Examination-Income-2012-0145 ( November 27, 2012)

The illegal taxation disposition that misleads the facts of taxation requirements can not be deemed to be null and void per se.

The issue of whether the instant income was not leaked out of the company and reserved in the form of cash assets falls under the matter that can only be clarified only after accurately investigating the facts. Thus, even if it was erroneous in the determination that the snow age income was out of the company, such defect falls under the grounds for revocation.

Article 67 of the former Corporate Tax Act

Article 106 of the former Enforcement Decree of the Corporate Tax Act

2013Guhap514 Amount of earned income and revocation of disposition

○ Industry Co., Ltd.

○ Head of tax office

May 15, 2013

July 5, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition on July 9, 2012, the imposition of ○○○○○○○○ in the aggregate of the earned income tax for the year 2007, the earned income tax for the year 2008, the earned income tax for the year 2009, the earned income tax for the year 2009, the earned income tax for the year 2010, and the earned income tax for the year 2010, is revoked.

1. Details of the disposition;

A. The Plaintiff, a company producing rubber, plastics, etc., which is a part of the automobile parts, filed a corporate tax return by reducing the amount of income ○○○○ (hereinafter “the instant income amount”) by appropriating some of the tax invoices received from ○○ Industrial Co., Ltd., Ltd., a sub-company from 2007 to 2010 in double cost (cost for raw materials) and accounting at the same time.”

B. AA regional tax office announced the Plaintiff to submit explanatory data up to May 25, 201, on the ground that the difference between the amount to be received with regular evidence on income statements and manufacturing cost specifications among the Plaintiff’s details of corporate tax and the amount of money received, such as the actual purchase tax invoice, submitted by the Plaintiff, without documentary evidence.

C. Accordingly, on May 31, 2011, the Plaintiff paid the tax base and tax amount of corporate tax in 2007 to 2010, which was reduced by double appropriation of expenses, to offset the amount of income in the instant case, as seen above, by offsetting the amount of income in excess of deductible expenses, and treated it as retained earnings, and filed a revised return on the tax base and tax amount of corporate tax in 2007 to 2010. On June 2, 2011, the Plaintiff voluntarily paid the tax amount of corporate tax in 2007, ○○○, ○○○, ○○, 2009, and ○○○○ (including additional tax) for corporate tax in 209 to 2010.

D. AA regional tax office has appropriated the Plaintiff as a provisional park price amount at the same time, and has to dispose of the instant income amount as an outflow from the company. Thus, on January 15, 2012, the Plaintiff did not file a revised return or submit additional explanatory materials, on the ground that the instant income amount ought to be deemed as outflow outside the company. However, the Plaintiff did not file a revised return.

E. Accordingly, on January 17, 2012, the Defendant corrected the income disposition of a household park as a bonus, and subsequently notified the notice of tax notice on January 18, 2012, and disposed of all of the amount as a bonus to Ma○○ who is the representative director of the Plaintiff and the Plaintiff’s representative director on April 20, 2012. On April 20, 2012, the Defendant issued a notice of change in the amount of income (hereinafter “instant notice of change in the amount of income”).

F. On July 9, 2012, the Defendant issued a notice of payment of the same amount as the notice of change in the amount of income (hereinafter “instant disposition”) to the Plaintiff, as the Plaintiff did not perform its withholding duty following the notice of change in the amount of income.

G. On September 3, 2012, the Plaintiff filed a request for review with the National Tax Service on September 3, 2012, but was dismissed on November 27, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 7-4, and the purport of the whole pleadings

2. Determination on this safety defense

A. The Defendant asserts that the Plaintiff’s obligation to pay tax on the labor income withheld at source was established and confirmed by the notice of change in the amount of income in this case, and that the subsequent disposition was merely a collection disposition seeking its implementation. Thus, the Plaintiff cannot seek revocation of the instant disposition on the ground of the defect in the notice of change in the amount of income in this case. Thus, the instant lawsuit filed after the lapse of the filing period for the notice of change in the amount of income

B. However, since the instant disposition is separate from the notice of change in the amount of income, the period of filing a lawsuit against the instant disposition should be determined on the basis of the date on which the instant disposition was served. The fact that the period of filing a lawsuit does not exceed the period of filing a lawsuit is apparent, and if there is a defect in the validity of the instant disposition in the notice of change in the amount of income, as examined below, the instant disposition based on which it was based may be revoked illegally. Thus, the Defendant’s assertion that the instant lawsuit is unlawful is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not use cash equivalent to the amount of the instant income that the Plaintiff secured by double accounting method, and retained it within the company without using cash, and in the accounting account, indicated the corresponding debt in the manner of specifying it as "place for raw materials" in the account book, so the instant income amount is not deemed retained in the company and it cannot be deemed that it was leaked out of the company. Nevertheless, the Defendant’s disposition that deemed it as the outflow of the company was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Where a tax authority’s disposition of income and a notice of change in the amount of income thereby issued, a tax withholding agent is deemed to have paid the relevant amount to the person to whom the income on the notice was given on the date of receipt of the notice of change in the amount of income and becomes final and conclusive at the same time, so the notice of change in amount of income constitutes an action of the tax authority directly affecting the corporate tax liability, which is the withholding agent, and thus, is subject to appeal litigation. Furthermore, even if a tax payment notice issued by the tax authority is defective in the notice of change in the amount of income which is the preceding disposition, even if the defect is found in the notice of change in the amount of income which is the disposition of tax withholding, it shall not be succeeded as it is to the subsequent disposition, unless there is a defect in the notice of change in the amount of income which is the preceding disposition. Therefore, if the tax authority’s disposition and the notice of change in the amount of income are given, the tax liability of income withheld shall be disputed in an appeal litigation as to the notice of change in amount of income withheld.

Meanwhile, in general, a taxation disposition imposed on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to have a significant and apparent defect. However, in a case where there are objective circumstances that could mislead him to believe that it is subject to taxation with respect to a certain legal relation or factual relation which is not subject to taxation, if it is possible to accurately investigate the factual relation, it cannot be deemed to have been apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition based on mistake of the fact subject to taxation is null and void as a matter of course (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4,

2) As to the instant case, the Plaintiff did not appeal the inherent defects at the time of the notice of change in the amount of income in this case, and did not dispute the specific details of the notice of change in the amount of income in this case. Thus, the instant disposition cannot be deemed unlawful unless the notice of change in the amount of income in this case is null and void as a matter of course.

Furthermore, the issue of whether the instant income amount was reserved in the form of cash assets without being leaked out of the company, as to the existence of the grounds for invalidity as a matter of course in the notice of change in the income amount of this case, falls under the matters that can only be clarified only after the fact-finding must be accurately examined. Thus, even if the Defendant's judgment that the instant income amount was out of the company was erroneous, such defect falls under the grounds for revocation of the notice of change in the income amount of this case, and it does not fall under the grounds for revocation of the notification of change in the income

4. Conclusion

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