Cho Jae-chul2010-Gu2352 (Law No. 105,04)

"Disposition as bonus for the actual person to whom the income is attributed" and the withholding income tax claim for which notice of change in income amount has been given to the Company is a priority claim.

The amount included in the gross income after the commencement of rehabilitation procedures is leaked out of the company, and the actual person to whom it belongs disposes of it as a bonus to the representative director on the ground that it is the representative director, and notify the company of the change in the amount of income. The tax withholding

2011Guhap2912 Revocation of Disposition of Imposing Income Tax

XX Company

Head of the Tax Office

November 23, 2011

December 23, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of collecting KRW 280,360 as earned income tax for December 24, 2009 and KRW 1,921,709,910 as earned income tax for the year 2007 that the Plaintiff paid to the Plaintiff on December 24, 2009 is revoked.

1. Details of the disposition;

A. XX Co., Ltd. (hereinafter referred to as the “instant company”) was a company engaged in the manufacturing of industrial machinery, etc. and received a decision of commencing rehabilitation procedures from the Daegu District Court on March 3, 2009 upon receiving a decision of commencing rehabilitation procedures on March 24, 2009. The rehabilitation plan was authorized on September 7, 2009, and the Plaintiff was appointed as the custodian of the instant company from the Daegu District Court (Tgu District Court 2009Gohap11).

B. Around July 2009, the Defendant conducted a corporate integration investigation with respect to the instant company, and confirmed that the instant company treated the outstanding amount of KRW 5,213,377,040 as an electrical cumulative loss and filed a report with respect to the representative director by omitting claims against the representative director.

C. Accordingly, on September 11, 2009, the defendant recognized the provisional payment amount of KRW 803,049,000 for the company 2007 business year of the company of this case, and recognized KRW 5,507,708,736 as the aggregate of the remaining amount of the provisional payment of KRW 5,213,37,040 for the company of this case and the amount of KRW 294,31,696 for the company of this case as the bonus for each representative in the business year of 2008, and disposed of it as the bonus for each representative, and notified the company of the change in the amount of income (hereinafter referred to as the "notification of the change in amount of income of this case").

D. The instant company did not pay the withholding tax stated in C. D. The Defendant rendered a disposition to the Plaintiff on December 14, 2009 to collect KRW 280,360, and KRW 1,921,709,910, and KRW 1,921,709,910, respectively, of the earned income tax for 2007 and the earned income tax for 2008 (hereinafter “instant collection disposition”).

E. On July 1, 2010, the Plaintiff, who was dissatisfied with the instant collection disposition, filed an appeal with the Tax Tribunal on July 1, 201, but was dismissed on May 4, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-2, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

A. The notice of change in the amount of income was served on the instant company after the commencement of the rehabilitation procedure of the corporation, and since the tax withholding claim was not withheld, it constitutes a sacrifice claim that is not a public-interest claim pursuant to the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the " Debtor Rehabilitation and Bankruptcy Act"), and thus forfeited because the Defendant did not report the withholding tax as a rehabilitation claim within the reporting period.

B. Since the Defendant did not report his claim on earned income tax withheld as a rehabilitation claim within the reporting period, and thus exempted from the obligation to pay tax under Article 251 of the Debtor Rehabilitation Act, the Defendant’s act of notifying the representative director, who is the source of income, of the change in the amount of income pursuant to Article 86(1)4 of the National Tax Collection Act, was unlawful to make the instant company a notice of change in the amount of income and to collect

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination on the defense prior to the merits

A. The Defendant asserts that the Plaintiff’s duty to pay the labor income tax on the portion of withholding tax is automatically established and confirmed by the notice of change in the amount of income in this case, and that the instant duty payment notice constitutes a processed disposition seeking the performance of the Plaintiff’s tax obligation established and finalized, and thus does not constitute a taxation disposition subject to revocation

B. Even if a tax claim on a withholding duty is automatically determined by the automatic final determination method, if the tax office determines the amount of tax to be withheld to the source obligor and notifies the payment thereof, the opinion of the tax office is officially official only in this case, and thus, a withholding agent who differs from the content of the notification may receive remedy by administrative litigation with a prior trial procedure and administrative litigation to prevent the collection of the amount of tax notified (see Supreme Court Decision 74Da1254, Oct. 8, 1974). Thus, the defendant's assertion is without merit.

5. The plaintiff's above 2. A and B

A. According to Article 179(1)9 of the Debtor Rehabilitation Act, any tax withheld at source, for which the payment deadline has not yet arrived at the time the rehabilitation procedure commenced, shall be a public-interest claim, but any tax on bonus deemed reverted to the representative under Article 67 of the Corporate Tax Act shall be limited to any tax withheld at source.

According to Article 67 of the Corporate Tax Act and Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act, where it is clear that the amount included in the calculation of earnings has been leaked out of the company, it shall be disposed of as dividends, bonuses from the disposal of profits, other income, and other outflow from the company according to the person to whom it reverts. If the person to whom it belongs is an officer or employee, it shall be disposed of as bonus to the person to whom it reverts and if it is unclear, it shall be deemed as belonging to the representative. Meanwhile, according to Article 192 (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010), it shall be deemed that the corporation has paid the amount of income on the date when it receives a notice of change of income amount. According to Article 21 (2) and Article 22 (2) of the Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010).

B. On the other hand, "the bonus deemed reverted to the representative under the proviso of Article 179 (1) 9 (a) of the Debtor Rehabilitation Act" means the bonus that is deemed reverted to the representative in cases where the accrual of the earnings out of the company under the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act is unclear and disposed of as a bonus, i.e., "a recognized bonus", and "a disposal as a bonus to the person who actually reverts" under the main sentence of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act, excluding "a disposal as a bonus to the person who actually reverts". The defendant, after the commencement of rehabilitation procedure, disposes of it as a bonus to the representative director on the ground that the amount included in the application of the main sentence of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act was leaked out of the company and that the actual person to whom it actually belonged is the representative director (i.e., not a disposition of recognition).

6. Conclusion

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