2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The Defendant limited on January 1, 2017 to the Plaintiff:

(a) the portion exceeding KRW 2,235,940 in the imposition disposition of value-added tax of KRW 2,282,270 (including additional tax) in 2013, and the portion exceeding KRW 24,536,411 in the imposition disposition of value-added tax of KRW 239,379,620 (including additional tax) in 2014;

(b) the portion exceeding 31,911,121 of the imposition disposition of corporate tax for the year 2013 (including additional tax) and the portion exceeding 55,168,140 of the imposition disposition of corporate tax for the year 2014 (including additional tax);

(c)The income earner’s portion in excess of 56,039,060 won in the notice of change in the income amount of 56,593,920,50 won in the year 2014 and the portion in excess of 149,857,000 won in the notice of change in the income amount of 568,739,060 won in the year 2013 shall be revoked;

A. The Plaintiff is a company that runs a construction business and a real estate sales agency business, and Kim ○○ is an internal director and a shareholder who owns 100% of shares, and has overall control over the Plaintiff’s conclusion of a contract, fund management, and issuance

나. 피고는 2016. 8. 17.부터 2016. 11. 30.까지 원고에 대하여 법인세 등 통합조사 및 조세범칙조사를 실시한 결과, 원고가 2013년 제1기와 2014년 제2기에 ▤▤디자인, 주식회사 ▥▥디엔씨(이하 '▥▥디엔씨'라 한다), ▧▧플래닝(이하 통칭하여 '쟁점 매입처'라 한다)에 지급한 인테리어 또는 분양대행 용역대금 중 일부(총 1,456,763,500원, 이하 '쟁점 금액'이라 한다)를 아래 표 기재와 같이 김○○과 그 가족, 원고의 직원들과 그 가족 등의 계좌를 이용하여 되돌려 받는 방법으로 쟁점 금액 상당의 가공 세금계산서(이하 '쟁점 세금계산서'라 한다)를 수취한 것으로 보았다.

No.

Time of transaction

Key Purchase Agency

Amount (won)

Collection and Disbursement

1

2013

1.

▤▤디자인

12,700,000

원고가 2013. 4. 11. ▤▤디자인에 용역대금 2,900만 원 지급 후, ▤▤디자인이 같은 날 1,270만 원을 원고의 직원 김aa 계좌로 이체하고, 다시 김○○의 장모 전bb 계좌를 거쳐 김○○의 처 김cc 계좌로 입금된 후, 개인용도로 소비됨

2

2014

2nd class

30,000,000

원고가 2014. 9. 15. ▤▤디자인에 용역대금 6,600만 원 지급 후, ▤▤디자인이 같은 날 수표로 6,000만 원을 출금하였는데, 그 중 3,000만 원 상당의 수표를 김cc이 배서ㆍ사용함

3

100,000,000

원고가 2014. 10. 20. ▤▤디자인에 용역대금 1억 1,000만 원 지급 후, ▤▤디자인이 같은 날 수표로 1억 원을 출금하였는데, 그 1억 원 상당의 수표를 김cc이 배서ㆍ사용함

4

2014

2nd class

▥▥디엔씨

51,251,000

원고가 2014. 8. 20. ▥▥디엔씨에 용역대금 5,830만 원 지급 후, ▥▥디엔씨가 같은 날 원고의 직원 이dd, 김ee 계좌로 합계 51,251,000원 이체 후, 위 돈이 수표로 출금됨

5

14,505,000

원고가 2014. 8. 25. ▥▥디엔씨에 용역대금 1,650만 원 지급 후, ▥▥디엔씨가 같은 날 원고의 직원 김ff의 처 김gg 계좌로 14,505,000원 이체함

6

65,756,000

원고가 2014. 10. 17. ▥▥디엔씨에 용역대금 2억 5,058만 원 지급 후, ▥▥디엔씨가 2014. 10. 20. 원고의 직원 김hh와 그의 처 정jj 계좌로 합계 65,756,000원 이체함

7

146,000,000

원고가 2014. 11. 26. ▥▥디엔씨에 용역대금 1억 4,600만 원 지급 후, ▥▥디엔씨가 같은 날 원고의 직원 정kk, 이ll, 문mm, 최nn 계좌로 합계 1억 4,600만 원 이체함

8

166,000,000

원고가 2014. 11. 26. ▥▥디엔씨에 용역대금 1억 9,600만 원 지급 후, ▥▥디엔씨가 같은 날 원고의 직원 문oo, 박pp, 김qq, 김rr 계좌로 합계 1억 6,600만 원 이체함

9

135,000,000

원고가 2014. 11. 27. ▥▥디엔씨에 용역대금 153,567,736원 지급 후, ▥▥디엔씨가 같은 날 원고의 직원 김aa, 이ss, 김tt 계좌로 합계 1억 3,500만 원 이체 후, 위 돈이 수표로 출금됨

10

2014

2nd class

▧▧플래닝

4,965,500

원고가 2014. 10. 20. ▧▧플래닝에 용역대금 5,150만 원 지급 후, ▧▧플래닝이 같은 날 원고의 직원 이dd 계좌로 44,965,500원 이체함

11

29,977,000

원고가 2014. 10. 27. ▧▧플래닝에 용역대금 2억 460만 원 지급 후, ▧▧플래닝이 같은 날 원고의 직원 이dd 계좌로 29,977,000원 이체함

12

69,624,00

원고가 2014. 10. 30. ▧▧플래닝에 용역대금 7,920만 원 지급 후, ▧▧플래닝이 같은 날 김○○ 계좌로 69,624,000원 이체함

13

203,070,000

원고가 2014. 11. 12. ▧▧플래닝에 용역대금 2억 3,100만 원 지급 후, ▧▧플래닝이 같은 날 원고의 직원 김ff, 김uu(김○○의 부), 박ww(김○○의 모) 계좌로 합계 203,070,000원 이체함

14

106,370,000

원고는 2014. 11. 25. ▧▧플래닝에 용역대금 1억 2,100만 원 지급 후, ▧▧플래닝이 같은 날 원고의 직원 김ff 계좌로 1억 637만 원 이체 후 위 돈이 수표로 출금됨

15

130,545,00

원고는 2014. 11. 25. ▧▧플래닝에 용역대금 1억 4,850만 원 지급 후, ▧▧플래닝이 같은 날 원고의 직원 김aa 계좌로 130,545,000원 이체 후 위 돈이 수표로 출금됨

16

151,000,000

원고는 2014. 11. 28. ▧▧플래닝에 용역대금 171,768,356원 지급 후, ▧▧플래닝이 같은 날 원고의 직원 조xx, 박yy, 임zz 계좌로 합계 1억 5,100만 원 이체 후 위 돈이 출금됨

Total

1,456,763,500

C. On January 1, 2017, the Defendant did not deduct the input tax amount related to the pertinent tax invoice, added the issues to the deductible expenses, added the processed fees for the business year from 2011 to 2014 to the deductible expenses, added the amount of the provisional payment revenue for the business year from 2012 to 2015 to the deductible expenses, and notified the Plaintiff of the rectification and correction of value-added tax and corporate tax as indicated below.

Items of Taxation

Taxation Period

Amount of assessment (including additional duties, costs)

Value-added Tax

1, 2013

2,282,271

2014 Second Period

239,379,622

Corporate Tax

2011 Business Year

32,885,860

2012 Business Year

29,673,509

2013 Business Year

32,572,345

2014 Business year

538,225,763

2015 Business year

6,459,493

D. On January 1, 2017, the Defendant deemed that the amount at issue, the ratio of appropriation of processing fees, and the amount equivalent to the interest omitted from the provisional payment was reverted to Kim○, an inside director, and disposed of as a bonus of Kim○○, and notified the Plaintiff of changes in the amount of income as indicated below.

Taxation Period

Reversioner

Amount of income disposal;

Type of income;

2011

○ Kim

96,745,000

Bonuses

2012

○ Kim

85,589,000

Bonuses

2013

○ Kim

568,739,060

Bonuses

2014

○ Kim

1,593,920,500

Bonuses

2015

○ Kim

21,777,00

Bonuses

E. On April 6, 2017, the Plaintiff appealed to the Tax Tribunal, but was dismissed on January 11, 2018.

F. Meanwhile, on the other hand, on July 25, 2018, the Defendant corrected the amount of the second imposition of the value-added tax in 239,379,622, which was imposed on July 25, 2014; the first,48,842, which was imposed on KRW 1,48,842, and the imposition disposition of the corporate tax for the business year 2014, which was imposed on KRW 538,225,763, respectively.

G. In addition, the Defendant, on September 20, 2018, dismissed the amount of value-added tax for the first and second years in 2013 as indicated below, on the ground that the pertinent purchaser did not have awareness that the Plaintiff would have reduced the amount of tax revenue equivalent to the said amount by paying the value-added tax collected from the Plaintiff, and thus, the Defendant could not apply the penalty tax for unlawful underreporting.

Taxation Period

Underreported Tax Amount

Illegal Under-reported Penalty Tax

General Under-reported Penalty Tax

Amount of the difference

Reduction Tax Amount

1, 2013

1,154,529

461,811

15,452

346,359

46,3312)

2014 Second Period

131,278,500

52,511,400

13,127,850

39,383,550

39,388,550

H. For the foregoing reasons, the remaining part of the corporate tax and value-added tax that the Defendant notified to the Plaintiff as the subject of the instant judgment (hereinafter referred to as the “instant disposition”) is as listed below.

Items of Taxation

Taxation Period

Original Imposition Tax Amount

(including additional tax)

1. First reduction

(7.25)

2. Reduction by second

(9.20)

Remaining Parts

Value-added Tax

2013 No. 1

2,282,271

-

46,331

2,235,940

2014 Second Period

239,379,622

1,488,842

39,383,550

198,507,230

Corporate Tax

2011 Business Year

32,885,860

-

-

32,885,860

2012 Business Year

29,673,509

-

-

29,673,509

2013 Business Year

32,572,345

-

-

32,572,345

2014 Business year

538,225,763

2,606,731

-

535,619,032

2015 Business year

6,459,493

-

-

6,459,493

[Reasons for Recognition] The entry of Nos. 1-13 of Eul and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

As a result, when a reduction or correction disposition is made, the effect of partially cancelling the amount of tax arises, a lawsuit seeking revocation of the amount of tax already cancelled by the above decision of reduction is against an administrative disposition for which no lawsuit exists, and is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 95Nu8904, Nov. 15, 1996).

ex officio, the defendant's imposition of value-added tax of KRW 2,282,271 (including additional tax) on January 1, 2017, which was imposed by the defendant on the plaintiff on January 1, 2017, is revised once, and only KRW 2,235,940 on the ground that the defendant's imposition of value-added tax of KRW 239,379,62 (including additional tax) on the second period of value-added tax of KRW 2014 was corrected twice, and only KRW 198,507,230 on the ground that the imposition of value-added tax of KRW 538,225,763 (including additional tax) on the ground that the reduction was corrected once, and only KRW 535,619,032 on the ground that the imposition of value-added tax of KRW 239,622 on the second period of value-added tax

Therefore, among the instant lawsuits, the part exceeding KRW 2,235,940 of the value-added tax of KRW 1,282,271 (including additional tax), which the Defendant imposed on the Plaintiff on January 1, 2017, exceeds KRW 198,507,230 of the imposition disposition of KRW 2,239,379,62 of the value-added tax of KRW 2,2014 (including additional tax), and the part exceeding KRW 538,225,763 (including additional tax) of the imposition disposition of KRW 535,619,03 of the corporate tax of KRW 2014, which was reverted to the Plaintiff on January 1, 2017, which was subject to an administrative disposition for which no legal interest exists, and thus, is unlawful.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) The key amount is not the amount of money that was returned from the key purchaser, but the amount that was to be settled ex post by making a loan from the key purchaser according to the mutual guarantee agreement under each contract. Therefore, even if the key issue is true, the input tax amount on the key amount is not deducted, the key amount is non-deductible, and the disposition of this case that was deemed to have been reverted to Kim○○ as the key amount was out of the company, and thus, was unlawful.

2) Even if it is improper to include the key amount in deductible expenses because it falls under the amount of money returned from the key purchaser after withdrawing the proceeds from the service, the fact that the key purchaser would bring about a decrease in the national tax revenue as long as corporate tax or income tax on the corresponding amount of gross income or income is paid, is identical to value-added tax, and the Plaintiff did not actively engage in any illegal act for the purpose of making it considerably difficult for the Plaintiff to impose and collect taxes. Therefore, the portion of the penalty tax for underreporting the corporate tax of this case, which exceeds the general penalty tax for underreporting, is unlawful.

(b) Fact of recognition;

1) At the time of the investigation of tax offense, Kim ○, a director of the Plaintiff, Kim ○, stated as follows.

[Judgment of the court below]

- The Gimim ○ directly managed the Plaintiff’s workplace, and directly performed the work of managing transaction prices and issuing tax invoices. approximately 30-40 employees of the Plaintiff were approximately 30-40.

-원고는 ◇◇건설, ◆◆건설 등의 건설회사와 미분양아파트에 대한 분양대행계약을 체결한 후 일반인을 상대로 분양대행을 하는 사업을 주로 하였다.

[▤▤디자인 관련]

-▤▤디자인의 대표인 권■■으로부터 세금계산서를 수취한 이유는 ◇◇건설의 평창동 지구 모델하우스 공사와 관련하여 인테리어 공사에 대한 매입세금계산서를 수취한 것이다.

-검찰 조사 당시 "2013. 4. 11. 권■■의 계좌에서 1억 2,700만 원이 인출되어 김○○의 처인 김cc의 계좌로 입금된 것은 실제 공사비보다 1억 2,700만 원만큼 부풀려 세금계산서를 발급한 후 차액을 돌려받은 것이다"라고 진술하였으나, 사실은 ▤▤디자인과의 계약 내용에 따라 세금계산서를 받았고, 미분양아파트에 대하여 건설회사가 원하는 수준의 목표분양률을 달성하기 위해 상호협력관계에 있었으므로 세금계산서 건당 일정금액의 자금을 융통받아 대부분은 다른 분양대행사업에 사용하였으며 일부는 개인적인 용도로 사용하였다. 모든 목표분양이 끝나면 분양대행사업이 완료되므로 자금거래는 회사를 통해 서로 정산한다.

-검찰 조사 당시 "2014. 9. 15. 권■■의 계좌에서 수표 출금된 금액 중 김cc이 배서한 3,000만 원과 2014. 10. 20. 권■■의 계좌에서 수표 출금된 후 김cc이 배서한 1억 원도 세금계산서를 부풀려 발급한 후 차액을 돌려받은 것이다라고 진술하였으나, 사실은 위와 같은 경위로 받은 것이다.

[▥▥디엔씨 관련]

-▥▥디엔씨로부터 세금계산서를 수취한 이유는 청라●●● 분양수수료와 관련하여 매입세금계산서를 수취한 것으로 기억한다.

-검찰 조사 당시 "2014. 8. 20. ▥▥디엔씨의 계좌에서 51,251,000원이 원고의 직원 이dd, 김ee의 계좌로 입금된 것은 실제 분양대행수수료보다 51,251,000원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 위 금액은 당시 비서 업무를 맡고 있었던 직원 이dd의 실제 급여(현장별 인센티브)로 지급되었고 돌려받은 적이 없다. 현장별 인센티브는 현장기여도에 따라 해당 대행업체를 통해 수수료로 지급된다.

-검찰 조사 당시 "2014. 8. 25. ▥▥디엔씨의 계좌에서 14,505,000원이 원고의 직원 김ff의 처 김gg의 계좌로 입금된 것은 실제 분양대행수수료보다 14,505,000원 만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 ▥▥디엔씨와 계약한 내용에 따라 세금계산서를 받았고 미분양아파트에 대하여 건설회사가 원하는 수준의 목표분양률을 달성하기 위해 상호협력관계에 있었으므로 세금계산서 건당 일정금액의 자금을 융통받아 대부분은 다른 분양대행사업에 사용하였으며 일부는 개인적인 용도로 사용하였다. 모든 목표분양이 끝나면 분양대행사업이 완료되므로 자금거래는 회사를 통해 서로 정산한다.

-검찰 조사 당시 "2014. 10. 20. ▥▥디엔씨의 계좌에서 65,756,000원이 원고의 직원 김hh와 그의 처 계좌로 입금된 것은 실제 분양대행수수료보다 65,756,000원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 위와 같은 경위로 받은 것이다.

-검찰 조사 당시 "2014. 11. 26. ▥▥디엔씨의 계좌에서 3억 1,200만 원이 원고의 직원 정kk, 이ll, 문mm, 최nn, 문oo, 박pp, 김qq, 김rr의 계좌로 입금된 것은 실제 분양대행수수료보다 3억 1,200만 원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 위와 같은 경위로 받은 것이다.

-검찰 조사 당시 "2014. 11. 27. ▥▥디엔씨의 계좌에서 1억 3,500만 원이 원고의 직원 김aa, 이ss, 김tt의 계좌로 입금된 것은 실제 분양대행수수료보다 1억 3,500만 원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다라고 진술하였으나, 사실은 위와 같은 경위로 받은 것이다.

[▧▧플래닝 관련]

-▧▧플래닝의 대표인 김▣▣로부터 세금계산서를 수취한 이유는 ◆◆건설의 잠실아파트 분양수수료와 관련하여 매입세금계산서를 수취한 것으로 기억한다.

-검찰 조사 당시 "2014. 10. 20. 김▣▣의 계좌에서 44,965,000원이 원고의 직원 이dd의 계좌로 입금된 것은 실제 분양대행수수료보다 44,965,000원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 앞서 ▤▤디자인과 ▥▥디엔씨의 경우와 같은 경위로 받은 것이다.

-검찰 조사 당시 2014. 10. 27. 김▣▣의 계좌에서 29,977,000원이 원고의 직원 이dd의 계좌로 입금된 것은 당시 비서 업무를 맡고 있었던 직원 이dd의 실제 급여(현장별 인센티브)로 지급되었고 돌려받은 적이 없다. 현장별 인센티브는 현장기여도에 따라 해당 대행업체를 통해 수수료로 지급된다.

-검찰 조사 당시 "2014. 10. 30. 김▣▣의 계좌에서 69,624,000원이 김○○의 계좌로 입금된 것은 실제 분양대행수수료보다 69,624,000원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 앞서 ▤▤디자인과 ▥▥디엔씨의 경우와 같은 경위로 받은 것이다.

-검찰 조사 당시 "2014. 11. 12. 김▣▣의 계좌에서 203,070,000원이 원고의 직원 김ff, 김uu(김○○의 부), 박ww(김○○의 모)의 계좌로 입금된 것은 실제 분양대행수수료보다 203,070,000원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 앞서 ▤▤디자인과 ▥▥디엔씨의 경우와 같은 경위로 받은 것이다.

-검찰 조사 당시 "2014. 11. 25. 김▣▣의 계좌에서 1억 637만 원이 원고의 직원 김ff의 계좌로 입금된 것은 실제 분양대행수수료보다 1억 637만 원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 앞서 ▤▤디자인과 ▥▥디엔씨의 경우와 같은 경위로 받은 것이다.

-검찰 조사 당시 "2014. 11. 25. 김▣▣의 계좌에서 130,545,000원이 원고의 직원 김aa의 계좌로 입금된 것은 실제 분양대행수수료보다 130,545,000원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 앞서 ▤▤디자인과 ▥▥디엔씨의 경우와 같은 경위로 받은 것이다.

-검찰 조사 당시 "2014. 11. 28. 김▣▣의 계좌에서 1억 5,100만 원이 원고의 직원 조xx, 박yy, 임zz의 계좌로 입금된 것은 실제 분양대행수수료보다 1억 5,100만 원만큼 부풀려 세금계산서를 발급한 후 차액을 되돌려 받은 것이다"라고 진술하였으나, 사실은 앞서 ▤▤디자인과 ▥▥디엔씨의 경우와 같은 경위로 받은 것이다.

[Other]

-The most of the refunded funds, as stated above, were used to purchase unsold households in order to achieve the allotment rate of liability (purposes) contracted with the construction company. Thereafter, the funds were returned to the company. Some of them were used for personal purposes (stocks investment, the purchase of real estate, and the payment of individual donations), and some of them were contributed as incentives to boost the morale of employees (laver ○○ personal card advance payment), and were returned after incentives (laver la○○ personal card advance payment). The returned amount was paid as incentives to employees’ house-purchasing, office cars, visibility, sight, straw, etc.

-on July 31, 2015, repayment of KRW 3,283,714,00 to the Plaintiff through the sale of shares and the lending of real estate security owned by the Plaintiff, thereby restoring the damage of late marina corporations. Moreover, given our business characteristics, there are cases where the remaining households unsold in lots have been sold in advance after a prior purchase for the purpose of achieving the objectives of the remaining households unsold in lots, and the business of operating the company’s funds has always occurred to raise the purchase fund. As above, there are many welfare expenses for employees, such as the aforementioned answers, and there are many amounts of loss in the fund execution procedure.

-the plaintiff did not know that it should be used separately for corporate funds and personal funds as one substantially operated by Kim ○○, while the plaintiff did not actually cause substantial damage to the company since it repaid the funds individually used to the company in full.

- It was the first experienced at the time of the prosecution investigation and the investigation is conducted in the state of detention, so it was difficult to give accurate answers in the state of mental and physical disability.In most cases, however, after the trial, there were many different parts from the facts as a result of reviewing the data and return to the company after the trial. It is against the importance of being punished due to lack of knowledge in the accounting affairs.

2) On August 21, 2015, the Seoul Central District Court sentenced the Plaintiff to a three-year verdict of suspended execution in the year and June of 1 year, due to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and occupational embezzlement (2015 Gohap), and the said judgment became final and conclusive as it is.

1. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Embezzlement) and occupational embezzlement;

○○ Kim, a sales agent, serves as a director of the victim’s in-house company, is a person who actually operates the victim’s OOC, the affiliate company, and the victim’s OO, and exercises overall control over the management of the company, such as the management, execution, and conclusion of contracts.

On May 28, 2014, ○○ Kim Jong-dong 7O-OOOOB 3OO of the victim’s office in Gangnam-gu Seoul, Seoul, while carrying out the business of the victim’s funds, the victim’s funds were recorded in a false account in the name of “the repayment of long-term and long-term loans” as if the victim received false loans, and then transferred KRW 500 million of the company funds to the OOC account of Kim○-OC, and then withdrawn the company funds by transferring them to the OOOO certificate account of Kim○-○, and then arbitrarily used them for the personal stock investment of Kim○-○.

In addition, Kim ○, from April 19, 201 to January 20, 2015, 3,259,515,741 won in total, 1,030,23,166 won in total of the funds of the victim, and 165,305,00 won in total of the funds of the victim OO O O O O O O O O O o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o

List of Offenses (1)

No.

Date

Damage

A corporation

Accounting

Amount of embezzlement

(won)

Method of Embezzlement

31

April 11, 2013

12,700,000

원고 계좌에서 거래처 권■■(▤▤디자인)계좌로 인테리어 비용 지급을 가장하여 집행 후 직원 김aa, 김○○의 장모 전bb 계좌를 거쳐 김○○의 처 김cc 계좌로 입금받은 다음, 백화점 쇼핑 등 개인용도에 소비

71

August 20, 2014

2,240,000

76

October 17, 2014

65,756,000

원고 계좌에서 ▥▥디엔씨 계좌로 용역수수료 지급을 가장하여 집행 후 직원 김hh 계좌를 거쳐 김hh의 처 정jj 계좌로 입금받은 다음, 개인 기부금 및 개인 부동산 취득 등 개인용도에 소비

77

o October 20, 2014

4,965,500

원고 계좌에서 김▣▣(▧▧플래닝) 계좌로 용역수수료 지급을 가장하여 집행 후 이dd 계좌로 이체하여 개인 부동산 취득 등 개인용도에 소비

78

October 27, 2014

29,977,000

원고 계좌에서 김▣▣(▧▧플래닝) 계좌로 용역수수료 지급을 가장하여 집행 후 이dd 계좌로 이체하여 개인 부동산 등 개인용도에 소비

80

oly 30, 2014

69,624,00

원고 계좌에서 김▣▣(▧▧플래닝) 계좌로 용역수수료 지급을 가장하여 집행 후 김○○ 계좌로 입금받은 다음, 백화점 쇼핑 등 개인용도에 소비

(hereinafter omitted)

3) On May 24, 2017, the public prosecutor of the Seoul Central District Public Prosecutor’s Office rendered a decision not to prosecute the charge of violating the Punishment of Tax Evaders Act (Evidence of Evidence) against the charge that Kim○ received a false tax invoice de facto transaction amount from the key purchasing office on the following grounds.

-The Glag argues that, in fact with the point of issue, there was an actual transaction with the point of issue, in connection with the interior construction and the sales commission, the amount corresponding thereto was paid and then the tax invoice was issued.

-쟁점 매입처와의 각 공사도급 계약서, 전자세금계산서 및 송금확인증, ▤▤디자인 대표 권■■의 확인서, ▥▥디엔씨 대표 지명자의 확인서, ▧▧플래닝 대표 김▣▣의 확인서의 각 내용은 김○○의 위 주장에 각 부합하고, 김○○이 허위의 세금계산서를 수취하였다고 보기 어렵다.

- there is no evidence to prove the facts alleged to have been received;

[Grounds for recognition] Class 3, 4, Eul evidence Nos. 1, and the purport of the whole pleadings

C. Determination on the nature of the issue amount

1) Generally, the burden of proving the fact of taxation requirements exists in a lawsuit seeking revocation of a tax imposition disposition. However, where it is proved that the fact of taxation requirements has been presumed in light of the empirical rule in the specific litigation process, unless it proves that the person liable for duty payment is inappropriate to apply the empirical rule or that there are special circumstances to exclude the application of such empirical rule in the pertinent case, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirements (see, e.g., Supreme Court Decision 2015Du60341, Jun. 10, 2016).

In addition, the proof of facts in the administrative litigation is not a natural scientific proof that there should be no suspicion of prosecution, and it is sufficient to prove a high probability that there was a fact in light of the empirical rule, barring any special circumstances, by comprehensively examining all the evidence in light of the empirical rule. Administrative and criminal cases are different principles from each other in terms of the guidance ideology and degree of proof. Thus, even if a non-prosecution decision was rendered by a prosecutor on the ground that evidence is insufficient in the relevant criminal case, such circumstance alone cannot be deemed as the absence of a ground for disposition in the administrative litigation.

On the other hand, even if not bound by the fact-finding in a criminal trial, the fact that has already been recognized as the crime of a criminal judgment based on the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a criminal trial based on other evidence submitted in the administrative trial, it cannot be acknowledged that there is an objection against the fact-finding in light of other evidence (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012).

2) In full view of the following circumstances revealed by the facts acknowledged earlier in light of the aforementioned legal principles and the purport of the entire pleadings, it is reasonable to deem that the amount at issue was attributed to Kim○, an internal director, and a director, as the amount returned from the key purchaser after withdrawing the proceeds from the service. Accordingly, the instant disposition based on such premise is lawful. On the other hand, each of the above evidence Nos. 4 and 6-8 is difficult to be believed to be contrary to the following circumstances, or it is insufficient to recognize that the issue amount was the money for which the Plaintiff would make a payment after making a loan from the key purchaser pursuant to the mutual guarantee agreement, and there is no other evidence to prove otherwise.

A) Once the Plaintiff received a refund of the key amount from the key purchaser as the service price, it is difficult to view that the Plaintiff’s return of the key amount to the account, i.e., the internal director, his family, the Plaintiff’s employees and their family members, etc., who actually controls the Plaintiff rather than the Plaintiff’s account without the Plaintiff’s account settlement in the Plaintiff’s account book, as ordinary transactions. Rather, it appears that

B) In the course of the investigation by the prosecution on suspicion of violation of the Punishment of Tax Evaders Act, Kim○ made a concrete statement on the facts of suspicion disadvantageous to himself/herself that he/she received the difference after receiving a tax invoice in excess of the transaction amount. It is difficult to believe that he/she made a false confession of a suspected fact unfavorable to himself/herself due to the fact that there was no yellow situation in the course of the investigation of detention.

Even if the prosecutor's office received a non-prosecution decision on the charge of violating the Punishment of Tax Evaders Act on the ground that there is insufficient evidence to prove the violation of the Punishment of Tax Evaders Act, among each contract entered into with the purchaser at the time of non-prosecution, the agreement that "the plaintiff will conduct loans for consumption, etc. of funds under mutual agreement and settle them later in order to achieve the target sale rate desired by the Corporation" or "the plaintiff will conduct loans for consumption, etc. and settle them later in mutual agreement in order to achieve the target sale rate desired by the Corporation" is not expected to receive and settle funds between the plaintiff and the purchaser at issue, but it is difficult to believe as a ground for normal transactions, taking into account the fact that there is no loan certificate, interest payment, repayment, or settlement details of funds borrowed from the issue amount, and each of the above contracts and certificates issued by the representative of the purchaser at the time of the above contract are not submitted at the time of the investigation of tax offense, and thus, it is difficult to accept the above recognition after the completion of the indictment.

C) According to the facts found guilty on the ground that Kim○-○ embezzled the Plaintiff’s funds on the grounds of his occupational embezzlement, Kim○-○ appears to have consumed the amount of issues which he was returned after paying the service charges for personal use, such as department store shopping, and acquisition of personal real estate, and there is no circumstance to deem otherwise that the issue amount of outflow from the company belongs to a person other than Kim○-○

D. Determination on the lawfulness of corporate tax unlawfully underreported penalty tax

1) Article 47-3(2) of the former Framework Act on National Taxes (amended by Act No. 12847, Dec. 23, 2014; hereinafter the same) provides that the imposition and collection of taxes is impossible or considerably difficult in a case where the whole or part of the facts, which served as the basis for calculating the tax base or the amount of national tax, are concealed or disguised, to induce a person liable for tax payment to faithfully return the tax base by imposing additional tax at a higher rate than that of the general underreporting that is much higher than that of the illegal act.

Therefore, the term “unlawful act” under the former Framework Act on National Taxes refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere failure to file a return under the tax law or making a false return without accompanying any other act. However, in cases where the circumstances indicate the intention of active concealment, such as failure to file a return or underreporting taxable objects and intentionally failing to enter revenues and sales in the books, etc., it may be deemed that the imposition and collection of taxes are impossible or remarkably difficult (see, e.g., Supreme Court Decision 2014Du2522, Sept. 15, 2015).

In such a case, whether active concealment intention is objectively revealed should be determined based on whether the basic book stating import or sale is falsely prepared, as well as on whether the method of determining the relevant tax is a tax return method or a tax imposition method, the developments leading to a failure to file a return or a false return, etc. and degree different from facts; the specific details of the false matters in the case of a false report; and the method that pretends to be false in the case of a false report; and the function of the document related to the calculation of the tax base if a false document is submitted, etc., as a whole, whether it can be recognized as unlawful under social norms (see Supreme Court Decision 2013Do13829, Feb. 21,

2) Comprehensively taking account of the following circumstances acknowledged in light of the aforementioned legal principles and the purport of the entire pleadings, it is reasonable to deem that the Plaintiff, rather than merely underreporting corporate tax and by actively concealing the corporate tax, significantly difficult to impose and collect the Defendant’s tax. Therefore, the instant disposition that applied the penalty tax for unlawful underreporting by deeming the Plaintiff’s underreporting act as an unlawful act is lawful.

A) The Plaintiff, in line with the fixed amount of service, received a false tax invoice from the key purchaser, and forged false evidential data, such as preparing a construction contract or an organizational sale contract with the key purchaser.

B) The Plaintiff transferred the service price to the key purchase price to make a false financial transaction details by making the false financial transaction details, and the difference amount was not the Plaintiff’s account but the Plaintiff’s in-house director, Kim○ and his family members, the Plaintiff’s employees and their family members who actually control the Plaintiff, and actively concealed the processing transaction by receiving a return.

C) The Plaintiff received a refund of the difference in total of 1,456,763,50 won through 16 times after the Plaintiff unfairly paid the service price between the key purchaser and the purchaser, and the unfair rate is also high.

D) The corporate tax is a tax in the form of tax return, so long as the Plaintiff made an unfair inclusion of the issues in deductible expenses by keeping the aforementioned false evidential data and financial transaction details, it seems that the Defendant’s confirmation and legitimate exercise of the right to impose taxes would have significantly hindered.

3) On this issue, the Plaintiff requires a subjective perception that in order to apply the penalty tax for unlawful underreporting, it would result in a reduction of national tax revenue by evading taxes against the taxpayer. However, it is difficult to deem that the Plaintiff had intention to evade tax since the Plaintiff returned the service cost so returned and disbursed for the sales agency business again, and it cannot be deemed that the Plaintiff had a subjective perception that the issue amount of inclusion in deductible expenses would result in a reduction of national tax revenue as long as the Plaintiff paid corporate tax or income tax on the basis that the purchase price was included in the gross income or revenue

However, there is not any other evidence to acknowledge that the Plaintiff received a refund of the unfilled service price and disbursed it for the sales agency business again, and there is no other evidence to acknowledge it. Furthermore, as long as the supply price becomes the tax base, and there is no concept of cost deduction as the output tax amount and the input tax amount are the same between the parties to the transaction, and the input tax amount is paid in the same manner as the output tax amount is paid between the parties, the input tax amount is deducted from the total tax revenue of the State even if the input tax amount is deducted from the total tax revenue, the corporate tax and the income tax are the tax base for each taxpayer. Since the tax rate and the tax amount are different accordingly, it cannot be concluded that there is no difference in the total national tax income even if the sales agency paid the corporate tax or the income tax by the inclusion of the unfilled service price in the gross income or the revenue amount, it cannot be concluded that there was no subjective perception that the sales agency, which unfairly included the unfilled service price in the processing transaction, would cause

Therefore, the plaintiff's above assertion is not accepted.

4. Conclusion

Therefore, the above part of the lawsuit of this case is dismissed, and the remaining part of the lawsuit of this case is dismissed as it is without merit. It is so decided as per Disposition.

1) The Plaintiff stated the date of disposition on January 9, 2017 in the purport of the claim stated in the complaint and the written application for amendment of the purport of the claim, but it appears to be the date of service, and thus, correction is made in accordance with the written evidence Nos. 4 and 6.

2) However, the Plaintiff did not dispute the calculation of processing fees and the amount of interest omitted in the recognition of provisional payment.