Early High Court Decision 201J 2838 ( November 27, 2012)

When expanding the scope of the tax investigation, there is an illegal fact that has not been notified in writing.

In the case of expanding the scope of the tax investigation, the defendant should have notified the plaintiff in writing pursuant to Article 81-9 (2) of the Framework Act on National Taxes, but the defendant has violated the Act by arbitrarily expanding the period of investigation and the tax items subject to investigation without taking such procedures.

Article 81-9 of the Basic Act

Article 17 of the Value-Added Tax Act

2013Guhap2052 Revocation of imposition disposition of value-added tax, etc.

IsaA

The director of the tax office

August 22, 2013

September 5, 2013

1. On May 11, 201, the Defendant revoked each imposition of value-added tax for the second term of 2008 against the Plaintiff, value-added tax for the first term of 2009, value-added tax for the second term of 2009, value-added tax for the second term of 2009, value-added tax for the first term of 2010, and global income tax for the first term of 2008, and global income tax for the first term of 2009.

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

The phrase " May 16, 201," written in the written complaint, seems to be a clerical error in the text of May 11, 201."

1. Details of the disposition;

A. From October 11, 2003, the Plaintiff is an individual entrepreneur who operates a gas station under the trade name called “CCC gas station” from OO-dong 728-5.

B. From February 2008 to January 201, 2010, the Plaintiff received purchase tax invoices (hereinafter “each of the instant tax invoices”) equivalent to the total value-added tax amount from DD Energy Co., Ltd. (hereinafter “DD Energy”), for the second period of 2008, for the first period of 2009, for the second period of 009, for the second period of 2009, for the second period of OOOO and for the first period of 2009, for the first period of 2010, and reported and paid value-added tax from the output tax amount.

C. From August 26, 2009 to January 14, 2010, the director of the Central Regional Tax Office confirmed that DNA energy was issued tax invoices without real transactions during the first and second taxable periods from August 26, 2009, and notified the Defendant.

D. Accordingly, the Defendant: (a) considered each of the instant tax invoices as false tax invoices; (b) did not deduct the relevant input tax amount from the output tax amount; and (c) imposed tax on global income tax, on May 11, 201, the Defendant corrected and notified each of the instant tax invoices to the Plaintiff on May 11, 201, 208, the value-added tax OOO for the second term of 2008, the value-added tax OO for the second term of 209, the value-added tax OO for the second term of 209, the value-added tax OO for the second term of 209, the global income tax OO for the first term of 208, and the global income tax OO for the second term of 209 (hereinafter collectively referred to as the “each of the instant dispositions”).

E. On August 3, 2011, the Plaintiff appealed to the Tax Tribunal, but was dismissed on November 26, 2012.

[Ground of recognition] The non-satched facts, Gap evidence 1, 2, 6, and 35, and Eul evidence 4 and 6 (if available, including the number, and hereinafter the same shall apply), and the purport of the whole pleadings

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

A. The plaintiff's assertion

(1) The defendant, while conducting a tax investigation with the plaintiff, did not notify the plaintiff of the tax investigation period and the tax investigation period and the tax investigation period are in violation of the provisions of Article 81-9 of the Framework Act on National Taxes, even though the tax investigation notice as stated in the "from January 1, 2009 to December 31, 209" was given, and the tax investigation notice was given in 2008, the amount of value-added tax for the second period of 2008, the amount of value-added tax for the first period of 2010, and the amount of income tax for each year of 2008 and 2009.

(2) The Plaintiff was actually supplied with oil in transactions with DD energy and deposited the price in the real name account book of DD energy. Each of the instant tax invoices is deemed to correspond to the actual supplier, and thus does not constitute a false tax invoice, since the entries of the supplier are deemed to coincide with the actual supplier.

(3) Even if each of the above tax invoices was mistakenly entered by the supplier, and the Plaintiff did not know that the actual supplier of the oil was different from the entry of the supplier under the tax invoice, and did not know it.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether procedural illegality is procedural

(A) According to Article 81-9(1) and (2) of the Framework Act on National Taxes, a tax official shall not extend the scope of a tax investigation under investigation, except in cases prescribed by Presidential Decree, such as where it is confirmed that specific suspicions of tax evasion are related to several taxable periods or other items of tax, and where the scope of a tax investigation is expanded, he/she shall notify a taxpayer of the reason and scope in writing. Article 63-11(1) of the Enforcement Decree of the same Act provides that "cases prescribed by Presidential Decree, such as where it is confirmed that specific suspicions of tax evasion under Article 81-9(1) of the Enforcement Decree of the same Act are related to several taxable periods or other items of tax," in which specific suspicions of tax evasion are necessary for other taxable periods, tax items, or items in the course of the investigation (subparagraph 1), and where a tax investigation is converted to a tax offense investigation under subparagraph 3 of Article 2 of the Procedure for the Punishment of Tax Evaders Act, and where it is necessary to extend the scope of a tax investigation for other taxable period (subparagraph 4).

(B) Comprehensively taking account of the facts recognized as above and evidence No. 4, Defendant 2 violated the above provisions regarding global income tax investigation under Article 10 of the Enforcement Decree of the Framework Act on National Taxes for 10 years and 2 years, and the period for investigation under Article 20 of the same Act as “value-added tax”, and the period for investigation from January 1, 2009 to December 31, 2009 as “from December 15, 2010 to January 18, 201,” and the tax investigation was conducted with notice of tax investigation under Article 9 of the Framework Act on National Taxes, and the Defendant did not have committed any unlawful tax investigation under Article 9 of the same Act for 10 years and 2 years in 209 without giving written notice to the Plaintiff. This part of the tax investigation under Article 9 of the Enforcement Decree of the Framework Act on National Taxes, which did not constitute an unlawful tax assessment under Article 9 of the same Act for 10 years and 2 years in which the tax investigation was conducted.

(D) Accordingly, among each of the dispositions in the instant case, the imposition of value-added tax for the second term of 2008, value-added tax for the first term of 2010, global income tax for the 2008, and global income tax for the year 2009 is unlawful due to procedural defects, and thus, the imposition of global income tax for the first term of 209 is not further determined as to the substantive defects, and under the second term tax invoice, the tax invoice related to the imposition of value-added tax for the first term of 209 and the second term of 209 (hereinafter referred to as "market tax invoice").

(2) Whether the issue issue tax invoice is a false tax invoice

(A) Comprehensively taking account of the entire arguments in Eul and Eul evidence 4 and 5, the Director of the Regional Tax Office shall determine the survey period from August 26, 2009 to January 14, 2010 as "the date from January 1, 2009 to September 30, 2009"; the survey results were conducted on suspected material of DNA energy; the trading rate verified as a result of the survey was 91.7% in January 2009 and 97.9% in February 2009; the parts purchased from the above survey were 20OE (hereinafter referred to as "EEE company"); the parts purchased from the above 2OE boiler to the plaintiff; the parts purchased from the above 2OE company for the first time after purchasing them from the 20OE company, and the parts purchased from the 20OE company for the first time after purchasing them from the 20OE company for the first time, and the parts purchased from the 90OF company for the first time after purchasing them.

(B) The following circumstances, i.e., DNA energy, which can be identified by the above facts, are confirmed to have been engaged in real transactions with EE companies, and i.e., it is difficult to regard D Energy as a processing company that can not be a substantial transaction partner with only business registration or petroleum selling registration, since D Energy was confirmed to have been engaged in real transactions with EE companies. (ii) The director of the Central Regional Tax Office, as a result of the tax investigation, determined the total amount of the oil purchased from EE companies and sold from D Energy; (iii) it is confirmed that D Energy was actually purchased from E companies, and that D Energy was supplied with the quantity corresponding to the tax invoice, and that D Energy was actually supplied to the Plaintiff and paid the price to D Energy; and (iv) it is difficult to find that D energy was purchased from 20 years, and that most of the purchase results of D energy were purchased from D companies, but it is not sufficient to find that D energy was actually supplied to the Plaintiff.

(3) Sub-decisions

Therefore, each disposition of value-added tax for the second term in 2008, value-added tax for the first term in 2010, global income tax for the second term in 2008, and global income tax for the second year in 2009 is in violation of the provisions of Article 81-9 of the Framework Act on National Taxes, and each disposition of value-added tax for the first and second term in 2009 is insufficient to recognize that the relevant tax invoice is different from the fact, and each disposition of this case is unlawful.

3. Conclusion

Then, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.