Whether a customs refund can be viewed as a ground for a subsequent request for correction.

As a result of the decision on the collection of a customs refund, a customs refund already reported as income has been reverted to the State later, this case's collection is similar to "when a decision is made to change the ownership of income or other taxable objects to a third party" under Article 45-2 (2) 2 of the Framework Act on National Taxes.

Article 45-2 of the Framework Act on National Taxes

2015Guhap22938

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〇〇세무서장

December 22, 2015

2, 2016.2

1. Of the instant lawsuit, the part concerning the revocation of the revocation of the disposition rejecting the rectification of global income tax for the 2009 and 2010 shall be dismissed.

2. The part of the disposition rejecting the correction of global income tax for the year 201 that the Defendant rendered to the Plaintiff on September 3, 2014 exceeds 40,061,566 won shall be revoked.

3. The plaintiff's remaining claims are dismissed.

4. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The defendant's rejection disposition against the plaintiff on September 3, 2014 regarding the claim for rectification of global income tax for the year 2009 to 2011 is revoked.

1. Details of the disposition;

A. The Plaintiff is an individual entrepreneur who had operated the “AAAA” as an exporter of Ansan, from September 15, 1990 to September 30, 201. From 2009 to 201, the Plaintiff filed a total of KRW 183,925,220 in accordance with the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export from 2009 to 201. (i) KRW 51,652,120 in 209 + KRW 57,695,90 in 2010 + KRW 74,57,110 in 201). The Plaintiff filed a comprehensive income tax return by including the refund in the total amount of income for each taxable period.

B. As a result of the customs investigation conducted in 2014, the head of the Busan Customs Office confirmed that the Plaintiff was unfairly refunded customs duties even if he/she does not fall under the producer of the exported goods, and confirmed on June 19, 2014 that the Plaintiff was unfairly paid the customs duties (i.e., KRW 50,518,360 for year 209 + KRW 90,78,030 for year 2010 + + KRW 107,188,420 for year 201, and KRW 107,18,420 for year 201; and KRW 107,18,420 for each additional tax). The Plaintiff paid both the penalty taxes on July 7, 2014.

C. On July 11, 2014, the Plaintiff’s additional collection charge of this case 248,494,810 won to the Defendant for the period of 2011

A request for correction (hereinafter referred to as "request for correction of this case") was filed to the effect that a refund of KRW 63,423,412 of the global income tax was to be included in the expense. However, on September 3, 2014, the defendant notified that he/she refused the plaintiff's request for correction on the ground that the necessary expense belongs to the taxable period in which the expense becomes final and conclusive (hereinafter referred to as "disposition of this case").

D. On November 25, 2014, the Plaintiff asserted that the rectification of the global income tax should be made by deducting the relevant customs refund from the total amount of income in each taxable period from 2009 to 2011. However, on May 11, 2015, the Tax Tribunal dismissed the Plaintiff’s claim on the ground that the instant surcharge should be included in the necessary expenses for the taxable period to which the date of collection belongs.

Facts that there is no dispute over recognition, Gap's evidence 1 through 6 (including paper numbers; hereinafter the same shall apply), and No. 9

Each entry, the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of the parties' assertion

1) The defendant's assertion

On July 11, 2014, the Plaintiff filed an application for rectification on global income tax for the Defendant for the revocation of the disposition rejecting the rectification of global income tax for the year 201 and did not file a request for rectification on global income tax for the global income tax for the year 2009 and 2010. Therefore, the instant disposition cannot be deemed to include a rejection disposition on the claim for rectification of global income tax for the year 2009 and 2010. Therefore, the part on the claim for revocation of the disposition rejecting the rectification of global income tax for the year 2009 and 2010 among the instant lawsuit does not exist, and thus, is unlawful.

2) The plaintiff's assertion

In the event that a customs refund is collected, according to the Defendant’s practice, which had been handled as necessary expenses for the taxable year in which it was finalized, the Plaintiff filed a request for correction by including the instant surcharge in the necessary expenses for the year 201 to which the Plaintiff’s closedown date belongs, and its substance shall be deemed to have sought the correction of global income tax from 2009 to 2011 in relation to the instant surcharge. Moreover, the Defendant is obligated to investigate and confirm whether the tax base and tax amount on the tax base return related to the instant surcharge exceeds the legitimate tax base and tax amount, regardless of the Plaintiff’s illegal cause or method of refund, and thus, the Defendant’s disposition of the instant case should be deemed to include a disposition rejecting the correction of global income tax for the year 209 and 2010.

3) Determination

The tax authority, upon receiving a request for correction, has the duty to investigate and confirm whether the tax base and tax amount recorded in the tax base return exceed the objectively legitimate tax base and tax amount to be reported under the tax law. As such, as in a lawsuit seeking revocation of a tax disposition, a lawsuit seeking revocation of a rejection disposition against the request for correction of reduction also causes revocation of the substantive and procedural unlawful reason, and the object of the trial is the objective existence of the tax base and tax amount recorded in the tax base return (see, e.g., Supreme Court Decision 2002Du9261, Aug. 16, 2004). Meanwhile, since income tax is the so-called so-called "period taxation," which is imposed on the income amount for 1/10 from January 1 to December 31, 2004, it should be deemed that the individual and independent tax liability is established on December 31, 200 that ends each year.

As to the instant case, comprehensively taking account of the description of evidence No. 3 and the purport of the entire pleadings, the Plaintiff submitted to the Defendant a final return on tax base, including global income tax for the year 2011, and an invoice for payment. It can be recognized that the instant surcharge is included in the necessary expenses for the year 2011, and that the Plaintiff did not submit any data that can be classified or separated from the instant surcharge for the pertinent year. As such, it is reasonable to view that the Plaintiff’s request for correction was subject to the global income tax for the year 2011 and the global income tax for the pertinent year 200 years, and it is difficult to view that the Plaintiff’s request for correction was made for the investigation and verification of the legitimacy of the tax base and the tax amount for the global income tax for the pertinent year 200 years and 20 years and 20 years and 201 years and 200 years and 20 years and 201 years and 201 years and 201 years and 201.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since the instant additional collection constitutes grounds for subsequent revision of Article 45-2(2) of the former Framework Act on National Taxes and Article 25-2 of the Enforcement Decree of the same Act, the amount equivalent to refund money out of the instant additional collection charge is only an item to be deducted from the total amount of income in each taxable period, and cannot be deemed necessary expenses. Therefore, the Defendant shall correct the tax base and amount by correcting the total amount of income in each taxable period from 2009 to 2011.

2) As long as the instant additional collection amount is deemed necessary as the necessary expense, the amount equivalent to the refund amount in the instant case ought to be deemed as the grounds for subsequent correction, each taxable year for which the refund of customs duties was made shall be deemed the grounds for

3) As alleged by the Defendant, even if the amount equivalent to the refund out of the instant additional collection charge is deemed necessary expenses in 2014, taking into account the purport of the General Rule 39-05 of the Income Tax Act and the substance over form principle, etc., the tax base and the tax amount reverted to the year 2011, which the Plaintiff closed, ought to be corrected

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to whether the instant additional collection constitutes grounds for subsequent correction

A) Article 45-2(2) of the former Framework Act on National Taxes provides that a person who has filed a tax base return by the statutory deadline for filing the tax return or who has received the determination of the tax base and amount of national taxes may request the determination or correction within two months from the date on which he/she becomes aware of the occurrence of the cause, regardless of the period stipulated in paragraph (1). Article 25-2(2) of the former Enforcement Decree of the Framework Act on National Taxes provides that "when a determination or correction is made to change the ownership of the income or other taxable objects to a third party," and that "when the cause prescribed by Presidential Decree arises after the statutory deadline for filing the national tax return expires due to reasons similar to those stipulated in subparagraphs 1 through 4 of subparagraph 5 of Article 45-2(2) of the former Framework Act on National Taxes" provides that "when the first declaration, determination or correction of the tax base and amount of national tax takes place, a person who intends to request the extension of the tax base and the amount of tax within 20 years after the issuance of the former Framework Act on National Taxes 20.

B) In light of the above legal principles and the legal provisions as seen earlier, it is reasonable to view that the Defendant’s imposition of global income tax for the first 201 year by additional collection of KRW 74,577,110, among the additional collection in this case, has a ground for subsequent correction under Article 45-2(2)5 of the former Framework Act on National Taxes and Article 25-2 subparag. 1 of the Enforcement Decree of the Framework Act on National Taxes. The additional collection in the remaining 2009 and 2010 may not be deemed as a ground for correction of global income tax for filing a request for correction and its refusal disposition, apart from the fact that there is no ground for correction of global income tax for 209 and 2010, for which the existence of such rejection disposition was not recognized. The additional collection in the remaining corresponding year in each corresponding year is not included in the total income amount, but it is not deemed as necessary expenses corresponding to the total income amount.

① As a result of the decision of collection of this case by Busan Customs, a customs refund for the year 201, which was initially reported as the Plaintiff’s income, was reverted to the State later, and the collection of this case is similar to “when a decision is made to change the ownership of income or other taxable objects to a third party” under Article 45-2(2)2 of the Framework Act on National Taxes.

② Around 2011, the Plaintiff filed a comprehensive income tax return totaling KRW 74,577,110 on the total amount of customs duties refunded by the Busan Customs office. The determination of refund of customs duties by the tax authorities can be seen as “permission or other disposition by the authorities related to the effects of transactions or acts, etc., which served as the basis for calculating the tax base and the amount of customs duties,” and thereafter, it should be seen as cases where the permission or other disposition by the authorities of Busan Customs on June 19, 2014 was revoked.

③ As long as the Plaintiff was collected and paid a customs refund for the year 201, it is reasonable to pay the Plaintiff global income tax corresponding to the increased income as the customs refund was added to the total amount of income in light of the principle of substantial taxation.

2) As to the defendant's argument

The defendant first filed a correction claim in this case on the premise that the collection charge in this case constitutes necessary expenses in 2011, and the year to which the collection charge in this case belongs shall be deemed to be 2014 years which belongs to the date on which the confirmation date is made. Thus, the defendant asserts to the purport that the disposition in this case is lawful. Since individual illegal grounds for recognizing the tax base and the amount of tax are merely an attack and defense method for which his claim is justifiable, the claim for correction of the amount of tax in this case should not be asserted for all illegal grounds, but the matters which the plaintiff did not assert at the time of the request for correction of the amount of tax in this case can be asserted again in the revocation lawsuit against the rejection disposition (Supreme Court Decision 2002Du9261 as seen earlier) and the purport of the statement and arguments in Gap evidence No. 3 as a whole, it is reasonable to deem that the plaintiff as necessary expenses in this case after the correction request in this case, regardless of whether the tax base and the amount of tax in this case should be collected as necessary expenses.

It should have judged whether it constitutes a ground for rectification, and the first defendant's assertion on a different premise is without merit.

(iii)the amount of legitimate tax;

Therefore, the claim for correction of this case filed by the Plaintiff on July 11, 2014, which was within two months from June 19, 2014, the date of collection of this case, is lawful as a subsequent claim for correction under Article 45-2(2) of the Framework Act on National Taxes within the scope of 74,57,110 won equivalent to a customs refund in 201. Thus, it shall be reduced from 300,717,724 to 300,717,724 to global income of 201, and accordingly, the amount of the total income of 2011 shall be reduced to 74,57,110.

4) Sub-committee

Therefore, the Plaintiff’s global income tax amount for the year 201 shall be reduced by KRW 10,064,839 from KRW 33,426,685 to KRW 23,061,846. Of the disposition in this case, the amount exceeding KRW 40,061,566 (=63,423,412 - the amount of tax for the correction claim filed by the Plaintiff) shall be revoked as unlawful.

4. Conclusion

Therefore, among the lawsuit in this case, the part of the claim for revocation of the disposition rejecting the correction of global income tax for the year 2009 and 2010 is unlawful and dismissed. Since the part of the plaintiff's claim for revocation of the disposition in this case is justified within the scope of the above recognition, it shall be accepted, and the remaining claims are dismissed as it is so decided as per Disposition.