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

The court's explanation in this part is the same as the statement in the corresponding column of the judgment of the court of first instance, and thus, it is citing it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Whether the instant disposition is lawful

(a) the existence of real transactions;

(1) The plaintiff's assertion

The Plaintiff is an enterprise specialized in earth construction that excavates underground in order to build a new building, and dump trucks should be used to handle earth and sand excavated underground. However, as dump trucks mainly own by individual business operators and operate them, the Plaintiff’s earth and sand companies like the Plaintiff use dump trucks through brokers, such as dump trucks, and the amount of use is transferred to the accounts designated by the broker or paid in cash, and purchase tax invoices are virtually impossible to receive from individual business operators, who are the owners of dump trucks, to receive tax invoices issued by the broker.

Between January 200 and March 200, the Plaintiff used dump trucks equivalent to KRW 338,900,000 (hereinafter “the transaction price of this case”) stated in the tax invoice at the Plaintiff’s construction site, and received tax invoices from the broker in the name of ○○ Heavy, ○○, and ○○ Heavy, which were issued by the broker. At the time, the Plaintiff was issued by the broker the above company’s business registration certificate, copy of equipment registration certificate, etc., and thus, the said company was unaware of the fact that it was the company issuing the processed tax invoice. After that, between March 8, 200 to March 8, 200, the amount used was remitted to the account designated by the broker or paid in cash, etc. as follows.

No.

Customer

Details of payment

Date

Amount

Method of payment

1

○○ Corer

May 31, 000

10,000,000

Account Transfer

2

6.9

89,000,000

Account Transfer

3

○○ Corer

6.9

73,810,000

Account Transfer

4

○○ Corer

. 6.0

4,500,000

Cash Payment

5

6.9

60,000,000

Account transfer (○○)

6

June 21, 200

30,000,000

Cash Payment

7

June 22, 00

41,518,000

Payment of Bill by Endorsement

8

July 15, 000

10,790,000

Account Transfer

9

July 15, 000

10,000,000

Cash Payment

10

August 31, 000

3,172,000

Cash Payment

Total

372,790,000

Ultimately, although the instant tax invoice is a tax invoice issued by a person other than the actual supplier, there was a real transaction in which the Plaintiff actually used dump trucks at the construction site and actually paid the price. The fact that the actual transaction exists is considered as having been actually executed by the Plaintiff, in light of the fact that there was a contract for the construction project implemented by the Plaintiff, the remaining soil transport site, the work site, etc., and the Defendant’s public official in charge of tax investigation on April 2003 recognized the fact of real transaction. If the instant tax invoice is excluded from the construction cost, the Plaintiff’s income rate of January 3, 200 to the 58%, and the standard income rate of 7.5% is more than the standard income rate of 20%, and the equipment usage rate of the other year is less than 20%, the average equipment use rate of the other year.

Therefore, the instant disposition that did not include the instant transaction price due to actual transactions in deductible expenses is unlawful.

(2) Facts of recognition

(A) The ○○○○ established 28 corporations, including ○○, ○○, and ○○ mid-term, and ○○○○, in disguised incorporation of 28 corporations, and received processed and purchased tax invoices without actual transaction, and received 8-10% fees in connection with the issuance of the processed tax invoices. In the event of a post-tax investigation, the purchaser deposited the amount equivalent to the transaction amount of the tax invoice to the account of the corporation (○○, etc.) in which the company that received the processed tax invoices was the nominal owner of the construction (○, etc.) and used the method of re-deposit by using the money withdrawal on which the corporation’s seal impression is affixed during the construction (hereinafter “the so-called “the so-called account transaction”).

(B) On September 21, 200, 200, ○○○ was suspected of being suspected of violating the Punishment of Tax Evaders Act, and on June 2002, 200, 2000, ○○○ became final and conclusive on November 21, 2003, including the fact that the instant tax invoice was issued and delivered to the Plaintiff without any actual transaction.

(C) Meanwhile, the Plaintiff purchased the processed tax invoice from ○○○○ in 1999 (7 to December), and paid KRW 6,836,00 for the commission by means of account transfer and withdrawal [the Plaintiff issued the tax invoice of KRW 41,240,00 for the second term portion in 199, KRW 39,420,00 for the 39,420,000 for the ○○○○○○○○○○○○○○○○ KRW 65,364,00 for the 43,362,00 for the ○○○○○○○○○○’s account on January 26, 200, KRW 60 for the 41,878,600 for the ○○○○○○○○ account on the same day, KRW 408,600 for the 600,000 for the 600,000 for the 600,0000 won for the 6000 won.

(D) On the other hand, the money that the Plaintiff transferred to the account, such as the No. 1, 2, 3, 5, and 8 of the above table, was immediately withdrawn.

[Ground of recognition] Each entry of Gap evidence Nos. 49, 50, 57, Eul evidence Nos. 3 through 5, 10, 16 through 24 (including each number), and the purport of the whole pleadings

(3) Determination

If a tax invoice on a part of the input tax amount or necessary expenses reported by a taxpayer is proved to have been prepared falsely without a real transaction by the defendant, who is the tax authority, without a real transaction, and it is disputed as to whether it is an actual cost, and the taxpayer's use of the expenses claimed by the taxpayer and the other party to the payment have been proved to the extent that it is considerably false, it is necessary to prove that there was a real transaction and that such expenses have been actually paid, in the taxpayer's account book keeping and documentary evidence, etc. (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26,

In this case, according to the above facts, the tax invoice of this case can be acknowledged that it was issued without a real transaction between the plaintiff, ○○ Heavy Period, ○○ Heavy Period, and ○○ Heavy Period (the plaintiff asserted that it was ○○○, Kim○, and ○○○○, before filing the lawsuit of this case). The plaintiff asserted that the other party of the actual transaction was ○○○, ○○, and ○○○○, and ○○ Heavy Period, and the other party asserted that it was ○○○, ○○, and ○○○ Heavy Period, and finally stated that it was a transaction with an individual entrepreneur through the broker in the first instance. Thus, it seems that the plaintiff was ○○ Heavy, ○○, and ○○ Heavy Period, and that there was no real transaction between ○○ and ○○ Heavy Period). Ultimately,

However, even though the plaintiff made a transaction through a broker and made a cash payment at the request of the broker, it cannot be identified or disclosed who actually received the money claimed by the plaintiff. Ultimately, the money deposited by the plaintiff to the bank account was fully withdrawn immediately. This method is similar to the method of paying fees after the plaintiff purchased a tax invoice for the second period from ○○○○ in 1999; there is no evidence to prove the fact of payment other than the books (Evidence No. 53,55,56 of the A), as to the money paid by the plaintiff to the bank account; the public official in charge at the time of the tax investigation on April 2003, 2003, it was judged that there was a real transaction based on the confirmation of the fact of the transaction by ○○○, Kim○○, and Lee○○, which was submitted by the plaintiff; since the fact that the fact of the transaction was false; and the fact that the actual income rate of the transaction was performed by the Corporation; and there is no evidence to prove that the plaintiff was not actually paid the real price.

Therefore, the non-party who denied the real transaction corresponding to the price of the instant transaction cannot be deemed unlawful.

(b) Whether a duplicate tax investigation is conducted;

(1) The plaintiff argues that Article 81-3 (2) of the Framework Act on National Taxes provides that "the tax official shall not conduct a reinvestigation for the same items of taxation and the same taxable period except where there is clear evidence to acknowledge a suspicion of tax evasion, where it is necessary to investigate the other party to the transaction, where there are errors in connection with two or more business years, or where there are other similar cases prescribed by the Presidential Decree," and that the disposition of this case constitutes a duplicate tax investigation prohibited under Article 81-3 (2) of the Framework Act on National Taxes, which constitutes a duplicate tax investigation conducted by the defendant against the plaintiff on April 203.

(2) In full view of the purport of the entire pleadings with respect to the testimony of ○○○ witness of the party trial, the Defendant around April 2003, 199 as to the Plaintiff’s testimony of 199 business year, including the Plaintiff’s testimony of 7-2, 10-2, 12, and 10-2.

In addition, as a result of the investigation on the tax invoice for the use fee of equipment for the 2000 business year, 535,280,000 of the tax invoice supply price for the 1999 business year was revealed to have been purchased from data. However, for the 2000 business year, 535,280,000 among the tax invoice supply price for the 199 business year was determined to have been purchased from data, there was no evidentiary document about the use fee for equipment, and the Plaintiff submitted a confirmation of the fact that there was a real transaction between ○○, Kim○, and Lee○, with regard to the transaction price for the 2000 business year. Considering the fact that there was a construction contract and actual construction work performance, the transaction price of this case was determined to have been recognized as losses. However, in the criminal judgment against ○○, the tax invoice was confirmed as a processed tax invoice for the 200 year, and subsequent to the fact that the tax invoice was not a disguised transaction conducted by the auditor at the ○○○ office, the Plaintiff and the Defendant ordered the Plaintiff.

Comprehensively taking account of the above facts acknowledged, the Defendant’s tax investigation conducted on June 2004, which was conducted on the grounds that the conviction against ○○ was finalized, and the transaction confirmation of ○○○, etc. was falsely revealed, and thus, the Plaintiff’s additional corporate tax evasion charges were recognized, such as the Plaintiff’s confirmation of transaction. This constitutes “where there is clear evidence to acknowledge the suspicion of tax evasion” under Article 81-3(2) of the Framework Act on National Taxes (see Supreme Court Decision 2000Du9421, Nov. 28, 2003). Accordingly, the Plaintiff’s assertion that the instant disposition was based on a double tax investigation in violation of Article 81-3(2)

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is dismissed as the plaintiff's appeal is without merit. It is so decided as per Disposition.

First Instance: Incheon District Court Decision 2005Guhap3053 Decided 2005

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

A. The Plaintiff is a domestic corporation that operates a construction business, such as earth and sand.

B. In the first taxable period of 200, the Plaintiff received the tax invoice 9 (hereinafter referred to as the “instant tax invoice”) as the supplier, and filed a corporate tax return for the 2000 business year, including the total value of KRW 338,900,000,000, as stated in the following table, in which the Plaintiff is the ○○ Heavy (hereinafter referred to as “○○ Heavy”) corporation, the ○○ Heavy (hereinafter referred to as “○○ Heavy”) and the ○○ Heavy (hereinafter referred to as “○○ Heavy”) as the supplier.”

No.

Suppliers

Date of Supply

Value of supply (cost)

Value-added Tax (cost)

Total amount (won)

1

○ Of ○ Colors

January 31, 2000

17,000,000

17,00,000

18,700,000

2

February 29, 2000

21,000,000

2,100,000

23,100,000

3

March 31, 200

29,100,000

2,910,000

32,010,000

4

○○ Corer

January 31, 200

26,500,000

2,650,000

29,150,000

5

February 29, 2000

25,200,000

2,520,000

27,720,000

6

March 31, 200

38.300,000

3,830,000

42,130,000

7

○○ Corer

January 31, 2000

42,000,000

4,200,000

46,200,000

8

February 29, 2000

58,800,000

5,880,000

64,680,000

9

March 31, 200

81,000,000

8,100,000

89,100,000

Total

9 Chapter 9

38,900,000

3,890,000

372,790,000

C. On April 10, 2003, the Defendant denied the deduction of the value-added tax from the Plaintiff on the grounds that the period of ○○, ○○, and ○○, a nominal owner of the instant tax invoice, was not an actual supplier, and accordingly collected value-added tax from the Plaintiff, but instead, deemed that the purchase transaction corresponding to the instant tax invoice was actually conducted between ○○, Kim○, and Lee○○, and the sales transaction corresponding to the instant tax invoice, and recognized the total amount of KRW 38,90,000 as deductible expenses in the calculation of corporate tax.

D. However, on July 2004, the Defendant conducted a reinvestigation of the suspicion of processing transaction related to the instant tax invoice and denied the inclusion of all of the instant tax invoices in the deductible expenses related to corporate tax for 2000 business year, and imposed and notified the Plaintiff of KRW 155,367,950 for the business year 200 (hereinafter “instant disposition”) on September 1, 2004.

(In the absence of dispute, A1, A2-2, A48-1 through 9, B-1, B-2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was supplied with equipment use services from ○○ mid-term, ○○, and ○○ mid-term, and paid 372,790,000 for cash payments, and received the corresponding tax invoice. While the Plaintiff’s ratio from 1997 to 2003 accounts for 26% or 37% of the sales revenue during the period from 1997 to 2003, the ratio of the equipment use fee stated in the instant tax invoice to 200% is merely 20% of the total value of supply stated in the instant tax invoice, and thus, the amount equivalent to the total value of supply stated in the instant tax invoice shall be included in the deductible expenses. Even if the said company is a nominal long-term business operator, the Plaintiff received a business registration certificate, etc. from the said company and confirmed that the said company is a legitimate business operator, and thus, the disposition of this case is unlawful unless the Defendant included the amount equivalent to the total value of supply of the instant tax invoice in the deductible expenses.

B. Relevant legislation

Ｏ 법인세법

Article 19 (Scope of Deductible Expenses)

(1) Deductible expenses shall be the amount of losses issued by transactions which reduce the net assets of a corporation, excluding return of capital or financing, disposition of surplus funds, and what is provided for in this Act:

(2) The losses under the provisions of paragraph (1) shall be losses or expenses that are issued or disbursed in connection with the business of a corporation in general accepted as normal or directly related to profit, except as otherwise prescribed by this Act and other Acts and subordinate statutes.

Article 66 (Settlement and Correction)

(1) The head of the district tax office having jurisdiction over the place of tax payment or the Commissioner of the competent Regional Tax Office shall determine the tax base and amount of corporate tax on the income of the relevant corporation for each business year.

(2) Where a domestic corporation files a report under Article 60, the head of the district tax office having jurisdiction over the place of tax payment or the Commissioner of the competent Regional Tax Office shall correct the tax base and amount of corporate tax on the income

1. Where there are errors or omissions in the contents of the report;

(c) Fact of recognition;

(1) The middle ○○○, a representative of which was opened on April 9, 199 and closed on September 30, 200, the construction company’s representative was opened on April 29, 199, the middle ○○, and the construction company’s representative closed on September 30, 200 and closed on September 30, 200, and the middle ○○○○, a representative of which was opened on July 15, 199 and closed on September 30, 200.

(2) On September 28, 200, 000, 000, 000, 000, 000, 000, 000, 000, 00,000,000,000,000,000,000,000,00

(3) On July 15, 2003, 2003, ○ District Court rendered a judgment of one year and six months on July 21, 2003 on the charge of violating the Punishment of Tax Evaders Act by issuing a tax invoice under the name of ○○ mid-term or ○○ mid-term in the instant tax invoice without supplying goods or services, and finally became final and conclusive on November 21, 2003. The ○○ District Court was investigated by ○○ Regional Tax Office around May, 2002, and the ○○○○ District Court prepared and submitted a complete statement that it issued a false tax invoice while substantially operating ○○ mid-term or ○○○.

(4) In filing a request for pre-assessment review on the instant disposition on July 23, 2004, the Plaintiff alleged that the Plaintiff was supplied with equipment use services from ○○○○, ○○○○○, and ○○○○○○○○, and ○○○○○, which are the actual traders, and that the instant tax invoice was issued while paying the cost in cash. As to this, the Defendant did not accept the Plaintiff’s request for pre-assessment review on the grounds that there was no evidentiary document, such as that the Plaintiff paid the money to ○○, Kim○, and ○○, or that ○○, Kim○, and ○○ received the money from the Plaintiff, and that it is difficult to recognize the fact of transaction based on the instant tax invoice.

(5) On December 13, 2004, while filing a request for a national tax trial on the instant disposition, the Plaintiff asserted that he was provided with the actual service using equipment by new ○○, Kim○, and Lee○○, as in the pre-assessment review request, but the Plaintiff was dismissed without accepting the claim.

(6) In order to pay 372,790,000 won in total on the supply value of the tax invoice of this case to the ○○○ Heavy Period, ○○ Heavy Period, and ○○ Heavy Period, the Plaintiff: (a) withdrawn 372,79,024,140 won in total from the Plaintiff’s deposit account on 29 occasions during the period from January 26, 200 to July 15, 200; and (b) paid 372,790,000 won in total from the Plaintiff’s deposit account; (c) submitted the Plaintiff’s deposit passbook (Evidence No. 49-1, 2); (d) and (e) on June 9, 200, the Plaintiff submitted the Plaintiff’s deposit passbook No. 49-1, 200 (Evidence No. 50); and (e) received the Plaintiff’s written statement on 200 cash receipt (Evidence No. 53), which was submitted at the Defendant’s request during the lawsuit of this case, and received most of the Defendant’s written statement.

In addition to the grounds for recognition, evidence Nos. 2-2, 3, 4-1, 2, 5-1, 5-3, 6-1, 3, 5, 7-1, 2, 8-1, 3, 11-4, 16, 20 evidence Nos. 1 through 4, 20, 20 evidence Nos. 24, 5-1, 6-1, 7-1, 7-2, 8-1, 3, 11-4, 11-1, 16, 20 evidence Nos.

D. Determination

If a tax invoice on a part of an input tax amount reported by a taxpayer or a required competition is proved to have been prepared falsely without a real transaction by the Defendant, who is the tax authority, without a real transaction, and it is disputed as to whether it is an actual cost, and the taxpayer's use of the cost claimed by the taxpayer and the other party to the payment have been proved to the extent that the cost was actually paid, it is necessary to prove that it is easy for the taxpayer to present all data, such as a book keeping and documentary evidence (see Supreme Court Decision 96Nu8192, Sept. 26, 1997).

However, as seen earlier, the Plaintiff initially supplied equipment use services from ○○○, Kim○, and Lee ○○, but submitted a false tax invoice under the name of ○○○, Kim○, and Lee ○○, to verify the fact that the instant tax invoice was issued in the name of ○○, ○○, and ○○○, but did not recognize such assertion in the pre-assessment review and national tax trial, and thereafter, asserted that the Plaintiff was supplied with equipment use services from ○○, ○, and ○○, and ○○, among the instant tax invoice, that the tax invoice was issued without real transaction, and that the tax invoice was issued without real transaction, and that the tax invoice was issued with ○○, ○○, and ○○, and ○, ○, ○, ○○, and ○, ○, and ○, 00, and 000, based on the premise that it did not change the price of the instant tax invoice to 60,000,000 won, and that it did not constitute a false payment of the Plaintiff’s money.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.