early 2012west0824 (25 April 2012)

It shall not be included in the calculation of losses, considering the remuneration paid to members who invest with labor in a limited partnership company as bonus from the disposal of profits.

Article 43 (1) of the Enforcement Decree of the Corporate Tax Act does not include the remuneration paid to the members of a limited partnership company or a limited partnership company as a bonus from the disposal of profits, in the form of not including it in the calculation of losses. The compensation for labor provision or its substance is considered as a payment for investment. Since it has not been objectively verified, the disposition of taxation is just because it is non-deductible of

2012Guhap29431 Revocation of Disposition of Corporate Tax Imposition

IsaA

Head of Seocho Tax Office

May 2, 2013

June 13, 2013

1. Of the instant lawsuit, the part seeking the revocation of the disposition imposing additional 000 won shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

On December 28, 2011, the Defendant: (a) designated the Plaintiff as the secondary taxpayer by Han Law Firm on December 28, 201; and (b) revoked the disposition imposing corporate tax of KRW 000 (300 + additional 000) imposed on the Plaintiff in the year 2010.

1. Details of the disposition;

A. The OO (hereinafter referred to as a "OO") was established on March 13, 2009, and it paid 000 won to the plaintiff, who is a member of labor investment in the register of corporate register, and appropriated it as deductible expenses, and reported corporate tax." However, the defendant denied the payment made by the plaintiff, etc. as a member of labor investment as deductible expenses, and disposes of it as a dividend to each member on November 17, 2012, and corrected and notified the non-party corporation of KRW 000 of corporate tax for the year 2010.

(C) On November 28, 201, the non-party corporation did not pay the above taxes, and the defendant, a member of the non-party company, designated the plaintiff as the second taxpayer, and notified the plaintiff to pay the delinquent amount of KRW 000 (the corporate tax 000 + additional 000 won for the year 2010) (hereinafter referred to as the "disposition in this case"). The plaintiff et al. appealed to the Tax Tribunal for the judgment against it, but was dismissed on May 31, 2012, and filed the lawsuit in this case on September 3, 2012.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 3, and Eul evidence 1 to 5 (including branch numbers, if any) and the whole purport of the pleading

2. Whether the part of the instant lawsuit seeking revocation of the disposition imposing additional dues is legitimate

As to the lawfulness of the part of the instant lawsuit seeking revocation of the disposition imposing additional dues, the part of the instant lawsuit seeking revocation of the disposition imposing additional dues shall be examined as to whether it is legitimate. The additional dues or aggravated additional dues provided for in Articles 21 and 22 of the National Tax Collection Act, as a matter of course, are naturally arising and determined by the provisions of the Act without the final procedure by the tax authorities if national taxes are not paid by the due date, and when the initial amount of tax imposed is revoked or revised, additional dues are voluntarily cancelled or reduced, and thus, notification of additional dues or increased additional dues cannot be deemed as a disposition subject to appeal (see, e.g., Supreme Court Decision 2000Du2013, Sept. 22, 2000). Accordingly, the part seeking revocation of the disposition imposing additional dues amounting to KRW 00,000 among the instant lawsuit is unlawful.

3. Whether the instant disposition is lawful

(a) Relevant statutes;

Attached Form. The entry in the relevant statutes is as follows.

B. The plaintiff's assertion

The plaintiff was registered as a member of the non-party corporation in form and served as an employment attorney, and the disposition of this case in this case is unlawful on different premise.

C. Determination

1) Article 58(1) of the Attorney-at-Law Act provides that the provisions of the Commercial Act concerning unlimited partnerships shall apply mutatis mutandis to law firms, except as otherwise provided in this Act, and Article 212(1) of the Commercial Act provides that each partner shall be jointly and severally liable to pay the company's obligations when it is impossible to fully pay the company's obligations with the assets of an unlimited partnership company. Meanwhile, Article 39(1)1 of the Framework Act on National Taxes requires a position where the company's secondary liability to pay taxes is practically unlimited employees as of the date on which the liability to pay delinquent national taxes is established and the company's secondary liability is registered as a general partner on its corporate registry in its form (see, e.g., Supreme Court Decision 90Nu4235, Sept. 28, 190). However, the issue of whether a corporation is a general partner under Article 39(1) subparag. 1 of the Framework Act on National Taxes should be proved by data, such as corporate register, and even if such data are proved by the foregoing general partner.

2) In addition to the statement in the evidence No. 3 evidence No. 1 No. 4, the whole purport of the pleadings is added, and (i) the plaintiff was appointed as a member on August 23, 2010 and resigned on February 7, 2011 in the corporate register of the non-party corporation, and (ii) the plaintiff received a total of KRW 000 from the non-party corporation for four months from August 1, 2010 to December 31, 2010. However, there is no evidence to support that the plaintiff is an employment attorney employed by the non-party corporation after receiving monthly pay from the non-party corporation, and there is no evidence to support this. Accordingly, the plaintiff's assertion on the premise that the plaintiff is an employment attorney is not acceptable.

3. Conclusion

If so, the part of the lawsuit in this case seeking revocation of the disposition of additional 000 won is unlawful and dismissed, and the remainder is without merit, so it is dismissed, and it is decided as per Disposition.