[종합소득세부과처분취소][공1992.9.15.(928),2579]
In a case where it is impossible to conduct an actual amount investigation because the important parts of the books, etc. presented at the stage of litigation for revocation of tax disposition, such as the requirements for the decision of estimated investigation, are found to be incomplete or false, and new data are not submitted (affirmative)
In determining the tax base under the Income Tax Act, the tax authorities can not immediately impose additional tax on the grounds that some of the relevant books and documentary evidence are incomplete or false, and even if they are based on the data, they can make a decision of additional tax investigation only when it is impossible to calculate the tax base and tax amount. Furthermore, even after making a decision of additional tax investigation, if the relevant books, etc. are submitted in a lawsuit seeking revocation of the tax disposition and it is possible to determine the tax base based on the books, etc., the method of on-site investigation should be followed and the initial decision of additional tax investigation cannot be maintained as it is on the premise that the relevant books, etc. are true, even if the relevant books, etc. were found at the stage of litigation seeking revocation of the tax disposition, it cannot be deemed that the tax authorities should point out the deficiencies or false portion of the books, etc., and request new materials until the actual amount investigation is impossible because the relevant books, etc. were not submitted.
Article 120 of the Income Tax Act, Article 169 (1) 1 of the Enforcement Decree of the same Act
[Judgment of the court below]
hill of the tax office
Seoul High Court Decision 88Gu195 delivered on July 16, 1991
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
As to the Plaintiff’s ground of appeal
1. In full view of the relevant evidence, the court below held the plaintiff as the person to whom the above business income belongs, after obtaining the establishment authorization of the Mugunghwa Housing Association from the Gangseo-gu mayor with the documents necessary for the establishment of the housing association for the purpose of obtaining a loan of national housing funds and tax benefits, while conducting the housing construction and sales business under his responsibility and calculation. The court below held the plaintiff as the person to whom the above business income belongs. The court below's fact-finding and determination are just and there is no error of law by misunderstanding the facts against the rules of evidence
2. In determining the tax base under the Income Tax Act, the tax authorities can not immediately impose additional taxation on the grounds that some of the relevant books and documentary evidence are insufficient or false, and even if they are based on the data after having a taxpayer submit new data on the deficiencies or improper parts, they can make a decision on the additional investigation only when the tax base cannot be calculated. Furthermore, even after making a decision on the additional investigation, if the relevant books, etc. are submitted in a lawsuit to revoke the taxation disposition and the tax base can be determined based on the books, etc., the tax authorities must do so on the spot investigation method and cannot maintain the initial decision on the additional investigation. However, even if the relevant books, etc. were found on the premise that the relevant books, etc. are true, even if it was found that the relevant books, etc. were insufficient or false, it cannot be deemed that the tax authorities point out the deficiencies or false parts of the books, etc. and require new data.
In full view of the relevant evidence, the court below held that there is no accuracy and credibility in the relevant books submitted by the plaintiff for appraisal in the court below in light of the process of preparation, submission, etc., and there is no evidentiary document as to the acquisition price of land for construction and there is no evidentiary document as to the source of investment and the evidential document as to the relation of withdrawal of money in the name of investment in calculating the sales cost of the housing construction and sales business of this case. Therefore, the court below held that the defendant's decision on the estimation of the business income of the housing construction and sales business of this case was justifiable. In light of the relevant records, the court below's findings of fact are justified in the court below's finding in light of the relevant records (the appraisal result of the appraiser's accounting corporation shall not interfere with the fact-finding of the court below in light of the purpose of appraisal and the object of appraisal) and it is also justified in accordance with the above legal principles.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho