In the administrative judgment, the criminal judgment which became final and conclusive with respect to the same factual basis is a flexible evidence.

The facts that have been recognized as the crime of reason for a criminal judgment which became final and conclusive in an administrative trial are significant evidence, and the facts that have been received by the administrative trial cannot be recognized unless there are special circumstances where it is deemed difficult to employ a criminal judgment in light of other evidence submitted in the administrative trial.

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes paid under Article 17 of the former Value-Added

Cheongju District Court 2018Guhap2921. Revocation of a disposition of rectification of value-added tax

○○○ Incorporated Company

○ Head of tax office

October 18, 2018

November 29, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On August 3, 2016, the Defendant revoked the disposition imposing the value-added tax on the Plaintiff.

1. Details of the disposition;

A. On August 14, 2007, the Plaintiff was a corporation established for the purpose of collecting and selling tin. aggregate, selling tin and civil engineering works, etc. on ○○○ ○○ ○○ ○○ ○○○ ○○○○ ○○ m, and on December 2, 2008, operated a business after obtaining permission to extract aggregate from the ○○ mal market, and filed a report on the closure of the business on April 22, 2015.

B. In the first taxable period of value-added tax (from January 1, 2011 to June 30, 2011), the Plaintiff received purchase tax invoices of KRW 317,203,636 (hereinafter referred to as “instant tax invoice”) in total from the gas station (hereinafter referred to as “gas station”) during the first taxable period of value-added tax (from January 1, 2011 to June 30, 201), and filed a return of value-added tax for the first taxable year of 2011 and corporate tax for 2011 after deducting this from the Plaintiff’s output tax amount, the Plaintiff filed a tax investigation with the Plaintiff for the period from May 23, 2016 to July 10, 2016, the Defendant concluded that the tax invoice of this case included the Plaintiff’s tax invoice of KRW 317,203,636,153,636 as the processed tax invoice of this case, and included the Plaintiff’s tax invoice of this case for 201 to 2816,2816.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) A tax investigation has been conducted twice without good cause (hereinafter referred to as "first argument").

Around June 2012, the Defendant conducted a tax investigation on the Plaintiff and completed the instant disposition by conducting a tax investigation again on or around May 2016, even though it did not discover the unique issues at the time and the case is insignificant, it did not have any legal basis and thus, it goes against the principle of res judicata.

2) The instant tax invoice transaction is a real transaction, not a processing transaction (hereinafter referred to as “second claim”).

The instant tax invoice was actually supplied by the Plaintiff with oil from the instant gas station and was issued by the instant gas station. Nevertheless, the instant disposition, based on the premise that the instant tax invoice transaction was due to an unreal-form processing transaction, is unlawful for the following reasons.

A) BB, the representative of the gas station in the instant case, was subjected to an investigation agency’s non-guilty disposition against the charge of violating the Punishment of Tax Evaders Act. Therefore, even if the conviction of violation of the Punishment of Tax Evaders Act against the CCC, which is the actual operator, was finalized, the Plaintiff traded with BB, and thus, the said conviction should not be applied to the instant case.

B) The oil transaction is often conducted by cash transaction, and the subsidiary data related to the ordinary tax invoice are kept in the supplier, and it is common that the Plaintiff and the purchaser, like the Plaintiff, keep the duplicate for reference at the time of reporting and settlement of accounts, and separately disposes of it. Thus, it is erroneous to determine that the Plaintiff did not present the subsidiary data related to the tax invoice as the processing transaction.

C) The Defendant unfairly rejected the statements of GG from an on-site manager with high credibility, and accepted only some of the JJ’s statements that were not related to accounting management and exclusively engaged in on-site management.

D) In addition to the Plaintiff, the Defendant did not conduct a tax investigation on the remaining companies that transacted with the instant gas station.

3) Five years have passed since the exclusion period of imposition was 5 years (hereinafter referred to as "third claim").

The Defendant considered the instant tax invoice-related transaction as a processing transaction and applied Article 26-2(1) of the Framework Act on National Taxes, but the instant disposition was made, as seen earlier, since the instant tax invoice-related transaction was a real transaction, the exclusion period of tax imposition should be deemed five years. Therefore, the instant disposition imposed the exclusion period.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

A) On January 12, 2011, the gas station of this case started its business, but closed its business on July 30, 201, but received approximately KRW 2 billion tax invoices from DD Energy Co., Ltd. and EE Energy for about six months, and received and issued a high tax invoice for about six months, including where approximately KRW 2.3 billion tax invoices are issued from various companies including the Plaintiff, and closed its business without paying the value-added tax return.

B) However, the aforementioned DD Energy and EE Energy Co., Ltd. were judged to be a company that received and issued only tax invoices without any real transaction in the Seo Daejeon Tax Office and the EE Energy Office. As a result of the investigation into the gas station of this case, the Defendant also determined that the gas station of this case was a data that only received tax invoices without any real transaction from the above DD Energy and EE Energy Co., Ltd.

C) On January 16, 2015, the gas station in the instant case was indicted on the ground that it was the actual operator of the gas station in the instant case, and was registered as a business operator again to FF. However, the gas station was investigated on the suspicion that BB, FF, andCC received false tax invoices and issued false tax invoices under the name of the gas station in the instant case to other companies, including the Plaintiff. As a result, the CCC was indicted on the ground that it was the actual operator of the gas station in the instant case, and was convicted on the charge of the violation of the Punishment of Tax Evaders Act (Supreme Court Decision 2014No669). BB and FF were subject to a disposition of no suspicion (Evidence of evidence) on January 22, 2014.

The defendant (referring to "CCC"; hereinafter the same shall apply) is a person who has registered his/her business in the name of BB from January 21, 201 to April 27, 201, and has registered his/her business in the name of FF from April 28, 201 to August 17, 2011 and operates a AAAB station in the ○○○○○○○○-si (hereinafter the same shall apply).

5. On January 31, 2011, the Defendant issued five copies of processed tax invoices equivalent to the total supply value of KRW 317,203,636, as shown in the attached Table 5, as stated in the attached Table 5, to May 31, 2011, to the effect that “A gas station supplied oil equivalent to KRW 85,650,00 to ○○○○ Incorporated Company without supplying the oil to ○○○○○○ Incorporated Company.”

D) Meanwhile, the National Tax Service computerizedly manages the tax investigation power, and the tax investigation on the Plaintiff is written as conducted by the Defendant’s investigation and the secondary investigation team from May 23, 2016 to July 10, 2016, and other investigation records are not recorded.

[Ground of recognition] Gap evidence Nos. 8, Eul evidence Nos. 1, 6, 7, 8, 9, and the purport of the whole pleadings

2) The instant disposition is lawful.

A) Determination on the first argument

According to the above facts of recognition, a tax investigation conducted once from May 23, 2016 to July 10, 2016 by the defendant's investigation and the second investigation team of the plaintiff can be acknowledged as having been conducted from May 23, 2016, and there is no other special counter-proof, so the above tax investigation cannot be deemed as a duplicate tax investigation.

B) Determination on the second argument

(1) In the administrative trial, the facts acknowledged as the crime of reason for a criminal judgment that became final and conclusive in relation to the same facts are flexible evidence. In light of other evidence submitted in the administrative trial, barring any special circumstance where it is difficult to adopt a factual judgment in the criminal trial, the facts opposed thereto cannot be recognized (see, e.g., Supreme Court Decision 2010Du12309, Oct. 28, 2010).

(2) The fact that the actual operator of the gas station of this case was convicted of violating the Punishment of Tax Evaders Act on the grounds that the tax invoice of this case was processed transaction without actual transaction is not in fact, is as seen earlier. In full view of the following circumstances, there is no special circumstance to find it difficult to employ a factual determination in the above criminal trial even considering the Plaintiff’s assertion, taking into account the following circumstances, in view of the Plaintiff’s overall purport of the entries in subparagraphs 2, 8, 2, 3, and 11 and the entire arguments.

(A) The Plaintiff asserted that CCC was only traded with BB and did not know that CCC was not known. However, BB provided that CCC gave 100 million won when CCC was well operated, and only lent its seal imprint and resident registration certificate to CCC. The instant gas station stated that CCC was not involved in the operation of the gas station of this case (Evidence A-3), and furthermore, GGG, a field manager of the Plaintiff, made a statement that CCC commenced transactions with CCC (Evidence A-2). In light of the circumstances, it is difficult to believe the Plaintiff’s assertion that CCC was not known.

(B) The Plaintiff reported approximately KRW 641,00,00 for six months in the first half of the year 201, and approximately KRW 635,00,00 for purchase, and KRW 317,203,636 for about 50% of the purchase amount to purchase oil from the gas station of the instant case. The Plaintiff reported the purchase of approximately KRW 17,203,636 of the purchase amount to purchase oil from the oil station of the instant case. It is difficult to view that the Plaintiff used approximately KRW 1,720 (No. 11 evidence B) which is the average diesel price during the instant period to convert the amount into liter, to 184,420 liters per day (=317,203,636 ± 1,720 won) to the effect that it is difficult to view that the Plaintiff used the above 1,024-day cargo for two (184,420 ±180 days each day for two (2) months during the aforementioned period of work.

(C) After the judgment of conviction of the above-related criminal case became final and conclusive, the Defendant has determined that only KRW 156,293,00, the remainder of the tax invoice of this case, excluding KRW 160,910,636, as well as KRW 156,293,00, as a processed transaction, has been reduced compared to the scope of conviction of the above-related criminal judgment, following a thorough investigation into the investigation and financial transaction details with respect to HH and its children working at the Plaintiff’s workplace, and JJ, which was in charge of managing

C) Judgment on the third argument

On the other hand, it is reasonable to view that the Plaintiff’s filing of a false purchase tax invoice with the instant gas station and received the deduction from the output tax amount for the first period of the year 201 as seen earlier, and that the Plaintiff’s filing of a false tax invoice with the output tax amount for the first period of the year 201 constitutes “an act of evading, evading, or obtaining a refund, or obtaining a deduction from, the output tax amount” under Article 26-2(1)1 of the Framework Act on National Taxes and that the exclusion period for taxation for ten years is applicable (see, e.g., Supreme Court Decision 2007Du8454, Jul. 12, 2007) (see, e.g., Supreme Court Decision 2006Nu434, Apr. 13, 2007). Accordingly, the disposition of increasing the value-added tax and corporate tax for the first period of the year 2011 is a disposition within the exclusion period for taxation.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.