Rodong Metal Industry Co., Ltd. (Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Sub-head of the District Tax Office (Attorney Gyeong-Gyeong, Counsel for the plaintiff-appellant)

July 15, 1982

1. The part of the taxation imposed by the Defendant against the Plaintiff exceeding KRW 1,308,924 of the first half-year value-added tax for the year 1970, March 6, 1980, which was imposed by the Defendant, in excess of KRW 11,039,422 of the second half-year value-added tax for the year 1978, plus KRW 71,212,270 for the business year ranging from October 1, 1978 to September 30, 197, plus KRW 11,253,81, and KRW 269, KRW 97 for the defense income of KRW 10,69, KRW 97 for the business year ranging from October 1, 1978, KRW 103, KRW 69, KRW 97 for the defense income of KRW 75, KRW 975, KRW 97, KRW 197 for the defense income of KRW 197, KRW 1975 and KRW 978.

2. All remaining claims of the Plaintiff are dismissed.

3. Ten minutes of the lawsuit shall be borne by the plaintiff and the remainder by the defendant.

Except for the first and second taxation of value-added tax in the Disposition No. 1, 1978 and the second taxation of value-added tax in the Disposition No. 1, the decision as set forth in paragraph (1).

1. Details of taxation disposition

The following facts may be acknowledged in light of the whole purport of pleadings in each of the evidence Nos. 1-1, 12-1, 2-1, 20 (Determinations, etc.) Nos. 3, 4-1, 5-7 (Correctional Decision, etc.) Nos. 5 through 7-1, 2 (Determinations, etc.) which are not disputed in the establishment:

원고회사는 비철금속(알미늄샷시)의제조, 판매를 사업목적으로 하는 사업체로서, 그 사업년도는 그해 10.1부터 다음해 9.30로 되어 있는바, 1978.4.20부터 그해 12.31까지 사이에 원고회사가 제조한 알미늄샷시 920,498키로그람, 판매가격 금 845,017,164원을 국내에 시판하면서 그중 알미늄샷시 441,777키로그람, 판매가격 금 405,551,286원을 매출누락시켰다는 검찰로부터의 통보된 자료에 따라 피고는 원고회사에 대하여 그 매출누락금 405,551,286원을 해당 사업년도 및 과세기간 별로 구분하여 1980.3.6자로, 1977.10.1부터 1978.9.30.까지의 사업연도분 법인세 및 방위세, 1978. 10. 1.부터 1979. 9. 30. 사업년도분 법인세, 및 방위세, 1978년 1, 2기분 부가가치세의, 1980.4.11 자로 대표자인정상여에 대한 1977년 귀속분 갑종근로소득세 및 방위세, 1978년 귀속분, 갑종금로소득세 및 방위세 1979년 귀속분 갑종근로소득세 및 방위세의 각 과세처분을 주문기재와 같이 하였는데 그 내용은 다음과 같다.

(A) Value-added tax assessment for the first, second, 1978.

The amount of KRW 405,51,286 has been omitted in a manner that does not issue a tax invoice equivalent to the corresponding amount for each period of payment. The amount of KRW 42,871,518 for each period of payment, and the amount of KRW 362,679,768 for the second period of payment shall be classified into KRW 4,287,287, and the amount of value-added tax calculated by multiplying the amount of the first period of payment by the prescribed tax rate (10/100) for the amount of the first period of payment. Accordingly, the sum of KRW 5,573,296 for the amount of the additional tax not submitted for 857,430 for the first period of payment, 296 for the second period of payment, the amount of value-added tax for KRW 362,679,768 for the amount of the second period of payment, the amount of value-added tax for the second period of payment shall be determined by adding the amount of the second period of tax to 487, 267, and 97.

(B) A disposition of corporate tax and defense tax for the business year of October 1, 1977; and

If the omission in sales has been divided into two or more different business years and quantities, the omission in sales for each business year 19,8.1- 1977.1- September 30, 1978. The volume of such omission in sales shall be 239,500 won, the unit sales price of 918 won shall be 219,865,590 won, and the omission in sales for each business year 1,1978.1-9.30 202,271cm, the volume of the omission in sales 918 won, which shall be 185,65,696 won, 219,865,590 won, the aggregate of 219,865,590 won, 607,136,596 won, the amount of income tax for each of the prescribed amount of income tax for 205 won, 375,745,796 won, the amount of income tax for each five or more years, 20614,75

(C) a tax assessment of corporate tax and defense tax for the business year 10.1-1978.9.30

1,132,89,630 won in addition to the gross income amount of 1,318,575,326 won in addition to the gross income amount of 1,560,024 won in the business year above, calculated by applying the same method as above (b), based on the gross income amount of 185,685,696 won in the business year above, 215,560,024 won in the calculation of the estimated income amount of 1,318,575,326 won in the business year above, based on the total income amount of 185,685,69 won in the business year above, and 17,807,385 won in the defense tax amount

(D) A-type employment income tax and defense tax on the bonus recognized as the representative for the year 1977.

With respect to the portion recognized as above, from October 1, 1977 to December 12, 1977, which amount to Class A earned income in the business year 1977.1-197.30, less 134,757, and 536 won which amount to 139,898 won after the tax adjustment, deducted 133,89,97,000 won which amount to 30,97,000 won which amount to 142,61,61,97,00 won which amount to 30,79,000 won which amount to 30,79,000 won which amount to 30,79,79,000 won which amount to 142,615,588,00 won which amount to 30,67,97,000 won which amount to 39,57,1967,000 won which amount to 39,57, 196,5,67,067

(E) The tax assessment of Class A income tax and defense tax on the bonus recognized by the representative in 1978 (1-12.31. 1978).

(C) The tax base amount of corporate tax for the business year of the Plaintiff Company is 215,560,024 won as above, and as such, 106,961,69,00 won calculated by subtracting 2,90,426 won from the total amount of tax base for the tax adjustment after 1978.10.1- 1979,00 won for the amount calculated by deducting 2,90,426 won for the amount of tax base for the business year of 197.10,000 won for the amount calculated by 10,50,000 won for the amount calculated by 10,560,000 won for the amount calculated by 10,50,000 won for the amount calculated by 10,50,000 won for the amount calculated by 196,000 won for the tax year of 196,3196,000 won for the amount calculated by 196,5197.6

(F) The tax assessment of Class A earned income tax and defense tax in relation to the representative recognition contribution in the year 1979 (1.- January 1, 1979).

The amount of KRW 16,267,198 calculated by multiplying the amount of KRW 159,427,198 by the prescribed tax rate (70/100) by the amount of KRW 166,267,198 calculated by deducting the amount of KRW 159,427,198, plus the amount of KRW 840,00 paid to the representative director from the amount of KRW 167,827,198, the amount of KRW 167,198 calculated by multiplying the amount of KRW 103,997,038 by the prescribed tax rate (70/100), and the amount of KRW 5,74,66,651 calculated by deducting the amount of KRW 5,651 paid to the representative director from the amount of KRW 107,749,68,689, and the amount of KRW 305,605,00 calculated by the pertinent tax law.

2. Determination of party members

위에 나온 증거들에 성립에 다툼이 없는 갑제5호증의 1 내지 3(판결등)의 기재에 변론의 전취지를 종합하면, 원고회사가 서울 용산구 동자동 14의 24에 서울영업소를 두고, 그 영업소를 중심으로 회사에서 생산하는 알미늄샷시등을 국내등에 시판하면서 1978.4.30부터 1978.12.31 까지 사이에 회사제품인 알미늄샷시 920,498 키로그람을 대금 845,017,164원을 국내시판하고서도 조세를 포탈할 목적으로 위 판매량중 441,777키로그람 대금 405,551,286원에 해당하는 세금계산서를 발급하지 아니한채 판매하고, 위 금 405,551,286원의 매출액부분에 관하여는 부가가치세확정신고시 이를 누락하여 동액상당의 부가가치세를 포탈하였다는 내용으로 원고회사를 조세범처벌법위반으로 공소제기하는 한편 이를 관할 과세청에 통보하였는바, 피고도 그 통보된 내용에 따라 위 통보된 누락금원에 대한 원료 및 제조경비를 산출할 수 없다하여 과세원인 발생당시 시행의 법인세법 제33조 4항 , 그 시행령 제93조 1항 등의 규정에 의하여 위 1항 과 같이 각 과세처분에 이른 사실,

However, with respect to the portion of the product sold at the time of the final return of value-added tax without being issued tax invoices originally charged for the violation of the Punishment of Tax Evaders Act, the representative director at the time was established from September 6, 1976 to January 1, 1979; the Seoul Metal Industry Corporation established the Seoul Metal Industry Corporation at its office on February 23, 1977 to the representative director; and the Seoul Metal Industry Corporation established its office at the Seoul Company’s office at the Seoul Company’s Seoul office; each head office and factory of the two companies were located at the Incheon City, the Seoul Metal Industry Corporation was located at the Incheon City, and their accounting was divided at the 5th 7th 4th 6th 6th 6th 6th 6th 7th 7th 7th 7th 7th 1977, the total sales amount of the Plaintiff Company’s 206th 7th 9th 7th 1972th 1972.

(A) review the assessment of value-added tax by the first, second, 1978.

위 인정사실에 의하면 원고법인이 1978.4.30.-1978.12.31 까지 사이에 알미늄샷시의 판매에 관한 확정신고누락금액은 금 94,987,296원으로 밝혀졌으므로, 당초 검찰로부터 통보된 매출누락금 405,551,286원임을 전제로 한 이부분 과세처분이 위법함이 명백하다.

Therefore, the first term portion is 10,068,653 won (94,987,296 x 42,871,58 x 42,871,518 / 286) 84,918,643 (94,987, 296-10, 68, 653) - 296 of the amount of the second term portion which exceeds 94,98,296 - 196 of the amount of the tax invoice for the first term portion is 1,006,865 won, 201,3730, 208, 2968, 168, 296, 306, 168, 106, 486, 196, 294 of the amount of the value-added tax for the second term portion of the tax invoice calculated (i.e., the amount of the additional tax for the tax for the second term portion)

(B) We examine the remaining taxation disposition, other than the rectification disposition of the value-added tax as examined in the above (A) among these taxation dispositions.

As seen earlier, during the period from April 30, 1978 to December 31 of the same year, the Plaintiff Company initially imposed tax on the omitted sales of value-added tax in accordance with the prosecutor’s data notification about KRW 405,551,286, and even in the determination method, the corporate tax shall be divided and reverted to the Plaintiff Company’s business year (0.1- next year 9.30), and the amount notified in the case of corporate tax shall be charged to the Plaintiff Company’s business year. The sum of the total amount of income reported in the business year and the raw materials and manufacturing expenses for the pertinent income shall not be calculated by the estimation method that determines income based on the prescribed income standard rate for various revenues, and the corresponding tax base and tax amount and the defense tax corresponding thereto were determined on the basis of the above notified sales omission amount was also determined on the basis of the judgment in the relevant criminal case and the amount of tax assessed on the Plaintiff Company’s business year and the amount of tax assessed on July 197, 197.

On the other hand, if the amount of KRW 94,987,296 of the so-called amount omitted in sales, which was finalized by the accused case of the violation of the Punishment of Tax Evaders Act of the Plaintiff Company, is calculated by dividing it by the business year of the Plaintiff Company, the amount of KRW 51,483,114 (the amount of the business year of October 1, 197, 1987,296 x 219,865,590,590/405,51,286) is the amount of KRW 43,504,181 (the amount of the business year of September 30, 1978) (the amount of KRW 94,987,296 x 185,6 x 185,685, and the amount of the notice classified by the business year of September 30, 196).

However, the plaintiff company's income is calculated by adding up the total income of the business year in which the return was already filed, and in this process, the original tax disposition was based on the estimation method under Article 3 (4) of the Corporate Tax Act and Article 93 (1) of the Enforcement Decree of the Corporate Tax Act in the first tax disposition. In full view of the witness's testimony, the witness Gap evidence Nos. 7.8 (2 and 3 settlement statement of accounts) which is recognized to be genuine by the witness's testimony and the whole purport of the appraisal and pleading, the plaintiff company can recognize the fact that the plaintiff company submitted various books and evidence of the business year and the business year of Oct. 1, 1978, and the amount of the returned sales can be found to be less than the amount of the revenue (6%) which is extremely low compared to the amount of the revenue of the two years of the above business year.

그런데 본건 과세원인의 발생당시 시행의 법인세법 제33조 3 , 4항 , 그 시행령 제93조 1항 에 의하면 법인이 당해 사업년도의 소득에 대한 법인세의 과세표준 및 세액등에 관한 신고서를 제출하지 아니하였거나 제출된 신고서의 내용이 명백히 부당하다고 인정되는 경우에도 비치, 기장된 장부와 증빙서류에 의하여 그 소득금액을 계산할 수 있는 때에는 그 장부에 의하여 당해 사업년도의 소득에 대한 법인세의 과세표준 및 세액을 실지 조사결정함을 원칙으로 하고, 소득금액을 계산함에 있어서 필요한 장부 또는 증빙서류가 없거나 그 중요한 부분이 미비 또는 허위인 때등 명백한 객관적인 사유가 있을때에 한하여 정부가 정하는 소득표준을 또는 대통령령이 정하는 바에 의하여 당해 사업년도의 소득에 대한 법인세의 과세표준과 세액을 결정(추계조사결정)한다고 규정하고 있는바, 앞서 인정한 바와같이 원고회사는 위 양사업년도의 소득에 대한 법인세의 과세표준과 세액등에 관한 신고를 하여 소정의 장부 및 증빙(갑제7, 8호증)을 제출하였고, 본건 확정된 매출누락금액이 위 각 사업년도의 공표총수입금액에 비하여 극히 소액이고, 원고회사는 알미늄샷시의 제조, 판매라는 단일 품목을 취급하여온 터라 사안이 비교적 단순하여, 이러한 경우에는 원고회사가 비록 매출누락부분에 대한 소정의 장부 및 증빙이 미비하더라도, 위 갑제7, 8호 각증과 같은 다른 증빙서류를 근거로 하여 과세표준이 되는 소득을 계산할 수 있다 할 것이어서, 그 과세표준과 세액은 실지조사결정되어야하고, 추계조사 결정할 명백한 사유가 있는 경우에 해당한다고 볼수 없다 할 것이므로, 추계조사결정의 방법에 의한 본건 각 사업년도의 법인세의 과세처분은 이점에 있어서도 위법하다 할 것이고, 이를 바탕으로 한 방위세 및 갑종금로소득세의 과세처분 모두 위법하다.

3. Conclusion

Then, the defendant's taxation disposition of the first period of 1978, 573,269 won of value-added tax, 1,308,924 won of the second period of value-added tax, 47,148,422 won of the second period of value-added tax, and 71,212,270 won of the corporate tax belonging to the business year of 1978, 1978, 197, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 196, 197, 97, 197, 197, 197, 197, 1

August 26, 1982

Judges Park Jong-young (Presiding Judge)