early 2010 Heavy2151 (Law No. 1031, 2010)

illegal income shall constitute other income unless such income is returned to the person to whom it belongs.

If a taxpayer fails to return the money to the original owner after receiving the money due to a criminal act, the income subject to taxation under the Income Tax Act has already been realized, and the collection of additional money was finally determined in a criminal case, and the same applies even if the money was collected from the State.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of global income tax of KRW 185,364,740 against the Plaintiff on June 1, 2010 is revoked.

1. Details of disposition;

A. From June 15, 2001, the Plaintiff worked as the head of ○○○ apartment complex reconstruction association located in ○○○○○-dong 176, ○○○○○, ○○○-dong, and received unlawful solicitation that the construction cost for the instant reconstruction apartment from KRW 2,150,00 to KRW 2,430,00 as a regular manager of the △ Construction Co., Ltd., a contractor, to raise the construction cost for the instant reconstruction apartment from KRW 2,150,00, to KRW 2,430,000, and received an ordinary construction cost through the general assembly of the union members. On June 15, 2003, the Plaintiff received KRW 30,000 (hereinafter “the instant money”).

B. In relation to the judgment of conviction of the plaintiff in breach of trust against the plaintiff on June 14, 2007, the defendant considered the amount of this case received by the plaintiff as a honorarium among other income under the Income Tax Act and imposed a disposition of imposition of the global income tax of KRW 185,364,740 on the plaintiff on June 1, 2010 (hereinafter "the disposition in this case"). Meanwhile, the plaintiff paid the amount of KRW 30 million on July 20, 2007 as a surcharge.

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 25, 2010, but on August 2010.

31. was dismissed.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Violation of the no taxation without law

Around June 2003, when the plaintiff received a bribe, the disposition of this case on which the money of this case was taxed as one type of other income under Article 21 of the Income Tax Act without being listed in the "Bribery" is in violation of the taxation requirement legal principle. If the money of this case is considered to fall under a honorarium under Article 21 subparagraph 17 of the Income Tax Act, the scope of the honorarium is excessively expanded and inferred, and it violates the taxation requirement confirmation principle, and the Income Tax Act (amended by Act No. 7528 of May 31, 2005, hereinafter referred to as the "New Income Tax Act") Article 21 (1) 23 and 24 of the Income Tax Act (amended by Act No. 7528 of May 31, 2005, hereinafter referred to as the "former Income Tax Act") and the money received as other income under Article 21 (1) 23 and 24 of the Addenda (2) of the Income Tax Act) and the defendant has also violated the principle of no taxation without law.

2) Changes in the reasons for the disposition

The plaintiff, at the time of the disposition of this case, did not correspond to "bral property" but changed the grounds for the disposition in an unlawful manner, which constitutes "money and valuables received from the property in breach of trust" in the lawsuit of this case.

3) Absence of economic benefits

The Plaintiff did not obtain economic benefits since it was subject to additional collection on the whole amount of the instant money, and thus, the instant disposition that imposed the instant money by deeming it as other income is unlawful.

B. Key statutes

It is as shown in the attached Form.

C. Determination

1) Judgment on the assertion of violation of the principle of no taxation without law

A) Article 21 (1) 17 of the former Income Tax Act provides for "a honorarium" as one type of other income, and the above "a honorarium" refers to money and goods provided as a case in connection with administrative affairs or provision of services, and whether it constitutes such money and goods must be determined by comprehensively taking into account the motive and purpose of receiving the relevant money and goods, relationship with the other party, amount, etc. (see, e.g., Supreme Court Decision 97Nu20304, Jan. 15, 1999).

In full view of the aforementioned evidence, the Plaintiff, as the president of the reconstruction association, can be recognized as having received and disposed of the instant money under the pretext of the case cost after receiving the unjust solicitation that the construction cost for the reconstruction apartment would have been increased by the employees of the Si/Gun/Gu. In full view of the motive and purpose of receiving the instant money, relationship with the other party, and amount, etc., the instant money is paid to the Plaintiff as the case in relation to the management of affairs or the provision of services as the president of the reconstruction association, and thus, it constitutes a honorarium under Article 21 (1) 17 of the former Income Tax Act, since the Plaintiff received the instant money as the case in relation to the instant disposition or the provision of services, it is deemed that the instant money constitutes a honorarium under Article 21 (1) 17 of the former Income Tax Act. The fact that the Defendant made the instant disposition by deeming the instant money as the “brare” under Article 21 (1) of the new Income Tax Act, or the “money received through good offices and misappropriation.” Furthermore, the Plaintiff’s assertion that the instant disposition violated the legal requirements or retroactive principle is without merit.

B) In addition, the principle of no taxation without law, which is declared by Articles 38 and 59 of the Constitution, is the basic principle of tax law, along with the principle of tax equality, and the principle of no taxation requirements and the principle of clarity of taxation requirements. Here, the principle of clarity of taxation requirements means that taxation requirements, procedures and legal provisions that provide the legal effects must be clear. Thus, if the contents of the tax law provisions that set the taxation requirements are too abstract and unclear so that the tax authority can arbitrary interpretation and enforcement can be placed at the discretion of discretion, the provisions are contrary to the principle of no taxation without law under the Constitution (see, e.g., Supreme Court Order 90Hun-Ba21, Dec. 24, 1992; Constitutional Court Order 93Hun-Ba23,42,94Hun-Ba16, 30 (Consolidated) of the Constitutional Court en banc Order 90Hun-Ba, Feb. 23, 195). Inasmuch as the law has a general nature, and the provisions of the law cannot be clearly and clearly defined through the interpretation of the law.

In this case, the honorariums stipulated in Article 21 (1) 17 of the former Income Tax Act refers to money that gives a prior meaning to the superior. In light of the overall system of the Income Tax Act and the purport of the relevant provisions, it can be seen that other income honorariums refer to money or valuables that are paid as cases in connection with the execution of business or the provision of services. Therefore, in applying the Income Tax Act, the contents of the honorariums cannot be deemed to lack clarity. Therefore, the plaintiff's assertion that the above honorarium provisions violate the principle of clarity of taxation requirements is without merit.

2) Determination as to the assertion of change in the grounds for disposition

According to the purport of the argument in Gap evidence No. 3, the defendant stated that the disposition of this case is "other as global income tax for 2003 years for calculating the tax amount of the disposition of this case," and "30,000 won for final judgment data for bribery for 2003" in the notice column. The defendant in this case can be acknowledged that the amount of this case constitutes money received through breach of trust. However, the meaning of "brains" as stated in Gap evidence No. 3 can be used as a whole referring to money received through consultation bribe, intermediary acceptance, breach of trust acceptance, etc., and it cannot be viewed as changing the ground for disposition of this case. Further, in an appeal suit seeking cancellation of administrative disposition, the disposition of this case can not be viewed as having changed the ground for disposition of this case since it can not be viewed as having been identical to that of the plaintiff in this case's basic fact relevance 20,000,000 won for other basic facts which were based on the original facts of the disposition of this case (see Supreme Court Decision 200, 200, supra, the same ground for additional disposition.

3) Determination as to the non-existence of economic benefits

In light of the economic aspect of taxable income, it is sufficient to deem that there is a tax-bearing capacity in the process of controlling and managing income in reality, and the legal evaluation of the causal relationship with which a taxpayer has a tax-bearing capacity should be lawful and effective. Thus, even if illegal income from a criminal act is illegal, it constitutes taxable income unless a tax-bearing measure is taken to return it to the person to whom it belongs (see Supreme Court Decision 81Nu136, Oct. 25, 1983). If a taxpayer who received money from a criminal act and did not return it to the original person, then the income which is subject to taxation under the Income Tax Act is already realized. After that, even if the collection of money was finalized in a criminal case against a taxpayer and the amount was collected to the State in full, it cannot be seen as an additional collection for the criminal act that is subject to criminal punishment, and thus, it cannot be returned to the original person (see Supreme Court Decision 97Nu1986, Sept. 29, 198).

The Plaintiff, while working as the head of ○○○○○ apartment housing reconstruction association, received the instant money in return for an unlawful solicitation, and thereby, acknowledged the facts that the Plaintiff was convicted of having received the instant money due to the crime of taking property in breach of trust, and there is no evidence to acknowledge that the said money was returned to the original reversion, the instant disposition cannot be deemed unlawful on the sole basis of the grounds alleged by the Plaintiff. Accordingly, the Plaintiff’s assertion is without merit.

4) Sub-determination

The instant disposition is legitimate since the instant money is "a recompense" under Article 21 (1) 17 of the former Income Tax Act, which constitutes other income.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.