Seoul Administrative Court 2008Guhap36074 ( October 24, 2009)

National High Court Decision 2007No4089 (Law No. 86.30)

Claim for correction filed within three years after a revised return on the notice of change in income amount is lawful.

The Plaintiff received a notice of change in the amount of global income tax attributed to year 2001, and filed a revised return and payment of global income tax within the deadline for voluntary payment of the additional return, and filed a request for correction within three years thereafter, the Plaintiff is lawful as it falls under the period of request for correction within three

2011Nu41511 Revocation of revocation of a request for rectification

XX

Head of Seocho Tax Office

Seoul Administrative Court Decision 2008Guhap36074 Decided March 24, 2009

Seoul High Court Decision 2009Nu9620 Decided October 6, 2009

Supreme Court Decision 2009Du20274 Decided November 24, 2011

February 8, 2012

March 21, 2012

1. Revocation of a judgment of the first instance;

2. The defendant's rejection disposition against the plaintiff on October 9, 2007 regarding the claim for correction of global income tax for the year 2001 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. The part citing the judgment of the court of first instance

A. The plaintiff's assertion that the disposition of this case is legitimate in the reasoning of the judgment of this court. (b) The relevant laws and regulations are identical to the corresponding part of the judgment of the court of first instance (from the second to the second to the sixth day), and thus, they are cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

O From the second 7th 7th st son of the first instance judgment to the tenth st son, the second st son of the first instance judgment is as follows:

[A. On November 13, 2002, 2002, the transfer of ownership was made in the name of the head of the Dong-gun, Gangwon-do, Dosan-gun, from 00-00 to 6,578 square meters (hereinafter referred to as "the real estate in this case") with respect to the real estate in this case.

C. On August 1, 2006, the appeal was withdrawn on August 11, 2006, the decision became final and conclusive, and the above decision ex officio cancelled the above global income tax disposition as follows, and accordingly, the OB withdrawn the above lawsuit on August 11, 2006.

Pursuant to the decision of the first instance court 3, "the plaintiff, on May 31, 2002, paid the tax base to the defendant 57,485,170 won, global income tax of 11,645,50 won, and global income tax of 11,645,50 won to the defendant, "the plaintiff has paid the total income tax of 2001" as the representative director of the OO in 2001, and accordingly, the above company, a withholding agent, withheld the tax base of 57,485,170 won, income tax of 11,645,50 won from the plaintiff through year-end settlement to the tax office."

2. Determination

A. Determination as to whether the period for filing a claim for rectification expires

1) Article 45-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007; hereinafter the same shall apply) provides that “any person who files a return of tax base within the statutory due date of return” shall read “where the tax base and tax amount entered in the standard return for taxation (where the tax base is determined or corrected under the provisions of each tax-related Act, referring to the light tax amount after such determination or correction) exceed the active tax base and tax amount to be returned under the tax-related Acts, he may request the head of the competent tax office to determine or correct the tax base and tax amount of the national tax which were first reported and reported within three years after the statutory due date of return (where such determination or correction is made under the provisions of each tax-related Act, referring to the tax base and tax amount after such determination or correction are made).” Meanwhile, Article 70 (1) of the former Income Tax Act (hereinafter the same shall apply) provides that “where a resident who has the global income of the year concerned is subject to the final return within 1820.2 years, by the date.

The legislative purport of Article 134(1) of the former Enforcement Decree of the Income Tax Act is to make it impossible to report and pay the amount of income changed by disposal of income after the expiration of the final tax base return of global income. Therefore, it is intended to postpone the final tax base and tax payment deadline by the last day of the month following the month in which the notice of change in income amount is received. Therefore, it can be seen that the additional tax return deadline under the above provision is included in the meaning of the statutory due date of return under Article 45-2(1) of the former Framework Act on National Taxes. In full view of the purport of the system of request for correction of reduction under Article 45-2(1) of the former Framework Act on National Taxes, the additional tax return period under Article 45-2(1) of the former Enforcement Decree of the Income Tax Act from the date the final tax base return of global income becomes due to a change in the amount of income due to disposal of income after the final tax base return of income and the additional tax return and voluntary payment under Article 134(1) of the former Enforcement Decree.

2) On July 21, 2006, the Plaintiff received a notice of change in the amount of global income tax on global income for the year 2001 from the Defendant, and filed a revised return and payment on global income tax for the year 2001, which was within the period of voluntary payment of the return of the additional tax, and filed the instant request for correction on August 2, 2007, which is within three years thereafter. Accordingly, the instant request for correction constitutes a claim filed within the three-year period of request for correction as stipulated in Article 45-2(1) of the former Framework Act on National Taxes. The instant request for correction is lawful.

3) As to this claim, the Defendant asserts that even within the period of filing a claim for rectification, the period of exclusion expires, and thus, the obligor may file a claim for rectification even after the period of exclusion of the right to impose national tax expires (see Supreme Court Decision 2005Du7006, Jan. 26, 2006). Thus, the Defendant’s assertion is without merit.

B. Determination as to the legitimacy of the instant disposition

Along with the overall purport of the pleadings, the Plaintiff transferred 40,00 shares of the non-party company to △△ Development Co., Ltd. (the representative director of △△ Development Co., Ltd. requested the non-party company to transfer only the real estate of this case in the course of negotiations with the Plaintiff, and the non-party company itself transferred its shares and management rights of the non-party company to the non-party company to the non-party 2, 5, 7, and 10 (including the serial number), and the Plaintiff around the time of transferring the shares of the non-party company to the non-party company to the non-party company to the non-party company to the non-party 10, and the non-party company Gap transferred the shares and management rights of the non-party company to the non-party 2 to the non-party 10 on August 20, 201, after the plaintiff was appointed to the representative director of the non-party company and the representative director of the company to the non-party 2.

According to the facts found above, the plaintiff transferred the management right of the non-party company to △△ Development Co., Ltd. and accordingly, the real estate of this case owned by the non-party company is also transferred to △△ Development Co., Ltd., and the non-party company cannot be deemed to have transferred the real estate

The instant disposition rejecting the instant claim for correction on a different premise is unlawful.

3. Conclusion

The judgment of the first instance shall be revoked. The disposition of this case shall be revoked.