Multilater Construction Co., Ltd. (Attorney Lee Jong-ok, Counsel for the plaintiff-appellant)

Head of the Pakistan Tax Office

March 13, 2007

1. The Defendant’s imposition disposition of KRW 160,00 of corporate tax for the year 2003, Oct. 1, 2004 against the Plaintiff, the imposition disposition of KRW 15,425,846 for the year 2001, the excess of KRW 134,939, and the imposition disposition of KRW 665,308,936 for the second time value-added tax for the year 2001, and the imposition disposition of KRW 587,758,029 for the year 2005, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 of the costs of lawsuit shall be borne by the plaintiff and the remainder by the defendant.

The Defendant’s each imposition of KRW 43,15,562, corporate tax of KRW 160,00 for the year 2001, corporate tax of KRW 15,425,846 for the year 203, and KRW 15,425,846 for the first time value-added tax of KRW 15,425,839 for the year 2004 (which appears to have been written in error) and the first time value-added tax of KRW 170,091,00 for the year 202 (which appears to have been written in error as of October 4, 2004), and the refusal to refund KRW 170,091,00 for the first time,00 for the year 202 (which appears to have been written in writing as of October 4, 200), and the imposition disposition of KRW 630,308,9365,639,5639,50, respectively, appears to be revoked.

1. Details of the disposition;

A. On May 17, 200, the Plaintiff was a corporation established for the purpose of building and civil engineering work, etc. under the Yari-ri 296-2, and on November 20, 200, from Nonparty 1 (the building owner under the building permit) on the ground of the 1005-21st ground in Gangseo-gu, Gangseo-gu, Seoul, Gangseo-gu, the repair work of the 3.2 billion won repair work for the 12,868.30 square meters of the total floor area of the 4th floor above the ground (hereinafter “instant building”).

B. After executing the repair work of the building of this case, the Plaintiff received the completion inspection of fire-fighting systems on November 23, 2001, and then purchased the building of this case from Nonparty 2 on January 30, 2002, and thereafter on February 1, 2002, the Plaintiff purchased the building of this case at KRW 9,772,00,000 (supply price).

C. After doing so, the Plaintiff’s defect in the return of corporate tax for the year 2003 and the second half-year value-added tax for the year 2001 from 1 to 2002; the Defendant investigated and determined the following matters on August 1, 2004 and added additional tax after calculating the amount of tax under-paid corporate tax for the year 2001; 304,172,220; 228,587,520; 294,340,580; 17,208,205; 205; 206; 17,50; 205; 25.6; 205; 17; 205; 205; 205; 201.6; 21,286; 205; 201.6; 206; 201.6; 206; 2005; 201.67.67.

(1) Non-deductible expenses of KRW 49,419,00 in the business year of 2001

The plaintiff's 49,419,00 of the wages that the plaintiff paid in 2001 was excluded from the deductible expenses because of the double appropriation of the labor cost.

(2) No deductible expenses of KRW 47,528,00 out of the labor cost for the business year 2003

In 2003, the Plaintiff considered the total labor cost of KRW 47,528,00 as the processing labor cost and excluded the Plaintiff from the deductible expenses.

(3) Omission of sales of 3.7 billion won in the cost of repairing the instant building

In 2001, even if the Plaintiff provided repair services for the building of this case during the second period of 2001, the Plaintiff failed to sell the above construction cost during the second period of 2001 by issuing a tax invoice of KRW 3.7 billion for the above repair construction cost during the second period of 2002 and added the omitted sales amount to the value-added tax base.

(4) Non-deduction of the input tax amount of the tax invoice received from the Incheon Flag Co.

A tax invoice of KRW 563,636,365 (201, No. 1909,092, and KRW 472,727,273, 2001), which the Plaintiff received from the Bocheon Construction Co., Ltd. (hereinafter referred to as the “astronomical Construction Co., Ltd.”), shall be deemed as a processing transaction data without real transaction, and thus, the Plaintiff was exempted from input tax.

(5) Non-deduction of the input tax invoice received from 19 companies, such as sexual transit.

On January 30, 2002, the tax invoice of KRW 1,700,910,000, which was received by the Plaintiff from 19 companies, such as sexual transit period, is considered to have been issued after the time of supply, and the tax invoice was issued after the time of supply, which is different from the fact.

(6) Excessive appropriation of the construction cost of the instant building

On February 1, 2002, the Plaintiff purchased the instant building from Nonparty 2 for KRW 9,772,00,000,000. Of the price, KRW 5 billion was paid to Nonparty 2, and the remainder was offset by KRW 4,772,00,000,00 for the repair cost of the instant building. However, the Plaintiff’s total sum of KRW 330,000,000 for the structural reinforcement cost under an additional contract after Nonparty 1 entered into a contract with Nonparty 1 and KRW 170,00,000 for the design and supervision cost, and ultimately, appropriated the repair cost of the instant building in excess of KRW 1,072,00,000 for the actual amount by increasing the repair cost, even though the repair cost was a total of KRW 3.7 billion for the construction cost.

D. On January 3, 2005, the plaintiff filed a request for review with the National Tax Service on December 23, 2005; the Commissioner of the National Tax Service re-revisions the tax base and tax amount of the plaintiff's part of the plaintiff's claim on the ground of its ground; however, the remaining claims were dismissed on the ground of its ground; however, on January 6, 2006, the defendant made a decision to re-revision the corporate tax for 2001 as KRW 43,15,562; the corporate tax for 2002 as KRW 3,056,383 as corporate tax for 3,05,383 (hereinafter referred to as "the disposition of this case") (hereinafter referred to as "the above corporate tax as of October 1, 201; the remaining disposition as of January 1, 2005; and the disposition of adding the value-added tax as of January 2005 as of January 10, 2005).

[Reasons for Recognition] Each entry of Gap evidence 1, Eul 1 through 15 (including each number), and the purport of the whole pleadings

2. Judgment on the defendant's main defense

The Defendant asserts that the part of the instant lawsuit seeking revocation of the revocation of the refund refusal disposition of KRW 170,091,000, which was the first time value-added tax in 2002, was unlawful since it did not go through the previous trial procedure.

On January 30, 2002, the plaintiff submitted a written request for examination stating that the plaintiff's tax invoice of KRW 1,700,910,00 that he received from 19 companies, such as sexual transit period, was issued after the time of supply, and that the defendant seeks revocation of the rejection of the refund in relation to the non-deduction of the input tax amount by using the false tax invoice as a different tax invoice. Meanwhile, according to the items of Gap evidence 1 and Eul evidence 3-1 and 3-2, the plaintiff asserted that the above tax invoice is true, and that the above tax invoice is subject to refund, and thus, the plaintiff submitted a written request for examination stating the purport that the above input tax amount is subject to refund. Accordingly, according to the above facts finding, it is reasonable to view that the plaintiff had been subject to legitimate procedure of the previous trial as to this part of the lawsuit by the plaintiff, and therefore, the defendant's defense of safety is without merit.

3. Determination on the legitimacy of the instant disposition

A. As to the non-deductible expenses of KRW 49,419,00 among the wages in the business year 2001

(1) The plaintiff's assertion

Of the wages in 2001, 49,419,00 won, the Plaintiff first issued a Cheongando Co., Ltd. (hereinafter “Newando”) with a Cheongando Co., Ltd. (hereinafter “Newando”) with a Cheongandog in relation to the sculpture and mi Corporation during the repair work of the instant building. After that, the additional construction was incurred, and the new design was renounced, the Plaintiff was the actual party who was the head of the working group of the said construction and the Nonparty 3 and Nonparty 4, who was the head of the working group of the said construction, to whom they were carrying out the construction from the new design site, and they were carrying out the said additional construction after being entrusted with the said additional construction, and thus, should be included in the deductible expenses.

(2) Determination

㈎ 일반적으로 과세처분취소소송에 있어서 과세요건사실에 관한 입증책임은 과세관청에 있다 할 것이나, 구체적인 소송과정에서 경험칙에 비추어 과세요건사실이 추정되는 사실이 밝혀지면, 상대방이 문제로 된 당해 사실이 경험칙 적용의 대상적격이 되지 못하는 사정을 입증하지 않는 한, 당해 과세처분을 과세요건을 충족시키지 못한 위법한 처분이라고 단정할 수는 없고( 대법원 1998. 7. 10. 선고 97누13894 판결 참조), 과세관청에 의하여 납세의무자가 신고한 어느 비용의 용도와 그 지급의 상대방이 허위임이 상당한 정도로 입증된 경우에는 법인의 각 사업연도의 소득금액을 산정함에 있어서 공제하여야 할 손비의 구체적인 항목에 관한 입증은 그 입증의 난이라든가 당사자의 형평 등을 고려하여 납세의무자에게 그 입증의 필요를 돌려야 할 것이다( 대법원 1999. 1. 15. 선고 97누15463 판결 참조).

㈏ 갑5호증의 1 내지 4의 각 기재와 증인 소외 4의 일부 증언에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 ① 원고의 위 주장사실에 부합하는 듯한 각 공사비정산확인서(갑5호증의 3, 4)는 단순한 사후 확인서에 불과할 뿐이고, 더구나 위 각 공사비정산확인서에는 계약당사자로 새한도장이 아닌 새안종합개발 주식회사로 기재되어 있는 점, ② 새안종합개발 주식회사는 존재하지 않는 유령회사인 점, ③ 원고와 소외 3, 4 사이에 추가공사와 관련한 어떠한 계약서도 작성된 바 없고 그들에게 지급된 금원에 대한 객관적이고도 구체적인 금융자료도 전혀 없는 점{원고는 소외 4에게 위 추가공사와 관련하여 대부분 현금으로 지급하였으나 단 1회 은행을 통하여 1,000만 원을 송금하였다며 무통장입금증(갑8호증)을 제출하였는데, 이는 2006. 12. 6. 송금된 것으로서 위 추가공사비의 일부로 송금하였다고 보기 어렵다}, ④ 당초 원고와 새안도장 사이에 체결된 본공사의 공사기간이 1달 정도에 불과한데 반하여 추가공사가 4개월 내지 7개월에 걸쳐 시행되었다는 것은 납득하기 어려운 점, ⑤ 원고는 소외 3과 소외 4가 고용한 일용직 근로자들에게 직접 인건비를 지급하였다는 사실을 입증하기 위하여 노무비 지급명세서(갑5호증의 6, 7)를 제출하고 있으나, 소외 4는 이 법정에서 근로자들의 임금을 자신과 소외 3이 새안종합개발 주식회사 명의로 원고로부터 일괄적으로 지급받았다고 진술한 점 등에 비추어 보면, 이 사건 건물의 보수공사 중 조적·미장공사에 관하여 추가공사가 발생하여 그 추가공사비로 지급하였다는 원고의 주장은 선뜻 수긍이 가지 아니하므로 이 점에 관한 입증의 필요는 원고에게 있다고 할 것인데, 이 점에 부합하는 갑5호증의 3 내지 7의 각 기재와 증인 소외 4의 일부 증언은 믿기 어렵고, 갑8호증의 기재만으로는 이 점을 인정하기에 부족하며, 달리 이를 인정할 증거가 없으므로, 원고의 이 부분 주장은 이유 없다.

B. As to the non-deductible expenses of KRW 47,528,00 among the labor cost in the business year 2003

(1) The parties' assertion

After purchasing the building of this case, the plaintiff asserts that the construction work should be included in the calculation of losses because he employed a worker on a daily basis for the repair of defects in the building of this case in 2003, and paid 47,528,000 won as wages to him. Accordingly, the defendant asserted that if the plaintiff so argued, the building completed on November 2001 as the plaintiff's assertion, the defendant continued to pay the daily labor cost of KRW 4,00,000 per month on an average of KRW 1,000 per year, which is difficult to understand generally. Among workers listed in the statement of payment of direct service labor cost submitted by the plaintiff, some workers were working in other workplace than the plaintiff's workplace, and the resident registration number and name are included in majority, and the credibility thereof is doubtful. In light of the above, the plaintiff asserts that the above labor cost is processed.

(2) Determination

In light of the purport of the argument as a whole, the above evidence Nos. 6, 32-1, 4, 33-4, 5, 6, 8, 9, and 10-1, 5, 6, 8, 9, and 10-10 of the above evidence, as a result of comparison and examination of the computerized data managed and kept as evidence by the National Tax Service’s computer network, five workers (non-party 5, 6, 7, 8, 9) from among the 32 workers indicated in the above direct labor report form were worked as workers of another workplace for 203 years, and it is difficult to conclude that the above 8 workers were responsible for the above direct labor report form as false name or resident registration number of 32 workers. However, considering the above evidence, it is difficult to find that the remaining workers, excluding the non-party 8, who were workers of another workplace, were included in the above processed labor report form as false labor expense for 1,200,208 won or less.

C. As to the omission of sales of 3.7 billion won in the repair cost of the building of this case

(1) The plaintiff's assertion

Even after November 23, 2001 upon receipt of the certificate of completion of the fire-fighting system construction for the instant building, considerable construction, such as landscaping works, stone works, and swimming works, was conducted among the instant buildings, and the provision of service was completed around January 30, 202 after preparing a supervision report on the instant building and obtaining approval for use.

(2) Relevant statutes

/ Value-Added Tax Act

Article 9 (Transaction Time)

(1) The time of supply for goods shall be the time provided for in the following subparagraphs:

1. When the goods are delivered, in case where the moving of goods is required;

2. When the goods are made available, in case where the moving of goods is not required; and

3. When the supply of goods is decided, in case where the provisions of subparagraphs 1 and 2 are not applicable.

(2) The time when services are supplied shall be the time when services are supplied or goods, facilities or rights are used.

(3) Where an entrepreneur receives all or part of the price for goods or services before the time provided in paragraph (1) or (2) arrives, and at the same time issues a tax invoice provided in Article 16 or a receipt provided in Article 32 with respect to such price, the time of such issuance shall be deemed the time of supply for the goods or services, respectively.

(4) Matters necessary for the time of supply under paragraphs (1) and (2) shall be prescribed by Presidential Decree.

【Enforcement Decree of the Value-Added Tax Act

Article 22 (Time of Supply for Services) The time of supply for services under Article 9 (2) of the Act shall be as follows: Provided, That if the time of supply for services supplied before closure of business arrives after such closure of business, the time of supply for such services shall be deemed the time of

1. In the case of ordinary supply, when the offer of the service is completed;

2. Where services are supplied on the basis of the standard payment, interim payment, long-term installment or other terms, or services are continuously supplied on the basis of which the unit of supply cannot be partitioned, when each part of the price is received;

3. Where the provision of services is completed and the value of supply thereof is determined, in case where the provisions of subparagraphs 1 and 2 are not applicable.

4. In cases of the value of supply calculated under the provisions of Article 49-2 (1), (2) and (4), the date on which the preliminary return period or taxable period ends.

(3) Determination

㈎ 부가가치세법 제9조 제2항 , 같은 법 시행령 제22조 에서 용역의 공급시기로 규정한 ‘역무의 제공이 완료되는 때’( 제1호 )는 역무가 현실적으로 제공되거나 재화·시설물 또는 권리가 사용되는 때를 의미하는 것으로, 건설공사의 경우 건설공사가 완료되면 족하지 하자보수공사까지 완료되었음을 의미하는 것은 아니라 할 것이고, ‘공급가액이 확정되는 때’( 제3호 )라 함은 계약에 의하여 대금지급일자가 확정되면 족하지 현실적으로 대금지급이 완료되는 때를 의미하는 것은 아니며, 그 시기는 실질적으로 역무제공이 완료되는 때를 기준으로 판단하여야 할 것이다.

㈏ 원고가 이 사건 건물에 대한 보수공사를 시행한 후 2001. 11. 23. 소방시설 완공검사필증을 받았고, 2002. 1. 30. 건물사용승인을 받은 사실은 앞서 본 바이나, 한편 을16 내지 22호증, 28호증(각 가지번호 포함)의 각 기재에 의하여 인정되는 다음과 같은 사정, 즉 ① 이 사건 건물에 대한 사용승인은 이해관계인들의 투서나 민원제기 등으로 인하여 강서구청에서 사용승인에 앞서 변호사 등에 대한 법률자문을 거치느라 상당기간 늦추어진 점, ② 사용승인신청서나 감리보고서, 각종 하도급공사계약서 등 준공관련 서류에 의하더라도 이 사건 건물의 하도급공사는 2001. 11. 이전에 모두 완료된 것으로 보이는 점, ③ 원고의 대표이사 소외 10을 비롯하여 설계 및 감리책임자 소외 11, 당시 현장소장 소외 12 등도 피고와의 문답서 등에서 이 사건 건물의 실제 완공일을 모두 2001. 11.경으로 일치하여 진술하고 있는 점 등을 종합하면, 이 사건 건물의 보수공사에 대한 역무 제공의 완료일은 원고가 소방공사검사필증을 교부받은 2001. 11. 23.로 봄이 상당하고, 이에 반하는 증인 소외 13의 일부 증언은 믿기 어려우며 달리 반증이 없으므로, 원고의 이 부분 주장은 이유 없다.

D. As to the non-deduction of the input tax amount of the tax invoice received from the base date of credit

(1) The plaintiff's assertion

With respect to the value-added tax for the first and second half years of 201, each tax invoice of the amount of KRW 1,90,909,092, which the Plaintiff received at the same time as payment of the price after executing the contract construction related to the fire-fighting system to the astronomical YY, and the second period of 2, 2001, which was delivered under a legitimate contract, was issued, but it was unlawful for the Defendant to deduct the input tax amount by using it as the processing transaction data.

(2) Determination

According to Gap evidence 2, Eul evidence 24-15 and Eul evidence 34-1 and 2, considering the purport of the whole pleadings, it is difficult for the plaintiff 2 to conclude that the above non-party 2 had the above non-party 1's non-party 2's non-party 3's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 3's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's counter-2's non-2's non-party 2's non-2's non-party 2'

E. As to the non-deduction of the input tax invoice received from the 19 companies, such as sexual transiters

(1) The plaintiff's assertion

The Plaintiff’s total supply value of KRW 1,700,910,90 (the portion of the Plaintiff’s preparatory document of May 17, 2006 and KRW 1,600,68,709 (the portion of the Plaintiff’s preparatory document of May 17, 2006 and KRW 1,600,68,709 appears to be a clerical error) that was delivered on the date of completion of providing services in relation to the repair work of the instant building, is a genuine tax invoice that was delivered by the Defendant on the ground that the Defendant received the said tax invoice after the time of supply on a different premise is unlawful in deeming it as a false tax invoice.

(2) Determination

However, as seen earlier, it is reasonable to view the completion date of the provision of services related to the repair work of the building of this case as November 23, 2001. As such, the tax invoice equivalent to the above 1,700,910,000 won, which the Plaintiff received from 19 companies, such as sexual relay period, etc. during the second period of 2002, was issued after the time of supply, and is not within the same taxable period as the time of supply for the actual service. Thus, this portion of the Plaintiff’s assertion is erroneous.

F. As to the excessive appropriation of the construction cost of the building of this case

(1) The plaintiff's assertion

While Nonparty 1 entered into a sales contract for KRW 8.5 billion with Nonparty 2, the owner of the instant building, etc., on November 20, 200, concluded a sales contract for KRW 3.2 billion with the Plaintiff on November 20, 200, but the said sales contract was rescinded because it did not pay the subsequent purchase price. Accordingly, on February 9, 2001, the Plaintiff again entered into a sales contract for KRW 4.38 billion with Nonparty 2 on May 14, 2001, and later entered into an additional contract for KRW 4.72 billion on May 14, 2001, and eventually, concluded a construction contract for the instant building with the Defendant on KRW 4.72 billion on a different premise, it was unlawful to deem that the Defendant recognized only KRW 3.7 billion as the construction cost for the instant building, and made the instant disposition as excessive appropriation of KRW 1.72 million, which is the difference.

(2) Determination

In light of the following circumstances acknowledged by the evidence Nos. 21, 22 and 29 (including additional numbers), namely, ① there is no specific details of the contract agreement for the construction work as of February 9, 2001 and no specific calculation basis of the amount relating to the input of the construction cost as of May 14, 2001; ② there appears to be a circumstance in which the representative director of the Plaintiff ordered the employees to calculate the excessive construction cost for tax adjustment; ③ it is difficult to believe that each contract for the construction work made between Nonparty 2 and the Plaintiff can be prepared at any time, and thus, it is reasonable to view the contract amount for the repair of the building of this case as KRW 3.7 billion in total based on the amount of the first contract written between Nonparty 2 and Nonparty 1, and the amount of the separate structure reinforcement, design, supervision, and supervision, based on the amount written between Nonparty 2 and Nonparty 1, it is contrary to the above evidence Nos. 4-2 and 3, and thus, the Plaintiff’s assertion on this part is without merit.

(g) Justifiable tax amount;

If a legitimate tax amount is calculated by deducting the input tax amount for each tax invoice issued by the Defendant, which was not deducted from the input tax amount, on the basis of the legitimate tax amount payable by the Plaintiff as the value-added tax for the first and second years in 2001, from the input tax amount for each tax invoice issued by the Defendant on the basis of the processed tax amount table,

3. Conclusion

Therefore, the disposition of imposition of KRW 160,00 of corporate tax for the year 2003 among the disposition of this case (as it is impossible to calculate the legitimate amount of tax in the records, it shall be revoked in its entirety) and the disposition of imposition of the value-added tax for the year 1 and 2, 2001 exceeding the amount stated in the table of legitimate tax calculation of the attached tax amount shall be revoked in each violation of law. Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it

[Attachment Form 1]

Judges Woo-chul (Presiding Judge)