Burnet Co., Ltd. (Law Firm Subdivision, Attorney Lee Dong-Un, Counsel for the plaintiff-appellant)

Seoul Regional Tax Office et al.

Seoul Administrative Court Decision 2019Guhap54863 decided April 14, 2020

July 17, 2020

1.The judgment of the first instance shall be modified as follows:

The plaintiff's claim against the defendant director of Seoul Regional Tax Office and the defendant's Republic of Korea is dismissed.

The plaintiff's main claim and ancillary claim against the defendant of Seocho Tax Office are all dismissed.

2. The plaintiff shall bear the total costs of the lawsuit.

Purport of claim

(1) On May 12, 2016, the director of the Seoul Regional Tax Office confirms that the notice of change in income amount of KRW 420,912,00 that was given to the Plaintiff on May 12, 2016 (the Nonparty of the income earner) is invalid.

Shebin and around:

On January 8, 2018, the head of Seocho District Tax Office confirmed that the imposition of corporate tax of KRW 8,418,240 for the business year belonging to the Plaintiff for the Plaintiff on January 8, 2012, and the imposition of the withholding tax of KRW 143,345,280 for the amount corresponding to the withholding tax for the year 2013 against the Plaintiff on January 10, 2018 is all invalid.

Preliminary,

All of the above dispositions shall be revoked.

Defendant Republic of Korea pays to the Plaintiff 151,763,520 won with 5% interest per annum from January 29, 2018 to the delivery date of the complaint of this case, and 12% interest per annum from the next day to the full payment date.

Purport of appeal

The same shall apply to the order.

1. Disposition of this case

The following facts are either not disputed between the parties, or acknowledged by considering the overall purport of the pleadings as a whole in each entry of Gap evidence of Nos. 1 through 9, 12, 14, 15, and Eul evidence of Nos. 1 through 6 (including the number number):

[1]

○ As the Plaintiff’s managing director, the Nonparty owned 24,00 shares issued by the Plaintiff (hereinafter “instant shares”).

○ On April 30, 2012, the Plaintiff purchased the instant shares from the Nonparty at KRW 29,229 per share (total KRW 701,496,00).

○ The price of KRW 29,229 per share was determined as net asset value under the Inheritance Tax and Gift Tax Act.

On August 31, 2012, the Nonparty: (a) filed a preliminary return on the tax base of capital gains tax of the instant shares with the head of Seocho District Tax Office on August 31, 2012; (b) paid tax amount of KRW 57,548,852; (c) tax amount of KRW 28,774,426; and (d) paid tax amount of KRW 28,74

[2]

As a result of the investigation of changes in stocks with the Plaintiff from February 23, 2016 to March 21, 2016, the head of the Seoul Regional Tax Office determined that the market price of the instant shares at the time of the said purchase is KRW 11,691 per share (total amount of KRW 280,584,00), and that the Plaintiff purchased the instant shares from the Nonparty, who is a specially related party, to KRW 29,229 per share (total amount of KRW 701,496,00), which would be subject to the rejection of wrongful calculation due to higher purchase.

○ Market value of KRW 11,691 per share above was the weighted average of the net profit and loss value and net asset value under the Inheritance Tax and Gift Tax Act, respectively.

○ The director of the Seoul Regional Tax Office included the above purchase price of KRW 701,496,00 and KRW 280,584,000 in the market price of KRW 420,912,00 (= KRW 701,496,000 - KRW 280,584,000) in the Plaintiff’s gross income for the business year 2012, and disposed of it as a bonus to the Nonparty.

○ Around March 2016, the head of the Seoul Regional Tax Office sent the Plaintiff the “written guidance on the examination of explanatory materials as to stock changes” (No. 6 evidence No. 1) stating that the said KRW 420,912,00 was treated as a bonus to the Nonparty, and that it was treated as a bonus to the Nonparty.

On May 12, 2016, the director of the Seoul Regional Tax Office issued a notice of change in the amount of income (hereinafter “the notice of change in the amount of income of this case”) to the Plaintiff, the income earner was the Nonparty, the amount of income of which was KRW 420,912,00, and the type of income as bonus.

○ The Plaintiff received the notice of change in the income amount of this case around May 2016, but did not withhold and pay the income tax by June 10, 2016.

[3]

On September 28, 2017, the head of the Seocho District Tax Office notified the Plaintiff of the pre-announcement of taxation amounting to KRW 8,418,240 as corporate tax for the business year 2012, and KRW 139,774,682 as corporate tax for the bonus amounting to KRW 8,418,240 as corporate tax for the foregoing bonus amount, and

○ On October 16, 2017, the Plaintiff served a notice of the tax notice and filed a request for pre-assessment review on November 15, 2017, and the head of the Seocho District Tax Office decided on December 14, 2017 to non-adopted the request.

On January 8, 2018, the head of the Seocho District Tax Office notified the Plaintiff of the payment of additional tax of KRW 8,418,240 which was not submitted as the corporate tax for the business year 2012 (hereinafter “instant disposition of corporate tax”).

○ On January 10, 2018, the head of the Seocho District Tax Office notified the Plaintiff of the payment of the wage and salary income tax of KRW 143,345,280 (This tax amount + KRW 130,313,894 + penalty tax of KRW 13,031,389) for the said withheld portion (hereinafter “instant tax withholding disposition”).

○ On January 29, 2018, the Plaintiff paid the sum of KRW 151,763,520 (i.e., KRW 8,418,240 + KRW 143,345,280) notified in the disposition of the instant corporate tax and the instant disposition of the withholding tax (i.e., KRW 8,418,240) to the head of Seocho Tax Office.

2. Request against the head of Seoul Regional Tax Office;

The Plaintiff seeks confirmation of the invalidity of the notice of change in the amount of income in this case from the Seoul Regional Tax Office.

(a) Notice for advance taxation; and

The plaintiff's assertion that this part of the plaintiff's argument is unlawful because it did not give prior notice of the change of income amount in this case, in order to give prior notice of the change of income amount.

(i) a tax payment notice;

⑴ 앞서 본 인정사실에 의하면, ▲ 원고가 2012. 4. 30. 소외인으로부터 이 사건 주식을 1주당 29,229원에 매수하였고, ▲ 피고 서울지방국세청장이 2016. 5. 12. 원고에게 소득자를 소외인, 소득금액을 420,912,000원, 소득종류를 상여로 하는 이 사건 소득금액변동통지를 하였다.

⑵ 「국세기본법」(2018. 12. 31. 법률 제16097호로 개정되기 전의 것, 이하 같다) 제81조의15 제1항 은, ▲ 다음 각 호의 어느 하나에 해당하는 통지를 받은 자는 과세전 적부심사를 청구할 수 있다고 규정하면서, ▲ 제2호 에서 ‘대통령령으로 정하는 과세예고통지’를 규정하였다.

「국세기본법 시행령」(2019. 2. 12. 대통령령 제29534호로 개정되기 전의 것, 이하 같다) 제63조의14 제2항 은, ▲ 위와 같이 대통령령으로 정하는 ‘과세예고통지’는 다음 각 호의 어느 하나에 해당하는 것을 말한다고 규정하면서, ▲ 제3호 에서 ‘납세고지하려는 세액이 100만 원 이상인 과세예고통지’를 규정하였다.

According to the above provisions, a pre-announcement notice of taxation exceeding one million won may be requested where “pre-announcement notice of taxation is received.” This is intended to give an opportunity for a taxpayer to file a request for pre-announcement of taxation by providing the pre-announcement notice prior to the receipt of such notice of taxation where the amount of tax to be notified exceeds one million won.

The pre-assessment review system is a preliminary remedy system prepared to enhance the effectiveness of the protection of rights by reflecting taxpayer's claims at the pre-assessment stage, separate from the ex post facto remedy system after the taxation was made (see Supreme Court Decision 2010Du19713, Oct. 11, 2012).

Thus, Article 63-14 (2) 3 of the Enforcement Decree of the Framework Act on National Taxes provides that "pre-announcement of taxation exceeding one million won" refers to "pre-announcement of taxation where a certain amount of tax can be notified" in light of the nature of prior notice of taxation.

Article 70 of the Corporate Tax Act (amended by Act No. 14386, Dec. 20, 2016) and Article 109 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 27828, Feb. 3, 2017) provides that the head of a tax office or the director of a regional tax office shall notify the relevant domestic corporation of the determination or correction of the tax base and amount of corporate tax on income of the domestic corporation for each business year, along with the tax base and calculation statement of the tax amount.

According to Article 83 of the Income Tax Act (amended by Act No. 14389, Dec. 20, 2016) and Article 149 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 27829, Feb. 3, 2017), where the head of a tax office or the director of a regional tax office determines or amends the tax base and tax amount of a resident, he/she shall notify the relevant resident of the details in writing.

According to Article 9 of the National Tax Collection Act (amended by Act No. 16098, Dec. 31, 2018), where the head of a tax office intends to collect national taxes, he/she shall issue a taxpayer a notice of tax payment stating the period of taxation, items, amount of tax, grounds for calculation, deadline for payment, and place for payment of national taxes.

According to the above provisions, the tax authority’s external declaration of intent to notify the taxpayer of the contents of “specific taxation or collection disposition” is deemed to be “statement of tax payment,” and such “statement of tax payment” also becomes final and conclusive and simultaneously imposes a collection disposition, and only imposes a collection disposition on the already determined tax liability.

In addition, Article 63-14 (2) 3 of the Enforcement Decree of the Framework Act on National Taxes provides that "pre-announcement notice of taxation amount exceeding one million won" means that the tax authority notifies the taxpayer of the payment of a specific amount of tax due to the disposition of taxation or collection."

Therefore, in order to impose or collect a tax amount exceeding one million won, it is necessary to provide an opportunity to file a request for pre-assessment review by providing “pre-announcement of taxation” in advance. If the tax amount is more than one million won without providing such “pre-announcement of taxation” in advance, the taxation or collection disposition is unlawful.

(ii) notice of change in income amount;

(1) The tax authority’s disposition of income and notice of change in the amount of income resulting therefrom are deemed to have been paid to the person to whom the income as stated in the notice was given on the date of receipt of the notice of change in amount of income, and at the same time the liability to pay the income tax withheld at the same time is established. A corporate tax withholding agent bears the obligation to pay the withholding tax according to the details of the disposition of income recorded in the notice of change in amount of income to the head of the competent tax office, etc. by the tenth day of the following month. If the person fails to pay it, the additional tax is subject to sanctions. Thus, the notice of change in amount of income is a tax disposition directly affecting the corporate tax liability, which is the tax authority’s disposition that is the object of appeal (see Supreme Court en banc Decision 2002Du1878

According to Articles 21 and 22 of the Framework Act on National Taxes (amended by Act No. 16097, Dec. 31, 2018), the obligation to pay withholding income tax is established at the time of paying the amount of income, and the amount of tax becomes final and conclusive without special procedures when such obligation to pay tax becomes effective.

Therefore, income tax withheld is determined at the same time when a withholding tax liability is established when the amount of income is paid or when the amount of income is paid (in the case of a withholding tax which is not the method of tax return or the method of taxation, automatic confirmation is not the method of tax return or the method of taxation), and therefore, in the case of a withholding tax arising from the disposition of income, there is no room for the procedure such as

⑵ 앞서 본 인정사실에 의하면, ▲ 피고 서울지방국세청장이 2016. 5. 12. 원고에게 소득자를 소외인, 소득금액을 420,912,000원, 소득종류를 상여로 하는 이 사건 소득금액변동통지를 하였고, ▲ 원고가 2016. 5.경 이 사건 소득금액변동통지를 송달받았다.

Therefore, when the Plaintiff received a notice of change in the income amount of this case on May 2016, the Plaintiff is deemed to have paid the Nonparty a bonus of KRW 420,912,00 to the Nonparty. At that time, the Plaintiff becomes liable to withhold and pay the labor income tax from the Nonparty and becomes final and conclusive without any special procedure at the same time. The Plaintiff’s obligation to withhold and pay the income amount of this case is not determined by the notice

Therefore, the notice of change in the amount of income in this case merely generates the effect that the Plaintiff would be deemed to have paid the amount of income to the Nonparty, and it does not constitute the “payment notice” under Article 63-14(2)3 of the Enforcement Decree of the Framework Act on National Taxes, and it does not fall under the “pre-announcement notice” under Article 63-14(2)3 of the Enforcement Decree of the Framework Act on National Taxes. Ultimately, it is not unlawful even if the Plaintiff did not make the “pre-announcement

⑶ 앞서 본 인정사실에 의하면, 피고 서울지방국세청장의 이 사건 소득금액변동통지 이후, ▲ 원고가 2016. 6. 10.까지 이 사건 소득금액변동통지에 따른 근로소득세 원천징수와 납부를 하지 않았고, ▲ 피고 서초세무서장이 2017. 9. 28. 원고에 대하여 위 원천징수분 근로소득세 139,774,682원의 과세예고통지를 하였으며, ▲ 피고 서초세무서장이 2018. 1. 10. 원고에게 위 원천징수분 근로소득세의 납부를 고지하였다.

As seen above, the Plaintiff was served with the notice of change in the income amount of this case on or around May 2016, and the Plaintiff’s obligation to withhold and pay the labor income tax from the Nonparty was established at the time of service, and thus, the Plaintiff should pay the withholding tax amount until June 10, 2016.

Therefore, on January 10, 2018, the head of Seocho District Tax Office notified the Plaintiff of the payment of the wage and salary income tax withheld at source on the following grounds: (a) notified the Plaintiff of the payment of a specific amount of tax through a collection disposition; and (b) notified the “pre-announcement of taxation” in advance as it constitutes “tax payment notice” as prescribed by Article 63-14(2)3 of the Enforcement Decree of the Framework Act on National Taxes; (c) Defendant Seocho District Tax Office issued the “pre-announcement of taxation” notice to the Plaintiff on September 28, 2017, the previous head of Seocho District Tax Office, which duly implemented necessary measures.

As seen earlier, it is reasonable to deem that the notice of change in the amount of income constitutes a tax administrative disposition subject to a complaint lawsuit. This can only be contested as a lawsuit seeking cancellation of the collection disposition after the notice of change in amount of income does not protect the rights of taxpayers, thereby ensuring that the notice of change in amount of income itself can be filed as a subject of appeal litigation (see Supreme Court en banc Decision 2002Du1878, Apr. 20, 2006). Thus, the notice of change in amount of income itself constitutes a “tax notice” as provided in Article 63-14(2)3 of the Enforcement Decree of the Framework Act on National Taxes, and it does not mean that prior notice of tax notice is necessary prior to the notice of change in amount of income.

x) Accordingly, the Plaintiff’s assertion that the notice of change in the income amount of this case is unlawful because it did not make a pre-announcement of taxation prior to the notice of change in the income amount of this case cannot be accepted.

(b) Notice;

The plaintiff's assertion that this part of this case's notice of change of income amount was delivered only to the plaintiff, and its contents are not definite and illegal.

(1) The tax authority’s notice of change in the amount of income is unlawful, unless there are special circumstances, where the tax authority made a notification of change in the amount of income without specifying the income by the person to whom the income accrues or by the person to whom the income accrues, and without specifying the amount of income by the person to whom the income accrues. However, even if the tax authority partially omitted or mistakenly stated matters to be stated in the notice of change in the amount of income, it constitutes a minor omission or obvious mistake, or where the tax withholding agent sufficiently knows such circumstances by means of the notice of change in the amount of income, etc. prior to the notice of change in the amount of income, and where it does not interfere with filing an appeal by specifying the type of income, the income earner, the amount of income, and the amount of income and the amount of withholding tax accordingly, and the withholding agent’s notification of change in the amount of

According to the facts found above, around March 2016, the Seoul Regional Tax Office sent to the Plaintiff a “written guidance on the examination of supporting materials as to stock changes” (No. 6-1) with the content that the Defendant’s head of Seoul Regional Tax Office purchased the shares of this case as high as KRW 420,912,00, which was treated as a bonus to the Nonparty.

「소득세법 시행령」(2017. 2. 3. 대통령령 제27829호로 개정되기 전의 것) 제192조 는 소득금액변동통지에 관하여 규정하면서, ▲ 제1항 에서, 당해 법인에게 소득금액변동통지서에 의하여 통지하여야 한다고 규정하고, ▲ 제2항 에서, 위와 같이 통지하였다는 사실을 해당 상여 등의 처분을 받은 거주자에게 알려야 한다고 규정하였다.

갑 제5호증, 을 제1호증의 각 기재에 변론 전체의 취지를 종합하면, ▲ 피고 서울지방국세청장이 2016. 5. 12. 제목이 ‘소득금액변통지서(1) (법인통지용)’이고 쪽수 표시가 ‘1/2’인 문서, 제목이 ‘소득금액 변동사항 통지서’이고 쪽수 표시가 ‘2/2’인 문서를 각 작성하여 전자는 원고에게 송달하고, 후자는 소외인에게 송달한 사실, ▲ 전자에는 소득종류가 상여, 사업연도가 2012. 1. 1.~2012. 12. 31., 소득금액이 420,912,000원, 소득자가 소외인이라고 기재되어 있는 사실이 인정된다.

According to the above facts, the plaintiff did not interfere with specifying the type of income, the income earner, the income amount, and the withholding tax amount and appeal by the "written guidance on the examination of explanatory materials on stock change" made prior to the notice on the change of income amount in this case and by the "written notice on the change of income amount" at the time of the notice on the change of income amount in this case.

In addition, the above service by the defendant cannot be deemed to have been served on the plaintiff only one of the two pages, because it notifies the resident of the change in the income amount separately by giving the notification of the change in the income amount to the corporation.

In addition, according to Gap evidence No. 5, it is recognized that the defendant Seoul Regional Tax Office stated the phrase "* because the preparation of a written resolution has not been completed, it may not be accurate." The phrase is written in the part outside the margin, which separates the part in the document from the part in the margin.

According to the above contents, the phrase “* because the preparation of a written resolution has not been completed, so the calculation may not be accurate,” but it cannot be deemed that it directly affects the remaining documents except this, or that the content of the document is a provisional statement.

Furthermore, it is difficult to deem that the Plaintiff did not withhold and pay taxes on the wind that the Plaintiff believed that the notice of change in the amount of income of this case was uncertain due to the words written in the margin portion as above, or did not set an opportunity for filing an appeal.

(v) the Plaintiff’s assertion that this case’s notice of change in income amount is unlawful on account of partial delivery, uncertainty of its contents, etc. is not acceptable.

(c) Overprice;

The Plaintiff’s assertion is that the purchase of the instant shares from the Nonparty cannot be considered as a high-priced purchase, and thus, it is unlawful to notify the change of the income amount of this case as a high-priced purchase.

(1) As seen earlier, the Plaintiff seeks to confirm the invalidity of the notice of change in the amount of income of this case. In order for the administrative disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an illegality in the disposition. The defect is a serious violation of the law and is objectively obvious. In determining whether the defect is significant and obvious, it is necessary to examine the purpose, meaning, function, etc. of the law and to reasonably consider the specificity of the specific case itself (see Supreme Court Decision 2007Da24640, Sept. 25, 2008).

Dor. The purchase of the shares of this case was examined more specifically in light of the Plaintiff’s assertion that it cannot be seen as a high-priced purchase.

In the event that the Plaintiff purchased the instant shares from the Nonparty, the instant shares were KRW 0,229 per share value of net profit and loss and net asset value of KRW 29,29,00,000 per share. However, the Plaintiff, who issued the instant shares, demanded the Plaintiff to adjust all bonds and obligations, such as retirement allowances, and demand the Plaintiff to purchase the instant shares by evaluating the Plaintiff’s shares held by it as net value at the same time. Considering these circumstances, the Plaintiff purchased the instant shares from the Nonparty at KRW 29,229 per share, which is a net asset value, and the amount of KRW 120,00,000 out of the purchase price is the amount of management rights premium.

In assessing the value of unlisted stocks, it shall not be technically assessed in accordance with the Inheritance Tax and Gift Tax Act and the Enforcement Decree thereof, and it shall be reasonably determined by comprehensively taking into account the current status of the corporation issuing stocks and the parties involved in stock transaction, the characteristics of the relevant type of business, etc. However, the notice of change in the amount of income of this case, without considering the aforementioned overall circumstances, shall be assessed as 11,691 won (total amount of 280,584,000 won) average weighted average of the market value of the stocks of this case and the net asset value per share in accordance with the above Act and the Enforcement Decree thereof in proportion to 3 and 2, respectively, and thus, is unlawful.

Article 52 of the Corporate Tax Act (amended by Act No. 12850, Dec. 23, 2014) and Article 89 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24357, Feb. 15, 2013) provide that the value assessed by applying mutatis mutandis Articles 61 through 64 of the Inheritance Tax and Gift Tax Act shall be the market price in cases where the market price is unclear.

「상속세 및 증여세법」(2013. 1. 1. 법률 제11609호로 개정되기 전의 것) 제63조 , 같은 법 시행령(2013. 6. 11. 대통령령 제24576호로 개정되기 전의 것) 제54조 는, ▲ 비상장주식의 평가는 원칙적으로 1주당 순손익가치와 순자산가치를 각각 3과 2의 비율로 가중평균한 가액으로 하고, ▲ 평가기준일이 속하는 사업연도 전 3년 내의 사업연도부터 계속하여 각 사업연도에 속하거나 속하게 될 손금의 총액이 그 사업연도에 속하거나 속하게 될 익금의 총액을 초과하는 결손금이 있는 경우 등에는 순자산가치에 의한다고 규정하였다.

According to the Plaintiff’s assertion as seen earlier, since there is no loss from the business year before the business year in which the appraisal base date of the instant shares falls, it cannot be deemed unlawful for the Seoul Regional Tax Office to assess the market value of the instant shares by the weighted average value of 3 to 2, respectively, based on the market value of the instant shares, based on the average value of 3 to 2.

갑 제9, 11, 13, 17호증의 각 기재에 변론 전체의 취지를 종합하면, ▲ 원고가 액면가액 5,000원의 주식 60,000주를 발행하였는데, 2011년 무렵 대표이사 소외 2가 24,200주(40.3%), 전무이사 소외인이 24,000주(40.0%), 삼성SDS주식회사(합병 전에는 삼성네트웍스 주식회사)가 11,800주(19.7%)를 각 보유한 사실, ▲ 2011. 12.경 삼성SDS주식회사가 자신 보유 주식을 매도하겠다고 통지하고 원고가 이를 매수하고자 하자, 소외인은 더 이상의 경영참여에 의미가 없다고 판단하여 자신 보유 주식을 매도하고 퇴직하겠다고 한 사실, ▲ 소외인이 2012. 4. 30. 퇴직하면서 원고에게 “주식을 원고에게 매각하고 동시에 퇴직한다. 주식매매계약으로 원고와의 모든 금전적인 채권ㆍ채무관계는 정산한 것으로 한다. 원고를 상대로 채권이 존재하지 아니함을 확인하며, 향후 민ㆍ형사상 및 행정적 소송 등의 행위를 하지 않기로 한다”는 내용의 서약서를 작성한 사실이 인정된다.

In light of the above facts, if SamsungSS Co., Ltd sells its own shares to the Plaintiff, it holds more than half of the Plaintiff’s voting shares, and thus, if the Nonparty sells its own shares to the Plaintiff, it is difficult to view that the management rights premium is included in the Plaintiff.

In addition, even if the Nonparty, at the time of selling the instant shares to the Plaintiff, prepared a written pledge stating that all monetary claims and obligations are deemed to have been settled by the Plaintiff, it appears that such share sale would settle all disputes. Accordingly, it is difficult to specifically confirm the obligations that the Plaintiff would be exempted from the payment obligation to the Nonparty, and separate consideration received from the Nonparty.

(v) If so, it is reasonable to view the Plaintiff’s purchase of the instant shares from the Nonparty as a high-priced purchase, and if it is possible to clarify the facts accurately, it cannot be deemed apparent even if the defect is serious (see Supreme Court Decision 2011Du22723, Feb. 23, 2012). Therefore, it cannot be said that there is a serious and apparent defect in the notice of change in the income amount of the instant case due to high-priced purchase.

D. Sub-determination

Therefore, the claim against the Seoul Regional Tax Office for the confirmation of invalidity of the notice of change in income amount of this case cannot be accepted.

3. Request against the head of the Seocho Tax Office;

The Plaintiff seeks confirmation from the Head of Seocho Tax Office on the disposition of the instant corporate tax and the invalidity of the disposition of the instant withholding tax, and sought the revocation of the said disposition in preliminary order.

A. Notice of the change in the income amount of this case

The plaintiff asserts that since the notice of change in the income amount of this case is invalid, the disposition of the corporate tax of this case and the disposition of the withholding tax of this case are invalid.

On the other hand, according to the above, the notice of change in the income amount of this case cannot be deemed null and void, and thus, the plaintiff's assertion that the disposition of this case corporate tax and the disposition of withholding tax of this case are null and void cannot be accepted.

(b) double taxation, substantial taxation;

(1) The plaintiff asserts as follows.

The non-party sold the instant stocks to the Plaintiff at KRW 29,229 per share (total amount of KRW 701,496,000) and paid the transfer income tax accordingly. The instant withholding tax disposition is in violation of the principle of double taxation because it imposes income tax again on the transaction that paid the transfer income tax as above.

In the event that the purchase of the instant shares is high-priced, the Plaintiff suffered any loss, and the Nonparty gains any profit. The instant tax withholding disposition is not against the Nonparty, who is not the party to whom the profit accrued, but against the Plaintiff, and thus violates the principle of substantial taxation.

D. As seen earlier, Defendant Seocho District Tax Office’s disposition of withholding tax on the portion of earned income tax withheld from the Plaintiff on the bonus income deemed to have been paid to the Nonparty by the Plaintiff, on the grounds that the Plaintiff did not perform its obligation to withhold and pay the labor income tax from the Nonparty.

Therefore, even if the transfer income tax and the earned income tax from bonus can be a double taxation issue for the non-party who paid the transfer income tax on the sales of the instant shares, the said transfer income tax paid by the non-party against the plaintiff who was the withholding agent and the labor income tax withheld from the non-party cannot be deemed a double taxation. The plaintiff's assertion on this part cannot

In addition, even if the Plaintiff sustained losses due to the purchase of the instant shares and no income exists, the Plaintiff is obligated to withhold and pay the labor income tax from the Nonparty who is presumed to have received bonus income from the Nonparty, which is deemed to have been paid. Since the instant tax withholding disposition is recognized as having income to the Plaintiff, and it does not impose tax on the Plaintiff, it does not violate the principle of substantial taxation. The Plaintiff’s assertion on this part

C. Sub-decision

Therefore, we cannot accept all the claims against the director of the Seocho Tax Office seeking confirmation or revocation of the disposition of the corporate tax of this case and the disposition of the withholding tax of this case.

4. Claim against Defendant Republic of Korea

The Plaintiff seeks return of the unjust enrichment of KRW 151,763,520 against the Defendant Republic of Korea.

The Plaintiff’s assertion: (a) on January 29, 2018, the Plaintiff paid the sum of KRW 151,763,520 to the Head of Seocho Tax Office on January 29, 2018 in accordance with the instant disposition of corporate tax and the instant disposition of withholding tax; (b) on the grounds that the said disposition is null and void or unlawful, and thus, the Defendant Republic of Korea is liable to pay the Plaintiff the said amount

However, according to the above, it cannot be said that the disposition of the corporate tax of this case or the disposition of the withholding tax of this case should be invalidated or cancelled illegally, and thus, the plaintiff's above assertion cannot be accepted.

5. Conclusion

Thus, all of the plaintiff's claims against the defendant director of Seoul Regional Tax Office and the defendant's Republic of Korea are dismissed as without merit, and all of the plaintiff's main claims and conjunctive claims against the defendant director of Seocho District Tax Office are dismissed as without merit. Since the judgment of the first instance differs in part from this conclusion, the judgment of the first instance is modified as above

Judges Kang Jin-han (Presiding Judge)