conducted a tax investigation with respect to SPP and judged that the above purchase tax invoice is a processed tax invoice issued without real transaction, and imposed value-added tax of 349, 831,00 won and corporate tax of 712,554,00 won on YUN on January 3, 2005, and deemed that the processed purchase part is included in the gross income to be recognized and reverted to the Plaintiff who is the representative director. The Defendant paid the Plaintiff’s income for the business year of 2001 to 665,50,000, 50,000 won, and 202 to 556,00,000, 720,500, 7200, 194, and 500, 200, 200, 205, 205, 200.

D. The Defendant: (a) on April 8, 2005, rendered a disposition of collecting KRW 714, 387, 500 on the income tax withheld at △△△○○○○○○○○○○○○○○○○○○○, which was not liable to withhold income tax following the notice of the change

E. On September 28, 2005, the Defendant: (a) on September 30, 2005, found the notification of the closure of the business; (b) on September 30, 2005, the Defendant made a disposition of deficits on the ground of non-property, etc.; (c) on December 1, 2008, the Defendant revoked the disposition of collecting KRW 714,387,50, which was made on December 1, 2008 by the Central District Tax Office; and (d) on the Plaintiff, the disposition of imposition of global income tax and additional tax for the year 2001, KRW 443,768,580, and global income tax and additional tax for the year 202, KRW 291,571,580, global income tax and additional tax for the year 203, KRW 372,404,190; and (d) the disposition of imposition of global income tax and additional tax for each year 201.

F. On March 10, 2009, the Plaintiff filed a request for review with the Commissioner of the National Tax Service for the instant disposition, but the Commissioner of the National Tax Service rendered a decision to dismiss the request on March 30, 2010.

【Ground for Recognition: Facts without dispute, Gap evidence 1, Eul evidence 1 to 3 and 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The Plaintiff’s claim 1) disposition of global income tax in 2001 and disposition of global income tax in 2002 was made after the exclusion period of five years expires, and thus, it is unlawful.

2) The instant disposition violates the prohibition of double tax investigation. 3) In order to directly impose income tax on the representative director based on the recognition contribution, the instant disposition is unlawful for the Defendant to impose the income tax without notifying the representative director of the change in the amount of income.

4 ) ■■■로부터 수취한 세금계산서상 매입액은 ●●●가 하도급업자인 △△△ , ◎◎◎에게 실제 인건비를 지급하였으나 하도급업자들이 사업자등록이 없어 ■■■ 명의로 세금계산서를 받은 것이므로 공사원가로 인정되어야 한다. 따라서 피고가 공사원 가로 지급된 금액을 손금으로 인정하지 않고 인정상여처분을 한 것은 위법하다 . 5 ) ●●●에 이 사건 소득금액변동통지를 할 무렵 ●●●는 재산이 있었으므로 결손처분 사유에 해당되지 않는데도 피고가 결손처분을 하였다. 결손처분 자체에 위법이 있으므로 이를 전제로 한 이 사건 부과처분은 위법하다 .

6) The Defendant should give notice of change of income amount to the Plaintiff and impose an additional tax for unfaithful payment from the day following the deadline for voluntary payment of additional return following the notification. However, imposing an additional tax for unfaithful payment without giving notice of change of income amount to the Plaintiff is unlawful.

B. Relevant statutes

As shown in the attached Form.

C. Judgment on the assertion regarding the exclusion period of imposition

In cases where the tax authority deemed that the amount of the income accrued out of the company is reverted to the representative and disposes of the income as bonus, the corporation that is the person liable to pay the income tax through withholding is liable to withhold the income tax on the date when the notice of change in the amount of income is served on the corporation. Unlike the fact that the person to whom the income accrued was served is the receipt date of the labor during the pertinent business year regardless of whether the notice of change in the amount of income was served on the corporation, the liability to pay global income tax (tax on earned income) on the person to whom the income accrued is established is established at the time when the taxable period to whom the relevant income accrues expires under Article 21(1)1 of the Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 201; hereinafter the same shall apply) expires. Therefore, the liability to pay global income tax on the recognized amount of income accrued in the year 2001 and 202, and the starting date of the exclusion period is the filing date of global income tax under Article 70(14).

한편 ●●●가 ■■■로부터 허위의 세금계산서를 수취하여 장부상 매입액으로 손금산입한 것은 법인세 및 부가가치세를 포탈하기 위한 행위이고, 그 금원이 사외유출 되어 그 귀속자가 밝혀지지 않음에 따라 ●●●의 대표이사인 원고가 인정상여처분을 받을 것까지 모두 예상하여 그로 말미암아 부과될 소득세를 포탈하기 위한 것으로 보기는 어려우므로, 그 인정상여처분으로 인한 소득세는 납세자가 사기 기타 부정한 행위로써 국세를 포탈한 경우라 볼 수 없어 그 부과제척기간은 5년이다 ( 대법원 2010 .

2. 23. See, 208Du10522, supra.)

On the other hand, the defendant asserts to the effect that the period for exclusion of income tax should be calculated from the time when notice of change in income amount was given. However, if the period for exclusion of income tax is calculated only when notice of change in income amount, the tax authority can give notice of change in income amount within the period for exclusion of corporate tax, and it is unfair for the tax authority to make the taxpayer's status unstable for a long time due to the calculation of the period for exclusion of exclusion of income tax, and it should not be disadvantageous to the substantial status of the original taxpayer due to the tax withholding system that was born for the convenience of collection by the tax authority. Therefore, the defendant's assertion on this part is without merit.

Among the disposition of this case, the disposition of global income tax in 2001 and the disposition of global income tax in 2002 was unlawful since the exclusion period was imposed.

D. Determination on the assertion of the violation of the prohibition of double tax investigation

According to Article 81-4(2) of the Framework Act on National Taxes, a tax official may not conduct a reinvestigation on the same item of taxation and the same taxable period, except in the case where there are certain grounds. The instant disposition imposing income tax on the Plaintiff, the representative director of the Jung-gu regional tax office, after the disposition on deficits on Do build-gu Do build-up, is imposed according to the audit of the Jung-gu regional tax office, and it does not impose

The plaintiff's assertion in this part is without merit.

E. Determination on the assertion that the Plaintiff did not notify the change in the amount of income

Article 192 (1) of the Enforcement Decree of the Income Tax Act (including cases where it is deemed to have been disposed of pursuant to Article 25 (6) of the Enforcement Decree of the Adjustment of International Taxes Act) shall notify the relevant corporation of any dividend, bonus and other income disposed of by the director of a tax office or the director of a regional tax office under the Corporate Tax Act within 15 days from the date of determination or correction, by a notice of change in the amount of income prescribed by Ordinance of the Ministry of Strategy and Finance: Provided, That where the location of the relevant corporation is unclear or it is impossible to serve such notice, or where the relevant corporation falls under the provisions of Article 86 (1) 1, 2 and 4 of the National Tax Collection Act, it shall notify the relevant stockholder and the resident subject to the disposition of the relevant bonus or other income; and

Since the Defendant notified of the change in the amount of income in this case on January 7, 2005, it is not necessary to separately notify the Plaintiff of the change in the amount of income. Therefore, even if the Plaintiff did not notify of the change in the amount of income, the disposition of global income tax in 2003 cannot be deemed unlawful (in addition, since the Plaintiff, at the time when the notice of the change in the amount of income in this case reached Doshesheshe was the representative director of Doshena, the Plaintiff was deemed to have been well aware of the details of the notice of change in the amount of income in

F. Judgment on the assertion that construction cost was used

The evidence Nos. 2 through 8, 16 through 21 is insufficient to acknowledge the facts alleged by the Plaintiff solely based on the results of an order to submit financial data to the President of the Korea Exchange Bank, the President of the Korea Bank, the President of the NAF, and the testimony of the first instance trial witness △△△△△, and there is no other evidence to acknowledge the order.

오히려, 갑 제1호증, 을 제6호증의 기재와 변론 전체의 취지를 종합하여 인정되는 아래 사정에 비추어 보면, ●●●가 ■■■로부터 받은 세금계산서를 가공의 세금계산 서로 보고, 그 금액이 원고에게 인정상여로 귀속되는 것을 전제로 한 2003년 종합소득세 처분은 적법하다. ① ●●●의 2002년 수입은 186, 000, 000원인데 비하여 ●●●가 2002년에 ■■■로부터 수취한 세금계산서상의 공급가액은 505, 000, 000원이다. ② ● ●●는 이 사건 소득금액변동통지를 받고 이에 관하여 이의하지 않았을 뿐만 아니라 그 부분 사실을 인정하였다. ③ ■■■은 건설업을 하는 업체가 아니라 제조업을 하는 업체이다. ④ ●●●가 2002. 7. 30. ■■■ 계좌로 입금한 170, 250, 000원과 2002. 8 .

2. 109,700,000 won deposited was deposited in cash on the same day, and 10,50,000,000 won out of the withdrawn amount on December 27, 2001, 300,000,000,000 out of the withdrawn amount on December 28, 2001, and 53,000,000,000 out of the withdrawn amount on September 1, 2003, was deposited into the lawsuit account in which the Plaintiff was his wife.

The plaintiff's assertion in this part is without merit.

G. Determination on the assertion regarding write-off

In full view of the statement in Gap evidence No. 24 and No. 27, △△△△△ was holding 190 investment shares of the Specialized Construction Mutual Aid Association (87, 391 won per unit) around January 5, 2005, and on December 2, 2004

31. On the balance sheet, it is clear that there was KRW 50 million in the construction amount, KRW 100 million in tangible assets, such as vehicles, etc., and that the defendant attached the investment certificate of the Construction Mutual Aid Association on February 17, 2005. However, on September 28, 2005, she reported the closure of business on September 28, 2005. The fact that the value-added tax and the corporate tax imposed on Doudong Dou is KRW 349, KRW 831,00 in the balance sheet and KRW 712,554,00 in the amount of value-added tax and the corporate tax imposed on Dou Dou Dou was seized, even if the defendant seized the investment certificate of the Construction Mutual Aid Association, the existence and recovery of the outstanding amount in the balance sheet is unclear, and it is legitimate to write off the income tax imposed on Dou Dou because the property falls short of the value-added tax and the corporate tax.

H. Determination as to the assertion on additional tax

As long as ○○○○○ notified of the change in the amount of income in this case, it is not necessary to give notice of change to the Plaintiff. The Plaintiff’s assertion on a different premise is without merit.

3. Conclusion

Of the judgment of the first instance court, the part against the Plaintiff regarding the disposition of global income tax in 2001 and the disposition of global income tax in 2002 shall be revoked, and the disposition of global income tax in 2001 and the disposition of global income tax in 2002 corresponding to the revoked part shall be revoked. The remaining appeal filed by the Plaintiff