Cho High-2014-Seoul Government-039 ( August 5, 2014)

The act of calculating a provisional park through the preparation of false slips in the absence of the fact of transactions is subject to the penalty tax for unfair underreporting.

Although there is no fact of fact that there is no fact of transactions, the virtual park is omitted from corporate tax by appropriating the false emulation, etc., and it falls under §27 ②(1) of the Enforcement Decree of the National flag Act.

Article 47-2 of the Framework Act on National Taxes

2015Nu39783 ( October 6, 2015)

NewOOOO

Head of Geumcheon Tax Office

September 8, 2015

October 6, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and the part of the corporate tax for 200OO, OO, OO, or OO won imposed on the plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff reported the corporate tax base and tax amount for 20O.O.O. for the 20O.O. business year to the Defendant, and included the cost of outsourcing processing, OO, OO, OO, OO, and raw materials purchase, OO, OO, OO, OO, OO, OO,O, andOO as credit purchase, and included the same in the deductible expenses (hereinafter referred to as “the content included in the deductible expenses as above”).

B. The director of the Seoul Regional Tax Office conducted a tax investigation with the Plaintiff from 20O.O.O. to 20O.O.O.O.O., and notified the Defendant that the instant park should be excluded from deductible expenses and that the Defendant should correct and notify the corporate tax for the 20O business year in addition to additional tax.

C. The Defendant issued a correction and notification of the corporate tax of 20O.O.O. for the 200O.O.O. for the 200O business year. Among the corporate tax corrected and notified by the Defendant, the detailed details of each additional tax are as follows (hereinafter referred to as “the imposition of the penalty tax for unlawful underreporting”).

D. The Plaintiff filed an appeal with the Tax Tribunal on the Defendant’s disposition of correction and notification, but it was dismissed by the Tax Tribunal 20O.O.O.O. (O.).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The portion exceeding the OO, OO, and OO in the imposition of an unfair under-reported additional tax in this case is illegal for the following reasons.

1) In order to impose an unfair under-reported additional tax pursuant to Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same), the reasons under Article 27(2)1 through 5 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012; hereinafter the same) are insufficient solely for the reason under Article 27(2)1 through 5 of the former Enforcement Decree of the Framework Act on National Taxes

2) However, it cannot be deemed that there was an unlawful act solely on the basis that the Plaintiff prepared a false table, which is an internal document prepared by the Plaintiff for the convenience of the business performance of the company.

3) In addition, the Plaintiff’s fraudulent appropriation of the instant provisional park as deductible expenses was derived from the purpose of negotiating the unit cost of supply with the trader, and it cannot be deemed that there was a purpose of tax evasion.

4) The tax offense deliberation committee also rendered a decision on suspicion on the ground that the Plaintiff’s act of including the instant park as deductible expenses does not constitute the act of tax evasion. Since the requirements for illegal underreporting and the act of tax evasion under the Punishment of Tax Evaders Act are the same, it should be deemed that the penalty tax for unlawful underreporting cannot be imposed

5) Therefore, with respect to inclusion in deductible expenses, general under-reported penalty taxes under Article 47-3(1) of the former Framework Act on National Taxes should be imposed. According to the foregoing, OO, OO, and OO [OO, O, - due penalty tax for unlawful under-reported penalty tax - O, OO,O,OO, and general under-reported penalty tax x 10%] should be revoked illegally.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) In relation to the instant virtual park, the Plaintiff prepared a list of processing expenses and the director of the customer’s office as shown below, and the pertinent list has five official seals affixed to the Plaintiff’s person in charge, director, team leader, managing director, and president.

2) The Plaintiff is treated as having settled part of the credit purchase amount appropriated as the processing process in cash, and the New Chang Chang Chang, the representative director of the Plaintiff, deposited cash from the Plaintiff’s account to use it as the encouragement of its employees, etc.

3) Meanwhile, the director of the Seoul Regional Tax Office requested the Seoul Regional Tax Office to deliberate on the Plaintiff. The Seoul Regional Tax Office’s Deliberation Committee on the Investigation of Tax Offenses of the Seoul Regional Tax Office decided and notified the Plaintiff of the instant case in relation to the act of including the instant park in deductible expenses.

4) Based on the profit and loss statement, the Plaintiff’s net profit changed as follows. If the instant park was not included in deductible expenses, the net profit before deducting corporate tax as of the 200O year would be approximately KRW 0,00,000,000,000,000,000,000,000,000,000,000

[Ground of recognition] Facts without dispute, entry of Eul's evidence Nos. 3 through 5, purport of the whole pleadings

D. Determination

1) “Inreporting the tax base by an unjust method” under Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same) refers to a case where a person underreporting the tax base by an active act, such as making it difficult to detect the taxation requirements on national taxes or forging or withdrawing false facts, and such underreporting results from the purpose of evading the tax (see Supreme Court Decision 2013Du12362, Nov. 28, 2013).

2) Therefore, it is reasonable to view that the Plaintiff underreporting the tax base by an active act based on an active act under Article 27(2)1 of the former Enforcement Decree of the Framework Act on National Taxes, in full view of the following circumstances recognized by comprehensively taking into account the following circumstances: (a) whether the Plaintiff underreporting the tax base by an active act under consideration of the overall purport of pleadings; (b) the Plaintiff underreporting the tax base by an active

A) The Plaintiff, even though there was no actual transaction with regard to the instant virtual park, prepared the false slips and the director of the customer’s office which pretended to have been traded more than ten times against eight business partners, and actively written the false external appearance that the said slips and the director of the customer’s office are deemed to have been true, such as obtaining five approval from the president of the Plaintiff on the said slips and making the slips bound between the actual transaction slips.

B) The term “accounting books” refers to financial statements that form the basis for the preparation of financial statements. The term “accounting books” includes contract documents, receipts, delivery books, and letters for the recording of accounting books. The term “accounting books” refers to accounting books in which the Plaintiff falsely recorded matters such as deposit of products between customers, deposit of money between customers. The term “transfer books” refers to the forms created so that accounting books, details, amount, etc. can be recorded for the purpose of recording and managing certain types of transactions. If the former slips are ambiguous, they can play the role of opening accounts. The term “accounting books and documents” also falls under accounting documents. Under the Commercial Act, the Plaintiff’s duty to prepare accounting books (Article 29) and pre-entry books and pre-entry books and records are under the command of the Governor of the Financial Supervisory Service (Article 36 of the Framework Act on National Taxes). The Plaintiff’s duty to prepare and keep accounting books and records for a certain period of time is under the command of the Governor of the Financial Supervisory Service (Article 166 of the Corporate Tax Act).

C) In fact, the Plaintiff reported the tax base and amount of corporate tax for 2011 business year according to the income statement prepared on the basis of the customer director and the slips prepared by the Plaintiff, and presented the slips and the customer director falsely prepared in the course of the tax investigation conducted by the director of the Seoul Regional Tax Office. It seems that the director of the Seoul Regional Tax Office, after undergoing the tax investigation for a considerable period of time, was falsely prepared by the slips and the customer director, and that the instant virtual park was also falsely included in deductible

3) Next, it is reasonable to view that the Plaintiff had the purpose of evading tax, taking into account the following circumstances acknowledged by comprehensively taking into account the health account of whether the Plaintiff had the objective of evading tax, and the purport of the entire pleadings.

A) In the 200O business year, there were more net income of the Plaintiff compared to the 200O and 200O business year. If the instant park was recognized as losses, it was possible to avoid corporate tax up to the 00O, OO, and OO.

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B) The Plaintiff asserted that this case’s park was appropriated in deductible expenses for the negotiation of the supply unit price with the trading company. However, there is no evidence to deem that the park company negotiated with the trading company regarding the supply unit price with the trading company on the false appropriation of the price. If the Plaintiff did not have the purpose of tax evasion, the Plaintiff did not perform this even though it had the opportunity to earn gross income through the tax adjustment at the time of filing corporate tax return on the 200O business year or to pay corporate tax through the revised tax return prior to

C) As seen earlier, the Plaintiff’s act was reported by appropriating the tax base as deductible expenses by actively creating a false credit purchase, etc. as seen earlier. There is no assertion or proof that the Plaintiff either paid or intended to pay the pertinent tax through offsetting the deductible expenses in this part.

4) Meanwhile, although the Plaintiff received a decision from the Seoul Regional Tax Office on suspicion of violation of the Punishment of Tax Evaders Act (Article 3) regarding the act of including in deductible expenses, it is merely based on the judgment of the tax offense deliberation committee that the evidence of violation of the Punishment of Tax Evaders Act is unclear, and as long as the degree and method of proof in criminal cases and administrative cases are different, it is difficult to deem that the taxation requirement of the penalty tax for unfair underreporting was not satisfied solely on such grounds.

5) Therefore, the Plaintiff shall be deemed to have underreported the tax base in an unjust manner under Article 47-3(2)1 of the former Framework Act on National Taxes. Therefore, the imposition of the penalty tax for unlawful underreporting is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.