National High Court 1998west069 ( October 09, 1999)

Global Income

Correction

The term "amount of income of a business income earner" is a concept including the amount of income, and the amount of income of a business income earner subject to withholding is indicated as the amount of income in consideration of the fact that it is difficult to determine the amount of income in detail, unlike other income such as interest income, and there is no difference between the amount of income, the amount of income, or the amount of income, and the exclusion of the imposition of a penalty tax on the amount of income withheld under Article 81 (12) of the Income Tax Act shall be interpreted as having no difference between the amount of income, the amount of income, or the amount of income, or the amount of income. Thus, the disposition imposing a penalty tax on the amount of income withheld under Article 81 (12) of

Article 81 of the Income Tax Act (Additional Tax)

Korean High Court Decision 1998west2897

The global income tax of which the director of the tax office makes the claimant October 15, 97.

14,285,730 won disposition shall be the income tax of the claimant for the year 95 income of the claimant.

(2) For the amount of income withheld at source, it shall not be reported in good faith

If penalty tax is not applied, the amount of tax shall be corrected.

1. Summary of the original disposition;

The claimant, as a free occupation income earner, withheld 1% income tax (5,321,909 won) for the amount of income received in the 95 year, and paid 5,238,400 won for interim prepayment, and 5,238,400 won for the same business income when filing a final return on the tax base of global income belonging to the 95 year for the same business income, 96.5.31, the amount of income shall be 534,91,610 won for the final return on the tax base of global income belonging to the 95 year, and the tax base shall be 183,921,019 won for the global income tax belonging to the 95 year.

On December 2, 97, the claimant appealed against this and filed an appeal for adjudication on March 14, 98.

2. Opinions of the applicant and the Commissioner of the National Tax Service;

(a) Request;

According to the provisions of Article 81 (12) of the Income Tax Act, in case where there is any income amount withheld from the income tax, the provisions of paragraph (1) of the same Article shall not apply even if the financial statements, etc. under paragraph (2) of the same Article are not submitted.

(b) Opinions of the Commissioner of the National Tax Service;

With respect to the amount of income of a business income earner, the tax base is reported on the basis of the amount of income which deducts necessary expenses, unlike interest and dividend income, and the income tax exempted from the additional tax on negligent tax returns under Article 81 (12) of the Income Tax Act refers to the amount of tax withheld, such as interest income, dividend income, other income, and continuing income, for which the tax claim and liability are terminated, and the income tax is not withheld, and even if the amount of income is withheld under Article 127 (1) 3 of the Income Tax Act, since the amount of income is determined after the specific procedures necessary for calculating the amount of income is determined based on the amount of income, the fact that the income other than the amount of income is withheld can not be exempted from sanctions due to nonperformance, such as failure in filing a tax return, even if the claimant has withheld 1% income tax on the amount of income belonging to the year 95 as a free income earner, such a return is deemed to have not been filed on the final tax return on global income under Article 127 (1) 3 of the Income Tax Act.

3. Hearing and determination

A. Key issue

The dispute at issue shows the legitimacy of the disposition imposing penalty tax against the amount of income already withheld when the person liable to make a return by submitting financial statements, etc. when filing a comprehensive income tax return and attaching financial statements, etc., did not attach it.

(b) Related statutes;

Article 81 (1) of the Income Tax Act provides that where a resident fails to make a final return on the tax base under Articles 70 through 72 or 74 of the Income Tax Act or makes a return on the amount short of the income amount to be returned, the amount equivalent to 20/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the relevant income amount not reported or the relevant income amount short of the amount to be returned to the global income, retirement income or forest income amount, shall be added to the calculated tax amount: Provided, That this shall not apply to the relevant tax amount where there is an occasional tax amount under Article 82, and paragraph (2) of the same Article provides that where a business operator prescribed by the Presidential Decree fails to attach the balance sheet, income statement, total sum of balance sheet and adjusted account statement under Article 70 (4) 3 to the final return on the tax base, the provisions of paragraph (1) shall not apply to the case where there is no additional tax amount under Article 85 (excluding the case where there is no tax amount to be paid or any return on the tax amount less than the amount reported.

In addition, Article 146 (3) of the Enforcement Decree of the same Act provides that "business operators prescribed by the Presidential Decree" in Article 81 (2) of the Enforcement Decree of the same Act refers to business operators other than those subject to the attachment of simplified income statement under Article 132, and Article 132 (1) of the Enforcement Decree of the same Act provides that "business operators falling short of the size prescribed by the Presidential Decree" in the proviso to Article 70 (4) 3 of the same Act refers to business operators whose total amount of income in the immediately preceding year is less than 30 million won (where the Commissioner of the National Tax Service separately determines it by taking account of the characteristics of each business type,

On the other hand, the person who pays the income or revenue amount falling under any of the following subparagraphs to residents or nonresidents in Korea under the provisions of Article 127 (1) of the same Act shall withhold the income tax for the relevant residents or nonresidents:

1. Interest income amount;

2. Dividend income amount;

3. Business income amount as prescribed by the Presidential Decree;

4. Employment income amount of Class A;

5. Other income amount.

6. The retirement income amount of Class A is stipulated as the retirement income amount of Class A.

C. Facts and determination

(1) A personal entrepreneur whose amount of revenue for 95 years of a claimant who filed a report with a disposition agency is not less than 534,91,610 won and whose amount of revenue is not less than 75 million won and who is to be attached to the final return on tax base of global income pursuant to Article 195-14 (1) of the National Tax Service Notice by the National Tax Service and Article 81 (2) of the Income Tax Act, but is a personal entrepreneur to be attached to the final return on tax base of global income. However, there is no dispute between the disposition agency and the claimant

(2) The claimant asserts that even if financial statements, etc. are not attached at the time of the final return on the tax base, the tax on the withheld income shall not be imposed on the additional tax on the withheld income.

According to the provisions of Article 81 (2) of the Income Tax Act exhibited, when a financial statement, etc. is not attached, it shall be deemed that a report has not been made in the application of the additional tax under paragraph (1). According to the provisions of paragraph (12) of the same Article, where income tax is withheld from the amount of income not reported, if there is an income amount withheld from the amount of income not reported, the provisions of paragraph (1) shall not apply to such amount. On the other hand,

In light of the contents of the relevant laws and regulations such as the above, even if a business operator who is to attach the table of no control, etc. at the time of the final return on the tax base of global income did not attach the financial statements, etc. at the time of the final return on the tax base

(3) Although the Commissioner of the National Tax Service does not impose additional tax on the "income amount" withheld, he argues that Article 81 (12) of the Income Tax Act cannot be applied to the "income amount of business income earner". However, as a concept including the income amount, the "income amount of business income earner" is the concept including the income amount, considering that the income amount of business income earner subject to withholding cannot be specifically determined differently from other income such as interest income, it shall be deemed that there is no difference in the amount of income, revenue amount, or particular meaning with respect to the fact that the income earner subject to withholding is paid through withholding. It shall be deemed that the exclusion of the imposition of additional tax on the withheld income under Article 81 (12) of the Income Tax Act from the "whether it has been withheld" should be interpreted as having no difference

Therefore, the disposition imposing additional tax on the amount of income withheld from the claimant is considered to be an illegal disposition that erroneously understand the legal principles.

D. Accordingly, the petition for appeal for this case is well-grounded, and it is so decided as per Disposition in accordance with Articles 81 and 65(1)3 of the Framework Act on National Taxes.