[1] Whether a new disposition by correcting and supplementing the grounds for illegality stated in the ruling on revocation of the disposition violates the binding force of the ruling (negative with qualification)

[2] The case holding that in case where the National Tax Tribunal revoked the disposition of withholding tax on the constructive earned income from the disposal of income on the ground that it is based on Article 32 (5) of the former Corporate Tax Act, which was decided to be unconstitutional, the taxation authority again made the disposition of withholding tax on the Class A earned income by deeming it as actual earned income, etc., the disposition does not go against the binding force of the decision by a new disposition of taxation by correcting and supplementing the unlawful grounds stated in the decision according to the purport

[3] Whether it is not clear that the representative director, etc. used for a corporation's business among the amounts that accrue to him/her from the company by leaving the corporation's profit constitutes earned income (affirmative), and whether it affects the income tax liability to return the amount to the corporation later (negative)

[4] Legal nature of penalty tax and its imposition requirements

[1] Where a decision is made to revoke a disposition of imposition, the disposition agency concerned may, unless it is contrary to the purport of the ruling, make a new imposition after calculating a legitimate tax by correcting and supplementing the grounds for illegality identified in the ruling, and such new disposition of imposition does not conflict with the binding force of the ruling.

[2] The case holding that in case where the National Tax Tribunal revoked the disposition of withholding tax on the constructive earned income from the disposal of income as unconstitutional on the ground that it is based on Article 32 (5) of the former Corporate Tax Act (amended by Act No. 4804 of Dec. 22, 1994), and the tax authority again made the disposition of withholding tax on the Class A earned income by deeming it as actual earned income, etc., the disposition does not go against the binding force of the judgment due to a new disposition of imposing tax by correcting and supplementing the grounds indicated in the judgment in accordance with the purport of the judgment of the National Tax Tribunal

[3] The representative director or actual manager, etc. of a corporation who used his/her position and distributed the corporation's profits to him/her out of the company and used them for the corporation's business constitutes bonus or temporary salary unless there are special circumstances. The act of using the corporation's funds such as embezzlement by the representative director or actual manager, etc. is not done under the premise of early recovery, and thus, it constitutes a outflow from the company as an expenditure itself, and once the income tax liability is established for the portion belonging to the representative director or actual manager, etc. of the outflow from the company, it shall not affect the tax liability already occurred even if the person to whom the income tax liability is established later returned the corporation's income.

[4] Under the tax law, where a taxpayer violates various obligations, such as a tax return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer's intent or negligence is not considered. However, if the taxpayer's failure to know his/her duty is unreasonable or it is unreasonable to expect the party to fulfill his/her duty, etc., and there is a justifiable reason to believe that the taxpayer's failure to perform his/her duty can not be imposed.

[1] Article 37 of the Administrative Appeals Act / [2] Article 32 (5) of the former Corporate Tax Act (Amended by Act No. 4804, Dec. 22, 1994; see current Article 67); Article 94-2 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No. 1468, Dec. 31, 1994; see current Article 106 (1) 1); Article 32 (5) of the former Corporate Tax Act (Amended by Act No. 5581, Dec. 28, 1998; see current Article 67); Article 94-2 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (Amended by Act No. 1480, Dec. 198; see current Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (Amended by Act No. 15970, Dec. 31, 1998)

[1] Supreme Court Decisions 82Nu302 delivered on August 23, 198 (Gong1983, 1423), 91Nu10275 delivered on November 24, 1992 (Gong1993, 2897, 196Nu13057 delivered on February 11, 1997 (Gong1997, 7994, 147997, 149799, 14791 delivered on February 25, 1997, 196Nu2997, 196Nu2997, 1999, 97Nu2997, 197, 1999, 197Nu29799, 2997, 1998.

Plaintiff 1 and one other (Attorneys Kim Ba-young et al., Counsel for the plaintiff-appellant)

Masan Tax Office (Attorney Cho Young-gu, Counsel for the defendant-appellant)

Busan High Court Decision 97Gu5329 delivered on January 14, 1999

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

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

1. Regarding the plaintiffs' grounds of appeal

A. Ground of appeal Nos. 1 and 2

Where there is a ruling revoking a disposition, the relevant disposition agency may, unless contrary to the purport of the ruling, correct and supplement the grounds for illegality stated in the ruling, thereby calculating the legitimate tax, and then impose the new disposition, and such new disposition shall not conflict with the binding force of the ruling (see Supreme Court Decision 96Nu14784, 14791, Feb. 25, 1997).

원심이 확정한 사실 및 기록에 의하면, 피고는, 1996. 7. 1. 원고 1 주식회사(이하 '원고 1'이라 한다)에 대하여, 원고 1이 1992 사업연도에 498,159,130원을, 1993 사업연도에 12,417,817,427원을, 1994 사업연도에 515,165,113원을 각 실물거래 없이 가공경비로 계상하여 결산하는 방법으로 사외 유출시켰음을 이유로 구 법인세법(1994. 12. 22. 법률 제4804호로 개정되기 전의 것, 이하 같다) 제32조 제5항, 구 법인세법시행령(1994. 12. 31. 대통령령 제14468호로 개정되기 전의 것, 이하 같다) 제94조의2 제1항 제1호 단서의 규정에 의하여, 익금에 산입한 위 금액이 원고 1의 대주주 겸 실질적 경영자인 소외인에게 상여로 귀속된 것으로 의제하여, 1992년 귀속 갑종근로소득세로 249,079,560원을, 1993년 귀속 갑종근로소득세로 6,208,908,710원을, 1994년 귀속 갑종근로소득세로 231,464,300원을 각 징수·고지하고, 1996. 6. 16. 원고 2 주식회사(이하 ' 원고 2'라 한다)에 대하여, 원고 2가 1993 사업연도에 715,000,000원을, 1994 사업연도에 3,060,373,617원을, 1995 사업연도에 2,946,130,718원을 각 실물거래 없이 가공경비로 계상하거나 수입을 누락하여 결산하는 방법으로 사외 유출시켰음을 이유로 구 법인세법 제32조 제5항, 구 법인세법시행령 제94조의2 제1항 제1호 단서의 규정에 의하여, 익금에 산입한 위 금액이 원고 2의 대주주 겸 실질적 경영자인 소외인에게 상여로 귀속된 것으로 의제하여, 1993년 귀속 갑종근로소득세로 354,681,500원을, 1994년 귀속 갑종근로소득세로 1,375,452,950원을, 1995년 귀속 갑종근로소득세로 1,324,375,450원을 각 징수·고지한 사실, 원고들의 심판청구에 따라 국세심판소는 1997. 2. 15. 및 1997. 2. 20. 피고의 원고들에 대한 위 각 징수처분이 헌법재판소에서 1995. 11. 30. 위헌으로 결정한 구 법인세법 제32조 제5항에 근거한 것이라는 이유로 이를 모두 취소한 사실, 이에 피고는, 1997. 3. 18. 원고 1에 대하여, 원고 1의 1992 내지 1994 사업연도에 사외 유출된 금액은 소외인이 횡령한 금액으로서 소외인에게 현실적으로 귀속되었다는 이유로 구 소득세법(1994. 12. 22. 법률 제4803호로 전문 개정되기 전의 것, 이하 같다) 제21조 제1항 제1호 (가)목에 의한 소외인의 갑종근로소득으로 보아 위와 같은 액수의 갑종근로소득세를 징수·고지하고, 1997. 3. 3. 원고 2에 대하여, 원고 2의 1993 및 1994 사업연도에 사외유출된 금액 역시 소외인이 횡령한 금액으로서 소외인에게 현실적으로 귀속되었다는 이유로 구 소득세법 제21조 제1항 제1호 (가)목에 의한 갑종근로소득으로 보고, 1995 사업연도에 사외 유출된 금액을 개정 법인세법(1998. 12. 28. 법률 제5581호로 전문 개정되기 전의 것) 제32조 제5항 및 개정 법인세법시행령(1998. 12. 31. 대통령령 제15970호로 전문 개정되기 전의 것) 제94조의2 제1항 제1호 단서의 규정에 의하여 익금에 산입한 후 소외인에게 상여로 귀속된 것으로 의제하는 한편, 위 금액의 계산이 잘못되었다는 이유로 당초의 세액보다 일부 감액하여 1993년 귀속 갑종근로소득세로 259,144,000원, 1994년 귀속 갑종근로소득세로 1,276,452,950원, 1995년 귀속 갑종근로소득세로 1,199,500,450원을 각 징수·고지한 사실을 알 수 있으므로, 피고의 위 1997. 3. 3. 및 1997. 3. 18.자 징수처분은 국세심판소의 재결의 취지에 따라, 그 재결에 적시한 위법사유를 시정·보완하여 한 새로운 부과처분으로서 재결의 기속력에 반하지 아니한다고 할 것이다.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the binding force of adjudication as otherwise alleged in the ground of appeal.

B. Ground of appeal Nos. 4, 5, 7 through 9

The representative director or actual manager of a corporation who uses his/her position and discharges profits to himself/herself out of the corporation's capital and uses them for the corporation's business constitutes bonus or temporary salary unless there are special circumstances (see Supreme Court Decisions 97Nu4456, Dec. 26, 1997; 98Du7350, Dec. 24, 1999; 98Du7350, Dec. 24, 199). The use of the corporation's capital, such as embezzlement by the representative director or actual manager, etc. by the representative director or actual manager, etc. of the corporation, is not conducted under the premise of recovery, and thus, it constitutes an outflow from the corporation as an expenditure itself, and once the income tax liability is established, it cannot affect the tax liability already incurred (see Supreme Court Decisions 95Nu959365, Oct. 12, 195; 98Du750, Jul. 35, 198).

Examining the reasoning of the judgment below in light of the aforementioned legal principles, relevant Acts and subordinate statutes, and records, the court below recognized the fact that the non-party who is a major shareholder and a de facto manager of the plaintiffs embezzled the money as stated in its reasoning and reverted it to him, and determined that the above money constitutes an earned income of the non-party and thus the non-party is liable for withholding taxes to the plaintiffs, and thereafter, it does not change because the non-party pays the above money, and in such a case, the non-party cannot be deemed to be in violation of the principle of excessive prohibition and guarantee of property rights. There is no error in the misapprehension of legal principles as to embezzlement, earned income, earned income, wage and salary income, dividend, and withholding taxes, misunderstanding of legal principles as to the extinguishment of taxation requirements, and misunderstanding of legal principles as to the failure

C. Ground of appeal No. 6

According to the records, among the collection disposition of Class A earned income in this case, the part of Class A earned income tax in the year 192 through 194 is practically related to income accrued, and the part of Class A earned income tax in the year 195 is based on the disposal of income, and is deemed to have been paid on June 10, 197 and July 8 of the same year, which are the notification date of change in the amount of income, and thus, it can be known that each collection and notification were made directly based on Article 20 (1) 1 (c) of the Income Tax Act (wholly amended by Act No. 4803, Dec. 22, 1994; hereinafter the same). Thus, the plaintiffs' assertion that Article 21 (5) of the former Income Tax Act and Article 20 (4) of the Income Tax Act are unconstitutional is without merit.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the unconstitutionality.

D. Ground of appeal No. 10

Examining the reasoning of the judgment below in light of the records, it is just for the court below to recognize that the non-party embezzled the amount of processed supply of this case plus value added tax, and there is no error of misunderstanding of facts or misunderstanding of legal principles due to violation of the rules of evidence concerning the calculation of embezzlement

E. Ground of appeal No. 12

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intent or negligence is not considered as administrative sanctions imposed as prescribed by the individual tax law. However, in cases where there is a justifiable reason that it is not unreasonable for the taxpayer to be unaware of his/her duty or it is unreasonable for the taxpayer to expect the fulfillment of his/her duty, etc., the penalty tax may not be imposed (see Supreme Court Decision 95Nu17274 delivered on October 11, 196).

According to the records, the imposition of additional tax from the collection of the Class A earned income tax in this case is limited to the collection of the Class A earned income tax for the year 195 against the plaintiff 1. The defendant revoked the above collection disposition on June 13, 1997, and the defendant returned the Class A earned income and additional tax on July 1, 1996 to the plaintiff 1, and the defendant did not notify the plaintiff 1 of the due date for payment in light of the following circumstances: 305,836,510 won, which the plaintiff 1, was deemed to have been reverted to the non-party as bonus for the year 195; 137,626,420 won, which was reverted to the non-party; 37,626,420 won, which was paid by the plaintiff 1; 1 did not notify the plaintiff 1 of the change in the amount of income; 197, the defendant did not notify the plaintiff 1 of the due date for payment in this case.

The judgment of the court below to the same purport is just, and there is no error of law as to additional tax as otherwise alleged in the ground of appeal.

2. As to Plaintiff 1’s grounds of appeal (Ground of appeal No. 3)

Examining the reasoning of the judgment below in light of the records, the court below is just in finding that the non-party embezzled KRW 498,159,130 from Plaintiff 1 in 192 (it is difficult to recognize that the non-party embezzled KRW 90,000,000 out of the above amount on December 31, 1991 only with the entries in the subcontract review sheet attached to No. 23-1 of the evidence No. 23) and there is no error in the misapprehension of legal principles as to the period of misconception of facts or exclusion due to the violation of the rules of evidence as otherwise alleged in

3. As to Plaintiff 2’s ground of appeal (Ground of appeal No. 11)

Examining the reasoning of the judgment below in light of the records, it is just that the court below recognized that the plaintiff 2 omitted 510,000,000 won as the facility construction cost from the gross income and embezzled it by the non-party, and there is no error of misconception of facts due to violation of the rules of evidence as otherwise

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)