Daegu District Court-2014-Gu Partnership-22566 (2016.03)

Cho Jae-2014-Gu-555 (Law No. 17, 2014)

in terms of internal responsibilities, accounting, independent disposal authority, etc. and

(As in the judgment of the court of first instance, the actual business operator is deemed to have internal responsibilities and calculations, independent disposition authority, etc., and there is no ground that the amount of sales as the place of business is the amount of sales, and the total omitted amount is sufficient

Article 14 of the Framework Act on National Taxes

Daegu High Court-2016-Nu-5502

00

00 Other 1

Daegu District Court-2016-Gu Partnership-22566

November 3, 2017

December 8, 2017

1. The plaintiff's appeal against the defendants is dismissed in entirety.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The imposition of 300 million won of the imposition of value-added tax on the Plaintiff from January 6, 2005 to February 2, 2008 and the imposition of 463 million of the value-added tax on 1.4 billion of the value-added tax on the Plaintiff from January 2005 to February 6, 2008 shall be revoked. The imposition of 53 million won of the imposition of 351 million won of the global income tax on the Plaintiff on December 6, 2013 shall be revoked. The imposition of 50 million won of the imposition of 351 million won of the global income tax on the Plaintiff on December 6, 2013 shall be revoked.

[Plaintiff’s disposition of imposition of the total value-added tax (including additional tax, and the total amount of value-added tax actually imposed, including additional tax, by the head of the tax office 000 that was imposed on the Plaintiff on December 6, 2013) from January 2005 to February 2012, 2012, the Plaintiff sought revocation of the disposition of imposition of the total amount of KRW 351 million (including additional tax, and the total amount of global income tax, including additional tax, by the head of the tax office 3.0 billion won) imposed on the Plaintiff on December 6, 2013, and the total amount of global income tax imposed on the Plaintiff on December 6, 2013 by the head of the tax office 3.51 million won (including additional tax, and the total amount of global income tax actually imposed on the Plaintiff including additional tax, was reduced in the first instance trial, and accordingly, the purport of appeal was reduced to that extent).

1. Details of the disposition;

A. From October 00 to October 00, 2009, Daegu 00-dong 000, business registration consisting of wholesale and retail business under the name of FF as business type; from October 2009 to October 20, 2009, business registration consisting of wholesale and retail business under the name of FF; and from October 00 to October 2014, Nonparty DD’s “BB” as business type.

B. From October 00 to the 00th day of the same month, Defendant 00 did not conduct a tax investigation with respect to the Plaintiff. As a result, the Plaintiff is an employee of Nonparty CCC (hereinafter referred to as “CCC”) located at 00:00:00,000, but the Plaintiff was an independent business operator not subject to CCC’s occupational control, who actually operated BB in the name of FF name AA and DD in the instant workplace. From 2005 to 2012, Defendant 00 was an actual business operator who actually operated BB in the name of FF name in the instant workplace, and the amount omitted out of the purchase price of goods, such as goods supplied by AA and BB from 2005 to 2012, applied 14.29 billion won to 5.6 million won, and determined that the Plaintiff omitted sales of KRW 1.4.3856 million.

C. Accordingly, as indicated in the table below, the director of the tax office 000 decided and notified the Plaintiff of the total value-added tax of 3 billion won from 1005 to 2012 on October 2013, 2013, and the director of the tax office at the same time notified the Plaintiff of the total amount of 351 million won from 2005 to 2012 on the same day (hereinafter “each disposition of this case”).

The omission of the list.

D. On October 0, 2014, the Plaintiff appealed to the Tax Tribunal. However, on October 0, 2014, the Tax Tribunal decided to dismiss the request on October 0, 2014.

Facts that there is no dispute over recognition, Gap Nos. 1, 2, Eul Nos. 1 through 5, 7, 8, 18

of each statement, the whole purport of the pleading, including the number of each

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) The Plaintiff paid 463 million won among the value-added tax imposed by Defendant 000, and 53 million won among the global income tax imposed by the head of the relevant tax office at issue during the proceeding of the instant lawsuit, and the part corresponding to the tax amount paid by the Plaintiff among each of the instant dispositions should be revoked

(2) The actual business operator of AA and BB supplies CCC products, etc.

Upon receipt of such fact, the Plaintiff did not receive purchase tax invoices from CCC and omitted part of the sales tax invoices with respect to the seller. However, it was also true that the Plaintiff performed the business as the head of CCC’s Yong-Nam. In the process, if CCC did not immediately supply products, etc. to the seller and sent products, etc. to AA and BB operated by the Plaintiff, the Plaintiff only took the method of delivering the products, etc. to the seller. As such, the Plaintiff’s sales of CCC’s products, etc. received from CCC in the course of performing its business as the head of CCC’s Yong-Nam-Nam, and sold them to the seller, not the sales of CCC’s 20. Accordingly, the Plaintiff’s sales of the Plaintiff’s products, etc. received from CCC in the course of performing its business as the head of CCC’s Yong-Nam 2 and the Plaintiff’s sales of the Plaintiff’s products, etc. to the amount of value-added tax collected from CCC’s 1 to the Plaintiff.

(b) Related statutes;

Attached Form 1 shall be as listed in attached Table 1.

C. Determination

1) As to the assertion regarding the amount of value-added tax and global income tax

According to the evidence No. 10-1, No. 2, and No. 11-1 and No. 2, the Plaintiff paid 53 million won among global income taxes according to the instant global income tax disposition on October 0, 2016, and paid 463 million won among the value-added taxes according to the instant disposition on the same day. However, on the ground that the Plaintiff paid part of the value-added tax and the global income tax on each of the instant dispositions, it does not constitute an unlawful taxation on the portion corresponding to the relevant amount of tax. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

2) As to the allegation on sales part of the CCC

Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 9-7, 5, 7, 8, 11, and 19, the defendants are deemed to have failed to purchase the remainder after deducting the portion of the purchase tax invoice received from CCC in the name of AAA and BB operated by the plaintiff from the supply price of the products, etc. entered as to the transaction between CCC and the plaintiff from January 3, 2005 to December 31, 2012, which were entered as to the transaction between CCC and the plaintiff, and thus, they can be found to have issued each of the dispositions of this case based on the facts that the plaintiff calculated the amount calculated by applying the profit ratio of 1% to the omitted purchase amount.

The Plaintiff acknowledged that the amount of 1% profit ratio applied to the omission amount is the omission amount of Plaintiff’s sales. However, the Plaintiff’s assertion that the Plaintiff’s purchase omission amount includes the portion sold to the CCC’s sales office as the head of the CCC. Thus, the Plaintiff asserts that the Plaintiff should calculate the omission amount of Plaintiff’s sales based on the remainder of omission amount deducted from the omission amount of purchase (the Plaintiff asserts that the part of the CCC’s tax invoice issued with respect to GG companies, etc. indicated in the separate tax invoice No. 2 should be excluded from the omission amount of purchase).

However, in full view of the following circumstances revealed in addition to the purport of the entire arguments, all the products indicated as being supplied to the Plaintiff to the Customer Director prepared by CCC should be deemed to have been purchased from CCC. The Plaintiff’s assertion is not acceptable since the Plaintiff’s disposal of this case by the Defendants, who calculated the omitted amount of sales based on the Plaintiff’s determination of the remaining supply value, excluding the supply value of the part receiving the purchase tax invoice from CCC in the name of AA and BB, based on the Plaintiff’s omission amount of purchase.

① In the course of the tax investigation with respect to the Plaintiff, the Plaintiff, while selling the products, etc. supplied by the CCC to the customer, provided a relatively large quantity of goods to the customer with the factory price and stated that the transaction partner dealing with the small amount of goods, etc., determined the price based on the market price. As such, the Plaintiff’s determination of the supply price based on his/her own judgment is possible because the Plaintiff, who sold the products, etc. to the customer, was an independent business operator without the control of the

② As the Plaintiff’s assertion, if the Plaintiff, as a actual business operator of AA and BB, engaged in the business activities of CCC on the other hand while dealing with the sales of products, etc. supplied by CCC, CCC should manage the account for the sales of the transaction supplied by the Plaintiff to AA or BB, and the account for the sales of the transaction partner that the Plaintiff sold by the Plaintiff as the actual business operator, by dividing the account into the account for sales of the transaction supplied by CCC, and the account for sales of the transaction partner that the Plaintiff sold by the Plaintiff as the place of business of CCC. However, the account director prepared by CCC did not at all

③ On October 0, 2014, the Plaintiff was indicted as a violation of the Punishment of Tax Evaders Act and was sentenced to a final and conclusive judgment on conviction ( Daegu District Court 2014Da3000, Daegu District Court 2015No0000). The Defendant submitted a false list of total tax invoices by omitting the purchase amount of the products, etc. supplied by CCC during the value-added tax period from January 2, 2009 to February 2, 2012; the act of submitting a false list of total tax invoices by buyer for whom sales were omitted while supplying the products, etc. to HH food and other business partners during the same period; the act of evading value-added tax during the pertinent taxable period; the act of evading value-added tax during the pertinent taxable period; the act of evading income tax during the pertinent taxable period from the year 2009 to the year 2012 (the act related to the taxable period prior to 2009 has not been prosecuted after the statute

The purchase amount, sales amount, etc. omitted from the amount of tax evasion in the pertinent taxable period recognized by the above final and conclusive judgment are consistent with the purchase amount and sales amount determined by the Defendants omitted, and the instant disposition tax amount imposed by revising the increased amount based thereon (including the omission of sales on HH food, etc. alleged by the Plaintiff as the business partner of the CCC). Although the criminal facts established by the judgment of conviction relate to the taxable period after January 2009, there is no circumstance to deem that there exists a difference between the form of transaction after January 2009 and the previous form of transaction.

3) Sub-decisions

Therefore, each of the dispositions of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.