Seoul High Court 2005Nu19797 (Law No. 22, 2008)

The provision for an additional payment cannot be deemed to be illegal unless the provision for an additional payment is considered to be a short of the unpaid period.

The revised Act, which provides for additional payment, did not consider a short period of the unpaid period of time, thereby infringing on the taxpayer’s property rights or violating the principle of equality. However, the portion exceeding the legitimate tax amount should be revoked as the calculation of a short-reported amount for calculating the additional tax is partly unlawful.

208du17257 Global income and revocation of such disposition.

KimA

1. Samsung director of the tax office; and

Seoul High Court Decision 2005Nu19797 Decided August 22, 2008

February 13, 2014

The part of the judgment of the court below concerning the additional tax on negligent tax on global income and the additional tax on negligent tax on negligent tax payment for the year 196 shall be reversed, and the judgment of the court

Defendant Samsung director of the tax office’s disposition of imposition of the above additional tax on April 15, 2002 by the Plaintiff on the additional tax on negligent tax returns, the part exceeding the above additional tax on additional tax on additional tax on additional tax on OOO, and the above additional tax on additional tax on additional tax on the OOO, is revoked, and the remaining claims of the Plaintiff on each additional tax are dismissed

The Plaintiff’s remaining appeals against Defendant Samsung Head of the tax office and the appeal against Defendant Samsung Head of the tax office are dismissed, respectively.

9/10 of the total litigation costs between the Plaintiff and the Defendant Samsung District Director shall be borne by the Plaintiff, the remainder by the said Defendant, and the costs of appeal between the Plaintiff and the Defendant Samsung District Director shall be borne by the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion of unconstitutionality under Article 81 (3) of the former Income Tax Act (amended by Act No. 5580 of Dec. 28, 1998; hereafter the same shall apply in this paragraph and paragraph (2))

Article 81 (3) of the former Income Tax Act (hereinafter referred to as the "Act") provides that "if a resident fails to pay the income tax under the provisions of Article 76 or makes a payment below the payable tax amount, the amount equivalent to 10/100 of the unpaid tax amount shall be added to the calculated tax amount."

In addition to the purpose of depriving the benefit during the unpaid period of payment, the legislators may impose penalty tax at the minimum ratio having the meaning as penalty even in cases where the unpaid period is short of the period to compel the faithful performance of the duty of tax payment, as well as the purpose of ensuring the performance of the duty of tax payment in good faith and preventing the failure to pay taxes.

The additional tax rate of 10/100 of the unpaid amount under the legal provisions of this case shall not be deemed to have exceeded the minimum level of sanctions necessary to secure the performance of the obligation to pay income tax and to prevent the failure to pay such income tax, and it may be deemed that the pertinent legal provisions tried to secure only at least the punitive function with which the additional tax has been imposed by setting only such minimum amount of sanctions and without setting the rate of additional tax, and thus, it shall not be deemed to have violated the principle of proportionality, on the ground that the pertinent legal provisions did not consider the short term of default (see Constitutional Court en banc Decision 2011Hun-Ga27, Aug. 29, 2013). The allegation in the grounds of appeal disputing this issue is without merit.

2. As to the allegation of illegality in the return of global income tax and calculation of additional tax for unfaithful payment for the year 196

Article 81 (1) of the former Income Tax Act provides that if a resident fails to make a final return on the tax base or makes a return of any amount short of the income amount to be returned, the amount equivalent to 20/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the income amount not reported or short of the amount to be returned to the global income amount shall be added to the calculated tax.

In full view of the adopted evidence, the lower court recognized that the Plaintiff omitted the leased income amount from the Plaintiff’s filing of the global income tax for 1996, and determined that the global income amount for 196 was KRW 0,000, KRW 000, KRW 1990, and the tax base was that the amount of additional tax for additional tax for additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on the premise that the amount of income subject to separate taxation is a clerical error in the amount of global income - KRW 00,000, KRW 100,000, KRW 400 x 40% x 40% of the amount of tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on the condition that the amount of tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on additional tax on 9 O.

그러나 원고의 미달신고금액은 위에서 본 것처럼 OOOO원이고, 정당한 종합소득금액은 원심이 인정한 OOOO원이 아니라 거기에서 분리과세 대상인 금융소득 OOOO원을 뺀 OOOO원(= OOOO원 - OOOO원)으로 보아야 하므로, 구 소득세법 제81조 제1항에 따른 신고불성실가산세는 원심이 계산한 OOOO원이 아니라 그에 못 미치는 OOOO원[≒ 산출세액 OOOO원 × (미달신고금액 OOOO원 ÷ 종합소득금액 OOOO원) × 20%]이고, 한편 원고의 미달납부세액은 위에서 본 것처럼 OOOO원이므로 구 소득세법 제81조 제3항에 따른 납부불성실가산세는 원심이 계산한 OOOO원이 아니라 그에 못 미치는 OOOO원(≒ OOOO원 × 10%)임이 계산상 명백하다.

Nevertheless, the lower court calculated the additional tax on negligent tax returns on global income for the year 1996, as the OOOO won, and determined that, based on this, only the part exceeding OOOO won among the imposition of the additional tax on negligent tax on global income and the additional tax on negligent tax for unfaithful payment for the year 1996 by Defendant Samsung F&O was unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of the additional tax on negligent tax on negligent tax and the additional tax on negligent tax for unfaithful payment, which affected the conclusion of the judgment. The allegation in the grounds of appeal on this part is with merit

3. As to the allegation of illegality in the disposition imposing an additional tax on global income tax return and additional tax for arrears for the year 199

Article 81 (1) of the former Income Tax Act (amended by Act No. 6051, Dec. 28, 1999; hereafter the same shall apply in this paragraph) provides that "where a resident fails to make a final return on a tax base or makes a return of any amount short of the income amount to be returned, an amount equivalent to 20/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the income amount not reported or the amount short of the amount to be returned to global income amount shall be added to the calculated tax amount." In addition, Article 81 (4) of the former Income Tax Act provides that "where a resident fails to pay the income tax amount under Article 76 or makes a payment short of the amount to be paid, the amount calculated by applying the rate prescribed by the Presidential Decree in consideration of the interest rate rate of a financial institution in arrears to the final tax amount shall be added," and Article 146-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17456, Dec. 31, 2001) provides that "by voluntary payment period from the date prescribed by Presidential Decree".

According to the reasoning of the judgment below, the court below determined that the aggregate amount of the additional tax on negligent tax returns and additional tax on negligent tax returns calculated pursuant to each of the above provisions was OOOO won on the premise that the amount of under-reported global income tax for the year 199 is under 1

In light of the above provisions and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the calculation of the additional tax for negligent return and the additional tax for negligent return, as alleged in the grounds of appeal

In addition, the "ratio prescribed by the Presidential Decree taking into account the interest rate on overdue loan of a financial institution" under Article 81 (4) of the former Income Tax Act can be predicted to be fixed on a certain period basis due to its nature. Thus, it cannot be said that the above provision did not specify such contents in detail within the scope of delegation, which is contrary to the principle of prohibition of comprehensive delegation under the Constitution. The argument in the grounds of appeal disputing this point is

4. As to the imposition of principal tax on global income for the year 196 to 1999

The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the statutes. If the grounds of final appeal submitted by the appellant does not state such specific and explicit reasons, it shall be treated as failing to submit the grounds of final appeal (see, e.g., Supreme Court Decisions 2004Da25185, Mar. 9, 2006; 2009Du1607, Nov. 26, 2009).

However, among the judgment below, the appeal of this case did not state the defendants' grounds for appeal as to the imposition disposition of the principal tax on global income tax for the period between 1996 and 1999. The appellate brief submitted by the plaintiff does not mention how this part of the appellate brief is in violation of the law. Therefore, among the judgment below, a legitimate appellate brief is not filed regarding the part of the disposition imposing the principal tax on global income tax for the period between 1996 and 199, and there are no other unlawful grounds for appeal subject to ex officio examination.

5. Conclusion

Of the judgment of the court below, the part concerning the additional tax on negligent tax returns and additional tax on negligent tax on global income for 1996 shall be reversed. Since this part is sufficient for this court to directly render a judgment, the judgment of the court of the first instance falling under this part shall be revoked. The part of the disposition of the above additional tax on negligent tax on April 15, 2002, which exceeds the OOOO members among the disposition of the above additional tax on negligent tax on negligent tax on the plaintiff on April 15, 2002, and the above portion of the disposition of the above additional tax on the additional tax on the above additional tax, shall be revoked. The remainder of the plaintiff's remaining appeal against the defendant Samsung Head of the tax office and the appeal against the defendant Samsung Head of the tax office shall be dismissed. The plaintiff shall bear 9/10 of the total litigation costs between the plaintiff and the defendant Samsung Head of the tax office, and the costs of appeal between the plaintiff and the defendant Samsung Head of the tax office are assessed against the plaintiff.