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

A. The plaintiff company (the "○ Construction Co., Ltd." on January 16, 2007 changed its trade name from "○○ Construction Co., Ltd." to the plaintiff company, and on the same day, the representative director was changed from "○○○" to "○○○○" on the same day) is a company established for the purpose of the steel reinforced concrete construction business, steel product construction business, etc. on August 2, 199.

B. In the course of the tax investigation with respect to the Plaintiff Company and the Plaintiff Company, the actual manager of Kim○, the Defendant: (a) deemed that the Plaintiff Company’s labor expenses of KRW 597,562,00 in the business year 201 to 2003,77,090 in the business year 2001; (b) KRW 453,77,090 in the business year 2,392,393,00 in the business year 2,393,00 in the business year 2003; and (c) deemed that the total amount of KRW 3,443,732,09 in the business year 2,04 to have been excessively appropriated as the processing labor expenses; and (d) on December 2, 2004, the Plaintiff Company corrected the corporate tax base and the amount of corporate tax to the Plaintiff Company for the business year 28,207,200 in the business year 202,829,6296,700.

C. After receiving the notice of the instant disposition on December 8, 2004, the Plaintiff Company filed an appeal with the National Tax Tribunal on March 7, 2005, but the National Tax Tribunal dismissed the Plaintiff Company’s claim on August 31, 2005.

[Ground of recognition] Facts without dispute, Gap evidence 3-1 to 3, Eul evidence 4, Eul evidence 1-1, 2, Eul evidence 2, 3, and 4, Eul evidence 9, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff company's assertion

(1) An error in the Defendant’s calculation method of processing labor cost for each business year from 2001 to 2003

In calculating the processing labor cost for each business year from 2001 to 2003 at the time of the instant disposition, the Defendant calculated the total amount of the difference between the “labor cost” under the “cost specification by field” prepared by the Plaintiff Company’s head office and the “labor cost” under the “written claim for construction fund” prepared by the Director at each construction site to claim construction fund at the Plaintiff Company.

However, the cost statement for each construction site is classified into ‘I. material cost, ‘Ⅱ. Labor cost (including salary, bonus, bonus), and â……………………‘.' The cost claim for construction fund is classified into â………………â…………………………â………â……………ââ………ââââ………âââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââ, and âââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââ

Nevertheless, the defendant has committed an error in calculating only the "labor expenses" item in the "written claim for construction fund" as the "real labor expenses". If the plaintiff company re-calculated the "labor expenses" of the plaintiff company in the above way claimed by the plaintiff company, the excessive labor expenses appropriated in the business year 2003 are 1,149,510,681 won, and there is no excessive labor expenses appropriated in the business year 2001 and 2002.

(2) Exclusion of evidence of the confirmation document prepared by the former representative director, ○○○, and Kim○○, of the Plaintiff Company

Around November 2004, the Defendant: (a) made a written confirmation that the former representative director of the Plaintiff Company and Ma○○○○, the former representative director of the Plaintiff Company, recognized the tax evasion of this case (Article 1, 1, 2, and 1) as the main evidence; and (b) made an investigation into the charge of acceptance of bribe against the ○○○, which was at the time, at the Gangseo Branch Office of the Chuncheon District Public Prosecutor’s Office around July 2004; (c) made a search and seizure on the private company operated by Ma○, which was in a pro rata relationship with Ma○; and (d) detained Ma○ by recognizing the tax evasion of this case; and (e) at the time of the criminal trial, Kim○○, who continued to show the existence of the Plaintiff’s tax evasion in accordance with the judgment that the detention would lead to the reduction of the Plaintiff company’s existence of the tax evasion of this case; and (e) made the written confirmation as a false evidence against the intent of the originator and thus, shall not be used as evidence.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) At the time of the instant disposition, the current status of shareholders on the register of shareholders of the Plaintiff Company was 70,727 shares out of the total number of 150,00 shares, 40,260 shares, 26.84% shares, 39,013 shares, and 26.01% shares, respectively, at the time of the instant disposition, the status of shareholders on the register of shareholders of the Plaintiff Company was 150,000 shares. However, the status of shareholders on the register of shareholders of the Plaintiff Company was 150,00 shares, and the actual manager of the Plaintiff Company was ○○.

(2) On July 2004, the Gangnam Branch Office of the Chuncheon District Prosecutor’s Office commenced an investigation into the charge of bribery against Kim ○○, which was the ○○○○○, and conducted a search and seizure against the business entities of the business entities that were in a pro rata relationship with Kim○○. Among them, the search and seizure was conducted against the Plaintiff Company and the limited partnership company operated by Kim○○, and conducted an investigation after recognizing the evasion of the corporate tax of this case.

(3) On July 14, 2004, ○○○○○, the representative director of the Plaintiff Company, was investigated by a witness at the prosecutor’s office, showing the current status of the Plaintiff Company’s construction site and the current status of the excessive appropriation of labor cost. The excessive appropriation amount for labor cost was 9.83,760,000 won, which is the amount stated in the “written claim for funds for construction work requested by the Plaintiff Company to the accounting manager at the construction site”, and the “written statement of the excessive appropriation of funds”, which serves as the basis for the settlement of accounts at the time of filing the corporate tax return, was 12,016,830,000 won, which is the amount of the initial cost for construction site, and the amount of the excessive appropriation for labor cost, which is 12,003,073,000 won, which is the difference in the actual cost for construction site and the amount of the excessive appropriation for labor cost, which is 2,000 won.

(4) On October 8, 2004, Kim ○-do was examined by the prosecution, and the Kim ○-○ did not instruct the regular ○○○○○ in a specific way, but ordered the adjustment of labor cost so that tax can be paid in an appropriate line in line with the size of profit, etc., and stated that there is no objection against the evaded tax amount identified by the staff of the tax office and the staff of the Gangnam branch office of the Chuncheon District Prosecutors’ Office.

(5) The full-time representative director, the full-time representative director, and the Kim○-○, of the Plaintiff Company, shall revert to 597,562,000 won, and to 2002, by means of overappropriating labor costs in relation to construction works on November 2004.

453,77,090 won and 2,392,393,00 won for the year 2003 plus 3,443,732,090 won were calculated as deductible expenses, and it was prepared by submitting a statement of appropriation of processing labor cost for each construction work in the year to which it belongs, along with a statement of appropriation of processing labor cost for each construction work.

(6) The Defendant calculated specific labor cost based on the “written claim for construction fund for each field” and “payment statement of daily labor cost, etc., which the Plaintiff Company kept, and considered the payment details and the difference between the labor cost reported by the Plaintiff as the processing labor cost, and issued the instant disposition by correcting each corporate tax for the business year from 2001 to 2003, based on evidence such as the above written confirmation and the statement at each prosecutor’s office of Ma○ and Jung○ and Jung○○ as evidence.

(7) As the court 2004 Gohap98, 2004 Gohap99 (Joint), the Plaintiff Company was indicted on each of the following grounds: (a) the Plaintiff Company evaded each corporate tax of KRW 155,317,00 in 201, KRW 110,519,00 in 202, and KRW 633,946,00 in 203; (b) the violation of the Punishment of Tax Evaders Act; (c) the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), other than this, was also prosecuted; and (d) on January 27, 2005, this Court sentenced the Plaintiff Company to a fine of KRW 100,000,000 in 155,317,000 in 20; and (d) the Prosecutor’s appeal was dismissed by the Seoul High Court 2005No3939 on June 239, 20005.

(8) On November 14, 2005, Kim○-○ filed an application against the Defendant for revocation of the disposition of this case, including corporate tax, with the same purport as the purport of the instant claim against the National Ombudsman. On November 14, 2005, the National Ombudsman decided to recommend correction of the imposition of corporate tax on the grounds that the instant disposition of this case was erroneous.

[Reasons for Recognition] Facts without dispute, Gap evidence 3-1 through 3, Eul evidence 5-1, 2, Eul evidence 1-1, 2, Eul evidence 1-2, Eul evidence 2, 3, 4-1 through 13, Eul evidence 5, 6-1 through 3, Eul evidence 7, and 8, each statement of evidence 7, and 8, witness Kim ○, and the purport of the whole pleadings, and the whole purport of arguments.

D. Determination

(1) Determination as to whether the defendant's method of calculating processing labor cost is appropriate

(A) The legality of the disposition and the burden of proof of the existence of the taxation requirement.

In general, in an administrative litigation seeking revocation of a taxation disposition on the grounds of illegality, the tax authority bears the burden of proof with respect to the legality of the disposition and the existence of the tax requirement fact. However, if it is revealed that the facts involved were presumed to be eligible for the application of the empirical rule in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party is an unlawful disposition that failed to meet the requirements for taxation (see, e.g., Supreme Court Decisions 97Nu2429, Oct. 24, 1997; 97Nu13894, Jul. 10, 198; 97Nu13894, Apr. 26, 196). Meanwhile, in a case where the tax authority proves that some of the labor cost reported as deductible expenses was processed labor cost, the burden of proof with respect to the fact that the above labor cost was actually paid is difficult to the taxpayer, by taking into account the party’s equity, etc. (see, e.g., Supreme Court Decisions 2006Nu697667, Apr. 19667.

(B) Whether the defendant's method of calculating processing labor cost is appropriate

As seen earlier, the disposition of this case is calculated based on the "written claim for construction fund for each field" and the "written statement of payment of daily labor cost" that the Plaintiff kept, and the payment details and the difference between the labor cost reported by the Plaintiff and the labor cost as the processing labor cost and corrected corporate tax.

위 (가)항에서 본 입증책임의 분배원칙에 따르면, 원고 회사의 주장대로 현장별'공사자금청구서'의 '노무비'항목뿐만 아니라 '외주비' 항목도 '노무비'에 포함시켜야한다는 점에 대하여는, 원고 회사가 '외주비'의 실제 지출내역과 이를 뒷받침할 만한 하도급업체와의 공사계약서, 현장별 노무비 투입액에 대한 지출내역, 지출결의서, 금융자료 등 객관적인 증거자료를 들어 이를 입증해야 할 것인데, 갑 제6호증 내지 갑 제9호증(각 가지번호 포함), 갑 제12호증의 3의 1, 2, 갑 제12호증의 6, 갑 제12호증의 7의 1 내지 4, 갑 제12호증의 8의 1 내지 6의 각 기재만으로는 이를 인정하기에 부족하고, 달리 이를 인정할 만한 증거가 없다[원고 회사는 2001년 내지 2003년 각 공사현장의 회계서류로 갑 제6호증 내지 갑 제9호증(각 가지번호 포함)을 제출하였는바, 원고 회사가 공사현장에서 실제로 외주비 명목으로 노무비를 지출하였는지 또한, 과다계상된 노무비가 전혀 없는 것인지 여부에 대하여 해당 연도별로 살펴본다. ① 먼저 원고 회사는 2001년 사업연도에 과다계상된 노무비가 없다는 전제하에 2001년 사업연도의 법인세 부과처분 전부에 대한 취소를 구하고 있으나, 2001년 공사현장 중 어흘-행정간 도로 확ㆍ포장공사 구간을 예로 들더라도, 위 공사의 7월 공사자금청구서(갑 제9호증의 2의 7의 1)에는 '노무비 3,675,000원'과 '외주비 405만 원'이, 7월분 미불금명세서(갑 제9호증의 2의 7의 2)의 외주비 항목에는 '김○○ 현금 405만 원'이 각 기재되어 있는데, 원고 회사는 위 공사 구간의 해당 현장 외주비를 405만 원으로만 주장하고 있어 원고 회사의 주장을 모두 받아들이더라도 23,905000원{= 31,630,000원(회계장부) - 7,725,000원(노무비 + 외주비)}에 대하여는 이를 가공노무비로 볼 수밖에 없고(나아가 위 서증만으로 원고 회사가 위 공사에서 김○○와 하도급계약을 체결하고, 그 노무비(외주비)조로 405만 원을 지급하였다고 단정하기에도 부족하다.}, 더욱이 연상-예밀간 도로 확ㆍ포장공사 현장(2001. 4. ~ 2001. 12.)등지에 관하여는 현장에서 지출하였다는 전체 외주비 내역 및 지출관련자료도 전혀 제출하지 못하고 있어, 원고 회사의 주장대로 2001년 사업연도에 과다계상된 노무비가 존재하지 않는다고 평가하기 어렵다(그 외 2001년 사업연도의 다른 현장에 관하여는 을 제1호증의 1, 2에 미기재된 바와 같이 피고가 가공노무비 현장으로 법인세를 부과한 것이 아니다.). ② 또한, 원고 회사는 마찬가지로 2002년 사업연도에 과다계상된 노무비가 없다는 전제하에 2002년 사업연도의 법인세 부과처분 전부에 대한 취소를 구하고 있으나, 2002년 공사현장 중 어흘-행정간 도로 확ㆍ포장공사 구간을 예로 들더라도, 위 공사의 5월 공사자금청구서(갑 제8호증의 1의 5의 1)에는 '노무비 3,455,000원'과 '외주비 2,639만 원'이, 5월분 미불금명세서(갑 제8호증의 1의 5의 3)의 외주비 항목에는 '김○○ 현금 1,280만 원', '○○조경 1,359만 원(현금 659만 원, 어음 700만 원)', 합계 2,639만 원(현금 1,939만 원, 어음 700만 원)이 각 기재되어 있는데, 원고 회사는 위 공사구간의 해당 현장 외주비를 1,280만 원으로만 주장하고 있어 원고 회사의 주장을 모두 받아들이더라도 25,805,000원{=42,060,000원(회계 장부) - 16,255,000(노무비 + 외주비)}에 대하여는 이를 가공 노무비로 볼 수밖에 없고{나아가 위 서증만으로 원고 회사가 위 공사에서 김○○와 하도급계약을 체결하고, 그 노무비(외주비)조로 1,280만 원을 지급하였다고 단정하기에도 부족하다}, 더욱이 ○○항 건설공사 현장(2002. 4. ~ 2002. 12.), 같은 항 건설 2차 공사현장(2002. 10. ~ 2002. 12.), ○○회관 신축공사 현장(2002. 10. ~ 2002. 12.)등지에 관하여는 현장에서 지출하였다는 전체 외주비(노무비) 내역 및 지출관련자료도 전혀 제출하지 못하고 있어, 원고 회사의 주장대로 2002년 사업연도에 과다계상된 노무비가 존재하지 아니한다고 볼 여지도 없다(그외 2002년 사업연도의 다른 현장에 관하여는 을 제1호증의 1, 2에 미기재된 바와 같이 피고가 가공노무비 현장으로 법인세를 부과한 것이 아니다.), ③ 다음 2003년 사업연도 공사현장에 관하여 보건대, 2003년 공사현장 중 어흘-행정간 도로 확ㆍ포장공사의 구간을 예로 들더라도, 위 공사의 10월 공사자금청구서(갑 제6호증의 3의 10의 1)에는 '노무비 14,145,000원'과 '외주비 20,066,000원'이, 10월분 미불금명세서(갑 제6호증의 3의 10의 2)의 외주비 항목에는 '○○조경 현금 352만 원', '김○○ 현금 6,866,000원', '○○포장 968만 원(현금 468만 원, 어음 500만 원)', 합계 20,066,000원(현금 15,066,000원, 어음 500만 원)이 각 기재되어 있으나, 이에 관한 별도의 지출관련 자료가 제출되지 않는 한 위 각 기재만으로 원고 회사가 위 공사에서 김○○와 하도급계약을 체결하고, 그 노무비(외주비)조로 6,866,000원을 지급하였다고 단정하기에 부족하다(나아가 같은 외주비 항목에 죽림조경, ○○포장건이 함께 기재되어 있음에도 원고 회사가 이 부분에 대한 외주비의 인정을 주장하지 않는 연유도 알 수 없다.).].

Therefore, the above method of calculating the processing labor cost cannot be deemed unlawful. Thus, among the labor cost reported by the Plaintiff Company as deductible expenses in the year 2001 through 2003, the amount of KRW 597,562,00 in the business year 2001, KRW 453,77,090 in the business year 203,77,090 in the business year 203,392,393,00 in the business year 2003, total of KRW 3,443,732,09 in the business year 203.

(2) Determination as to the evidence of the instant certificate

(A) A value of evidence of the certificate delivered by the taxpayer;

Unless there exist special circumstances, such as that if a tax authority received a written confirmation from a taxpayer that a certain part of a transaction is a processing transaction in the course of conducting a tax investigation, such written confirmation cannot be readily denied solely based on the evidence of such written confirmation, barring any such circumstances as where it was forced to prepare it against the intent of the originator or it is difficult to use it as supporting materials for specific facts due to insufficient details (see, e.g., Supreme Court Decisions 2001Du2560, Dec. 6, 2002; 2005Du12589, Feb. 24, 2006).

(B) Evidence of the instant certificate

As seen earlier, each processing labor cost is indicated at each construction site in 2001 or 2003, and its contents cannot be deemed incomplete. Furthermore, with respect to the fact that the above confirmation was made compulsorily against the will of the author, the testimony by the witness Kim ○○ is insufficient to recognize it, and there is no other evidence to acknowledge it. Rather, as seen earlier, the Ma○○, the former representative director of the Plaintiff company who was investigated by the prosecutor as a witness in the above criminal case, made a detailed statement to the extent that it is difficult to make a statement if he did not directly undergo the current state and method of excessive appropriation of labor cost, and the reason why labor cost is excessively appropriated. The Kim○ also recognized it at the prosecutor's office. It is difficult to deem that the above written statement and the suspect interrogation report were made in a manner contrary to the free will of the person who made statements by coercion, such as the adviser of the investigative agency, and it is difficult to conclude that the content thereof is insufficient and reasonable, and it is also difficult to deem that the instant statement made based on such statement was made in violation of the intent of Kim○○○○○○.

Therefore, the instant certificate can be used as evidence for the instant disposition.

(3) Sub-determination

Therefore, as seen earlier, the Defendant’s method of calculating the processing labor cost cannot be deemed unlawful, and the instant written confirmation that recognized the amount calculated as such as the processing labor cost can be used as evidence. Accordingly, the instant disposition that corrected the corporate tax base and tax amount for the business year from 2001 to 2003 is legitimate.

3. Conclusion

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