Seoul Administrative Court-2015-Guhap-54728 ( October 13, 2016)

Whether the amount deposited in the account of the financial institution of the taxpayer constitutes sales or revenue

Whether a financial institution account has been used as a principal deposit and management account shall be determined by comprehensively taking into account various circumstances, such as the date of deposit or the other party, whether there is a appearance of external sales or revenue, the proportion of sales-related transactions in the account, and the possibility of mixing funds for other purposes.

Article 16 of the Framework Act on National Taxes and Article 17 of the Value-Added Tax Act

2016Nu74448

AA

BB

Seoul Administrative Court 2015Guhap54728

2017.021

2017.03.07

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s disposition on the imposition of the value-added tax on December 16, 2013 against the Plaintiff on December 16, 2013 on the second period of the Value-Added Tax (including the additional tax)xx,xx, andxxxx (including the additional tax), the portion exceeding thexx,xx, andx.xx (including the additional tax) in the disposition on the imposition of the value-added tax on the Plaintiff on December 2007, as well as the portion exceeding thex,x.x.xx (including the additional tax) in the disposition on the imposition of thex,x, andx.xx (including the additional tax) in the second period of the Value-Added Tax on December 208, 208, shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

The decision of the first instance is revoked. The defendant's disposition on December 16, 2013 on the imposition of the value-added taxxx,x.x.xx (including penalty tax) on the second term portion of the value-added tax on the plaintiff on December 16, 2007 shall be revoked in both the part exceeding the X,x.x.xx,x.x.xx (including penalty tax) in the imposition of the value-added tax on the plaintiff on December 16, 2013, and the part exceeding thex,x.x.x.xx (including penalty tax) in the imposition of the value-added tax on the first term portion of the value-added tax on the plaintiff on December 207, 208, and the part exceeding thexx,x.x.x.xxx (including penalty tax) in the imposition disposition on the second term

1. Determination on the grounds of the disposition and the main safety defense

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고는 매출처인 KKK, QQQ, WWW로부터 발생한 매출금을 전부 정○○, 김○○ 명의의 계좌로 송금받았고 이를 다시 박aa 명

Value-added tax shall not be levied on an amount deposited in an account under the name of Park a, because it was merely re-transfered to such account.

no reason to be included in the tax base. Moreover, from an account under name Park a to an account under name Park a.

The funds from which the sumx,x.x.xx, Maa, who is an employee of the plaintiff, has been withdrawn in cash, etc., and re-issued.

Although it is clear that the sum of the deposited moneyx,x.xxx, etc. has been repeatedly calculated as the proceeds of sale, the defendant is guilty.

the Plaintiff’s business among the money deposited in the account in the name of Kim○-○.

x,x.x.x level, which is disbursed as the cost, shall be excluded from the value-added tax base.

Therefore, the part on which the plaintiff seeks cancellation in the purport of the claim among the disposition of this case is unlawful and cancelled.

required by the corporation.

(b) Fact of recognition;

1) The Plaintiff’s administrative crackdown while carrying on the business of additional information and communications, including telephone service, in an unlawful manner

Ga and the mother of the Plaintiff under the name of GG, the Plaintiff’s leakage, or HH to avoid, etc.

A third party may easily grasp the flow of funds by repeating money by using several units of accounts.

was prohibited.

2) The Defendant deposits in the account in name of Gaba bank 407 accounts and bb878 accounts among them.

The disposition of this case was taken by deeming the amount received as the Plaintiff’s omitted return sales, and the sum of the amounts deposited into two accounts during the second period, 2007, 2008, the taxable period of this case.

Xx,x.x,x.x andx.xx are deemed to have been double calculated, and the tax amount has been reduced or corrected ex officio.

3) Examining the details of the deposit and withdrawal of bank 407 accounts and bb 878 accounts during the instant taxable period, the deposit and withdrawal at KRW 00,000 or KRW 878 accounts are repeated on a several-day basis, and between them.

건비, 공과금, 생활비 등 명목의 입출금 또는 만 원 내지 십만 원 단위의 입출금도 다수 발견된다. 그리고 bb은행 407 계좌와 bb 878 계좌에는 정○○, 김○○ 명의의 계좌와 달리 원고의 거래처인 KKK, QQQ, WWW 으로부터 직접 입금된 내역이 확인되지 않는다.

4) Since 2004, Parka served in a company engaging in taxi business against foreigners, and received the amount of income, etc. from bb bank 069 account in the name of Gaa from 2007.

[Ground of recognition] Facts without dispute, Gap 2, 4 through 30, 34 evidence, Eul 1, 2, 7 through 10 evidence (including branch numbers), the purport of the whole pleadings

C. Determination

1) b Bank 407 account, b. 878 account deposit portion

In a lawsuit seeking revocation of a tax imposition disposition, the tax authority bears the burden of proving the facts of taxation requirements;

It is a principle that the tax authority should prove that the amount deposited in the account of the financial institution of the taxpayer constitutes sales or revenue, and that the amount omitted in the report is the amount.

However, it may be proven that the amount deposited in the account of a taxpayer’s financial institution constitutes sales or revenues by revealing the fact or indirect facts that can be inferred in light of the empirical rule in the course of a specific lawsuit. In such a case, whether such presumption can be determined by considering whether the account of the financial institution was used as a principal deposit or management account for sales or revenues subject to taxation, the deposit date, the other party, and the amount, etc., of the account; the proportion of sales or revenues in the account transactions to the account; the possibility and degree of mixing of funds for other purposes than sales or revenues; etc. as a result of a comprehensive review of the aforementioned various circumstances, it should be determined by considering the following circumstances. Even if it is presumed that the account of the taxpayer’s financial institution is the principal deposit or management account for sales or revenues and that the deposited amount constitutes sales or revenues, it should be determined that the individual deposit or deposit type is identical to sales or revenues already reported in light of the date, amount, trading counterpart and circumstances, etc., and if there is no special circumstance to prove that the account constitutes sales or revenues (see Supreme Court Decision 20717Du2727).

b. The fact that b. 407 accounts and b. 878 accounts are repeated in a number of million won or KRW 878 accounts on a daily basis is supported by the above two accounts are provided for financial transactions related to the Plaintiff’s business and that the Plaintiff’s business-related funds are frequently traded.

However, this circumstance is also explained by the plaintiff's assertion that "only it was provided for the purpose of tracking funds by re-depositing the proceeds received by ○○○ and Kim○○○." Thus, it cannot be readily concluded that all of the money deposited into the above two accounts during the taxable period of this case merely based on the above circumstances constitutes the plaintiff's sales. In fact, the fact that the details deposited directly from the plaintiff's transaction partner are not verified is consistent with the plaintiff's argument. The defendant's own acceptance of the part corresponding to the plaintiff's argument and recognized that the total sum of the money deposited into the two accounts during the taxable period of this case in 207, 2007, 1, and 208, 2007, 2007, 2xxx, xxx, xxx.xxx.xx.

In addition, in light of the fact that many of the details of entry and departure from the above two accounts, such as personnel expenses, public charges, living expenses, etc., or KRW 00,000 or KRW 00,000,00, were discovered, and that there was active independent economic activities of Park Ga, such as taxi business around that time (as a result of the statement in evidence A through 33, the plaintiff's life)****** the information and communications of the online information and communications, which is the online information and communications service provider, reported the sales of xxx,x,x.x.x.xxxx members from January 200 to December 204, 205, while the plaintiff reported the sales of xx,x.xx members from January 2005 to June 2005, it cannot be excluded from the possibility that the individual funds of Park Ga, in the above two accounts.

Ultimately, it cannot be easily presumed that the amount deposited into bB bank 407 accounts and bb 878 accounts as a whole constituted the Plaintiff’s business sales proceeds. As such, the Defendant is bound to prove that the specific amount of deposits from the above two accounts constitutes the Plaintiff’s business sales proceeds. However, even if all the evidence presented by the Defendant were collected in this case, it is insufficient to recognize that the individual deposits from the above two accounts constitute the Plaintiff’s business sales, and there is no other evidence to prove otherwise. Of the instant disposition, the part that included the amount deposited into b bank 407 accounts and bb 878 accounts in the tax base is unlawful.

2) The part concerning the expenses for the Plaintiff’s business

Even if some of the money deposited in the account in the name of Kim○-○, was disbursed at the expense, the plaintiff

The plaintiff's assertion on this part is without merit, as it is not possible to deduct the input tax amount from the output tax amount of the disposition of this case, regardless of the fact that the purchase tax amount was issued as a legitimate purchase tax invoice for that part.

3) Scope of revocation of due tax amount and disposition

Whether the legality of the disposition in the revocation lawsuit for taxation disposition exceeds the legitimate tax amount

As determined by the parties, the parties may submit arguments and materials supporting the objective tax base and amount until the closing of the arguments in fact-finding proceedings, and when the legitimate amount of tax to be imposed is calculated by such materials, only the portion exceeding the reasonable amount of tax must be revoked.

(See Supreme Court Decision 99Du8930 delivered on June 12, 2001).

As seen earlier, illegal portions of the Disposition in this case are parts that were included in the tax base in the amount deposited in the bB bank 407 account and bb 878 account, and when calculating a legitimate tax amount other than this, the value-added tax for the second period of 2007, such as xx, xx.xx, xx.xxxx, 208 value-added tax for the first period of 2008, xx,x.x.xxxx, 208, shall be xx,x.x.xx (including dub penalty tax).

However, with respect to the value-added tax for the first and second period portion of 2008 with respect to the value-added tax for the year 2008, the first period portion exceeding x,x.x, and the second period portion of 2008 with respect to the tax amount above x,x.x.x.x.x in the disposition in this case is sought for the cancellation of the part above x,x.x.x.x in the second period of 207, with respect to the imposition of the value-added tax for the first period of 2008, exceeding x,x.x.x.x.x in the first period of 208, with respect to the imposition of the value-added tax for the first period of 208, including additional tax), the portion exceeding x,x.x.x.x in the second period of 208, with respect to the value-added tax for the second period of 2008, and the amount exceeding xx and additional tax for the second period of x.x.x.x.).

3. Conclusion

Thus, the plaintiff's claim is reasonable within the above scope of recognition, and the remainder is accepted.

The claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the part against the plaintiff falling under the above recognition scope of the judgment of the court of first instance shall be revoked, and the above cited part of the disposition of this case shall be revoked, and the remaining appeal of the plaintiff shall be dismissed as it is without merit