Suwon District Court-2017-Gu Partnership-61493 ( December 12, 2017)

Whether the exclusion period of imposition and the application of unfair penalty tax are appropriate

The time of application is stipulated in the Addenda as from January 1, 2012 to the point of disposal of income, and since the plaintiff used false evidence, the exclusion period of 10 years should be applied. Tax claims do not constitute rehabilitation claims under the Debtor Rehabilitation Act, since the cause arises after the commencement of rehabilitation procedures.

Corporate Tax Act

Seoul High Court 2018Nu32714 Revocation of Disposition of Imposing Corporate Tax, etc.

Co., Ltd.****

*The Director of the Tax Office

November 2018

on December 22, 2018

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

The defendant shall revoke the notice of change in the amount of income stated in the separate sheet No. 1 through No. 7 of the judgment of the court of first instance, and the notice of imposition of corporate tax stated in the separate sheet No. 8 through No. 19 of the disposition of value added tax as stated in the separate sheet No. 20 to No. 26

2. Purport of appeal

In the judgment of the court of first instance, the part against the plaintiff falling under the subsequent cancellation order is revoked. The defendant sought revocation of notification of change in income amount as set forth in No. 20 through No. 26 of the attached Table No. 1 of the judgment of the court of first instance (the plaintiff sought revocation of the disposition imposing corporate tax, imposition of value-added tax, and notification of change in income amount against the defendant at the court of first instance, and the court of first instance dismissed the request for revocation of the disposition imposing value-added tax among them, and dismissed the remaining claims. The plaintiff filed an appeal to the purport that he/she only filed an appeal against the revocation request for the notification of change in income amount on January 9, 2018

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's judgment is as follows, except for the modification or addition of the corresponding part of the judgment of the court of first instance as follows 2, and the supplement or addition of the judgment is as stated in the reasoning of the judgment of the court of first instance (including its attached Form, but excluding '5. conclusion'). Therefore, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Revised parts

○○○*****’s revision to the Plaintiff’s “Plaintiff”.

○○ 2 7th parallels “Sew***********”)” revised as “Plaintiff (U.S. District Court Decision 2015 Gohap1005 dated April 6, 2018)” (the Plaintiff taken over the instant lawsuit).”

○○ 2 and below, the term “Plaintiffs” is as “***”, the term “Plaintiffs (Managers)” is as “this*** (Manager)”, the term “Plaintiffs” is as “****”, the term “Plaintiffs” is as “3 side 10,” and the term “Plaintiffs” is modified as “***”.

○ 2. Beginning up to the two pages, the phrase “the first instance judgment” shall be added in front of the “attached Form 2”

○ 2. Removal of the last part of the line

○ 3. Deletion of a part of 1 line

○ Change into “the notice of the change in the amount of income” (hereinafter referred to as “the notice of the change in the amount of income”).

○ From 6 up to 7 6 e.g. “each disposition of this case” is amended to “the imposition of the above corporate tax and the notice of change in the amount of income”

○ 3 14 10 to 5 12 m2

○ 5 To revise “3.” below to “2.”

○ From 8 up to 6 5 pages below the 5 pages

00 4. Amendment of the last 5 pages to “3.”

○ From 7 1 to 8 4 e.g.

○ 9 up to 9 6 6 m/ 9 mout to 13 mout to

“B) The principle of confirmation of a right” refers to: (a) the time when a right that causes income exists between the time when a right that is the cause of income and the time when income is realized is deemed to have income when a right that is not at the time when income is realized; and (b) the method of calculating income for the relevant year is intended to prevent a taxpayer from sustaining a prior taxation on the premise that such income is realized in the future (see, e.g., Supreme Court Decision 2003Du14802, Nov. 25, 2004). Article 20(1) of the Income Tax Act provides that earned income shall be the following income generated in the relevant taxable period; (b) Article 49(1)3 of the Enforcement Decree of the Income Tax Act provides that “the time of receipt of earned income shall be the date under each of the following subparagraphs; (c) the date when a corporation files a report on the income for the pertinent business year or the head of a tax office determines the time of income for the relevant corporation’s executives or employees; and (d) the date of bonus for the relevant business year:

In cases where the tax authority deemed that the gross income distributed out of the company belongs to an officer or employee and disposed of the income as a bonus, the tax authority’s liability for withholding taxes on the corporation as the payer of the income amount is established on the date when the notice of change in the income amount was served on the corporation. Unlike the fact that the liability for withholding taxes on global income is established on the date when the notice of change in the income amount was served on the corporation, the liability for withholding taxes on global income of the person to whom the income accrued, regardless of whether the notice of change in the income amount was served on the corporation, is a simple termination of the taxable period that

C) Comprehensively taking into account the above legal provisions, legal principles, and facts recognized, the Income Tax Act imposes a tax liability on the basis of the time when the income accrues from the principle of confirmation of right. The income tax liability of the person to whom income accrues from bonus income disposal for the representative of a corporation is established at the end of the taxable period to which the pertinent income accrues. Since the establishment of the tax liability is premised on the occurrence of income from the principle of confirmation of right, the establishment of the tax liability is at the latest on the premise of the occurrence of income from the taxation period to which the pertinent income

○ 12 Up to 12 Administrations below 6 up to 12 Administrations as follows:

Article 26-2(1) of the Framework Act on National Taxes provides for the exclusion period for the national taxes. Article 26-2(1)1 of the same Act provides for the exclusion period for the national taxes; where a taxpayer evades a national tax, obtains a refund or deduction by fraudulent or other unlawful means, the exclusion period shall be ten years from the date on which the national tax can be imposed. “Fraud or other unlawful acts” under the aforementioned provision refers to a deceptive scheme or other unlawful act that makes it impossible or substantially difficult to impose and collect taxes; and where a taxpayer simply fails to file a tax return under the tax law or files a false tax return without accompanying any other act, it does not constitute such act. However, in addition to circumstances where active concealment intention appears, such as failure to file a tax return or underreporting, and intentionally failing to enter revenues or sales, etc. in the account book, it may be deemed that the imposition and collection of taxes are impossible or remarkably difficult (see Supreme Court Decision 2014Du2522, Sept. 15, 2015).

원고는 쟁점 가지급금을 원고의 전 대표이사인 박**에게 지급하였음에도 장부상으로는 제1심 판결 별지 목록 제3항 기재와 같이 거래처에 대한 선급금, 임대차보증금 명목으로 계상한 사실, 박**은 2014. 10. 22. @@지방법원 XX지원[2014고합00, 000(병합)]에서 특정경제범죄 가중처벌 등에 관한 법률 위반(횡령) 등으로 징역 2년 6월을 선고받았는데, 그 범죄사실 중 일부는 박**이 2007. 5. 무렵부터 2013. 9. 무렵까지 총 86회에 걸쳐 경비를 과다 계상하여 원고의 자금을 빼돌려 합계 13,885,865,550원을 횡령하였다는 것이고, 위 판결은 AA고등법원에서의 항소심(2014노0000), 대법원에서의 상고심(2015도0000, 상고 취하)을 거쳐 2015. 6. 15. 확정된 사실, 원고가 플랜트 제작과정에서 발생한 고철을 AA상사, BBBBB, CC MC 등에 무자료로 매각한 후 제1심 판결 별지 제4항 기재와 같은 매출누락 금액을 원고의 전 대표이사인 박**이 개인적으로 사용한 사실은 을 제4에서 20호증의 기재에 의하여 인정할 수 있거나 이 법원에 현저하다.

According to the above facts, it is reasonable to view that all of the Plaintiff’s act of appropriation and omission of sales on the issue of provisional payment constitutes “Fraud or other unlawful act,” as an active concealment, such as making a false entry in the book or intentionally not making an import, sale, etc. in the book. As such, the exclusion period for the notice of change in the income amount of this case is not five years but ten years. The Plaintiff’s assertion on a different premise is without merit.”

○ 12. Removal from the last parallel to 13.

3. Supplement and addition of judgments;

A. The plaintiff's assertion

The year to which the pertinent taxation year belongs, from 2007 to 2013, income tax was not withheld from the bonus disposal of the Plaintiff’s former representative director**, and the Defendant’s withholding tax claim (hereinafter “instant taxation claim”) is the rehabilitation claim that was caused before the rehabilitation procedures commence and constitutes a rehabilitation claim that is not a public-interest claim. Since the Defendant did not report the instant taxation claim as a rehabilitation claim within the reporting period for the rehabilitation claim, the said claim was forfeited. Accordingly, the notice of change in the amount of income based on the instant taxation claim that was forfeited and extinguished is unlawful

B. Determination

Whether a tax claim constitutes a rehabilitation claim under Article 118 of the former Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 14177, May 29, 2016; hereinafter “Rehabilitation Act”), is determined on the basis of whether the taxation requirements prescribed by the Act have been met before the commencement of rehabilitation procedures and whether the tax claim has been established. Where a tax authority disposes of a corporate outflow from the company as a representative and notifies of the change in the amount of income, the obligation to pay the tax on the amount of divided labor income subject to withholding are established at the time when the notice of change in the amount of income is served, and thus, if the notice of change in the amount of income was served after the commencement of rehabilitation procedures for the relevant corporation, the obligation to pay the tax on the amount of divided labor income subject to withholding is established at the time when the notice of change in amount of income is served after the commencement of rehabilitation procedures (see, e.g., Supreme Court Decisions 2012Du2365, Feb. 28, 2013; 2015Du844).

On March 24, 2015, the Plaintiff was decided to commence rehabilitation procedures (2015 Gohap0000) by Suwon District Court (2015) and thereafter, the Defendant notified the change in the amount of income of this case using the amount leaked to Park** on June 8, 2015 as the bonus to Park**, and the fact that the above notification was reached to the Plaintiff around that time is as seen earlier. According to the above legal principles, the instant tax claim of this case was served after the commencement of rehabilitation procedures for the Plaintiff, and thus, the Defendant’s instant tax claim of this case was caused after the commencement of rehabilitation procedures and does not constitute rehabilitation claims under the Debtor Rehabilitation Act. The Plaintiff’s assertion on other premise is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the first instance court with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit.