The meaning of cases where there is clear evidence to acknowledge the suspicion of tax evasion among the requirements for permission of duplicate tax investigation;

Cases where there is obvious evidence to prove a suspicion of tax evasion mean cases where the probability of the fact of tax evasion is deemed to be reasonable based on objective and reasonable data, and such data shall not include any data already investigated in the previous tax investigation.

Article 81-4 (Prohibition of Abuse of Tax Investigation Authority)

2016Nu72367 Gross income and revocation of disposition

Investigation of the previous litigation and the second tax investigation and the results of the second tax investigation report;

The term "the borrowed account" mentioned in the circumstances shall be determined by the defendant in the previous lawsuit of this case and the Ulsan High Prosecutors' Office.

under the direction of the plaintiff to waive the appeal, the amount of the discount fee in the bill using the key borrowed account

The second tax investigation commenced in order to confirm the suspicion of omission after receiving a notice that there was a suspicion of omission.

In light of the meaning of this case, the defendant's acceptance of this case while conducting the second tax investigation.

Fees are included in the borrowed-name account and the key borrowed-name account outside of the issue, and the fees of this case are included in the Fees of this case

(2) the portion included in the issue borrowed account and the bill using the issue borrowed account in excess of this;

It is legitimate for the Plaintiff to additionally investigate the revenue amount of the stamp and impose it on it.

this part of the claim is rejected.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.

Honga

Head of Namyang District Tax Office

oly 2017.15

2017.20

1. The plaintiff's appeal is dismissed.

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

Cheong-gu and purport of appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the part exceeding KRW 482,93,071 among the disposition imposing global income tax of KRW 581,954,478 for the plaintiff on July 1, 2014 and exceeding KRW 533,526,942 of the disposition imposing global income tax of KRW 689,813,297 on July 9, 2014, and the part exceeding KRW 533,526,942 of the disposition imposing global income tax of KRW 1,063,923,272 of the disposition imposing global income tax of KRW 1,063,923,272 for the plaintiff on whom July 1, 2007 belongs, respectively.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is to change or add some of the following, and it is identical to the reasoning of the judgment of the court of first instance except for the addition of the judgment of the plaintiff's appellate court under Paragraph (2) below, and therefore, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article

〈바꾸거나 추가하는 부분> �� 제1심 판결문 제5면 제13, 14행의 "(2011. 1. 27. 선고 2010두6083 판결, 2012. 11. 29. 선고 2010두19294 판결 등)"을 "(대법원 2011. 1. 27. 선고 2010두6083 판결, 대법원 2012. 11. 29. 선고 2010두19294 판결 등 참조)"로 바꾼다. �� 제1심 판결문 제6면 제3행 아래에 다음 내용을 추가한다.

원고는 쟁점 차명계좌는 1차 세무조사 당시 과세관청이 인지하고 있던 자료로서 신규 자료라고 볼 수 없고, 쟁점 차명계좌를 통하여 확인할 수 있는 것은 만기어음추심액에 불과하여 조세탈루사실의 개연성을 뒷받침하는 객관적이고 합리적인 자료라고 보기도 어려우므로 2차 세무조사는 '조세탈루의 혐의를 인정할 만한 명백한 자료가 있는 1) 소장 청구취지 및 항소장 항소취지 기재 처분일인 '2015. 8. 18.'은 갑 제1호증의 1, 2, 3의 각 기재에 비추어 오기로 보인다. 경우'에 해당하지 않는다고 주장한다. 갑 제3호증, 갑 제4호증의 2의 각 기재에 변론 전체의 취지를 종합하면, '기업어음할인에 사용된 예금계좌('10. 3. 23 현재)'라는 제목의 서면에 쟁점 외 차명계좌가 소계1 부분에, 쟁점 차명계좌가 소계2 부분에 각 기재되어 있는 사실, 위 서면은 이 사건 종전 소송에서 이 사건 수수료가 원고에 대한 1차 세무조사에서 이미 수입금액에 산입된 소득이라는 주장에 대한 근거자료로 원고에 의하여 제출된 것으로, 1차 세무조사 당시 서울지방국세청 조사3국에 의해 작성된 사실 등은 인정되나, 앞서 본 이 사건 종전 소송과 2차 세무조사의 경과 및 갑 제4호증의 2의 기재에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 2차 세무조사 결과 조사종결보고서에는 '조사경위 - 과세자료처리(소득금액 1,125백만 원 감액) 및 차명계좌 어음할인료 수입금액 누락혐의에 대한 재조사'라고 기재되어 있는바, 위 2차 세무조사 결과 조사종결보고서의 조사경위에 '차명계좌'가 언급된 것은 피고가 이 사건 종전 소송의 판결 및 서울고등검찰청의 상고포기지휘를 통하여 원고에게 쟁점 차명계좌를 이용한 어음할인수수료 수입금액 누락혐의가 있다는 통보를 받고 이를 확인하기위하여 2차 세무조사에 착수하였다는 것을 의미하는 점, 1차 세무조사 당시 쟁점 차명계좌에 대하여 금융거래확인조사가 되지 않았던 점 등을 종합하여 보면, 2차 세무조사는 '조세탈루의 혐의를 인정할 만한 명백한 자료가 있는 경우'에 해당한다고 봄이 상당하고, 1차 세무조사 당시 서울지방국세청 조사3국이 작성한 서면에 쟁점 차명계좌가 기재되어 있다는 사정만으로 이와 달리 볼 수 없다. �� 제1심 판결문 제7면 제11행 아래에 다음 내용을 추가한다.

The Plaintiff asserts that the key borrowed account is used for the collection agency of the short-term borrowed bill, and that it is not reasonable and reasonable estimate to estimate the amount of the income of the borrowed borrowed account based on the completion rate obtained by deducting 0.1% from the average discount rate of the borrowed borrowed account out of the issues, since it is different from the borrowed borrowed account, which is used for collecting the amount of the bill at the maturity date, and its nature, purchase method, and holding period, etc. are different from the borrowed borrowed account.

However, not only in the second tax investigation process but also in the lawsuit in this case, evidentiary documents such as related account books that can calculate the discount fee rate of bills using the key borrowed account have not been submitted. Since the account details in the name of Parkd's account out of the issues other than the borrowed account submitted by the plaintiff and the time, method, etc. of withdrawal are similar to each other in the name of Parkd's account among the issues borrowed account, the issue borrowed account is that its nature, method of purchase of bills, holding period, etc. are similar to the other issue borrowed account. In light of the fact that the defendant's estimation of the discount fee of bills with respect to the key borrowed account based on 0.81% of the average discount rate of bills (0.91%) confirmed at the time of the first tax investigation cannot be confirmed as the holding period of bills, it is reasonable to accept the plaintiff's assertion that the short-term holding rate of bills outside the key borrowed account reflects the short-term holding of bills from the average discount rate of bills outside the issue, and it is reasonable as the basis of the probability that the defendant used the borrowed account.

In addition, even if the tax authority erred in the calculation method, etc. of the tax base and tax amount of the Plaintiff’s duty to pay taxes under the provisions of tax-related Acts, it is the result that the amount of tax imposed and collected by the said taxpayer does not exceed the scope of the justifiable tax amount to be borne by the relevant taxpayer, and if the wrong method does not change the scope of the tax unit and the reason for disposition, it is not illegal and cancelled (see, e.g., Supreme Court Decision 91Nu10695, Jul. 28, 1992). The Plaintiff’s assertion that the Plaintiff’s tax investigation was conducted within the scope of the pertinent tax-related bill discount rate, which is the average discount rate for the bill issued at the time of the first tax investigation (0.91%) because the Plaintiff’s tax-related bill discount rate for the first tax-related account is not the legitimate tax-related bill discount rate for the second tax-related account, and thus, the Plaintiff’s assertion that the amount of tax-related bill was inappropriate at the time of the second tax investigation without the Plaintiff’s revenue amount.

2. Judgment on the Plaintiff’s additional argument

A. The plaintiff's assertion

1) In light of the grounds for investigation of notice of the second tax investigation, Article 81-6(2) of the former Framework Act on National Taxes provides that the second tax investigation is a regular selection inspector under Article 81-6(2) of the same Act as the first tax investigation. This violates Article 81-4(1) and (2) of the former Framework Act on National Taxes, which is a duplicate investigation of the same item of tax and the same taxable period. 2) The Defendant appears to have presented clear data to prove the suspicion of tax evasion that the instant fee belongs to the Plaintiff. The scope of the second tax investigation should be limited to whether the instant fee was realized as actual income of the Plaintiff, and whether the said fee was imposed on the Plaintiff. However, the Defendant conducted a short-term collection agency bill traded with a borrowed account by unfairly expanding the scope of investigation.

B. Determination

1) According to the evidence evidence evidence No. 6, it is found that the report contains omission of revenue as a result of reviewing the report of the second tax investigation notice - The plaintiff was selected as a person subject to investigation to verify the propriety of the report (Article 81-6 (2) of the Framework Act on National Taxes). However, in full view of the previous litigation and the progress of the second tax investigation and the purport of the statement No. 4-2 after the first tax investigation as a result of the second tax investigation, it is reasonable to view that the plaintiff's second tax investigation was not subject to investigation as a whole under the premise that the plaintiff's ground for exclusion from the second tax investigation is not limited to "the grounds for exclusion from duplicate investigation" under Article 81-4 (2) of the Framework Act on National Taxes and Article 63-2 of the Enforcement Decree of the same Act, and that the plaintiff's second tax investigation is not subject to the second tax investigation until March 16, 2014.