증빙서류가 실제거래 없이 가공으로 작성된 경우에는 증빙불비가산세를 부과할 수 없음[일부패소]
Seoul Administrative Court 2010Guhap28526 ( October 17, 2011)
National Tax Service Review Division 2009-0140 ( October 13, 2010)
Where evidential documents are prepared for processing without actual transactions, no additional tax on lack of evidence shall be imposed.
An additional tax on lack of evidence on a corporation shall be imposed if it has not received any documentary evidence of its expenditure despite the actual transaction, and no additional tax on lack of evidence may be imposed on any act of receiving any documentary evidence different from the details of the actual transaction, if it has been prepared without any actual transaction as in this case.
Article 76 of the Corporate Tax Act
2011Nu22695 Revocation of Disposition of Imposition of Value-Added Tax, etc.
XX Co., Ltd
Head of the tax office;
Seoul Administrative Court Decision 2010Guhap28526 decided June 17, 2011
May 10, 2012
May 24, 2012
1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.
The Defendant’s disposition of imposing corporate tax of KRW 000 for the business year 2008 against the Plaintiff on September 1, 2009 shall be revoked.
2. The plaintiff's remaining appeal is dismissed.
3. 9/10 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.
The decision of the first instance is revoked. The defendant's disposition of imposition of value-added tax for the second term of 2008 against the plaintiff on September 1, 2009, value-added tax for the first term of 2009, value-added tax for the first term of 2009, and corporate tax for 000 won for the business year of 2008 (hereinafter "the disposition of this case").
1. Quotation of judgment of the first instance;
The reasoning of this court's judgment is the same as that of the court of first instance except for dismissal as follows. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.
2. Parts to be dried;
O 2(a)(2) The following shall be added to paragraph 3 (2) below:
[3] In a case where a tax invoice different from the fact is received without an actual transaction, no additional tax may be imposed on lack of evidence under Articles 76(5) and 116(2)2 of the former Corporate Tax Act. Thus, even if the defendant recognizes that each of the tax invoices of this case is a false tax invoice, the disposition imposing an additional tax of KRW 00 for lack of evidence of the corporate tax for the business year 2008 under the above provision is unlawful)
O) Part 8 of Part 5 of Part 8 is referred to as "Plaintiff and State", part 8's 2008 as "with respect to the first period of 2008", part 3 of Part 10 as "Evidence 7 through 64", part 13 as "high money", part 5's 6's 11 as "GinA", and part 5's 11 below as "GinB".
O2-2) The following shall be added to paragraph 2-d. (2) below (2) below:
[3] As to the legality of the disposition imposing corporate tax
In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted in accordance with the text of the law, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. Article 76(5) of the former Corporate Tax Act provides that an amount equivalent to 2/100 of the amount not received may be added to the case where an entrepreneur is provided with goods or services and fails to receive the evidential documents under any of subparagraphs of Article 116(2) of the former Corporate Tax Act, and the content thereof does not provide for the case where the entrepreneur receives the evidentiary documents different from the actual ones.
The purpose of Article 76 (5) of the former Corporate Tax Act is to enhance transparency in the expenditure content of a corporation and induce a counterpart business operator to cultivate the tax base, and it alone is difficult to achieve such legislative purpose to impose a duty of faithful reporting on a business operator subject to tax base. Thus, it is a sanction to require a business operator supplied goods or services to receive regular expenditure documents and to additionally pay an amount equivalent to a certain percentage of the amount not received in relation to the breach of such duty (see Constitutional Court Order 2004HunBa7, Nov. 24, 2005; Decision 2006HunBa88, May 31, 2007). The penalty tax under the above provision should be imposed in cases where the payment was not received even if the actual transaction was conducted, and it is not possible to impose the penalty tax pursuant to the above provision against the act of receiving documentary evidence different from the content of the actual transaction (see Supreme Court Decision 2008Du5788, Jun. 26, 2008).
O3. The phrase "demb" (not later than the last 12) shall be deleted.
3. Conclusion
Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal shall be accepted, and the part against the plaintiff falling under the part against which the cancellation is ordered under the judgment of the court of first instance shall be revoked, and the disposition of imposition of corporate tax 000 won in the year 2008 among the disposition of this case shall be revoked, and the remaining appeal of the plaintiff shall