Cho High Court Decision 2010Du3428 ( October 24, 2011)

Since the purpose of the claim is modified, the scope of the dispute is limited to the penalty tax part after filing the lawsuit.

The scope of the dispute is limited to the portion of additional tax according to the intention of the plaintiff, because it was not filed from the beginning with respect to the relevant corporate tax by modifying the purport of the claim and withdrawing the claim concerning the relevant corporate tax.

2011Guhap3894. Revocation of a disposition rejecting a request for rectification

XX Co., Ltd

The director of the Southern Incheon District Office

March 22, 2012

April 5, 2012

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 September 1, 2010 shall be revoked (the date of the disposition written in the complaint is a clerical error).

1. Details of the disposition;

A. Nonparty Samsung Tax Office’s disposition on July 1, 2006

(A) On July 1998, 1998 to April 1, 1999, HuB, the representative director of the non-party-based corporation (hereinafter referred to as 'xx'), entered into a waste disposal entrustment agreement with the non-party-based corporation (hereinafter referred to as the "O industry") and made a false and excessive payment, and then embezzled the total amount of the company's funds by receiving a return.

(B) On April 3, 2002, the Plaintiff purchased the entire OB shares issued by HB and merged the O industry on April 3, 2002, and received the above KRW 000 from HB on July 8, 2002. On April 29, 2003, the Plaintiff agreed to KRW 000 including the above returned amount of unjust enrichment for the O industry related to the waste disposal entrustment agreement, and paid it to XX.

(C) The director of the non-party Samsung Tax Office (at the time the plaintiff's business place was in the Gangnam-gu Seouldong, and transferred to the current business place on September 1, 2006) deemed that the plaintiff acquired shares from the forestB at low price, applying the regulations on the calculation by wrongful act under the Corporate Tax Act, etc., and ① the difference between the stock assessment value and the acquisition value, and ② the amount of 000 won returned by the plaintiff from the forestB under the Corporate Tax Act, and ② on July 1, 2006, revised and imposed the additional tax on the plaintiff on July 1, 2002 (including the additional tax of 00 won, the additional tax of 00 won, the additional tax of 00 won, the total amount of 00 won, the additional tax of 00 won, and the additional tax of 00 won) for the business year 202.

(b) Final and conclusive judgment revoking additional tax;

The plaintiff filed a lawsuit to dispute the disposition on July 1, 2006 by the head of Samsung Tax Office on the disposition of imposition of corporate tax on the Seoul Administrative Court 2008Guhap35156, and changed the purport of the claim. In this regard, the above court rendered a judgment that "the disposition of imposition of additional tax on the ground that "the disposition of imposition of additional tax on the ground that it is illegal to include it in gross income because it does not have any profit as prescribed in Article 15 of the Corporate Tax Act and Article 11 subparagraph 10 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19328 of Feb. 9, 2006)" was revoked on the ground that the head of Samsung Tax Office appealed (Seoul High Court 2009Nu14875) and the appeal (Supreme Court 2010Du18977) and the judgment on May 4, 2010 became final and conclusive (hereinafter referred to as "the judgment of this case").

C. The defendant's revocation of the main tax and rejection of correction of the main tax

(A) In accordance with the final judgment of the instant case, the Defendant revoked and corrected the additional tax amount among the dispositions issued on July 1, 2006 by the head of Samsung Tax Office. On June 21, 2010, the Plaintiff filed a claim against the Defendant for correction of the principal tax amount (hereinafter referred to as “instant corporate tax”) in addition to the above KRW 00,000, and the Defendant rejected the instant disposition on September 1, 2010.

(B) On September 9, 2010, the Plaintiff filed an objection with the Central Tax Office on September 9, 2010, but on October 2010.

15. An objection was dismissed, and an appeal was filed with the Tax Tribunal on October 26, 2010, but the appeal was dismissed on May 24, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3 (including each number), Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

The Plaintiff asserts that the final and conclusive judgment of this case constitutes grounds for follow-up correction as stipulated in Article 45-2 (2) 1 of the Framework Act on National Taxes, and that the Defendant, the head of the tax office having jurisdiction over the place of tax payment, is obligated to correct the corporate tax amount of this case according to the purport of the said judgment pursuant to Article 66 (4) of the Corporate Tax Act. On the other hand, the Defendant asserted penalty tax only by lawsuit, and thus, the validity scope of the final and conclusive judgment of this case

B. Relevant statutes

【National Tax Basic Act

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

(1) In any of the following cases, a person who has filed a tax base return by the statutory due date of return may request the head of the competent tax office within three years after the statutory due date of return elapses to determine or correct the tax base and amount of the national tax for which the initial return and revised return have been filed: Provided, That with respect to the increased tax base and amount of tax due to the determination or correction, a request for correction may be made within 90 days (limited to within three years after the statutory due date of return expires) from the date he/she becomes aware of the relevant disposition (

(2) Where any of the following grounds arises, a person who has filed a tax base return by the statutory deadline for return, or who has the tax base and amount of national taxes determined may request the determination or correction within two months from the date he/she becomes aware that such ground has occurred, regardless of the period referred to in paragraph (1):

1. Where the transaction, act, etc. which forms the basis of calculation of the tax base and the amount of tax in the initial return, determination or correction is confirmed to be a different one by a final judgment (including any reconciliation or other act having the same effect as the judgment) in the lawsuit against it;

m. Corporate Tax Act

Article 66 (Settlement and Correction)

(1) Where the head of a tax office or the Commissioner of the competent Regional Tax Office has found any error or omission in the determination or correction of the tax base and amount of corporate tax, he/she shall immediately correct it again.

C. Determination

The purpose of Article 45-2(2) of the Framework Act on National Taxes is to expand the protection of taxpayers’ rights by allowing taxpayers to file a request for reduction in the event that changes occur in the basis of calculation of the tax base and the amount of taxes of horse cancer due to the occurrence of a certain later cause after the establishment of tax liability. In this context, the term “when transactions, acts, etc., prescribed in Article 45-2(2)1 of the Framework Act on National Taxes, becomes final and conclusive as different by a ruling in the relevant lawsuit” means a case where a dispute arises over transactions, acts, etc., which are the basis of calculation of the tax base and the amount of tax after the initial return, determination or correction, and then becomes final and conclusive by a ruling in the relevant lawsuit (see, e.g., Supreme Court Decision 2009Du22379, Jul. 28, 2011).

The key issue of this case is whether the final and conclusive judgment of this case constitutes "a judgment on a lawsuit related to it" under Article 45-2 (2) 1 of the Framework Act on National Taxes, which provides the grounds for subsequent correction of the corporate tax of this case, and in light of the following circumstances recognized by the above facts, the final and conclusive judgment of this case does not constitute this. Accordingly, the plaintiff's assertion on a different premise is without merit.

① The Plaintiff initially dismissed the claim related to the corporate tax of this case by modifying the purport of the claim as to the corporate tax of this case, which is an objection to only the additional tax, and thereby return to the same state as the first lawsuit was not filed.

② It seems that the Plaintiff’s amendment of the purport of the claim in the instant case was due to the Plaintiff’s inclusion of Samsung Tax Office’s KRW 000,000 (including the above KRW 000,000) that the Plaintiff paid to XX instead of increasing the corporate tax in the calculation of gross income from YB, and the reduction of the corporate tax for the business year of 2003 and the actual benefit of dispute over the Plaintiff’s corporate tax.

③ Around that time, there was no circumstance that the Plaintiff could not dispute the corporate tax of this case.

④ In full view of the above, it is reasonable to view that the scope of the dispute in the above case was limited to the additional tax amount according to the Plaintiff’s intent, and therefore, the above case cannot be deemed as a lawsuit against the

3. Conclusion

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