The following facts may be acknowledged in full view of the whole purport of the pleading in Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, and Eul evidence Nos. 4-1 through 11, and there is no counter-proof.

가. 원고는 1987.경부터 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지에서 기계부품제조・판매업체인 ㅇㅇ벤딩공업사를 경영하여 오고 있는바, 1994. 5.경 1993년도 종합소득세과세표준확정신고를 함에 있어, 장부와 증빙서류에 의하여 계산한 결과 사업소득은 총수입금액이 금 1,671,971,961원이고, 필요경비가 금 1,579,269,701원으로서 소득금액이 금 92,702,260원이므로, 총소득금액은 이 사업소득금액에 부동산소득금액 339,700원을 합한 금 93,041,960원이 된다 하여, 이를 기초로, 과세표준은 금 90,941,960원이 되고, 종합소득세액은 금 7,176,136원이 된다고 신고하면서 세무사가 작성한 이 신고내용이 정당하다는 취지의 조정계산서를 첨부하고, 1993년 귀속 종합소득세로 위 금 7,176,136원을 자진납부하였고, 이에 대하여, 피고는 원고가 서면조사결정기준에 해당된다 하여 서면심리에 의하여 원고가 서면신고한 내용대로 과세표준과 세액을 결정하였다.

나. 그런데, 1995. 3.경 ㅇㅇ지방국세청이 원고의 원자재매입처인 소외 ㅇㅇ철강 주식회사에 대한 세무조사를 하는 과정에서, 원고가 위와 같이 1993년도 종합소득세과세표준확정신고를 함에 있어 계상한 필요경비 부문의 재료비 가운데 금 109,129,250원은 실제 거래가 이루어진 바 없는 가공매입금액이라고 피고에게 통고함에 따라, 피고는 실지조사를 통하여 위 금액이 가공계산되었다고 인정하고 이 금액을 필요경비 산입금액에서 제외하기로 하여, 1996. 6. 16. 원고에 대하여 과세표준을 금 200,071,210원, 총결정세액을 금 62,857,935원으로 각 경정하고, 이 총결정세액에서 중간예납금과 기납부세액을 차감한 나머지 금 52,754,059원을 1993년 귀속 종합소득세로서 추가로 부과고지(이하 이 사건 과세처분이라 한다)하였다.

2. Whether the instant taxation disposition is legitimate

A. The parties' assertion

The Defendant asserts that the instant taxation disposition, which was revised as a field investigation method pursuant to Article 127 of the Income Tax Act, is lawful, as long as the tax base and tax amount are found to be omitted after the determination of tax base and tax amount in accordance with the written investigation determination, is found to fall under intentional omissions to evade tax, and the Plaintiff asserts that the instant taxation disposition should be revoked on the grounds that it is unlawful for the following reasons.

First, in the process of purchasing raw materials, the Plaintiff received a separate tax invoice as much as the transaction amount which was not issued by the non-party company after the transaction, and did not receive a false tax invoice despite having not actually purchased. Thus, the Plaintiff’s original contents are consistent with the actual contents. Secondly, even if the Plaintiff reported excessive appropriation of necessary expenses, it cannot be deemed as a formal defect or error in the return in writing, as it is included in the details of the report, unless there is any formal defect or error in the form of the written report, and thus, it cannot be said that the tax base and tax amount cannot be corrected for the reason of excessive appropriation of necessary expenses after the decision of written investigation was made.

(b) Related statutes;

Article 119 (1) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) provides that where a business operator who files a return on the final return of tax base based on books and documentary evidence kept and recorded, calculates the tax base and the amount of tax on such books and documentary evidence, and satisfies the standards prescribed by the Presidential Decree, notwithstanding the provisions of Article 118, if the certified tax accountant files the return along with an adjusted account statement that the entries therein are justifiable, he may request the Government to correct the tax base and the amount in writing under the conditions as prescribed by the Presidential Decree, if the return or other documents submitted are incomplete or erroneous; paragraph (3) provides that the business operator who is requested to correct the tax base and the amount of tax on such books and documentary evidence may not determine the tax base and the amount of tax on such books and documentary evidence in writing; and Article 127 (1) provides that the business operator may, if he/she finds the tax base and the amount of tax on such books and documentary evidence, investigate the tax base and the revised tax base and the tax amount in writing.

C. Determination

(1) Judgment on the plaintiff's first argument

Comprehensively taking account of the aforementioned evidence and evidence Nos. 3-1 and 3-2’s whole purport of the pleading, the Plaintiff, even if the Plaintiff did not actually purchase raw materials from the non-party company during the period from January 1 to April 4, 1993, received a false tax invoice equivalent to the above amount, and filed a return by including the purchase price in necessary expenses at the final return of global income tax for the tax year 1993, as if it was purchased from the non-party company. Thus, the Plaintiff’s first assertion is without merit.

(2) Judgment on the second argument by the Plaintiff

(A) Even if a tax base and amount of tax were determined through a written investigation determination under Article 119 of the Income Tax Act, if there are omissions or errors later, the tax authorities may rectify the tax base and amount of tax pursuant to Article 127 of the Income Tax Act. However, any omissions or errors that the tax authorities may investigate and rectify the tax base and amount of tax are limited to the cases where the taxpayer’s return is not included in the taxpayer’s return, but from the beginning or where it is objectively apparent that the omission or error was committed by the taxpayer itself. Therefore, even if the tax accountant included excessive necessary expenses in the final return on the income tax return along with the adjusted statement confirmed that the details were justifiable, the tax base and amount of tax may not be corrected by adding them to the income amount (see Supreme Court Decision 96Nu4701, Mar. 28, 1997).

However, Article 182-2 of the former Enforcement Decree of the Income Tax Act provides that even if it is confirmed that an excessive appropriation of necessary expenses is made by evidence different from the facts at the time of the final return on the tax base, the tax base and tax amount may be corrected pursuant to the provisions of Article 127 of the former Income Tax Act, and in the case of this case where it is confirmed that the excessive appropriation of necessary expenses is made by evidence different from the facts, the tax base and tax amount may be corrected through the on-site investigation by the tax authorities. However, the above provision does not delegate the requirement of the decision on the correction of tax base and tax amount after the written investigation under Article 119 of the former Income Tax Act and Article 127 of the same Act on the decision on the correction of tax base and tax amount, even though Article 127 of the same Act does not delegate the requirement of the decision on the correction of tax base and tax amount after the written investigation is more widely defined than Article 127

(B) In the final tax base return on global income tax in 1993 on the instant case, the Plaintiff reported the details to the Defendant along with the adjusted account statement that the entries were justifiable, and the Defendant made a written investigation decision according to the Plaintiff’s details. In making the above report to the Defendant, the Plaintiff reported the above processed purchase amount of KRW 1,579,269,701, including the above processed purchase amount of KRW 109,129,129,250, and the above processed purchase amount of KRW 1,579,269,701, including the above processed purchase amount of KRW 109,250,000, as seen earlier. However, according to the above facts, even if the expenses reported by the Plaintiff are excessively counted, it cannot be deemed as formal deficiencies or errors unless the expenses are included in the reported details, or there is no objective clear fact that the Plaintiff committed omissions or errors by the above report itself, or there is no evidence to acknowledge that there is any formal deficiencies or errors in the report submitted by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation because the taxation disposition of this case was unlawful, is justified, and it is justified, and the lawsuit cost is assessed against the losing defendant. It is so decided as per Disposition.

November 19, 1997