2. The costs of appeal shall be borne by the Plaintiff.

A. On July 23, 2001, 201, ○○○-si Construction Co., Ltd. (hereinafter referred to as the “△△△ Construction”) concluded a construction contract with ○○○○-si Construction Co., Ltd., to receive a contract for construction cost of KRW 821,834,00 (including value-added tax, and KRW 835,221,00 has increased to KRW 821,90,000, which has been reduced to KRW 821,90,060).

B. On December 7, 2001, the Plaintiff received a subcontract for the construction cost of KRW 95,00,000 (including value-added tax) from △△ Welfare Center in ○○○-Eup and the construction for the new building (hereinafter “subcontract”) which is a part of the instant construction from △△ Construction, and completed the relevant construction work, and received a payment of KRW 27,630,000 for the construction cost on February 7, 2002 and the remainder of KRW 67,630,00 for the construction cost on September 17, 2002, the Plaintiff reported the said KRW 27,370,00 for the sales amount of value-added tax for the first half of 202 to the Defendant, and reported the said KRW 67,630,000 for the sales amount of value-added tax for the second half of 202.

C. The Defendant conducted a tax investigation after receiving the taxation data related to the instant project from the head of △△ District Tax Office, and conducted a tax investigation, and the Plaintiff received a lump sum subcontract from △△ Construction for the taxable period from January 2002 to January 2003, 200, the Defendant issued a revised decision on February 15, 2007, on the ground that 95,00,000 won among them was reported as value-added tax sales and omitted the sales amount of KRW 441,31,887 (including additional tax for failure to file a return on tax invoices, additional tax for failure to file a return on tax invoices, additional tax for failure to file a return on tax invoices, and additional tax for failure to pay taxes for failure) for the first period from January 15, 2007.

D. On September 17, 2008, 538,340,076 won (the supply price of 489,40,069) remaining after the Commissioner of the National Tax Service deducted 42,103,00 won directly paid by △△ Construction to equipment operators, etc. from the construction price of 580,443,076, which was 58,340,076, which was 538,340,076 (the supply price of 489,40,069) from the Plaintiff’s tax base was corrected to the Plaintiff. The Defendant re-issued the value-added tax for the first period of 2003 from 68,250 won (the remaining amount after the amount was reduced from 74,594,940 won which was the corrected tax amount to 6,69,690 won).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4, Gap evidence 34, 35, Eul evidence 1 to 6, Eul evidence 19, 20, and 21 (including each number), the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff only received a subcontract for the instant subcontracted project from △△ Construction, and did not receive a subcontract for all of the instant subcontracted project en bloc.

(2) The Plaintiff left KimA in charge of the management of the private land that occurred during the subcontracted work of this case. KimA left the private land without permission. Accordingly, the Plaintiff was investigated by the ○○nam Police Station and the ○○○ District Public Prosecutor’s Office around June 2003, and the Plaintiff was receiving an examination from the ○○○○○○○ District Public Prosecutor’s Office. At that time, the Plaintiff, who was receiving treatment due to a merger of blood pressure, etc., was considered to have been awarded a subcontract for the entire construction work of this case by ○○○ Construction.

(3) Even though the Defendant did not confirm whether the Plaintiff was given a lump sum subcontract from △△ Construction based on the erroneous and unilateral notification by the investigative agency, the instant disposition was unlawful since it violated the substance over form principle under Article 14 of the Framework Act on National Taxes.

(b) Related statutes;

As shown in the attached Form.

C. Facts of recognition

(1) On June 2003, from around August 2003 to August 2, 2003, JeongB, the Plaintiff’s representative director, was consistently investigated by ○○nam Police Station and ○○ District Public Prosecutor’s Office on ○○○○○ Office, and made statements as follows.

(A) The Plaintiff received the entire instant construction project from △△ Construction in a lump sum.

(B) “The construction cost of the lump-sum subcontract was set at KRW 580,443,076, which is 78% of 744,157,790, which is the amount after deducting value-added tax, industrial accident insurance premium, employment insurance premium, etc. from the amount that △△ Construction would have received from ○○○ City.”

(C) “Written contract which the Plaintiff is to accept only 95 million won for the instant subcontracted construction from △△ Construction.” It is merely a form of a written contract that the Plaintiff is to accept only 95 million won.

(D) “The construction portion of the instant construction was directly executed by the Plaintiff, and the civil engineering portion was re-subcontracted to pro-Japanese Kim Jong.”

(E) On the payment record (No. 22 No. 1 to 23 of the evidence A), KimCC entered as a field manager of the entire construction of this case in the payment record of wages (the plaintiff's employee, or on the documents after being awarded a subcontract to △△ Construction, which was made as if it was an employee of △△ Construction, and arranged as an on-site agent.

(2) At the time of ○○ Construction and at the time, E-D, the representative of ○○ Construction, for the instant construction project, was subject to a summary order of KRW 10 million from ○○ District Court’s ○○○○○○○○○ Branch, and paid a fine without requesting formal trial. Furthermore, E-B paid a fine of KRW 10 million on behalf of E-D.

(3) The KimA stated that the Plaintiff was re-subcontracted with the civil engineering part of the instant construction work after being investigated by the said investigative agency.

(4) ○○시청 공무원 김EE는 수사기관으로부터 조사를 받으면서 '☐☐☐전은 전기공사와 관련하여 원고와 직접 하도급계약을 하였으나 ◇◇건설에게 도급한 토목공사 부분과 중복되어 원수급인인 ◇◇건설을 통하여 대금지급이 이루어지게 되어 ◇◇건설 과 ☐☐☐전이 형식상 하도급계약서(갑 제7호증)을 작성한 것이다.'고 진술하였다.

[Reasons for Recognition] Each entry of the evidence of Nos. 7, 8, 9, 11, 12, 13, 15, 16, 17, and 18, and the purport of the whole pleadings

D. Determination

(1) We examine whether the Plaintiff received a subcontract for the instant subcontracted construction from △△ Construction.

First, as to the evidence No. 38, evidence No. 38, evidence No. 10, each of the witness evidence No. 10, and testimony of the court of first instance, and witness evidence of the court of first instance, it is difficult to believe in light of the fact that ○○ District Court issued a summary order of a fine of KRW 10 million from ○○○○○○○ Branch Branch, and the fine was paid for the violation of the Framework Act on the Construction Industry due to the fact that △△ Construction and the representative of △△△ Construction at the time of the instant construction and the instant construction collectively subcontracted the instant construction to the Plaintiff.

다음으로 갑 제2 내지 33호증, 갑 제36, 39, 40호증(각 가지번호 포함)는 각 기재에 대하여 보건대, 원고는 위 서류는 '◇◇건설이 이 사건 공사에 관하여 원고 이외의 다른 업체에 대하여도 하도급을 주고 하도급업자로부터 교부받은 세금계산서, ◇◇건설의 노임명세서, 하도급자에게 대금을 지급한 내역 또는 그 영수증, 하도급업자의 대금청구서, ◇◇건설과 하도급업자 사이의 하도급계약서, ◇◇건설로부터 이 사건 공사의 일부에 대하여 하도급을 받았다는 진술이 기재된 확인서'라고 주장한다. 그러나 위 세금계산서, 영수증 등이 이 사건 공사로 인하여 발생한 것이지에 대하여 명확히 확인되지 아니하는 점, ◇◇건설과 ☐☐☐전 사이의 하도급계약서(갑 제7호증)는 대금 지급의 편의로 인하여 형식상으로 작성된 서류인 점, 노임지급명세서(갑 제22호증의 1 내지 23)에 의하면 ◇◇건설의 직원이 아닌 원고의 직원인 김CC가 이 사건 공사 전부를 현장감독한 것으로 기재되어 있는 점 및 앞서 인정된 사실에 의하여 나타난 사정 등을 종합하여 위 서류만으로는 원고의 주장사실을 인정하기에 부족하며, 달리 원고의 주장사실을 인정할 증거가 없다.

(2) Rather, according to the facts found above, the Plaintiff received a lump sum subcontract for the entire instant construction from △△ Construction.

3. Conclusion

The judgment of the court of first instance which dismissed the plaintiff's claim is justifiable, and the plaintiff's appeal is dismissed.