Busan District Court-2016-Gu Partnership-1968 ( December 23, 2016)

In the burden of proof for special deduction, the burden of proof can be exceptionally recognized to the taxpayer.

The burden of proving the tax base and special deduction, which are the basis of taxation, in a lawsuit seeking revocation of the global income tax disposition, may be acknowledged to the taxpayer in consideration of the difficulty of proof, equity between the parties, etc.

Article 34 (Non-Inclusion of Contribution in Necessary Expenses)

2017Nu20293 Revocation of Disposition of Imposition of Value-Added Tax

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개가지

Busan District Court Decision 2016Guhap1968 Decided December 23, 2016

May 12, 2017

June 2, 2017

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed;

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 2,052,00 on October 8, 2015 against the Plaintiff was revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall

The dismissal is dismissed.

1. Scope of the judgment of this court;

In the first instance court on October 8, 2015, the Plaintiff sought revocation of the imposition of global income tax of KRW 1,92,240 and its additional dues of KRW 59,760, which the Defendant filed with the Plaintiff on October 8, 2009, and the first instance court rejected the Plaintiff’s revocation of the imposition of KRW 59,760, out of the Plaintiff’s lawsuit, and granted a claim for revocation of the imposition of KRW 1,992,240, global income tax of KRW 1,992,240, which belongs to the year 2009. As such, the scope of the judgment of this court was limited to the Defendant’s claim for revocation of KRW 1,92,240, the global income tax of KRW 209, the Plaintiff for the year 200, which

2. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (as stated in the second sentence to 20 pages of the judgment of the court of first instance). Thus, the meaning of the abbreviation used in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the same is the same as the judgment of the court of first instance).

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff donated cash to the instant temple and was normally issued with the instant donation receipts, the instant disposition was unlawful since the Defendant concluded them as a false donation receipts and imposed a comprehensive income tax without recognizing them as a donation.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) The burden of proving the tax base that is the basis of taxation is the tax authority in a lawsuit seeking revocation of the global income tax disposition, and the tax base is deducted from necessary expenses, and thus, the tax authority bears the burden of proving revenues and necessary expenses in principle. However, since all necessary expenses are more favorable for the taxpayer, and most of the facts generating necessary expenses are located in the area controlled by the taxpayer, and thus the tax authority is difficult to prove. Thus, if it is reasonable to allow the taxpayer to prove, taking into account the difficulty of proof or equity between the parties, it accords with the concept of fairness (see, e.g., Supreme Court Decisions 2002Du1588, Sept. 23, 2004; 2007Du22955, Mar. 26, 2009). This legal principle applies not only to the taxpayer, but also to the special deduction that generates special deduction, as it is within the area controlled by the taxpayer.

2) In full view of the following facts and circumstances that can be acknowledged by adding the overall purport of the pleadings to the descriptions of health class, Gap evidence No. 2, Gap evidence No. 3-2, Gap evidence No. 3-7, Gap evidence No. 9, Gap evidence No. 10-1 through 4, Gap evidence No. 12, 14, 16, 17, Gap evidence No. 22-35, Eul evidence No. 1 through 5, and Eul evidence No. 1 through 5, it is difficult to recognize the authenticity of the donation donation of this case, and there is no other evidence to acknowledge it.

① 이 사건 사찰의 대표자 안AA은 2015. 6. 11. ●●지방법원 20●●고단●●●●● 조세범처벌법위반 사건에서 '2009년부터 2013년까지 사이에 허위의 기부금영수증을 발급하여 근로소득세를 포탈하였다'는 범죄사실로 징역 6월에 집행유예 1년을 선고받았고, 안AA의 항소에 따라 ●●지방법원 20◆◆노◆◆◆◆호로 진행된 항소심에서 2016. 2. 16. 일부 범죄사실에 대하여 무죄판결을, 나머지 범죄사실에 대하여 징역 4월에 집행유예 1년이 선고되었으며, 안AA의 상고가 2016. 6. 23. 기각되어(대법원 20★★도★★★★호) 위 판결은 그대로 확정되었다.

② From 2009 to 2013, the total amount of the instant inspection received from the believers was 10.5 billion won (on an average of two billion won per annum). This seems to be excessive in light of the size of the instant inspection, the number of believers, the cost of the event, or the cost of the statutory extension, etc. Meanwhile, Ansan did not submit specific explanatory materials regarding the expenses of the instant inspection and the details of the construction cost from the said criminal case.

③ A. The A.I.D. stated that the donation receipt was issued in an excessive manner at the time of questioning and answers to the state public officials who confirmed the scene of the instant temple, and that it was done so in a customary manner in order to secure confidence until now. In addition, A.A. also argued that, upon entering the Si reserve in the said criminal case, the Si reserve ledger, which is the original market department, was prepared, and immediately or after the entry, was transferred to the Si reserve management ledger, and thus, the entries in the Si reserve management ledger were true, but the Si reserve ledger, which is the original market department, was not submitted on the ground that it was not kept in custody or discarded.

④ Since the confirmation of facts regarding the preparation of the AA submitted by the Plaintiff was made after the instant disposition, it is difficult to believe it as it is.

⑤ Some believerss of the instant inspection sent to A.A. documents requesting A. to issue false donation receipts.

(6) The details of receipt of donation receipts from the instant temple around 2009 are as follows. However, considering the fact that most of the date of donation asserted by the Plaintiff is the Plaintiff’s dwelling and workplace, the distance between the Plaintiff’s dwelling and workplace, and the instant temple, the time of return, and the financial transaction data submitted by the Plaintiff, the pertinent amount of donation does not appear to have been specified and withdrawn at each time of donation, it is difficult to recognize that the materials submitted by the Plaintiff alone donated the following money on the date of donation asserted by the Plaintiff.

Table Omission of the Table

7. The Plaintiff or his family members did not submit any material to deem that they were the believers of the instant temple.

8. The Plaintiff was unable to properly explain the name or details of his/her own initiative in this Court.

⑨ 원고의 BB은행 계좌(계좌번호 ◎◎◎◎◎◎◎◎◎◎) 비고란에 ▼▼원이라고 기재된 2009. 1. 16.자 10만 원 송금 내역, 원고의 CC은행 계좌(계좌번호◇◇◇◇◇◇◇◇◇◇) 적요란에 ▼▼원이라고 기재된 2009. 4. 18.자 5만 원 송금 내역이 있는데, 이러한 송금 내역은 위 기부금영수증 발급 내역과 그 금액과 일자가 일치하지 않는다.

(10) The plaintiff asserts that Park Do-D's spouse was aware of the inspection of this case at around 2007, while engaging in the business of door-to-door sales of cosmetics in the Do, Do, Do, Do, and Do, Do, in Do, Do, in Do, in around 2007. However, the plaintiff was issued with a receipt from the inspection of this case even during 2006 as follows, it is difficult to believe the above assertion. Meanwhile, the plaintiff argued that Park Do-D started the business of door-to-door sales of cosmetics in the vicinity of the inspection of this case and started the business of door-to-door sales of cosmetics in the vicinity of the inspection of this case around 2003. However, there is no evidence to support the above assertion.

⑪ 원고가 제출한 근로소득원천징수영수증 내역과 피고가 제출한 2009년 이전 기부금명세서 전산등록내역 및 위 형사 판결에 의하면 원고는 2003년 397,370원, 2004년 2,536,120원, 2005년 997,580원, 2006년 6,448,086원(700만 원 ▼▼원), 2007년 6,263,790원(그 중 706,000원 EE사, 500만 원 ▼▼원), 2008년 5,782,220원(그 중 520만 원 ▼▼원), 2009년 6,041,210원(그 중 550만 원 ▼▼원), 2010년 5,641,700원(그 중 505만 원 ▼▼원, 공제받은 돈 1,212,001원 : 위 형사 판결), 2011년 4,355,230원, 2012년 4,452,390원, 2013년 712,680원, 2014년 991,575원, 2015년 1,292,873원, 2016년 2,167,890원의 기부금영수증을 발급받았는데 이 사건 사찰로부터 발급받은 기부금영수증 액수가 다른 기부금 액수보다 현저히 많음을 알 수 있다.

3) 원고는 이 사건 기부금을 기부한 2009년 당시 FFFFFFF 주식회사에 근무하면서 1년간 83,421,540원의 급여를 받았고, GG금융투자에서 27,396,425원, HH증권에서 4,680,000원의 증권투자수익을 얻는 등 이 사건 기부금을 납부할 만한 소득이 있었고, 안AA이 작성한 기부금 현금납부사실확인서 등에 기재되어 있는 기부일자 무렵 원고의 계좌에서 상당 금액이 인출된 내역이 있고, 박DD을 통하여 이 사건 사찰을 알게 되어 이 사건 사찰을 계속 나가게 되었으며, 원고 처가와 ▼▼원 위치 및 거리에 비추어 볼 때 평일이라도 ▼▼원을 오고 갈 수 있으므로 원고가 실제로 해당 금액을 인출하여 이 사건 사찰에 기부하였다고 주장한다.

However, the amount of donations and dailys claimed by the Plaintiff are inconsistent with the withdrawal amount and the date of the Plaintiff’s financial transaction data (part of the head of the Tong). Rather, there seems to be inducing the Plaintiff to receive false receipts of donations for income deduction (limited to the verified deduction amount, KRW 1,92,240, KRW 1,212,000, KRW 1,2010). Furthermore, in October 207 submitted by the Plaintiff, the JJ Keeping document, the Plaintiff’s spouse Park DoD taken over from KKK in 2003, the Plaintiff’s second wife was not a kindergarten in 00 ○○○○○○○○○○○○○○, 205 from 203 to 2005, and the distance between the Plaintiff’s inspection and the Plaintiff’s wife was not sufficient to prove that the Plaintiff had engaged in religious activities in the instant inspection or that there was no criminal conviction between the Plaintiff and the Defendant’s individual inspection of this case. However, it is difficult to find that the instant judgment of innocence was included in the aforementioned criminal evidence.

The evidence alone presented by the Plaintiff is insufficient to recognize that the inspection of this case has been proven consistent with the Plaintiff’s assertion, on the grounds that the Plaintiff contributed money equivalent to the amount of money to the inspection of this case, such as the developments leading up to the contribution, the circumstances leading up to the contribution, the Plaintiff’s history of religious activities in the inspection of this case, or the Plaintiff’s personal interest in the inspection of this case, etc., and

4) Therefore, the instant disposition is lawful on the premise that it is difficult to recognize the authenticity of the instant donation receipt and there is no other evidence to acknowledge that the Plaintiff donated the instant donation.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and since the part against the defendant in the judgment of the court of first instance against the defendant is unfair, it shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed as per Disposition.