필요경비는 납세의무자가 지배하는 영역 안에 있는 것이어서 납세의무자에게 증명의 필요성을 인정하는 것이 공평의 관념에 부합함.[국승]
The necessary expenses are located within the area controlled by the taxpayer and thus recognizing the necessity of proof to the taxpayer is consistent with the concept of fairness.
The evidence alone presented by the Plaintiff cannot be deemed as a debt directly used for the Plaintiff’s business, such as the purchase, remodeling, repair, and management of assets necessary for the instant dental service, or the borrowing of funds to raise operating expenses (wages, etc.). There is no other evidence to acknowledge the loan differently.
Article 27 of the former Income Tax Act (Calculation of Necessary Expenses)
2015Guhap22378 global income and partial revocation thereof
AAA 2
Kim Jong-soo
December 22, 2015
on October 16, 2016
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition of imposing global income tax of KRW 000,000 (including additional tax), global income tax of KRW 000,000 (including additional tax), global income tax of KRW 00,000 (including additional tax), global income tax of KRW 00,000 for the year 2011, and global income tax of KRW 0,000 (including additional tax) for the year 2012 shall be revoked.
1. Details of the disposition;
A. The Plaintiff is a person who, from December 27, 2001, has operated a reciprocal dental license called “CCP” from around Busan AABB BB 24 (hereinafter “instant dental license”).
B. From May 7, 2014 to June 6, 2014, the Defendant omitted the amount of cash medical expenses of KRW 000,000,000 in total in the taxable period from May 7, 2014 to June 6, 2014.
On August 1, 2014, considering that the processing expenses of KRW 00,000,000 were calculated, the disposition of this case was issued to the Plaintiff on August 1, 2014, which revised and notified the global income tax of KRW 000,000,000 (including additional tax), global income tax of KRW 00,000,000 (including additional tax) for the year 2011, global income tax of KRW 00,000 for the year 2012, and global income tax of KRW 0,000 for the year 2012.
C. On October 26, 2014, the Plaintiff dissatisfied with the instant disposition, filed a request for an adjudication with the Tax Tribunal, but the said request for adjudication was dismissed on May 6, 2015.
[Ground of recognition] Facts without dispute, Gap evidence 1, 14 evidence, Eul evidence 1, 2, and 6 (including separate numbers), the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The plaintiff and the plaintiff's attached DD shall provide loans of KRW 0 billion around 2001 while running dental services together.
He used 0 billion won for the relocation of dental facilities and the use of dental facilities. September 18, 2008
The balance of the loan of the plaintiff on the date DDR loan shall be non-satisf
Above 201 up to June 21, 2006
Data of KRW 1,170,00,000 No. 1,718,900,000
Foreign currency loans borrowed on June 22, 2006 with borrowings of 207,00,000N 207,000,000 UN on June 22, 2006
December 30, 2010.18,700,000 United Nations
(72,300,000 UN Redemption) 207,000,000N
Interest costs: 257,772,645 won
Redemption Loss: 230,516,967
June 22, 2011
18,600,000 UN (100,000 UN Redemption)
203,000,000N (4,000,000 UN Redemption)
Interest costs: 143,149,649 won
Redemption Loss: 20,835,460 won
December 31, 2012 203,00,000 UN 203,000,000
Interest costs: 158,305,558 won
Redemption Loss: 0
Total
Interest costs: 59,227,852
Redemption Loss: 251,352,427 won
Combined: 00,000,000 won
The Plaintiff was succeeded to all of its assets and liabilities. Accordingly, all of the DD and the Plaintiff’s loans (hereinafter “loans”) as indicated below constitute funds used by DD and the Plaintiff for the operation of dental services. The sum of interest costs and repayment losses related to each of the above loans (hereinafter “instant key amount”) is 00,000,000 won (hereinafter “the instant key amount”) paid by the Plaintiff for business expenses while operating the instant dental services, and thus, it is deemed as necessary expenses. Accordingly, the instant disposition made on a different premise is unlawful.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
1) The burden of proving the tax base that is the basis of taxation in a lawsuit seeking revocation of the global income tax disposition
The tax authority shall be the tax authority, and the tax base shall be the revenue and necessary expenses, so the tax authority shall bear the burden of proof as a matter of principle, since the revenue and necessary expenses are deducted from the revenue, but all necessary expenses are more favorable to the taxpayer, and most of the facts generating necessary expenses are located within the area controlled by the taxpayer and it is difficult for the tax authority to prove. Thus, if it is reasonable to prove the taxpayer as a taxpayer in consideration of difficulty in proof, equity between the parties, etc., it accords with the concept of fairness (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007).
Meanwhile, Article 27 of the former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010)
Paragraph (1) provides that "the amount to be included in necessary expenses when calculating the amount of business income shall be the total amount of expenses corresponding to the total amount of income in the relevant taxable period, which is generally accepted." Article 55 (1) 13 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015) provides that "interest paid on the debt directly used to obtain the total amount of income corresponding to the total amount of income." "the debt directly used to obtain the total amount of income" refers to the debt corresponding to the assets necessary for the relevant business or the debt corresponding to the business expenses, and it does not mean any other indirect or indirect, and as a result, it does not mean any debt that assists in creating the income (see, e.g., Supreme Court Decision 95Nu16950, Jul. 25, 1997).
2) In light of the above legal principles, the health class, the evidence mentioned above, and evidence No. 8 as to the instant case
The following circumstances, which can be seen in addition to the purport of the entire oral argument, i.e., ① the developments leading up to the occurrence of the instant loan and objective data on the place of its use, and the Plaintiff did not include the key amount in the account book, and the Plaintiff did not report it to the necessary expenses even when global income tax return was filed in 2010 to 2012; ② there is no evidence to deem that the Plaintiff succeeded to all the obligations related to the instant loan of DD; even according to the Plaintiff’s assertion, the loan principal is not based on objective data at the time of the loan, but rather on the basis of the amount at the time of substitution with the global currency loan in 2001. ③ Even if the Plaintiff purchased the instant loan of KRW 1,339,727,00, the Plaintiff cannot be readily concluded that the Plaintiff purchased the instant dental loan of KRW 1,339,727,00 from Oice in the taxable period of value-added tax on February 2, 2001, it cannot be concluded that the Plaintiff’s funds were directly used for the instant dental loan of this case.
Therefore, the plaintiff's assertion is without merit.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.