Gangnam Branch Court Decision 2008Guhap410 (2009.04)

Whether the method of calculating estimation when calculating the tax base of a game room is illegal

The calculation of the tax base for the game room by the method of calculating the total face value of merchandise coupons by the average rate of distribution is justifiable as it is based on the ratio of goods turnover under the Enforcement Decree of the Value-Adde

1. The plaintiff's appeal is all dismissed.

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

In the first instance judgment, the decision is revoked. In the first instance judgment, the Defendant confirms that the imposition of KRW 161,116,780 on global income tax for the Plaintiff on November 1, 2007 and KRW 16,11,670 on global income tax for the year 2006 is invalid. In the first instance, the Defendant’s imposition of KRW 161,116,780 on global income tax for the Plaintiff on November 1, 2007 and KRW 16,11,670 on global income tax for the year 2006 shall be revoked, respectively.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as stated in the reasoning of the judgment of the court of first instance except for adding "a claim added in the appellate trial and its determination thereof" to "a balance of 734-87-038288)" in 8th 13th 14th 14th 8th 2th 8th 2th 8th 2th 2th 2th 2th 2th 2th 2th 8th 8th 8th 8th 8th 8th 13th 13th 14th 2th 200.

2. The assertion added in the appellate trial and the judgment thereof

(a)a further assertion;

In calculating the value-added tax base for the game room business, the Plaintiff has a lot of controversy over whether or not to deduct the face value of merchandise coupons in practice and academic circles. The Plaintiff asserts that the part of the penalty tax in the instant disposition is unlawful, since the Plaintiff did not have any doubt as to the conclusion of the lower court’s judgment until Supreme Court Decision 2008Du11211 Decided September 25, 2008. In such a situation, even if the Plaintiff neglected to report the amount of face value of merchandise coupons after deducting the face value of value-added tax and under-report the global income tax base of value-added tax and under-reported global income tax, it should be deemed that there is a justifiable reason that the Plaintiff cannot be any reason attributable to the Plaintiff.

B. Determination

In order to facilitate the exercise of the right to impose taxes and the realization of tax claims, penalty taxes shall be imposed upon a taxpayer who violates various obligations prescribed by the Act without justifiable grounds, and the taxpayer’s intentional or negligent acts shall not be considered as administrative sanctions as prescribed by the individual tax-related Acts: Provided, That in cases where there is a justifiable reason that it is unreasonable for the taxpayer to be unaware of his/her obligations, or where it is unreasonable for him/her to expect the performance of his/her obligations to be fulfilled, or where there is a circumstance that it is unreasonable for him/her to expect that the taxpayer to be aware of his/her obligations, etc., the penalty taxes may not be imposed (see, e.g., Supreme Court Decision 93Nu6744, Jun. 8, 1993); however, the site, error, etc. under the Acts and subordinate statutes does not constitute justifiable grounds that are not attributable to the breach of such obligations (see, e.g., Supreme Court Decision 2002Du107

In the instant case, even if considering all the above circumstances alleged by the Plaintiff, it cannot be deemed that there is a justifiable reason for the Plaintiff not to have caused the violation of the duty to report and pay taxes (it seems that the tax office and the Ministry of Finance and Economy expressed the position that the value of gift certificates should not be deducted from the value-added tax base on January 9, 2006 and January 11, 2005, prior to the filing deadline of the second value-added tax return for the year 2005)

3. Conclusion

Therefore, the plaintiff's primary and conjunctive claims shall be dismissed in its entirety on the grounds that they are without merit. Since the judgment of the court of first instance is just as it is concluded, the plaintiff's appeal is dismissed in its entirety on the grounds that it is without merit. It is so decided as per Disposition.