Early High Court Decision 2013J 3918 (Law No. 15, 2014)

The cost of the construction project whose actual payment is not confirmed shall not be deemed necessary expenses.

The cost of construction that is not confirmed to have been actually paid cannot be deemed necessary expenses, and the reporting and payment of capital gains tax while carrying on construction business and housing construction business cannot be deemed to have justifiable grounds that the Plaintiff cannot be deemed to have breached his/her duty. The portion of the failure: the portion of the omission of the additional tax to be paid

Article 27 (1) and (3) of the former Income Tax Act, Article 1 (6) of the former Enforcement Decree of the Income Tax Act

Seoul High Court 2015Nu72469 global income and revocation of disposition

Kim per cent

*The Director of the Tax Office

Seoul Administrative Court Decision 2013Guhap61951 Decided November 4, 2015

July 12, 2016

August 23, 2016

1. All appeals filed by the plaintiff and the defendant are dismissed. 2. Costs of appeal are assessed against each party.

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1. Purport of claim

피고가 2010. 8. 1. 원고에게 한 2006년 귀속 종합소득세 QQ,QQQ,QQQ원(가산세 포

b) The part exceeding www, www, and www in excess of 208 and the part exceeding fff,fff, andfff in excess of e, e, e, and e (including additional tax) of global income tax for the year 2008 shall be revoked (the plaintiff shall be gold-free in the trial).

A lawsuit against the Secretary was withdrawn and the claim against the Defendant was reduced).

2. Purport of appeal

A. The plaintiff

The judgment of the court of first instance is modified as follows. The defendant shall revert to the plaintiff on August 1, 2010 in the year 2006.

종합소득세 QQ,QQQ,QQQ원(가산세 포함) 중 ww,www,www원을 초과하는 부분 및 2008년

Parts exceeding fff, fff, and fffs, among e, e, e, and e, of global income tax for

The cancellation shall be revoked.

B. Defendant

Of the judgment of the first instance court, the global income tax for the year 2006 that the Defendant provided to the Plaintiff on August 1, 2010

QQ,QQQ,QQQ원(가산세 포함)의 부과처분 중 증빙불비가산세 s,sss,sss원의 취소를 명한

The part against which the plaintiff's claim corresponding to the cancellation is revoked shall be dismissed (No. 1).

The part of the judgment of the first instance against the defendant among the judgment against the defendant, but the additional tax on the lack of evidence

s. The imposition of global income tax on the remainder of the loss other than s, Ssss and Ss sources ex officio.

The plaintiff revoked the claim on the revoked ex officio, and the plaintiff withdraws the claim and reduces the claim.

Accordingly, the judgment of the court of first instance and the defendant's appeal were invalidated).

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1. Details of the disposition and related Acts and subordinate statutes;

This Court's explanation is consistent with the reasoning of the judgment of the court of first instance, except for the addition of the corresponding parts of the judgment of the court of first instance as follows. Thus, this Court's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

A. The height part

○ Under the second sentence of the first instance court, each of the categories 7, 1, 3, 15, 4, and 10, shall be construed as “the Defendant”.

○ Under the third decision of the first instance court, the chief of the tax office of the Suwon shall notify the defendant of the second decision to the "the defendant".

○ On the 5th and 3th decisions of the first instance court, the director of the tax office having jurisdiction over the defendant Geumcheon Tax Office shall be the director of the tax office having jurisdiction over the district tax office.

○ On No. 5 of the judgment of the first instance court, the Defendant’s “the Defendant and the Director of the Goldcheon Tax Office,” shall read “the Defendant and the Director of the District Tax Office.”

○ Up to 5 pages 14 of the first instance judgment (hereinafter referred to as “from 6 pages 2”) are as follows.

F. Partial revocation by the Defendant and the director of the Geumcheon District Tax Office, and partial withdrawal by the Plaintiff

1) The court of first instance shall recognize the reduction or exemption of the special tax amount for small and medium enterprises in relation to the imposition of global income tax for the year 2006. The notice of tax payment on the portion of non-proof of evidence s, sss, sssss, and ssss sss sss ss ss ss ss ss ss s s ss s s s s ss s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s ss s s sssss.

2) The Defendant and the head of the Geumcheon District Tax Office appealed on the part of the judgment of the first instance against the Defendant and the head of the Geumcheon District Tax Office, but on June 8, 2016, the part of the disposition imposing global income tax for the imposition of global income tax for 2006, with the exception of sssssssssssssssssss, among the part of the disposition imposing global income tax for the imposition of global income tax for 2006, which was revoked ex officio by the court of the first instance. The Plaintiff withdrawn the lawsuit of this case and reduced the purport of the claim (hereinafter the Defendant’s disposition imposing global income tax for 2006, which was revised on August 1, 2010, which was corrected on the grounds as seen earlier, and the Defendant’s disposition imposing global income tax for 2008, which was revised on August 1, 2010, which belonged to the legitimate tax amount recognized by the court of the first instance, refers to the disposition imposing global income tax for 2008 years.

B. Additional parts

○ On the 6th sentence of the first instance court, “15” is added to “19,20” next to “15”.

○ Article 70 (Final Return on Tax Base of Global Income) of the first instance court Decision No. 24, Chapter 7

(1) Any resident having global income amount in the current year, shall make a return on the tax base of global income to the chief of the tax office having jurisdiction over the place of tax payment from May 1 to 31 of the year following the current year,

2. Whether each of the dispositions of this case is legitimate

A. As to the disposition imposing global income tax for the year 2006 of this case

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1) The plaintiff's assertion

A) As necessary expenses for the construction of a new building listed in the attached Table 1 sold by the Plaintiff in 2006, a field-day labor cost L, LL, and LL should be additionally recognized.

B) The Plaintiff reported and paid the transfer income tax for the year 2006 by deeming the amount of OO, OOO, and OOO as transfer income following the new construction and transfer of the building listed in attached Table 1. Although the above income is business income, the Plaintiff filed a return of the amount higher than the Defendant’s business income P, PP, and PP as transfer income, so it is unreasonable to impose the general under-reported penalty tax on the Plaintiff.

(c)The non-performance penalty tax shall be cancelled because it is not known of the grounds for its imposition.

2) Determination

A) Whether necessary expenses are recognized

(1) According to Article 27(1) and (3) of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006; hereinafter the same shall apply) and Article 55(1)6 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same shall apply), the amount to be included in necessary expenses for the calculation of the acquisition amount and business income amount of real estate rent is generally accepted as expenses corresponding to the total income amount of the year concerned. The employee’s burden of proof is recognized as necessary expenses corresponding to the total income amount of the real estate rental income and business income. Meanwhile, since the tax base is deducted from necessary expenses, the income and necessary expenses are favorable to the taxpayer, and most necessary expenses are within the area controlled by the taxpayer, and thus, it is not recognized that there is no other evidence to prove the necessity of the Plaintiff’s payment of expenses for the construction work for 20 years to the taxpayer.

B) Whether the imposition of general underreporting penalty tax is legitimate

(1) According to Articles 70(1) and 81(1)2(b) of the former Income Tax Act, a resident having global income in the current year shall file a return on the tax base of global income with the head of the tax office having jurisdiction over the place of tax payment from May 1 to May 31 of the year following the current year as prescribed by the Presidential Decree. In case where a resident who has global income in the current year files a return on the income amount short of the income to be reported, the ratio of

- 7- The amount equivalent to 10/100 of the amount calculated shall be added to the final tax amount. The under-reported additional tax on global income tax imposed pursuant to Article 81 of the former Income Tax Act imposes special economic burden in order to ensure the proper performance of the duty to report the global income tax base (see Supreme Court Decision 97Nu12778, Jul. 10, 1998). Thus, even if a resident made a final return on the tax base of capital gains and paid capital gains tax in return for capital gains not global income, the imposition of additional tax on global income tax does not affect the imposition of the under-reported additional tax on global income tax. In addition, in cases where a taxpayer violates a tax law without justifiable grounds in order to facilitate the exercise of the right to taxation and the realization of the tax claim, a taxpayer’s intentional and negligent act is not considered as a tax sanction imposed pursuant to the tax law, while such sanction is unreasonable to deem that the taxpayer was not aware of the duty, and thus, it is unreasonable to expect the party to perform the duty, and thus, it should be imposed under the tax law.

(2) In light of the above statutory provisions and relevant legal principles, the imposition of general under-reported additional tax is lawful, and since the Plaintiff filed a return of income from the sale of the site and building listed in the separate sheet No. 1 without filing a return of business income, which is included in global income, and filed a return of capital gains less than the amount of such income, the Plaintiff failed to report the tax base of global income even if it filed a return of capital gains. The Plaintiff failed to report the tax base of global income. The following circumstances revealed by adding up the facts acknowledged above and the overall purport of the arguments, namely, ① for the construction business and the Housing Construction and Sales Business Act from September 2002 to 8-8; ② for the Plaintiff acquired 53 real estate from September 202 to 2009 and transferred 31 real estate, the Plaintiff cannot be deemed to have violated its duty of return and payment without filing a comprehensive return and payment of capital gains tax for the income from the sale of the building listed in the separate sheet No. 1 as stated in the separate sheet No. 2006. 1.

C) Whether the imposition of non-Evidence penalty is legitimate

(1) When both principal tax and additional tax are to be imposed upon a single tax payment notice, the individual tax amount and the basis for calculation thereof should be stated in the tax payment notice separately. In addition, where multiple types of additional tax are to be imposed, it is natural that the taxpayer can per se know the details of each tax disposition by classifying the amount and the basis for calculation thereof, even between them. As such, the imposition of additional tax is deemed an imposition disposition, and only the total amount of additional tax is entered without disclosing the type and the basis for calculation thereof (see Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012). However, even if there is any defect in which matters required by relevant Acts and subordinate statutes are omitted, if it is evident that the taxpayer already stated in the tax payment notice prior to the tax payment notice, etc., and thus, the defect of the tax payment notice can be supplemented or recovered if it is not completely hindered in the determination of objection against the disposition and appeal (see Supreme Court Decision 200Du3979, Mar. 27, 2001).

(2) Comprehensively taking account of the purport of the entire pleadings in the statement No. 1 and No. 2 of the evidence No. 8-1, the Defendant’s disposition following the decision of the Plaintiff’s appeal, when correcting the global income tax amount reverted to July 25, 2014.

- The notice was sent 9- and 9-(A8-1). The above documents only describe the principal tax of global income tax and the general under-reported tax, the total amount of non-Evidence penalty tax, the CCC, the CCC, the CCC, the CCC, the basis for calculation and the type of non-Evidence penalty tax, etc., and the fact that the correction resolution of global income tax for the year 2006, which seems to have been notified to the Plaintiff by the head of the Geumcheon District Tax Office, include the type and amount of non-verification penalty tax, but the fact that there is no basis for calculating the non-verification penalty tax, such as the amount of non-acceptance penalty tax, is recognized.

(3) Examining the above facts in light of the legal principles as seen earlier, among the disposition imposing global income tax for the imposition of global income tax for the year 2006, the notice of tax payment on the portion of non-proof of evidence is unlawful as it is procedural defect. The Plaintiff’s assertion on this part is with merit.

(4) As to this, the Defendant’s inventory of the same amount after recovering the above procedural defect even if the portion of the non-performance penalty tax is revoked, the Defendant asserts that this part of the claim in the lawsuit in this case has no interest in litigation. However, if the portion of the non-performance penalty tax in the disposition imposing global income tax for the tax year 2006 is revoked, insofar as there is a change in the Plaintiff’s tax legal relationship, it cannot be said that there is no interest in litigation even if the same amount is revaluated after the revocation

B. As to the disposition imposing global income tax for the year 2008 of this case

1) The plaintiff's assertion

A) The Defendant, as the Plaintiff’s business, imposed global income tax on the Plaintiff on the building construction project that took place in the name of KimB, KimC, KimA, the first instance order, and Kang Chang-chul. Since the Plaintiff runs a construction business in the Seoul Metropolitan area in 2008, the exemption from the special tax reduction for small and medium enterprises under the former Restriction of Special Taxation Act should be

B) The Plaintiff’s business site is several individuals, and it is inevitable to grant loans in the name of the Plaintiff, such as KimB, etc.

- 10- The new construction and sales business of a building was conducted under the name of 10- The comprehensive income tax was faithfully reported and paid under the name of Kim Dong-young, etc. As such, the Plaintiff did not return the global income tax base and tax amount to the Plaintiff on the premise that the Plaintiff did not fully report the global income tax base and tax amount, on the basis that the Plaintiff did not report it at all.

2) Determination

A) Whether to recognize special tax reduction or exemption for small and medium enterprises

(1) According to Article 128(2) of the former Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008; hereinafter the same), where a decision is made pursuant to Article 80(1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same), the special tax reduction or exemption among small enterprises under Article 7 shall be excluded.

(2) The Plaintiff had KimB, etc. return and pay the global income tax on the business income attributed to year 2008. Accordingly, considering the Plaintiff’s business income reported by KimB, etc. as the business income attributed to year 2008 and the fact that the Plaintiff determined the Plaintiff’s tax base and tax amount on global income tax attributed to year 2008 pursuant to Article 80(1) of the former Income Tax Act is as seen earlier, the Plaintiff is not entitled to the special tax reduction or exemption on small and medium enterprises under Article 7(1)1(c) and 2(b) of the former Restriction of Special Taxation Act.

B) Whether the imposition of unfair non-declaration penalty tax is legitimate

(1) According to Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 9272 of Dec. 26, 2008) and Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038 of Feb. 18, 2010), a taxpayer violates the duty to report the tax base or amount of national tax on the basis of concealing or pretending all or part of the fact that the taxpayer violates the duty to report, (1) false entry of books, such as double entry, (2) false evidence or false document (hereinafter referred to as “false evidence, etc.”), (3) omission of books and records, or concealment of property, or (5) omission of income, profits, transactions, or other unjust tax base without filing a return of tax base (hereinafter referred to as “unfair tax base without filing a return of tax base”) and then an amount equivalent to 10/10,000 of the amount without filing a return of tax base shall be deemed to be an amount without filing a return of tax base.

(2) The fact that the Plaintiff had KimB, etc. return and pay the comprehensive income tax on the business income accrued in 2008 is as seen earlier, and according to the evidence No. 11-3 and No. 5, the Plaintiff applied the tax rate of 26%, not the highest tax rate, by filing and paying the comprehensive income tax on the income accrued from the sale and purchase of buildings and land annexed to the annexed Table No. 3 in the name of KimA as to the income accrued in 2008. The Plaintiff reported and paid the comprehensive income tax on the income accrued from the sale and purchase of the buildings and land annexed to the annexed Table No. 5, thereby applying the highest tax rate of 35%, not the highest tax rate of 17%, not the highest tax rate of 35%.

(3) Examining the above facts in light of the statutory provisions and legal principles as seen earlier, the Plaintiff’s act earlier constitutes failure to report the global income tax base for the year 2008 by referring to “discipation or concealment of income, profit, act, transaction, etc.” and the Plaintiff’s act resulted in evading the application of the highest tax rate on some business income. As such, the Plaintiff should be deemed to have failed to report the tax base by such active act as making it difficult to discover the global income tax requirement for the global income tax for the year 2008 by having the purpose of tax evasion and making it difficult to discover the global income tax base for the year

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable in the imposition disposition of global income tax for the year 2006 of this case, and the remaining claim shall be revoked and dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff and the defendant's appeal are dismissed as it is without merit.

Judges of the presiding judge