Suwon District Court 201Mo1724, 2012.20

Whether the exclusion period of 10 years can be applied by deeming it an unlawful act

It cannot be said that there is a perception that it would result in the reduction of national tax revenue through the evasion, illegal refund, deduction, etc. of value-added tax, the exclusion period for imposition of five years, not less than 10 years, should be applied.

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes

2014Nu2913 Revocation of Disposition of Imposition of Value-Added Tax

United Kingdom A

The superintendent of the tax office

Suwon District Court Decision 201Guhap1724 Decided September 20, 2012

Seoul High Court Decision 2012Nu32637 Decided August 23, 2013

Supreme Court Decision 2013Du19516 Decided February 7, 2014

July 22, 2014

August 26, 2014

1. Revocation of a judgment of the first instance;

2. On January 14, 2010, the Defendant’s imposition disposition of value-added tax for the first term of 2001 against the Plaintiff is revoked. The imposition disposition of value-added tax for the second term of 2001 against the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

‘OO' as stated in the purport of the claim of the complaint appears to be a clerical error.', and the reasons why the claim is justified.

1. Details of the disposition;

(a) Progress the construction of new buildings;

"1) The plaintiff, as a business operator engaged in the new construction and sale of real estate in the name of "B building", concluded a new construction project under the name of "CC comprehensive construction" (hereinafter referred to as "non-party company") and concluded a new construction project under the name of "OO's OO's O-dong 1039-7" on the ground of 523.2 square meters in total of the site area of 1,708.05 square meters in the name of "O's OO's O-dong 103.2 square meters in the name of "O's O's O's O-dong 103.2 square meters in the name of "O's O's O's O's O's O," and completed the construction project under the name of "O's 1,708.05 square meters in the name of "O's O's O's O's 28 May 201.

4) From June 5, 2001 to June 30, 2001, the Plaintiff transferred OOOOO to the agricultural bank account of the non-party company six times. Among them, OOOOO was transferred to the bank account of the Plaintiff or the Plaintiff’s wife within one to three days immediately after payment or within one to three days after payment.

B. The Plaintiff’s input tax return and transfer

"1) The Plaintiff received each tax invoice (the total sum of the supply values for the first half of year 2001, and the total sum of the second half of year 2001, OOO; hereinafter referred to as the “instant tax invoice”) from the non-party company, and deducted it as the input tax amount at the time of reporting the value-added tax for the first and second half years in 2001, and reported the relevant quarterly value-added tax.” (2) On October 30, 2001, the Plaintiff sold the building and the site newly built to KimD to the non-party for the OD to the OO, but reported the global income tax and value-added tax by reducing the sales value to the OO (land value, OOO, building value, OOO, building portion of the building).

C. Defendant’s taxation disposition

1) Since February 9, 2009 to February 23, 2009, in the course of identifying the actual sales price through a tax investigation on KimD, the Defendant conducted a tax investigation on the Plaintiff and notified the Plaintiff that the contract form for construction works and the tax invoice of this case prepared between the Plaintiff and the non-party company would have been falsely prepared, and accordingly, the Plaintiff would be subject to a tax assessment for the first and second years of 2001.

"2) The plaintiff filed a request for pre-assessment review on April 28, 2009, which was dismissed by the defendant, and on January 14, 2010, the defendant corrected and imposed OOO(including additional OOO(including additional tax) on the plaintiff on January 14, 2001, OOO(including additional tax) for the second period of 2001, and OOO(including additional tax) for the second period of 2001, respectively (hereinafter referred to as the "instant disposition")."

The Plaintiff was dissatisfied with the instant disposition and filed an objection on January 21, 2010, but was dismissed. On August 13, 2010, the Plaintiff filed an appeal with the Tax Tribunal, but the claim was dismissed on June 29, 201.

[Ground of recognition] Gap evidence Nos. 1, Eul Nos. 1, 2, 3 through 7, 9 through 30 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: (a) part of the judgment of the court of first instance regarding the intention and argument of the exclusion period of imposition; and (b) it is identical to each corresponding part of the reasoning of the judgment of the court of first instance, except for the dismissal as follows; and (c) it is also acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Parts of the mix

C. As to the Exclusion Period and argument

(1) The plaintiff's assertion

The plaintiff, after preparing a contract document in the form of the non-party company and depositing the construction cost, returned the remainder other than the value-added tax payable by the non-party company to the subcontractor company and paid it as the construction cost. Thus, since the plaintiff did not evade taxes by fraud or other improper means, the five-year exclusion period should apply to taxation. Thus, the disposition in this case is null and void since it was made after the lapse of five years from the exclusion period of imposition.

(2) Determination

(1) Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 830, Dec. 31, 207; hereinafter the same shall apply) provides that "it shall be five years from the date on which the Plaintiff is entitled to impose national taxes other than the inheritance tax and gift tax," and that "it shall be ten years from the date on which the tax payer evades the refund or deduction of the national taxes by fraudulent or other unlawful means" if the Plaintiff prepared a false tax invoice, and then received the deduction or refund of the input tax amount by fraudulent or other unlawful acts stipulated in Article 26-2(1)1 of the former Framework Act on National Taxes. It is difficult to view that the Plaintiff would be entitled to receive the refund or deduction of the total amount of the input tax from the 60-year government revenue of the 10-year government government government office, and that the Plaintiff would be entitled to receive the refund or deduction of the total amount of the input tax by the 10-year government office."

(C) Therefore, the instant disposition is null and void because it was made after the lapse of five years of exclusion period of imposition, and it is also allowed to seek revocation as the purport of seeking confirmation of invalidation of the instant disposition that is null and void. Therefore, the Plaintiff’s assertion seeking revocation of the instant disposition is with merit.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition.