Gwangju High Court 2013Nu821

The early 2011 Gwangju 300

Revocation of disposition imposing corporate tax

In order to apply the exclusion period of national tax to 10 years by fraud or other illegal acts, it is necessary to recognize that the taxpayer is entitled to deduct the input tax amount, resulting in a decrease in the national tax revenue.

The exclusion period of national tax imposition under Article 26-2 of the Framework Act on National Taxes

2014du7329 Disposition of revocation of imposition of corporate tax, etc.

○○ Co., Ltd.

○ Head of tax office

April 4, 2014

September 4, 2014

Among the parts against the defendant, the part against the defendant shall be reversed, and the judgment of the first instance on this part shall be revoked, and this part of the lawsuit shall

The plaintiff's appeal is dismissed.

3/5 of the total costs of litigation shall be borne by the plaintiff, and the remainder by the defendant.

1. Ex officio determination

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

According to the records, on September 2, 2014, after filing the instant appeal, the Defendant, according to the purport of the lower judgment on September 2, 2014, was aware of the fact that the lower court revoked ex officio a disposition of reduction with respect to the part against the Defendant. As such, regarding the part of the instant lawsuit revoked as above, the Defendant sought revocation of a disposition that has already ceased to have its effect and became unlawful as it

2. Judgment on the Plaintiff’s grounds of appeal

A. Article 26-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006; hereinafter the same) provides that "in principle, the exclusion period of imposition of national taxes other than inheritance tax and gift tax shall be five years from the date on which the relevant national tax may be imposed," and subparagraph 1 provides that "where a taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means, it shall be ten years from the date on which the relevant national tax may be imposed."

B. Based on evidence adopted, the lower court acknowledged that: (a) the ○○○○ and Kim○○, who was in charge of the Plaintiff’s financial management business of automobile parts manufacturing business, operated the accounting book by means of omitting sales, omitting sales, processing, and purchasing; (b) the Plaintiff underreported and paid corporate tax based on such accounting book; (c) the ○○○○○ and Kim○○, deposited the difference to the Plaintiff’s subordinate companies for the purpose of hiding down the corporate tax return; and (b) embezzled the Plaintiff’s funds by taking the difference back to the personal account book of Kim○○; and (c) determined that the ○○○○ and Kim○○ were the Plaintiff’s employees or employees who were engaged in the business under the supervision and control of the Plaintiff’s business in the course of managing the Plaintiff’s business; (b) the 1st ○○○ and Kim○○’s act of undermining the Plaintiff’s income by means of omitting sales, omitting sales, processing, and purchasing; and (c) the 1st ○○○○○○’s act and imposing the Plaintiff’s total amount of the Plaintiff’s act of embezzlement and imposing authority.

C. Examining the above provisions and relevant legal principles and records, the judgment of the court below is just, and contrary to what is alleged in the plaintiff's grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of "a taxpayer" under Article 26-2 (1) 1 of the former Framework Act on National Taxes or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Conclusion

The part of the judgment of the court below against the defendant is reversed, and it is sufficient for the Supreme Court to directly render a judgment, and the judgment of the court of first instance as to this part is revoked, and this part of the lawsuit is dismissed, and the plaintiff's appeal is dismissed, and 3/5 of the total costs of the lawsuit is assessed against the plaintiff, and the remainder is assessed against the defendant. It is so decided as per Disposition by