Sector Division and July 1, 2016: Corporate tax for the business year 22,802,240 and 2012 for the Plaintiff on July 1, 2011

The imposition of KRW 31,200,290 of the corporate tax for the business year shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

A. The Plaintiff is a corporation established on February 26, 2009 for the purpose of steel, steel bars, steel scrap wholesale and retail business, etc.

B. The Plaintiff purchased scrap metal from five trading companies, includingCC companies, Dwork Dozethyl, Esethyl, FS-W, GG C&C; and deducted the supply price of KRW 6,863,341,820 from each of the above companies during the business year 2010 (from January 1, 2010 to December 31, 201), the supply price of KRW 11,401,120,810 from supply price for the business year 2011 (from January 1, 2011 to December 31, 2011), and deducted the supply price of KRW 15,60,14,590 from the supply price for the business year 2012 (from January 1, 201 to December 31, 2012).

C. However, the Director of the o Regional Tax Office has investigated the above five trading enterprises.

A. Each of the above trading companies constitutes data, and the tax invoice of this case received by the Plaintiff from each of the above trading companies was issued differently from the fact by the actual supplier of goods or services, and notified the Defendant of the tax invoice of this case as taxation data.

D. On July 15, 2013, the Defendant: (a) deducted input tax amount on the instant tax invoice based on the foregoing taxation data; (b) imposed value-added tax on the Plaintiff; (c) on August 4, 2014, by applying 2010-2012 to the supply value of the instant tax invoice pursuant to Article 76(5) of the Corporate Tax Act; and (d) imposed tax on the Plaintiff as corporate tax the total amount of KRW 677,292,130 (137,26,830 for the business year 2010, KRW 228,02,41 for the business year 201, KRW 312,02,890 for the business year 201, KRW 312,02,890 for the business year 2012.

E. After that, the Defendant pointed out that “an amount received differently from the fact” under Article 76(5) of the Corporate Tax Act, upon receiving an audit from an auditor office of a regional tax office, shall be imposed penalty tax by interpreting the amount of value added to the value of supply as the total value of value added tax.” On March 3, 2016, the Defendant issued a disposition to rectify the amount of penalty tax to increase the amount of penalty tax of KRW 13,726,680 for the business year 2010 on the basis of the value of supply in the instant tax invoice. On July 1, 2016, the Defendant issued a disposition to rectify the additional tax of KRW 22,802,240 for the business year 201, and the additional tax of KRW 31,20,290 for the business year 20,290 for each

F. On March 22, 2016, the Plaintiff filed an objection with the director of the regional tax office on March 22, 2016 against a disposition of correction, and filed an appeal with the Tax Tribunal on the same day upon receipt of a decision of dismissal on April 19, 2016. On July 1, 2016, the Plaintiff filed an appeal on July 20, 2016, but each of the above appeals was dismissed on September 22, 2016 (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since "amount received differently from the fact" under Article 76 (5) of the Corporate Tax Act refers to the value of supply excluded from the value of value-added tax, the disposition of this case where the defendant calculated an additional tax on the plaintiff based on the value of supply included in the value-added tax on a different premise should be revoked as

B. Determination

A) Article 116(2) of the Corporate Tax Act limits the receipt of disbursement evidence in cases where a corporation purchases goods or services from a business operator prescribed by the Presidential Decree to credit card sales slip, tax invoice and invoice (hereinafter referred to as “regular disbursement documentary evidence”) with which the “value of supply” is confirmed. In addition, where a corporation fails to receive regular disbursement documentary evidence, penalty tax is imposed pursuant to Article 76(5) of the Corporate Tax Act. In other words, where it receives goods or services from a business operator prescribed by the Presidential Decree and pays the price, it shall keep the documentary evidence for five years after receiving the regular disbursement, and where it does not recognize the amount of expenditure as deductible expenses by denying the transaction itself if it does not receive the regular disbursement documentary evidence, it shall be allowed to include expenses, but it shall impose penalty tax at a certain rate on the amount not received.

This is a legal device to enhance transparency in the expenditure content of a corporation and to induce the other party to the transaction to cultivate the tax base, which is a legal device for realizing the taxation based on evidence.

Among them, in particular, the focus is on inducing the other party to the transaction to foster the tax base, and the purpose of enhancing the transparency of the expenditure content of the corporation is that it can be sufficiently achieved by Article 116(1) of the Corporate Tax Act.In the end, Article 76(5) of the Corporate Tax Act is expected to have the effect of inducing the other party to the transaction to be exposed with the "tax base (Sales)" by receiving the regular expenditure documents confirming the "supply price with the other party to the transaction" whenever a corporation purchases goods or services.

This form of tax is a tax, but its substantial nature is an administrative sanction imposed in accordance with the law in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim where a taxpayer violates a duty to report and pay taxes as prescribed by the law without any justifiable reason. However, in enforcing liability for breach of duty, a reasonable proportional relationship should be maintained between the degree of breach of duty and the sanction imposed. As such, penalty tax, which is a monetary sanction imposed in the form of tax, should be calculated in proportion to the degree of breach of duty, and if not, it is against the principle of proportionality, thereby infringing on a property right (see Constitutional Court en banc Decision 2004Hun-Ga7, Nov. 24, 2005).

B) Examining the instant case in light of the foregoing legal principles and the following circumstances, it is interpreted that Article 76(5) of the Corporate Tax Act provides that the penalty tax shall be calculated based on the value of supply, excluding the value-added tax, among the items entered in the document evidencing expenditure, such as a tax invoice, based on the supply price, including the value-added tax on the instant tax invoice. Thus, the instant disposition that the penalty tax is applied based

① Since the interest of the Corporate Tax Act is to accurately identify the corporate tax base and impose the reasonable amount of tax, it should be deemed that Article 76(5) of the Corporate Tax Act provides for the penalty tax and keep the evidentiary documents, such as tax invoices received from another business entity, is a sanction in mind that the above documents reveal the corporate tax base.

However, in full view of the provisions of Articles 13, 14, 18, and 21 of the Corporate Tax Act, the corporate tax base is based on the amount of income calculated by deducting the total amount of deductible expenses from the total amount of gross income for each business year. The output tax amount and the input tax amount of value-added tax are not included in gross income or deductible expenses, and thus, the value-added tax does not affect the calculation

Therefore, the interpretation that only the value of supply among the matters stated in the tax invoice constitutes an element of determining the corporate tax base, and the value-added tax is not related to this, is consistent with the legislative intent of the above provision, which aims to foster the corporate tax base.

② In order to achieve the purpose of fostering the corporate tax base, it seems sufficient to impose penalty tax calculated at a certain rate based on the relevant tax base on the act that interferes with raising the corporate tax base. However, even though it is difficult to distinguish between the value of supply that constitutes the corporate tax base from the tax invoice, etc. received differently from the fact by the corporation, it would result in imposing penalty tax on the portion which is not related to the corporate tax base by interpreting the amount received differently from the fact under Article 76(5) of the Corporate Tax Act on the ground that the above two amounts are entered in a lump sum, based on which the sum of the value of supply and the value of the value of the value of the value of the value of the gift tax and the value-added tax, thereby

③ The Defendant, based on the interpretation of Article 76(5) of the Corporate Tax Act as the consideration for supply by adding value-added tax to the value of supply, acknowledges that the obligation to receive and keep documentary evidence is exempted in cases where the transaction amount (including value-added tax) of goods or services supplied under Article 158(2)1 of the Enforcement Decree of the same Act does not exceed 30,00 won. However, the above provision only provides for exceptions to the principle of receipt and custody of documentary evidence in accordance with delegation under Article 116(2) of the same Act, and on the premise that the above principle is applied, it is not directly related to the content of Article 76(5) of the same Act that sets the amount of additional tax, and thus, it is highly likely to be contrary to the principle of no taxation without law to interpret the language of tax-related law to the disadvantage of a criminal on the basis of the content of the Enforcement Decree of the subordinate corporation. Therefore, the above provision cannot be deemed a basis for the interpretation of Article

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.