2. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing value-added tax of KRW 195,109,080 on the second term portion of 2006 against the Plaintiff on September 14, 2015 is revoked.

2. Purport of appeal

The same shall apply to the order.

The court's reasoning for this part is that "GlaA et al." in Section 6 of Section 2 of Section 6 of the judgment of the court of first instance is removed from "GlaA et al. leased the above BB building to "GlaA et al." (hereinafter "GlaA et al.") and "transfer" in Section 7 of the same section is added to "transfer, etc." (hereinafter "lease and transfer, etc."), and therefore, it is identical to the part of Section 1 of the judgment of the court of first instance, and therefore, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Since the service of the instant disposition to the Plaintiff is inappropriate, the instant disposition is null and void.

2) The Plaintiff did not participate in the preparation of a double contract with respect to the transfer, etc. of this case, and did not evade value-added tax on the transfer, etc. of this case by 'Fraud or other unlawful acts, such as not knowing the content thereof'. Thus, the exclusion period for imposition of value-added tax is five years. The disposition of this case was made five years after the exclusion period for imposition from the transfer date of this case ( December 13, 2006).

3) Even if the Plaintiff’s evasion of value-added tax on the transfer, etc. of this case by fraud or other unlawful act and the exclusion period for imposition was extended to 10 years, the Defendant is not liable to the Plaintiff for the erroneous imposition of value-added tax in the previous disposition, and the Plaintiff paid value-added tax of 34,086,200 for the year 207 according to the previous disposition, and there is justifiable reason that the Plaintiff could not fulfill its duty of due payment after September 10, 2010, which is the previous disposition date. The portion of KRW 86,018,963,635 after September 10, 201 is unlawful.

4) The instant case was also unclear in the case where the interpretation of the tax law was unclear to the extent that the error was found in the previous disposition. As such, it may be deemed that there was a justifiable reason for the Plaintiff to not report the value-added tax on the transfer, etc. of the instant case. Therefore, the Defendant’s imposition of penalty tax in bad faith on the Plaintiff was unlawful.

(b) as shown in the attached Form of the relevant statutes.

C. Determination

1) Whether the service of the instant disposition is lawful

First of all, we examine whether the instant disposition was properly served on the Plaintiff. Article 8(1) of the Framework Act on National Taxes provides that “documents prescribed by this Act or other tax-related Acts may be served on the Plaintiff’s domicile, temporary domicile, place of business or office of the holder of the title deed, and Article 10(4) of the same Act provides that “if a person to be served is not present at the place to be served, documents may be served on the said employee, other employed persons or a person living together with the person to make reasonable judgment.”

In light of the above provisions, in full view of the following circumstances, the instant disposition was served on ParkCC with the authority to receive financial transaction information as the Plaintiff’s employee or employee, and the instant disposition was lawful delivered to the Plaintiff. This part of the Plaintiff’s assertion is without merit.

A) On September 14, 2015, the Defendant sent the instant disposition to ○○○○○ ○○ ○○, a domicile of the Plaintiff, but the instant disposition was returned due to the absence of a closed door.

B) On October 2, 2015, the Defendant sent the instant disposition to “○○, Seo-gu, ○○ (○○○○-dong) D stores, a place of business under the Plaintiff’s name, and ParkCC received the instant disposition on October 5, 2015.

C) The above D points may be deemed to fall under the Plaintiff’s place of business or office for delivery. Examining whether ParkCC, which received the instant disposition at that place, had legitimate receipt authority, the Plaintiff maintained his/her business status even at the time of October 5, 2015, after registering as the business entity of the said D points from January 15, 2007, and ParkCC received the instant disposition. However, as a withholding agent, reported his/her earned income as earned income.

However, according to the Plaintiff’s report, the number of days on which ParkCC worked at the above D points was transferred on January 38, 2009, 19, 2011, 27, 2012, 102, 2013, 48, 2014, 2016, 21, 19, 2017, 2015, and 2015, from January 23, 2015 to December 21, 2015 to a bank account of ParkCC. However, there was no record that ParkCC received the instant disposition from the Plaintiff’s bank account, but a certain amount of money (1,850,000, 154, 170 won) was continuously transferred twice a month from January 23, 2015 to December 21, 2015.

In addition to these facts, if the Plaintiff reported wage and salary income to ParkCC in 2009, 201-2014, 2016, and 2017, it is reasonable to deem that the Plaintiff employed ParkCC in 2015 and paid the said wage as above, and only did not report wage and salary income. As such, ParkCC was entitled to receive the instant disposition since it constitutes the Plaintiff’s employee or employee as of October 5, 2015, which received the instant disposition from the said DD store.

2) Whether the exclusion period for imposition of the instant disposition is expired

A) Relevant provisions and legal principles

According to Article 26-2(1)1 and 3 of the Framework Act on National Taxes, in general, the exclusion period for national taxes shall apply to cases where a taxpayer evades, obtains a refund or deduction of national taxes due to "Fraud or other unlawful acts". In such cases, "Fraud or other unlawful acts" refers to a deceptive scheme which makes the imposition and collection of taxes impossible or considerably difficult (see Supreme Court Decision 84Do102, Feb. 9, 198). It does not constitute a mere failure to report under the tax law or a false report without accompanying any other acts (see Supreme Court Decision 2011Du29168, May 16, 2014).

B) Specific determination

Considering the following circumstances in light of the aforementioned provisions and legal principles, it is reasonable to view that the Plaintiff evaded value-added tax on the transfer, etc. of the instant case as “Fraud or other unlawful acts” under Article 26-2(1)1 of the Framework Act on National Taxes, and that the exclusion period for imposition was extended to 10 years. Accordingly, the instant disposition issued on September 14, 2015 was lawful since it was made before the lapse of 10 years from December 13, 2006, which is the transfer date of the instant case, before the lapse of 10 years from December 13, 2006, which is the transfer date of the instant case. The Plaintiff’s assertion on this part cannot be accepted as it has no justifiable reason.

(1) As seen earlier, on December 13, 2006, the Plaintiff: (a) leased the said restaurant’s various facilities and operating rights to the said restaurant located in Daejeon ○○○○○ BB building to the KimA, etc.; and (b) drafted two contracts with KimA, etc. in relation thereto; (c) in fact, the Plaintiff leased the said restaurant’s various facilities and operating rights to the said restaurant at KRW 20,000,000 without a lease deposit; and (d) entered into a contract with the said restaurant to receive KRW 1,00,000,000 for the proceeds of the sale of all the facilities and operating rights of the said restaurant (the contract dated December 13, 2006) separately from the above contract; and (e) drafted the lease deposit amount, KRW 400,000,000, KRW 1000,0000, KRW 1000,000, and KRW 2610,200,206.

In this regard, the plaintiff asserts that "GlagA et al. prepared the above double contract and submitted it to the tax office without knowledge, and instead, the plaintiff submitted the contract on December 13, 2016, stating the actual agreement on the transfer of this case in the course of the defendant's tax investigation." However, the plaintiff himself/herself stated that "GlagA et al. should prepare the contract necessary for business registration and lend it to KimA et al."; ② The above double contract is affixed with the plaintiff's seal; ② The KimA et al. submitted the above double contract to the tax office; ③ the plaintiff reported the tax invoice to the tax office and issued the tax invoice (3.00,000 won for the next month); ④ The plaintiff's report on the transfer of the above double contract is not consistent with the above double contract's false contents; ④ The plaintiff's report on the transfer of this case's value-added tax to Kim Jong et al., which was not accepted by the plaintiff's own account.

(2) The Plaintiff received KRW 10,00,000,000, as stated in the double contract with respect to the above building from KimA, etc., from the Plaintiff’s bank account, and received KRW 10,000,000 for the remainder of the month not stated in the above contract and KRW 1,000,000 for the transfer money of this case as cash and check that is not easy to track.

(3) The plaintiff voluntarily received a proposal that he reported to the tax office by lowering the monthly rent from KimA, etc., and accepted it. The plaintiff filed a return only for KRW 10,000,000 out of the monthly rent received from KimA, etc. in the final return of the second value-added tax in 2006, and omitted the remaining monthly rent of KRW 10,000,000 and the instant transfer price of KRW 1,00,000,000 and did not issue a tax invoice to KimA, etc.

(4) As can be seen, the Plaintiff actively participated in preparing a false double contract without merely omitting the return of value-added tax in relation to the transfer, etc. of this case, and actively hiding the receipt of part of the rent and the transfer price of this case, thereby omitting the return. The Plaintiff received part of the rent and the transfer price of this case in cash, etc. but did not issue a tax invoice for it. It constitutes “Fraud or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes.”

3) Whether the imposition of penalty tax is lawful

A) Relevant provisions and legal principles

Article 48(1) of the Framework Act on National Taxes provides that no additional tax shall be imposed only when there is a justifiable reason for failure to fulfill the obligation to pay taxes. Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, where a taxpayer violates various obligations, such as a declaration and tax payment, without justifiable reason, as prescribed by the Act, and the taxpayer’s intent or negligence is not considered as administrative sanctions imposed as prescribed by the Act (see, e.g., Supreme Court Decision 2000Du5944, Apr. 12, 2002). It is unreasonable for a taxpayer to be unaware of his/her obligation because there is a conflict of opinion due to the intention of interpretation of the tax law beyond the scope of simple sites or misunderstanding (see, e.g., Supreme Court Decision 2000Du5944, Apr. 12, 2002). If there is a justifiable reason for failure to perform the obligation, such sanctions may not be imposed (see, e.g., Supreme Court Decision 2016Du716.

B) Specific determination

(1) Based on the above provisions and legal principles, the Defendant’s statement on the Plaintiff’s unpaid tax invoice No. 1 can be acknowledged as imposing penalty tax amounting to KRW 90,90,90,909 on KRW 90,09,09 of the Plaintiff’s unpaid value-added tax (= KRW 90,909,090 of the principal tax x 10%) additional tax amounting to failure to report 9,090,909 of the additional tax amount (= KRW 90,909,090 of the principal tax x 10%) and additional tax amounting to KRW 86,018,180 of the unpaid tax amount ( KRW 90,909,090 of the principal tax x number of days elapsed 3,154 days (= number of days elapsed from January 25, 207 to September 14, 2015) x 03% of the additional tax amount on each of the instant disposition dates).

(2) In light of the following circumstances, the facts alleged by the Plaintiff, such as the Defendant’s erroneous identification of the transfer of this case by the legal doctrine and the revocation of the previous disposition after the judgment of the court, are insufficient to prove that there was a “justifiable cause” which cannot be caused by the Plaintiff’s failure to report or pay the value-added tax on the transfer of this case.

(A) As seen earlier, the Plaintiff did not issue a tax invoice for KRW 10,000,00 among the rent for the said building and KRW 1,000,000 for the instant transfer proceeds in the final return of value-added tax in 2006, and did not file the tax invoice for non-issuance of the tax invoice, and the penalty tax for non-declaration of the return was clearly recognized as the grounds for disposition (the Plaintiff asserted that the instant transfer was a comprehensive transfer of facilities, goodwill, etc., and thus did not properly perform the duty to report value-added tax by deeming the transfer as the object of non-taxation of the value-added tax, but this does not constitute a conflict of opinion due to a significance in tax interpretation, and it does not constitute a justifiable reason that does not constitute an error in the law, and thus does not constitute a violation of the duty to report).

(B) Even in the case of penalty tax in bad faith of payment, the Plaintiff’s failure to fulfill the duty to pay value-added tax on the transfer value of the instant case, which the Plaintiff was aware of, and the reason for such disposition can also be recognized (In the administrative litigation brought against the previous disposition, the Plaintiff asserted that the Plaintiff is exempt from tax by stating that the transfer value of KRW 1,00,000,000, the transfer value of the instant case subject to value-added tax, not for 10 years for various facilities and business rights of the instant restaurant, such as the previous disposition, not for 10 years for all facilities and business rights of the instant restaurant, but for the comprehensive business transfer

(C) The Plaintiff’s payment of value-added tax amounting to KRW 34,086,20 in accordance with the Defendant’s previous disposition is true. However, as seen earlier, the Plaintiff was dissatisfied with the previous disposition after the Plaintiff paid the value-added tax, and attempted to evade the value-added tax due to fraud or other unlawful act instead of reporting and paying the value-added tax on the transfer, etc. of this case, and accordingly, the period for exclusion of imposition has been extended. Thus, it is difficult to deem the Plaintiff to have reported and paid the value-added tax on the transfer, etc. of this case by itself.

(D) It is clear that the Plaintiff is liable to pay value-added tax in relation to the transfer of this case (as in the appellate judgment on the previous disposition (this Court Decision 2013Nu343), the Plaintiff granted KimA, etc. only the lessee status of the above building without transferring the ownership of the above restaurant, which is an important material facility of the above restaurant, and it cannot be viewed as a comprehensive business transfer as an organic combination on the above restaurant, and thus, it cannot be subject to value-added tax-free. However, in administrative litigation on the previous disposition, the main issue was what is the object of value-added tax in the transfer of this case [the transfer of this case 1,00,000 won is 10 years for the facility and business rights of the above restaurant or 10 years for the facility and business rights of the above restaurant]. As seen earlier, it is unreasonable that the Plaintiff did not perform its duty to pay value-added tax due to the organic combination of the above restaurant business or the transfer of the business of the above restaurant, and thus, the Plaintiff did not have any legitimate reason for the Plaintiff’s assertion that the Plaintiff did not fulfill its duty to report obligation.

(3) Therefore, it is legitimate for the Defendant to impose the above additional tax on the Plaintiff regarding the transfer, etc. of this case, and the Plaintiff’s assertion on this part is also without merit.

3. Conclusion

If so, the plaintiff's claim shall be dismissed for lack of reasonable grounds. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.