Dong Gwangju Joint Co., Ltd. (Attorneys Yoon Jong-sung et al., Counsel for the defendant-appellant)

head of Sung Dong Tax Office

November 22, 2006

1. On January 8, 2004, the Defendant revoked each disposition of imposition of the portion exceeding KRW 64,153,860, KRW 112,516,380, KRW 112,380, KRW 198, KRW 1998, KRW 79,08, KRW 084,090, KRW 2,010, KRW 290, KRW 727,265 of the value-added tax for KRW 1999, KRW 13,401, KRW 560, KRW 2,107,60 of the value-added tax for KRW 13,40, KRW 560 in 199.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 5% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

The Defendant’s imposition of KRW 64,153,860, KRW 112,516,380, value-added tax for the first period of 197 against the Plaintiff on January 8, 2004, KRW 79,084,090, KRW 22,010, KRW 290, KRW 290, and KRW 13,401,560 for the second period of 198 (the claim of the complaint shall be deemed to be written by mistake) is revoked (the claim of KRW 64,153,360 for the first period of 197 among the claims of the complaint).

1. Details of the imposition;

A. A. Around August 2003, the head of the Goyang District Tax Office confirmed that Nonparty 1 transferred the Plaintiff’s 7,610,396,626 won (the supply price) to Nonparty 2 and 2’s account during the period from 1997 to 2, 1998, to the Plaintiff’s 7,610,396,626 won (the supply price of KRW 6,918,542,38) to the Defendant as materials suspected of omitting the Plaintiff’s sales. Accordingly, the Defendant determined that the above remittance was aimed at disguised transaction, and that Nonparty 1 purchased alcoholic beverages directly from a liquor store, etc. instead of purchasing alcoholic beverages from the Plaintiff.

B. Around May 2003, the head of the Dobong Tax Office found that, in the process of tracking and investigating the distribution process of alcoholic beverages on the same secondary sales outlet (hereinafter the same secondary sales outlet) from the first period to the first period from 1, 1998 to the first period from 1, 1999, alcoholic beverages equivalent to KRW 123,586,545 are actually sold to Nonparty 1 while selling to the Plaintiff, and issued a false tax invoice different from the fact that he/she had actually sold to the Plaintiff, and notified the Defendant of the materials suspected of related disguised sales.

C. Around June 2003, the head of the Dongdaemun District Tax Office confirmed that the Seoul direct sales store actually sold alcoholic beverages equivalent to KRW 27,108,182 of the supply price during the first period of 1999 to Nonparty 1 and issued a disguised tax invoice different from the fact that the Plaintiff actually sold alcoholic beverages to Nonparty 1, and notified the Defendant of the relevant disguised sales suspicion data.

D. On September 2003, the Defendant confirmed that, in the course of tracking and investigating the distribution process of alcoholic beverages for sexually operated stores Co., Ltd. (hereinafter “sexually operated stores”), sexually operated stores issued a tax invoice by selling to Nonparty 1, who actually sold alcoholic beverages amounting to KRW 282,349,000 during the first period of 199.

E. On November 2003, based on the above notification, investigation, etc., the Defendant: (a) received the Plaintiff’s supply price of KRW 7,351,586,115 in the first taxable period from the date of the first taxable period from the date of the 1997 period from the date of the 197 period from the date of the 19999; and (b) issued the processed sales tax equivalent to the above amount to the multiple transaction partners; (c) on January 8, 2004, the Defendant imposed penalty tax on the Plaintiff KRW 271,16,180 in total on the grounds that the entry of the list of the total tax invoices by the seller and individual seller was entered differently from the fact (hereinafter “instant disposition imposing penalty tax”).

[Ground of recognition] The evidence Nos. 1-5, Eul evidence Nos. 1-5, Eul evidence Nos. 2-2 through 4, Eul evidence Nos. 9-1 through 3, Eul evidence Nos. 11-1, 2, Eul evidence No. 12-1, 2, Eul evidence Nos. 13, Eul evidence Nos. 14, and the purport of the whole pleadings.

2. Whether the disposition of this case was unlawful

A. The plaintiff's assertion

(1) As to the existence of grounds for action

Before Nonparty 1 purchased alcoholic beverages, the Plaintiff’s employee’s payment of alcoholic beverages was made in advance, the amount was withdrawn, and then deposited into the Plaintiff’s account, and then transferred to the Plaintiff’s account in bills or cash. The payment of alcoholic beverages or cash at the time of transaction is contrary to the common sense. All alcoholic beverages were not immediately transferred from the direct sales store to Nonparty 1, but were stored in the Plaintiff’s warehouse and again transported to Nonparty 1. Given the characteristics of wholesale transaction, alcoholic beverages are not necessarily required to undergo a wholesaler, but are transported to Nonparty 1 by the direct sales store without undergoing a wholesale wholesaler for the convenience of transaction. Nonparty 1 prepared and issued a confirmation document that he purchased alcoholic beverages from the Plaintiff to the Defendant’s tax official (Evidence 3). The actual receipt of alcoholic beverages at the actual sales store is merely a direct receipt of alcoholic beverages under transportation convenience, and the actual issuance of alcoholic beverages is limited to the purchase tax invoice issued by the Plaintiff to Nonparty 1 under the Plaintiff’s own name.

Meanwhile, there is no fact that Nonparty 1 received purchase tax invoices equivalent to the amount paid by Nonparty 1 to the same affiliated store, etc. in the name of the Plaintiff from the same affiliated store, etc. as well as that of issuing sales tax invoices.

Therefore, the portion of the disposition of this case, which excludes the penalty tax on the above disposition of this case, is unlawful, since it received false fictitious purchase tax invoices except for the processing tax invoices issued under the name of another transaction partner who does not engage in real transactions, or issued the corresponding processing tax invoices.

(2) As to the exclusion period map

Even if the purchase and sale tax invoice for processing was received or issued, the processing amount and the processing amount cannot be evaded, refunded, or deducted due to the same amount as the processing amount and the processing amount, and thus, it does not fall under Article 26-2 (1) 1 of the Framework Act on National Taxes. Therefore, the exclusion period for imposition in this case shall be five years. Therefore, the exclusion period for imposition up to the first half of 1998 among the disposition of this case is illegal.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

(1) Facts related to ○○○ ( Nonparty 1)

(A) The non-party 1 received alcoholic beverages from a liquor store, such as a secondary sales outlet and a sexually operated sales outlet, and approved the total amount of partial alcoholic beverages to be deposited in the account in the name of the non-party 3, 4, and 5, who is an officer or employee of the Plaintiff (see attached tax item 1.a.).

(B) The Plaintiff, upon the deposit of money from Nonparty 1, withdrawn it once, and approved it in the liquor store, etc. The purchase tax invoice was issued as a whole by mixing it with the Plaintiff’s actual receipt of alcoholic beverages from the liquor store at the end of each month. The Plaintiff was able to utilize funds for up to 1 and 2 months by participating in the said non-party 1’s aforementioned non-data transaction.

(C) The Plaintiff issued a processed tax invoice corresponding to the supply value of the purchase tax invoice corresponding to the aforementioned disguised transaction, but did not deliver it to the other transaction parties as it used only the value-added tax return.

(2) Facts related to the Dong branch store

(A) Nonparty 1 purchased alcoholic beverages through Nonparty 6, 7, 8, and 9 of the members of the Dong branch sales outlet, and the purchase price was deposited in the name of the master company, the name of the Plaintiff, etc., or Nonparty 10 (the wife of Nonparty 1), Nonparty 11 (the mother of Nonparty 1), and Nonparty 12 (the father of Nonparty 1) and the member of the direct sales outlet or the business. The alcoholic beverages were received by the head of the direct sales center.

(B) Of alcoholic beverages supplied to Nonparty 1 as above, the same sales outlet issued the disguised sales tax invoice for the Plaintiff at KRW 25,581,90 for the first period 65,929,090 for the year 198, KRW 32,075,636 for the second period 198, and KRW 25,581,90 for the first period 199.

(C) The Plaintiff filed a return on the supply price of the first and the first purchase tax invoice in 1998 among the purchase tax invoices received from the same sales store as above, including the supply price of the corresponding sales tax invoice in addition to the supply price of the first and the first purchase tax invoice in 1999.

(3) Facts related to Seoul Direct Sales Center

(A) Nonparty 1 purchased alcoholic beverages without receiving a tax invoice at the Seoul direct sales outlet. The purchase price was deposited in the direct sales outlet under the name of the master company, the Plaintiff, etc., or Nonparty 10 (the wife of Nonparty 1), Nonparty 11 (the mother of Nonparty 1), and Nonparty 12 (the father of Nonparty 1). The alcoholic beverages received from the direct sales center near the direct sales center.

(B) Of alcoholic beverages supplied to Nonparty 1 as above, the Seoul Direct Sales Center issued a disguised sales tax invoice with the counterpart to the transaction as the Plaintiff.

(C) The Plaintiff filed a return to the Defendant on the supply price of the purchase tax invoice received from the Seoul direct sales store as above, including the supply price of the corresponding processing tax invoice, along with the list of the sales invoice and the purchaser’s tax invoice at the time of the pertinent taxable period.

(4) Facts related to gender direct sales outlet

(A) During the process of tracking the distribution process of alcoholic beverages for sexually operated stores, sexually operated stores issued sales tax invoices to the Plaintiff during the first period of September 16, 2003 by providing the Plaintiff with alcoholic beverages equivalent to KRW 282,349,000, among the first period of 1999, but the actual seller cannot be confirmed.

(B) On April 12, 2004, the Sung-dong sales store submitted to the head of Sung-dong Tax Office a letter of confirmation that the taxable period under the above Paragraph (a) was not the first period in 1999, but the second period in 199.

(5) From around 1997 to 2000, so-called unmaterial transaction, which is conducted without receipt of a tax invoice, due to an excessive competition between manufacturers of beer.

(6) The details of the return of tax invoices filed by the Plaintiff and alcoholic beverage direct sales stores on the first, second, and first, 199 are as shown in the details of the return of tax invoices in the annexed sheet.

[Based on the recognition] Evidence No. 4-1, 2, 3, 7, evidence No. 9-1, 2, evidence No. 11, evidence No. 12, evidence No. 2, evidence No. 5-2, evidence No. 9-1, 2, Eul-2, 10-1, 11-2, evidence No. 12-2, evidence No. 13, evidence No. 14, Eul-2, evidence No. 23, evidence No. 24, evidence No. 25-1, 2, Eul-2, evidence No. 26-1 through 6, evidence No. 27-5, evidence No. 1 through 29, evidence No. 13-29, evidence No. 12-1, and evidence No. 29, evidence No. 13-29, the purport of the whole oral argument of the testimony as a whole.

[Evidence Evidence] The statement of Gap evidence No. 3, the witness non-party 1 and 6's testimony

D. Determination

(1) Determination of misunderstanding of facts

(A) As to the relevant argument by ○○○ (Non-party 1)

As shown in the facts acknowledged earlier, considering that the Plaintiff participated in the transaction of non-party 1’s non-party 1 and received a disguised purchase tax invoice different from the fact, and the reason for issuing the processed sales tax invoice was that it was possible to utilize funds for up to 1 to 2 months by paying the price for alcoholic beverages in cash to each alcoholic beverage sales outlet by means of bills, etc., the delivery process of the price for alcoholic beverages is difficult to be deemed as contrary to the common sense. Unless there is no evidence supporting the fact that the real liquor was stored in the Plaintiff’s warehouse and was transported again, the non-party 1 purchased alcoholic beverages from the Plaintiff, except for the evidence rejected, this part of the Plaintiff’

(B) As to the assertion on Dong Branch Sales

As shown in the facts acknowledged earlier, if the same sales store issued a disguised sales tax invoice under the Plaintiff’s name and reported it to the Defendant, and if the Plaintiff filed a corresponding purchase tax invoice to the Defendant, that part of the Plaintiff’s purchase tax invoice is different from the fact, barring special circumstances. The Plaintiff’s return amount of the first tax invoice in 1998 is identical to the Plaintiff’s return amount of the same tax invoice in 1999, and the Plaintiff filed the first tax invoice in 199, more than 265,367,00 won than the amount of the return of the same sales store in 199. In light of the first tax invoice in 199, the Plaintiff’s purchase tax invoice in 198 was different from the fact. Thus, this part of the Plaintiff’s assertion is without merit.

However, in light of the following: (a) the Plaintiff reported the purchase tax invoice of KRW 32,075,636 in 198; and (b) the details of the return of the second tax invoice of KRW 415,929,00 on the purchase tax invoice of KRW 2nd 32,075,636 in 198; and (c) the Plaintiff reported the purchase tax invoice of KRW 415,929,00 in the case of the Plaintiff; and (d) the Plaintiff issued the processing tax invoice to the Defendant, but did not deliver it to the other party; (b) the Plaintiff issued the sales tax invoice with the Plaintiff as the opposite contractual party; and (c) the Plaintiff did not deliver it to the Plaintiff; and (d) it is insufficient to conclude that the Plaintiff received and reported a disguised purchase tax invoice different from

In regard to this, the defendant, under the commercial practice, has almost no cases where the sales invoice is issued as a large company's direct sales store and the sales invoice is not issued, and there is no reason to report it clearly with the knowledge that the non-conforming data will occur. Rather, the plaintiff can be viewed as either underreporting the purchase or underreporting the purchase, or under reporting the increase in the price of the non-conforming sales store by mistake. However, the defendant's above assertion is not acceptable, since there is no evidence to acknowledge this.

(C) As to the argument regarding Seoul Direct Sales Center

As shown in the facts acknowledged earlier, if the Seoul Direct Sales Center issued a disguised sales tax invoice under the Plaintiff’s name and reported it to the Defendant, and if the Plaintiff filed a corresponding purchase tax invoice to the Defendant, that part of the Plaintiff’s purchase tax invoice is a false tax invoice, barring special circumstances. In light of the same amount of the Plaintiff’s first tax invoice return in 1999, the purchase tax invoice of KRW 27,108,182 is a false tax invoice, and thus, the Plaintiff’s allegation in this part is without merit.

(D) As to the assertion on sexually operated sales outlet

Only on the sole basis of the statements No. 11-2, No. 23, No. 28-1, and No. 28-2 of the evidence No. 11-2, No. 23, and No. 28-2, it is insufficient to recognize that sexually operated store issued false sales tax invoices different from the facts under the Plaintiff’s name during No. 1999, No. 282,349,000, and there is no other evidence to acknowledge it. Thus, the imposition of additional tax on this part by the Defendant on a different premise is unlawful,

(e) Sub-decisions

Therefore, from among the 2nd value-added tax in 1998, part 1,283,025 won related to the same store (32,075,636 won x 2 %) and part 11,293,960 won related to the same store among the 1st value-added tax in 1999 (=282,349,000 won x 2 x 2 %) are illegal as a disposition of misunderstanding of facts. Therefore, the plaintiff's assertion on this part is justified, and the remainder of the plaintiff's assertion is without merit.

(2) As to the exclusion period Do and argument

The exclusion period is the duration prescribed by the Act as to certain rights in order to promptly determine the legal relationship, and the legal relationship under the tax law is not desirable to be placed in an uncertain state at any time. Therefore, the exclusion period is set for the authority of the tax authority to impose the tax liability to determine the tax liability when the tax liability is established upon meeting the requirements for taxation under the individual tax law and the tax liability is determined to be extinguished

In principle, it shall be 5 years from the date on which the relevant national tax may be assessed. 7 years from the date on which the relevant national tax may be assessed, in exceptional cases where a taxpayer fails to file a tax base return within the statutory due date of return, and 10 years from the date on which the relevant national tax may be assessed, in cases where a taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means. The date on which the national tax may be assessed refers to the date on which the tax base and tax amount of the relevant national tax are the due date for the submission deadline or for the tax return (Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes). As such, in cases of a value-added tax, which is a national tax and the tax base and tax amount reported, value-added tax shall be 7.26 years from the date on which the tax base and tax amount of the relevant value-added tax are the due date of return, i.e., the

10-year limitation period is applicable: ① a taxpayer who is a person liable for tax payment (including persons jointly and severally liable for tax payment and persons secondarily liable for tax payment or guarantors if any duty to pay national taxes arises on behalf of the taxpayer) and a person liable for tax payment by collecting and paying national taxes under tax-related Acts (Article 2 Subparag. 10 of the Framework Act on National Taxes); ② a deceptive scheme or other affirmative actions (hereinafter “Fraud or other unlawful actions”) which makes it impossible or considerably difficult to impose and collect taxes; ③ a taxpayer is exempted from the payment of all or part of the amount of tax to be paid fairly, or is refunded or deducted in excess of the amount that can be duly refunded or deducted (hereinafter “cases where national taxes are evaded, refunded or deducted”). Here, national taxes include penalty taxes imposed on the items of national taxes prescribed by the relevant tax-related Acts. Thus, in cases where the relevant national taxes are evaded, refunded or deducted, the limitation period of additional taxes imposed on the relevant items of tax should also be ten years.

On the other hand, the scope of the tax amount subject to a long-term exclusion period due to an unlawful act, etc. is limited to the amount that is exempted from the payment of the tax amount that is reasonably payable, or the amount that is exceeded the amount that can be duly refunded or deducted, in light of the principle of strict interpretation, the scope of the tax amount subject to a long-term exclusion period is limited to the case where there is no such evaded tax amount, the exclusion period in principle shall be five years.

In this case, as seen earlier, there is no value-added tax evaded by the Plaintiff due to such unlawful act on the grounds that the supply price of the disguised purchase tax invoice and the processed sales tax invoice issued by the Plaintiff is identical, so the exclusion period of the penalty tax in unfaithful submission of the aggregate tax invoice for the seller and seller is not ten years but five years. Therefore, the imposition disposition of value-added tax for the first period of 1, 2, and 198, which exceeds five years in the exclusion period from the disposition of this case, is null and void, and thus, the Plaintiff’s allegation in this part of the Plaintiff’s claim seeking revocation of invalidation is with merit.

The defendant argued that the exclusion period should be applied to the non-party 1 because the plaintiff received the processed purchase tax invoice as if the plaintiff had normally purchased alcoholic beverages between the plaintiff and the non-party 1, distributed the sales tax invoice to the multiple customers without real transaction, and participated in the omission of non-party 1's sales of non-indicted 1. This part of the defendant's assertion that the exclusion period should be applied to the non-party 1 because it constitutes the non-party 1's fraudulent act and the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

【Omission of Taxation Details】

Judges Lee Young-young (Presiding Judge)