Changwon District Court 2012Guhap3970 (O1, 2013)

A disposition that considers the plaintiff as an actual business operator at the key place of business is legitimate

The plaintiff operated a business at the same place and changed the representative in the name of the plaintiff's mother and used the card sales price in the name of the mother as living expenses even though there was no particular occupation after the change of the representative in the name of the mother. The plaintiff himself/herself recognized that he/she is the actual business operator of the workplace of this case at the time of tax investigation. The original disposition

Article 14 of the Framework Act on National Taxes

(C)The revocation of the disposition imposing value-added tax, etc.

KimA

Head of Changwon Tax Office

Changwon District Court Decision 2012Guhap3970 Decided June 11, 2013

November 20, 2014

December 18, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The disposition of imposition of global income tax and value-added tax on January 20, 2012 and April 2, 2012 rendered by the Defendant to the Plaintiff on April 2, 2012 shall be revoked entirely.

1. Details of the disposition;

A. On January 2012, the Defendant conducted a tax investigation on the “CCC E” (hereinafter “instant workplace”) located in OO-Gu OO-dong 104-14, O-dong 104-14, where the Plaintiff’s mother is registered as a business operator under the name of YB.

B. As a result of the above tax investigation, the Defendant: (a) confirmed that the Plaintiff is a business operator of the instant workplace; (b) changed the name of the business operator of the instant workplace to the Plaintiff ex officio; and (c) imposed value-added tax listed on January 20, 2012 on the account of the sales account books kept in the instant workplace; and (b) imposed value-added tax listed on April 2007, 200; (c) imposed value-added tax listed on April 2, 2007, 200, 2007, 200, 2000, 1 value-added tax listed on 208, 2008, 1, 1, 2009, 2009, 1, 1, 2009, 1, 10, 200, 200, 200, 200, 200, 207, 2000.

C. The Plaintiff filed a request with the Tax Tribunal on June 15, 2012 upon receipt of an objection on the imposition of value-added tax for the second period of the value-added tax on January 20, 2012, which was made by the Defendant on February 22, 2012. ② The Plaintiff filed a request with the Tax Tribunal on June 15, 2012 regarding each disposition made by the Defendant on April 2, 2012, but was entirely dismissed on September 28, 2012.

D. On May 6, 2013, the Defendant confirmed that some of the previous sales subject to the Value-Added Tax Act are transactions with tax-free items under the Value-Added Tax Act, and that the Defendant corrected the amount of the value-added tax during the second half of the value-added tax in 2007, the amount of the first half of the value-added tax in 2008, the amount of the value-added tax in 2009, the amount of the first half of the value-added tax in 2009, the amount of the value-added tax in 209, the amount of the OO in the second half of the value-added tax in 209, and the amount of the OO in the first of the value-added tax in 209 (hereinafter “the instant disposition”).

[Ground of Recognition] Facts without dispute, Gap evidence 5, Gap evidence 6-1, 2, Gap evidence 7-1, 2, Gap evidence 8-1 through 13, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 13-1 through 6, and the purport of the whole pleadings

2. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

A. The instant disposition should be imposed on the business owner of the instant workplace, not the Plaintiff. The business owner of the instant workplace is KimD in which the Plaintiff was a de facto spouse of the Plaintiff who actually operated the instant workplace by lending the name of BB or B, the business owner of the instant workplace under the name of the business owner.

B. The sales account, which served as the basis of the instant disposition, is not the sales amount at the time, but the document voluntarily prepared by KimD, while claiming a division of property against the Plaintiff, in excess of the actual sales amount.

C. According to Article 12 of the Value-Added Tax Act, unprocessed foodstuffs, hygiene products for women, etc. are exempted from value-added tax. Since the sales amount of the instant workplace includes the sales amount of duty-free items, the Defendant first set the tax base by deducting the sales amount of the said duty-free items from the total sales amount, but then set the total sales amount recorded in the sales account as the tax base.

D. Value-added tax is a tax imposed on the value-added, i.e., for the transaction of goods or the provision of services, 10% of the profit should be imposed on the Plaintiff. Since the profit earned by the Plaintiff at the instant workplace is an OO or OOOO won, the value-added tax on the Plaintiff may not exceed 10% of the above amount.

E. In imposing the value-added tax, the Defendant neglected to investigate the purchasing place of the instant business and additionally deduct the input tax amount.

F. In imposing income tax, the Defendant neglected to investigate the purchasing place of the instant business, and to deduct the purchase amount from the necessary expenses, despite having to do so.

3. Relevant statutes;

Attached 2 is as shown in the "related Acts and subordinate statutes".

4. Determination

A. The part concerning the plaintiff's claim 2. A

According to Article 14 (1) of the Framework Act on National Taxes, if the ownership of income, profit, property, act or transaction subject to taxation is merely nominal, and if there is another person to whom it belongs, the person to whom it belongs shall be the person to whom it belongs and the tax law shall be applied.

According to the above evidence, Gap evidence Nos. 16-1, Gap evidence Nos. 16-2, Eul evidence Nos. 17-2, Eul evidence Nos. 3 through 5, 8, Eul evidence Nos. 9-1 and Eul evidence Nos. 9-2, and witness KimD's testimony, the plaintiff's business registration was made as the representative of the workplace of this case from April 29, 2002 to September 30, 2003, and the plaintiff's mother's change of business registration was made on Oct. 1, 2003 (the age of 66 years), and the plaintiff's business registration was made on Oct. 1, 2003; the plaintiff's allegation that the plaintiff's property was made in cash from Oct. 7, 2006 to Jun. 20, 200, and the plaintiff's property division was not recognized as the plaintiff's property division of this case between the plaintiff and the defendant's property administrator of this case's account.

B. The part concerning the plaintiff 2. Na

Comprehensively taking account of the aforementioned evidence: (a) the Plaintiff imposed tax on OD’s sales on the basis of the Plaintiff’s entry of the sales account books kept in the instant workplace from July 2006 to June 2010; (b) the KimD, which had been in the management of the instant workplace, submitted as evidence in the case of division of property pursuant to a de facto marital relationship with KimD; (c) the Plaintiff also submitted as evidence of the sales account books; (d) the Plaintiff’s assertion that the sales account books were lawful from July 2006 to June 2010, based on the cash deposited in the Plaintiff’s account in the name of the Plaintiff from July 2006 to June 2010 and the credit card sales account opened in the name of B; and (c) the Plaintiff’s allegation that the Plaintiff’s sales account books were 30% of the sales account of the instant workplace, based on the Plaintiff’s entry of the sales account books in the instant workplace, and the Plaintiff’s 20% of the sales account books.

C. The plaintiff 2. D's assertion

According to the evidence Nos. 9-1 through 3, 10-1 through 3, 11-1 through 7, 12-1 through 7, 12-1 through 7, and 13-1 through 6 of the evidence Nos. 13-1 through 6 of the evidence Nos. 9-10, the defendant may, ex officio, recognize the part verified as the sale of duty-free items by objective data, such as transaction specifications, etc., during the lawsuit of the court of first instance, find the fact that the defendant issued the disposition of this case by correcting the tax amount by ex officio. In case of calculating the tax amount based on the quantity of duty-free items sold by the plaintiff, there is no evidence to prove that the tax amount is smaller than the tax amount under the disposition of this case. Accordingly, the plaintiff'

On the other hand, the plaintiff asserts that the defendant's failure to deduct the input tax amount of the tax-free item is illegal. However, under Article 17 (2) 6 of the Value-Added Tax Act, the input tax amount related to the business of supplying goods or services exempt from value-added tax cannot be deducted from the output tax amount. Thus, the defendant's failure to deduct the input tax amount of the tax-free item from the output tax

D. The plaintiff 2. D's assertion

According to Article 17(1) of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same), the amount of value-added tax payable by an entrepreneur shall be the amount calculated by deducting the amount of tax on the supply of goods or services used or to be used for his/her own business from the amount of tax on the goods or services supplied by him/her (hereinafter collectively referred to as "total sales tax amount"), and the amount of tax on the import of goods used or to be used for his/her own business (hereinafter referred to as "purchase tax amount"), and the input tax amount not deducted from the amount of tax on the output tax amount

According to the above provisions, the value-added tax is calculated by deducting only the input tax amount that satisfies the requirements for deduction from the output tax amount. Therefore, the plaintiff's assertion that 10% of profits from deducting the total purchase amount from the total sales amount is the fair value-added tax amount is without merit

E. The part concerning the plaintiff's claim 2. E.

According to Article 17 (2) of the former Value-Added Tax Act, where all or part of the registration numbers or supply values by transaction parties in the input tax amount where a list of total tax invoices by seller is not submitted, or in the entries on the list of total tax invoices by seller submitted, are not entered or entered differently from the fact, it shall

On the other hand, the plaintiff filed a value-added tax return from the second period to the first period of 2006 in 2010, and the plaintiff did not submit a list of total tax invoices by purchaser at the purchasing place claiming additional deductions in the current trial, as there is no dispute between the parties. Thus, the plaintiff's assertion that the plaintiff claims additional deductions cannot be deducted from the output tax amount. Thus, the plaintiff's assertion is without merit.

F. The part concerning the plaintiff's claim 2. B. The plaintiff's assertion

According to Article 27 (1) of the former Income Tax Act, the amount included in necessary expenses when calculating the amount of business income shall be the sum of the expenses generally accepted as expenses corresponding to the total amount of income in the relevant taxable period. Since the tax authority bears the burden of proving the legality of taxation, in principle, the tax authority bears the burden of proving necessary expenses which are the basis of the determination of taxable income. However, since necessary expenses are not only favorable to the taxpayer, but most of the facts constituting the basis of necessary expenses are located within the control area of the taxpayer, and it is difficult for the tax authority to prove it. If it is reasonable for the taxpayer to prove it in consideration of difficulty in proof or equity between the parties, it is against the rule of experience to view the necessary expenses as zero because it is difficult or insufficient to prove it. If necessary expenses are apparent in light of the empirical rule, it is against the rule of experience to view the taxpayer as necessary expenses as zero. Therefore, if the tax authority establishes the amount to the extent possible to calculate by the estimation investigation method conducted when the tax authority is unable to conduct a field investigation, and if the taxpayer claims necessary expenses more than this (see Supreme Court Decision 290Nu.

According to the statement No. 12 through 13 of the evidence No. 1-13, the defendant's estimation method: ① the necessary expenses in calculating the global income tax amount for the year 2009, ② the necessary expenses in calculating the global income tax for the year 2010 may be recognized as an OOO, ② the necessary expenses in calculating the global income tax amount for the year 2010. The entries in the evidence No. 18-1 through No. 37 submitted by the plaintiff which came into the first instance trial are insufficient to recognize that the plaintiff spent more than the necessary expenses than the amount that the defendant deemed necessary expenses, and there is no other evidence to acknowledge

5. Conclusion

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