Whether procedural illegal grounds for a tax investigation exist and violates the principle of taxation based on evidence;

It is only a regulation that a tax official may keep the original books, etc. only with the consent of the taxpayer, and does not regulate the case where a copy or copy of the original is kept by the taxpayer, and it does not require the taxpayer to obtain his consent, and the issue EXP recognizes objectivity and credibility. Thus, the disposition of this case based on the X-ray is legitimate.

2018 disposition of revocation of imposition of value-added tax, etc.

The AA

BB Director of the Tax Office

2019.04.11

2019.05.16

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing value-added tax on December 1, 2011 (including additional tax; hereinafter the same shall apply), KRW 53,307,240 (including additional tax; hereinafter the same shall apply), KRW 38,721,910 of value-added tax on one year 2012; KRW 40,092,060 of value-added tax on two years 2012; KRW 29,488,80 of value-added tax on one year 2013; KRW 29,207,970 of value-added tax on two years 2013; KRW 25,319,90 of value-added tax on one year 2014; KRW 26,702,420 of value-added tax on two years 2014; KRW 308,743,910 of global income tax on one year 2013; KRW 1361,2013 of global income tax on one year 2014.

1. Details of the disposition;

A. From February 20, 2007 to BB, the Plaintiff is operating the accommodation facility (hereinafter “the instant Moel”) with the trade name of “EEMel” in the CC-Gu Ddong from 2007.

B. On July 1, 2016, the director of ○○ Regional Tax Office notified the Plaintiff that a tax investigation of global income tax, etc., which is subject to investigation of the taxable period from January 1, 201 to December 31, 2014 (hereinafter “instant tax investigation”) was conducted during the period from July 5, 2016 to August 3, 2016.

C. As a result of the instant tax investigation, the 00 regional tax office stored in the Plaintiff’s home PC

Based on the data by which the sales amount, expenditure amount, etc. of the franchise of this case are recorded (hereinafter referred to as “the EX file of this case”), the Plaintiff was deemed to have omitted the cash sales amount of KRW 1,980,277,081 from February 2, 2011 to February 2014, and notified the Defendant thereof.

D. On December 1, 2016, the Defendant issued a revised and notified the Plaintiff of the value-added tax and the global income tax for the pertinent taxable period as follows.

E. On February 27, 2017, the Plaintiff filed an appeal with the Tax Tribunal. On June 26, 2018, the Tax Tribunal rendered a decision to rectify the tax base and tax amount by including the interest paid on each global income tax for the year 2011, 2012, and 2013 as necessary expenses, KRW 13,765,368, 41, 121, 440, 210, and 291 in each necessary expense, and dismissed the remainder of the appeal.

F. Accordingly, the Defendant: (a) reduced the amount of total income tax on the Plaintiff in 2011 to KRW 308,743,910; (b) the amount of total income tax on the Plaintiff in 2012 to KRW 131,697,410; and (c) the amount of total income tax on the portion reverted in 2013 to KRW 133,61,720.

2. The plaintiff's assertion

A. Procedural illegality

The Defendant, without the Plaintiff’s consent, deposited the EX files of this case (Violation of Article 81-10 of the Framework Act on National Taxes) and otherwise did not have obtained a warrant from a judge of the district court regarding the seizure of the EX files of this case (violation of Article 9 of the Procedure for the Punishment of Tax Evaders Act) and did not return the EX files of this case even after the completion of the tax investigation of this case. The disposition of this case made based on the EX files of this case illegally collected is unlawful.

B. substantive illegality

1) The EX files of this case were appropriated in excess of the actual sales

① Considering the fact that the Defendant recognized the error of the EXE files in relation to the sales of July 2013 and imposed a tax assessment based on the monthly sales report sheet, and that the instant EXE files were recorded, such as: (a) according to the fact that the total number of guest rooms was 48, but the number of guest rooms in the instant EXE files was more than 48 times during a period exceeding 1/3 of a year; (b) the instant EX files were recorded, the instant EX files were drafted by unrealistic sales in order for the Plaintiff to raise the sales price of the instant EX. Accordingly, the instant disposition based on the EX files that are neither objectivity nor reliable is unlawful as it violates the underlying taxation principle and the substantial taxation principle.

2) In addition, necessary expenses should be recognized.

Although the expenses appropriated in the X-cell file of this case and the X-cell file of this case are omitted, among the expenses appropriated in the income statement, financial expenses, personnel expenses, etc. not recognized as necessary expenses by the defendant are additionally recognized as necessary expenses, the disposition of this case is unlawful.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

(a) the existence of procedural illegality grounds

1) Comprehensively taking account of the overall purport of arguments in Gap evidence Nos. 6, 8, 9, and Eul evidence Nos. 3 and 4, the investigating official of the ○○○ Regional Tax Office was informed by the investigating official that the plaintiff can temporarily keep books, documents, etc. for the purpose of tax investigation at the tax office with the consent of the taxpayer pursuant to Article 81-10 of the Framework Act on National Taxes during the investigation period. The principal received a written consent of the investigating official to submit books, documents, etc. requested by the investigating official and to temporarily keep them at the tax office. ② On the other hand, the investigating official received the list of documents, etc. containing the sales, etc. of the x PC stored in the plaintiff’s home, and he received the list of 20 days after visiting the plaintiff and returning the x PC stored in the plaintiff’s home, and the defendant received the 20 days return of x PC in addition to the above 20 days return of x PC stored in the above list.

2) Comprehensively taking account of the above facts as to the place of storage, duplication process, etc. of the EX files of this case, the defendant asserts that it is reasonable to consider that the EX files of this case were submitted with the plaintiff's consent. Thus, this part of the plaintiff's assertion is without merit [this part of the plaintiff's assertion is that the public official in charge of investigation provided the plaintiff with a temporary storage certificate (Evidence 6-2) containing two No. 2 in deposit with the plaintiff's consent, and the plaintiff was found to have been hospitalized in the hospital on September 12, 2016, by presenting the list of temporary storage documents (Evidence 3) containing the EX files of this case (Evidence 2) as documents related to the return of the EX files of this case. However, it is difficult to recognize that the ○○○ official in charge of investigation, without the plaintiff's consent, knew the plaintiff's signature and sale of the EX files of this case, and it was difficult to recognize that the 2 PC files were stored by the 10-month public official in charge of this case.

3) In addition, Article 81-10(1) of the former Framework Act on National Taxes (amended by Act No. 15220, Dec. 19, 2017; hereinafter “former Framework Act on National Taxes”) provides that “tax officials shall not keep books, documents, etc. (hereafter in this Article, referred to as “books, etc.”) at will at the tax office for the purpose of tax investigation: Provided, That where a taxpayer consents thereto, temporary storage may be made within the minimum period necessary for the purpose of tax investigation.” Paragraph (2) of the same Article provides that “where a taxpayer requests a return of books, etc. temporarily kept pursuant to the proviso to paragraph (1), such books, etc. shall be returned immediately unless the investigation interferes with the investigation. In such cases, a tax official may keep copies of the books, etc., and even if a copy of the books, etc. is not identical to the original books, a taxpayer may request the signature or seal of the taxpayer to confirm that the original files would not interfere with his/her business.” In light of the purport of the above Act, the foregoing, where the taxpayer’s submission of the original books, etc.

B. Whether there are substantial grounds for illegality

1) Whether the EX files of this case are grounds for taxation reliable

In full view of the following facts and circumstances revealed in the statements Nos. 5 through 8, 12 through 15, 17, and 18 of this case, the instant X-cell file is deemed objectivity and credibility, and thus, the instant disposition based on the X-cell file is lawful.

A) Upon receipt of information from an anonymous informant on the suspicion of tax evasion of the instant franchise, the ○○ Regional Tax Office received a file containing data such as daily sales (hereinafter “information file of this case”) and the current status of accommodation in 2014. However, the difference between the sales of the instant franchise and the sales of the instant franchise credit card secured by the National Tax Service from a credit card company was KRW 580,00,500,500, 2012, KRW 4440,00,000, 2013, and KRW 130,000,000,000,0000,0000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000.

B) In the course of the instant tax investigation, the difference between the sales amount on the instant EX files secured by the Plaintiff and the sales amount on the instant EX files is very similar to KRW 235,00,000 (excluding July as seen below), KRW 9,000, and KRW 5,000, as seen below) in 2013. In addition, the accommodation status table in the year 2014, which appears to have been prepared to have been prepared by the employees of the instant EX as daily workers, includes the sales amount, such as the time of entry into each unit, charges, etc., and the names of employees, etc., and the contents of the said accommodation status accurately coincide with the relevant contents of the EX files.

C) The EX file of this case is divided into ① waiting room or lodging by day, ② fare (20,25,00,30,000,45,000,000,000) and ③ credit card sales and their card companies (infics, citizens, new citizens, modern, 00,000,000, 50,000). Also, the details of the EX file are very detailed and broad, including the number of guest rooms offered as a service workers, supplies, and expenses, and the number of guest rooms offered as a service. In addition, the Plaintiff written the EX file of the form of one-day package, written without any omission.

D) The Plaintiff asserted that the instant accelerator had been falsely produced to sell the instant accelerator at a high price. However, in light of the Plaintiff’s annual sales of the instant accelerator, approximately KRW 1.327 billion in 201, KRW 1.327 billion in 201, KRW 1.35 billion in 2012, KRW 1.235 billion in 2013, and KRW 1.6 billion in 2014 in 2014, the Plaintiff’s sales of the instant cartel are gradually decreased. In light of the fact that if the instant accelerator was falsely prepared to sell the instant cartel at a high price, it is difficult to view that the Plaintiff’s sales of the instant accelerator would have increased the sales of the instant accelerator at a reasonable level without any reasonable understanding of the empirical rule.

E) Meanwhile, the Plaintiff asserts that, in the event that the Defendant’s sales were made in July 2013, it denied the credibility of the EX files of this case, including the calculation of sales based on the Plaintiff’s financial account, other than the instant EX files. However, the sales revenue from July 2013 on the instant EX files is KRW 22,08.6 million, and the monthly sales from July 2011 to 2014 amount to KRW 12,00,000,000,000,000,000,000 won, and in particular, the maximum monthly sales from July 2013 to KRW 13,000,000,000,000 won were 1,118,770,000 won, which was the previous year’s financial account, and it seems that the Plaintiff’s EX files were reasonable solely on the grounds that the EX files were more reliable, 2013.

F) Furthermore, despite the fact that the number of guest rooms in this case was 48, the fact that multiple dates on which accommodation sales were recorded are recorded is recognized. However, ① On the day on which the number of accommodation is recorded exceeds 48 times a day, such as gold and Saturdays, the day on which the use of the instant telecom frequently takes place, ② on the basis of the schedule of accommodation in 2014, the number of guest rooms exceeds 50 times January 24, 2014 (gold), 52 times on January 25, 2014 (gold), 52 times on March 21, 2014 (gold), and 51 times on March 22, 2014, and 4 times on March 22, 2014, the number of guest rooms in this case can not be deemed to have exceeded 48 times on the ground that the additional guest rooms were credibility of the existing guest rooms without the number of guest rooms in this case.

2) As to the assertion of omission of necessary expenses

A) Relevant legal principles

The amount to be included in necessary expenses when calculating the amount of business income is generally accepted as expenses corresponding to the total amount of income in the pertinent taxable period (Article 27(1) of the Income Tax Act). The term “ordinaryly accepted ordinary expenses” refers to expenses deemed to have been disbursed under the same situation as other business operators operating the same kind of business as the taxpayer. Whether such expenses are included shall be objectively determined by comprehensively taking into account the details, purpose, form, amount, effect, etc. of disbursement into account (see, e.g., Supreme Court Decision 2017Du51310, Oct. 26, 2017). Meanwhile, the burden of proving the tax base based on global income tax disposition disposition is at the tax authority. Since the tax base is deducted from necessary expenses, the burden of proof of income and necessary expenses is also at the tax authority in principle, since most necessary expenses are favorable to the taxpayer, and it is difficult for the tax authority to prove such expenses within the area controlled by the taxpayer, and thus, it is reasonable to have the taxpayer bear the burden of proving the amount of income under the tax disposition 2970.

B) Determination

(1) As to the items that the Defendant did not recognize as the necessary expenses out of the amount stated in the "monthly expenditure of the EXE" of the instant case

(A) The defendant recognized that ○○ apartment file's monthly expenditure amount (hereinafter "O○ apartment file expenditure amount of this case"), "O○ apartment file's expense amount," "O○ apartment file's expense amount," "O○ apartment file's expense amount," "O○ apartment file's expense amount," "O○ apartment unit expense amount," "O○ apartment unit expense, apartment house expense," "O○ apartment fire," "O○○ life expense," "O○ value-added tax," "O○ apartment facility expense," "O○ apartment unit expense," "O○ apartment unit expense," "O○ apartment unit expense," "O○ apartment unit expense," "O○ apartment unit expense," "O○ apartment unit expense expense," "O○ apartment unit expense," "O○ apartment unit expense expense," "O○ apartment unit expense expense," "O○ apartment unit expense expense," "O○ apartment unit expense," "the expense of this case," "O○ apartment unit expense," "the expense of this case.

① The Plaintiff asserted that the “○○○○” interest out of the instant x files expenditure constituted necessary expenses as an interest on the amount borrowed from FFF from the Plaintiff’s Defendant’s East FF in early 2009. However, even though the Plaintiff’s initial monthly interest on the said borrowed amount was deemed to be a large amount of the principal borrowed amount, the Plaintiff did not present clear evidence as to the grounds for the lending of the borrowed amount, such as a loan certificate, details of financial transactions related to the granting of the borrowed amount, and the place of using the borrowed amount.

② In addition, the Plaintiff asserts that “○○○” and “○○” among the x files expenditure of this case constitute necessary expenses as wages for human resources who denied the cleaning, etc. of the instant x-ray. However, according to the fact that “○○○○○○○○○○○○○○○” and “○○○○○○” did not indicate that the amount indicated in “○○○○○○○○○○○○○○○○○” among the x-ray expenditure was KRW 10,000 through KRW 80,000,000,000,000 won per month except once every four years (50,000,000 won in August 2, 2013), the Plaintiff stated that “○○○○○○○○○○○○○○○○○○○○○○○○○○’s expenditure on the instant x-ray expenditure, it is difficult to recognize that the Plaintiff paid the amount to KRW 301,000,00,00.

③ In the case of the amount indicated in the “Handphone,” “○○ Fire,” and “○○ Life,” the Plaintiff did not have any specific assertion or evidence as to the fact that the amount was necessary for the operation of the instant telecom.

(2) Of the income statement, for items not recognized as necessary expenses by the defendant

(A) On the premise that the expenses incurred by the Plaintiff are included in the instant X-cell expenditure, in principle, in principle, in each income statement submitted by the Plaintiff at the time of filing the income tax, depreciation costs are recognized as expenses according to the concept of accounting. On the premise that travel expenses, transportation expenses, transportation expenses, vehicle maintenance expenses, and donations do not overlap with the instant X-cell file expenditure and are recognized as necessary expenses, and that the Plaintiff actually spent expenses, the remainder of the expenses, entertainment expenses, repair expenses, insurance expenses, insurance expenses, office supplies expenses, entertainment expenses, office supplies expenses, payment fees, advertising expenses, etc. are not recognized as necessary expenses.

(B) Furthermore, comprehensively taking account of the following facts and circumstances acknowledged by comprehensively considering the evidence mentioned above, Gap evidence No. 14, Eul evidence No. 14, and Eul evidence No. 14, the whole purport of the pleadings, and the following facts and circumstances, the statement No. 17 alone cannot be deemed as necessary expenses among each income statement submitted by the plaintiff at the time of filing the income tax return, and there is no other evidence to acknowledge otherwise.

① As seen earlier, the Plaintiff recorded the instant accelerator-related operating expenses in detail. Of the instant accelerator-related operating expenses, the Defendant’s aforementioned determination seems reasonable in full view of the following: (a) the Defendant’s amount recognized as necessary expenses was KRW 611,479,302, 822,142,668, 2012; (b) KRW 666,037,490, 2013; and (c) KRW 716,683,358, Jul. 6, 2014; and (b) the EX-related operating expenses and profit and loss statement in the instant case are somewhat different from the name of the item; and (b) the content of the EX-related operating expenses and profit and loss statement appears to overlap.

② Furthermore, the Plaintiff did not prove that each item stated in each of the above income statements is separate expenses from the instant X-cell file expenditure.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.