National High Court Decision 2004No3308 (Law No. 26, 2005)
It is legitimate to make a decision on the estimation because there is no account books or evidence to make a decision on the field investigation of the omitted amount of sales corresponding to the omission of purchase. It is reasonable to apply the national gross profit ratio of the same trade.
Article 21 of the Value-Added Tax Act / Method of Estimation and Revision
I dismiss the appeal.
1. Summary of disposition;
The claimant is an individual entrepreneur who runs the wholesale business of computer parts in the name of OO 15-1 OO from OO 15-1 and Ocom. (The value of supply) purchased from OO 219,852,000 won from January 1999 to June 199.
The disposition agency notified the applicant of the amount of KRW 256,237,060 calculated by applying 14.2% of the gross profit ratio of wholesale business of computer parts notified by the Commissioner of the National Tax Service to the above 219,852,000 won (hereinafter referred to as "the dispute amount") which the applicant omitted in purchase, and notified the applicant of the correction of KRW 50,901,49 in the amount of value-added tax of KRW 1,199.
On September 3, 2004, the claimant appealed and filed an appeal for adjudication.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
(1) a disposition by estimation is unfair, even though the claimant may determine the amount of revenue on the spot by means of tax invoices, books, or other evidence kept by him; and
(2) Even if the estimation is made, it is unreasonable to estimate sales by applying the nationwide gross profit ratio, instead of applying the average gross profit ratio of the neighboring trade type of business.
(b) Opinions of disposition agencies;
(1) The claimant asserts that the purchase amount was confirmed by the customer (the director of the customer) and the director of the customer (the director of the customer) who omitted the purchase and sale of the issue amount as an enterprise reported in the global income tax return. However, the claimant's assertion that the sales amount was paid in cash for all transactions without presenting material, which is an important material to verify the customer's place of sales and the sales amount.
(2) The average value-added ratio of neighboring partners is 9.22%, and the addition ratio of the value-added ratio of (ju)OO, (ju)OO, 7.59%, and 7.59%, which are the parties involved in the same type of transaction, should be reasonably estimated accordingly. However, the claimant's most of the companies asserted as neighboring partners is an enterprise whose taxation data such as the omission of sales, etc. are derived, and (ju)OOO and (ju)OOO system are investigated as the parties involved in the trade order, and it is inappropriate to regard their business performance as the taxation criteria for trading authority.
3. Hearing and determination
A. Key issue
(1) Whether the applicant can determine the amount of revenue on the spot by means of tax invoices, books, and other evidence kept by him.
(2) In determining the amount of revenue by estimation, the propriety of the disposition imposing a tax by applying the national gross profit rate without applying the average value-added rate of the same neighboring business type claimed by the claimant.
(b) Related statutes;
(1) Article 21 of the Value-Added Tax Act 【Correction】
(1) The Commissioner of the competent Regional Tax Office of the competent Regional Tax Office or the Commissioner of the National Tax Service of the competent Regional Tax Office having jurisdiction over the place of business shall correct the tax base of value-added tax or the tax amount to be paid in the taxable period by the investigation
1. Where the final tax return is not filed;
2. Where there are any mistakes or omissions in details of the final tax return;
(2) Where the head of a regional tax office having jurisdiction over the place of business or the Commissioner of the National Tax Service revises the tax base and amount of tax payable or amount of tax refundable for each taxable period pursuant to paragraph (1), he shall correct it based on the tax account books and other evidence: Provided, That he may correct it by estimation under the conditions as prescribed by the Presidential Decree in cases falling under any of the following subparagraphs:
1. Where there are no necessary tax invoices, account books and other evidence or important parts are incomplete in calculating the tax base;
Article 69 of the Enforcement Decree of the Value-Added Tax Act
(1) The estimations under the proviso of Article 21 (2) of the Act shall be based on the methods as provided in the following subparagraphs:
4. Calculation method by one of the following criteria determined by the Commissioner of the National Tax Service by type of business and by region (amended on December 31, 1996):
(d) The ratio of the sales to the gross sales profit to the gross sales profit during a fixed period (amended on December 31, 1996); and
(e) The value-added rate determined by the ratio of sales and value-added to the amount of sales during a fixed period (No. 31 December 31, 1996).
C. Facts and determination
(1) We examine issues ①.
The claimant's report on the global income tax return and the sales of the business operator and the amount of the issues omitted in purchase are confirmed by the psychological data at the same time.
In the account books presented by the claimant, the product name, the amount of sales, and the amount of revenue are written by each date, and the sales office is partially written, but it is impossible to grasp the matters of purchase and sales with only the account books because all of the purchasing offices are not written, and it is not visible that the account books contain the sales office for the issues amount.
The disposition agency may request the applicant to present objective transaction data, etc. with credibility because it is impossible to verify the details of sales on the issue amount, and the applicant's request is confirmed by psychological data that there is no objective data, such as financial transaction data, because all OEM transactions are conducted in cash.
Therefore, in the case of this recommendation, there is no book or evidence that can make a field investigation decision on the omitted amount of sales corresponding to the omitted amount of purchase.
(2) We examine the issues ②
The claimant asserts that it is improper to levy tax by calculating the omitted amount of sales by applying the national gross profit ratio, instead of applying the average gross profit ratio of neighboring trade type of business even if the applicant determines the estimated amount of sales;
The number of neighboring partners presented by the claimant is the entrepreneur who has most of the taxation data under the suspicion of omitting sales, as shown below, through the National Tax Integration Computer Network by the National Tax Service.
In the case of estimation correction by the method of calculation based on the authority type with other partners of the same type of business, the book keeping of the business contents of the relevant business should be recognized as justifiable, and the details of the report should be faithfully fulfilled and should not be corrected by the tax authority. However, since most of the partners presented by the claimant are suspected of having reported the sales department, and the tax investigation was already conducted by the tax authority from the tax authority as a participant in the transaction order, the contents and details of the company's entry and details of the report cannot be deemed legitimate or sincere, so the disposition agency did not err in the disposition of this case imposed by calculating
As a result of the review, the request for a trial is without merit, and such decision is made in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.