Seocho 2014u69 ( October 16, 2014)

In light of the statements made by the parties at the time of the investigation and the account details corresponding thereto, the Plaintiff appears to have received a sub-subcontract for the instant construction.

In light of the fact that it is difficult to see that the Plaintiff’s statement was made compulsorily at the time of investigation, it is consistent with the transaction party’s statement, and the construction cost was deposited into the passbook in the name of the Plaintiff, etc., the Plaintiff appears to have received a sub-subcontract for the instant construction, but there is no circumstance to deem that the Plaintiff paid the down payment among the down payment, which

Article 2 of the Value-Added Tax Act

2015Guhap813 Disposition of revocation of Disposition of Imposition of Value-Added Tax

South AA

The director of the tax office.

January 22, 2016

February 19, 2016

1. Of the instant lawsuit, the part seeking the cancellation of the global income tax global income tax 2009 and the global income tax OO in 2010 shall be dismissed.

2. On June 27, 2013, the part of the “final notified tax amount” that the Defendant stated in the [Attachment] Disposition Report to the Plaintiff on June 27, 2013, which exceeds the “political tax amount” shall be revoked.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s disposition of imposition on June 27, 2013 is revoked in all the disposition of imposition on the Plaintiff.

1. Details of the disposition;

Since 208 to 2010, the Defendant: (a) re-subcontracted the structural and civil works (hereinafter referred to as “instant construction works”) from BB Construction Co., Ltd. (hereinafter referred to as “B Construction”); and (b) determined and notified the value-added tax and the comprehensive income tax as stated in the first notified tax amount (hereinafter referred to as “instant disposition”) on June 27, 2013.

[Ground of recognition] Facts without dispute, Gap 1 through 3, Gap 7 through 9, and the purport of the whole pleadings

2. The portion dismissed;

In addition to the statement in Eul evidence No. 12, the defendant can recognize the fact that the defendant cancels the invoice non-issuance penalty tax among the global income tax in 2009 and the non-issuance penalty tax among the global income tax in 2010, respectively, on October 13, 2015. Thus, there is no benefit of lawsuit as to the revoked part.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant construction project was performed under the responsibilities and accounting of BB construction, and the Plaintiff was merely engaged in management and supervision at the construction site of the instant construction project, and thus, it cannot be deemed that the Plaintiff independently provided the instant construction project to BB construction.

2) Even if the Plaintiff was awarded a sub-subcontract for the instant construction project, the amount of re-subcontract cannot be deemed as an OO. In particular, the Defendant maintained the previous disposition without any specific and objective re-examination result after the decision of the Tax Tribunal, which was unlawful against the binding force of the decision of the Tax Tribunal.

B. Determination

1) Whether the Plaintiff was re-subcontracted from BB construction

In full view of the following circumstances and facts, evidence Nos. 5 and 2 through 11, the Plaintiff appears to have received a sub-subcontract from BB construction, and otherwise, the Plaintiff’s assertion on a different premise is rejected.

① On January 18, 2013, the Plaintiff appeared in the Seoul Regional Tax Office and stated as follows. No special circumstance seems to exist, such as that the written answer containing the details of the statement (Evidence A5) is forced against the Plaintiff’s will, or it is difficult to consider it as evidentiary materials for specific facts, such as lack of content, etc.

(i) Since the 80s, the Plaintiff operated a specialized company for reinforced concrete construction, and arranged it as of the end of 200, and contacted with the 2B Construction Representative, the BB Construction Representative, who was aware of it for seven years, and received a sub-subcontract for the instant construction from BB Construction.

(ii) The reasons why the Plaintiff was awarded a subcontract for the instant construction are as follows. BB construction was unreasonable at the time of being awarded a contract by DD Construction Co., Ltd. (hereinafter “DD Construction”). However, the Plaintiff determined that, at the time of 20 years, the storage of temporary materials possessed by reinforced concrete construction could be sufficiently allocated a unit price when utilizing them. Re-subcontracted amount was the remainder after deducting the amount equivalent to taxes and common expenses ( personnel expenses) from the amount of the contract received by BB construction in accordance with the general practices of the construction industry at the time.

(iii) DD Construction directly procured steel and concrete, and purchased wood, steel, and safety products, etc. at the time of the Plaintiff’s purchase, the purchase tax invoice was received in the name of BB Construction and transferred to BB Construction because the Plaintiff was not registered as a business operator. However, the Plaintiff paid human salaries directly in cash.

(iv) The Plaintiff received the amount of taxes from BB Construction after deducting common expenses from the amount of taxes from the cash or check received from DD Construction, or deposited the issue bill at a bank or bond market, and then deposited it into the passbook of the Plaintiff or the Plaintiff’s family.

② On January 17, 2013, ParkCC, the representative of BB Construction, present at the Seoul Regional Tax Office, and presented a statement to the effect that the BB Construction ordered the Plaintiff to subcontract to the Plaintiff, the reasons why the BB Construction subcontracted, the amount of the sub-subcontract and the payment method thereof, and the use of the purchase tax invoice received at the time of purchase of materials, etc.,

③ Money, checks, etc. deposited from the accounts received from DD Construction (hereinafter “instant BB Construction Account”) was deposited into the accounts in the name of the Plaintiff or the Plaintiff’s family member, and the sum of BB Construction deposited KRW 100 million, and the amount calculated by deducting taxes, part of personnel expenses, etc. as stated in the Plaintiff’s statement from KRW O00,000,000,000,000,000,000,000,000,000,000,000,000,000,00

④ In light of the statements made by the parties and the account details corresponding thereto, the Plaintiff appears to have received a sub-subcontract for the instant construction from BB Construction.

(ii)the calculation of re-subcontracts and reasonable amounts of tax;

In addition to the purport of the entire pleadings in each statement in Eul evidence Nos. 7 through 11, D Construction pays OO won in cash or in bills, etc. (including OO won paid in terms of contract deposit, but the amount deposited in the BB construction account in DD construction) and the plaintiff and BB construction agree that the remainder of B B construction contract amount excluding taxes and common expenses, etc. shall be re-subcontracted. It can be recognized that BB construction paid OO won for common expenses, such as taxes. As above, the fact that the construction price received from DD construction was deposited in the plaintiff or the plaintiff's family account in the form of cash or bill discount.

According to the above facts, the Plaintiff appears to have received the remainder of the subcontract amount received by BB Construction from D Construction as the re-subcontract price. However, although BB Construction was paid with the subcontract amount from D Construction, the amount received through the instant BB construction account is limited to O0 won, and since there are no circumstances to deem that the remainder (the title of the contract deposit) was withdrawn from BB construction account and paid to the Plaintiff, O00 won of the down payment is excluded from the Plaintiff’s re-subcontract amount. Therefore, when calculating the re-subcontract amount in full view of these circumstances, O0 (O0 won of the subcontract amount of BB Construction - the down payment - the amount of common expenses such as tax - the down payment - the amount of tax, etc. on the premise of this, the Plaintiff is deemed to have received the legitimate tax amount from among the “attached Disposition” (in this case, the Plaintiff should exclude the remainder of the O00 million won which was not verified by the Defendant through tracking the check amount from the deposit amount of the Plaintiff’s account and the family members, barring special circumstances.

Therefore, the part of the disposition of this case which exceeds the legitimate tax amount among the details of the disposition of this case is illegal.

4. Conclusion

Thus, among the lawsuit of this case, the part of the plaintiff's claim for the cancellation of the global income tax 2009 and the global income tax OOOO in 2010 is dismissed. The claim for the cancellation of the remaining tax amount is accepted within the scope of the above recognition for reasons, and the remaining claim is dismissed for lack of reasons.