National High Court Decision 2013J 2595 (2013.03)

The plaintiff's act constitutes a case of underreporting the tax base by an active act for the purpose of tax evasion.

It is reasonable to view that the Plaintiff did not deliver a tax invoice with the intent to evade value-added tax in the supply of goods to the other party to the transaction and intentionally omitted the sales in the return at the time of filing the final return of value

Article 47-3 (Additional Tax for Underreporting)

Revocation, such as imposition disposition of value-added tax, 2013Guhap15850

AA

o Head of the tax office

August 13, 2014

October 22, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 000 on September 1, 2012 for the first time value-added tax for the year 2007 against the Plaintiff, KRW 000 on the second time value-added tax for the year 2007, KRW 000 on the first time value-added tax for the year 2008, KRW 000 on the second time value-added tax for the year 2008, KRW 000 on the first time value-added tax for the year 2009, and KRW 000 on the second time value-added tax for the year 209 is revoked).

1. Details of the disposition;

A. From July 1, 1984, the Plaintiff manufactures households, such as subjects of lectures, funerals, etc. used in the church, etc. with the trade name of 'BB' from Ooo-ro (hereinafter referred to as the "workplace of this case").

It is an individual entrepreneur who runs business, etc.

B.On January 4, 2012, to February 10, 2012, the Director of theo Tax Office conducted an integrated investigation into global income tax for the Plaintiff from 2007 to 2009, the Plaintiff failed to issue tax invoices while supplying goods to churches, etc. from 2007 to 2009, and notified the Defendant of the income tax for the purpose of correcting the additional tax for the year 200 to 200, the Plaintiff failed to issue tax invoices (the amount of KRW 00 in 2007, KRW 000 in 2008, KRW 000 in 2009, KRW 200 in 200 in 209, KRW 00 in 200 in 207, KRW 00 in 200 in 200 in 200 in 209, hereinafter referred to as “the necessary expenses of this case”). The Plaintiff notified the Defendant of the additional tax for the year 200 to 2007.

1) The Plaintiff stated the date of disposition in the complaint on September 10, 2013, but according to the written evidence Nos. 2-1 through 6, the disposal date on September 1, 2013. Thus, the Plaintiff arranged the Plaintiff’s purport of disposition as above.

C. Around February 15, 2012, the Defendant respectively corrected and notified the Plaintiff of KRW 000 for the first half-year value-added tax in 2007, KRW 000 for the second half-year value-added tax in 2007, KRW 000 for the first half-year value-added tax in 2008, KRW 000 for the second half-year value-added tax in 2008, KRW 000 for the first half-year value-added tax in 2009, and KRW 00 for the second half-year value-added tax in 209.

D. Since then, in the comprehensive audit of the o Tax Office on the o Tax Office, the Plaintiff under-reported the sales of the instant case by improper means, and thus, it was pointed out that the o Tax Office erroneously applied the penalty tax for under-reporting to the general public. Accordingly, on September 10, 2012, the Dongjak Tax Office applied the penalty tax for under-reporting to the Plaintiff for an additional correction and notification of the income tax for the year between 2007 and 2009 (hereinafter “instant disposition”).

E. On September 1, 2012, the Defendant also additionally corrected and notified the Plaintiff of KRW 000 of the value-added tax for the first period of 2007, KRW 000 of the value-added tax for the second period of 2007, KRW 000 of the value-added tax for the first period of 2008, KRW 000 of the value-added tax for the second period of 2008, KRW 000 of the value-added tax for the first period of 2009, and KRW 000 of the value-added tax for the second period of 209 (hereinafter “instant disposition”).

F. The Plaintiff was dissatisfied with the instant disposition and the instant disposition, and filed an appeal with the Tax Tribunal on April 23, 2013, but was dismissed on September 3, 2013.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 3 (including additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Although the Plaintiff omitted the Plaintiff’s return on the instant sales, the Plaintiff’s failure to issue the tax invoice for the instant sales was an inevitable result under the transaction practice. In light of the fact that all details of transactions, including the instant sales, were recorded in the account book and kept them in the instant business establishment, and that the Plaintiff received all revenues of the instant business establishment including the instant sales, through the Plaintiff’s business account, it cannot be deemed that the Plaintiff had intended to evade taxes, or that the Plaintiff actively committed an active act concealing the instant sales or preparation of double books, and thus, the Plaintiff did not return the tax base by “unfair method”.

2) The o regional tax office has notified the Plaintiff of the non-approval of the tax offense deliberation committee. The first Defendant applied the general under-reported penalty tax to the Plaintiff, thereby paying the Plaintiff penalty tax. The Defendant changed its opinion according to the audit land register of the o director of the regional tax office and applied the unfair under-reported penalty tax to the instant disposition is contrary to the good faith and trust protection principle.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) From January 4, 2012 to February 10, 2012, through a tax evasion report, a consolidated investigation into global income tax for the Plaintiff from January 1, 2012 to February 10, 2009 was conducted with respect to the Plaintiff. After securing the original market register, daily account statement, and delivery note kept within the instant business site through a deposit investigation, this was compared with the Plaintiff’s reported amount and the instant sales amount omitted by the Plaintiff and necessary expenses.

2) Although the Plaintiff had kept original account books containing KRW 000 of the sales revenue of this case and KRW 000 of the necessary expenses of this case, such as raw materials and personnel expenses corresponding thereto, which were omitted from the Plaintiff’s report, within the place of business, the computerized account books prepared by the Plaintiff’s tax agent and the purchase book were omitted from the sales revenue of this case and the necessary expenses of this case.

3) Meanwhile, the Plaintiff managed all revenues and expenditures of the instant workplace through the Plaintiff’s business account.

4) On January 2012, 2012, the o District Tax Code Investigation and Deliberation Committee of the Regional Tax Office against the Plaintiff

On February 3, 2012, the Committee for Investigation of Tax Offenses of the Regional Tax Office requested deliberation on the extension of the scope of investigation and extension of the investigation period. On February 3, 2012, the Committee for Investigation of Tax Offenses of the Plaintiff did not approve the investigation of the Plaintiff on the ground that the act of not issuing a tax invoice was punished in accordance with the relevant provisions regarding the act of not issuing a tax invoice, and the act of reducing the amount of cash revenue in accordance with the commercial practices alone is difficult to be considered as active concealment of income by fraud

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 and 4, the purport of the whole pleadings

D. Determination

1) Determination on the first argument

A) In light of the regulatory system under Article 47-3 of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same), the language and content of Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter the same), and the legal nature of the penalty tax for underreporting, where Article 47-3(2) of the former Framework Act on National Taxes excessively conceals or disguises all or part of the fact that serves as the basis for calculating the tax base or the amount of national tax, it is understood that the imposition and collection of taxes is impossible or considerably difficult to induce a taxpayer to faithfully report the tax base, and thus, it is understood that the purpose of Article 27(1)2 of the former Enforcement Decree of the Framework Act on National Taxes is to impose a more higher tax rate than that of an underreporting method than that of an ordinary underreporting method, and thus, to the effect that it can be deemed an unlawful underreporting method of Article 27(3).

(B) Therefore, the Plaintiff’s act of intentionally and objectively reporting the sales revenue less than the actual sales revenue by preparing a false account book stating the actual sales revenue recorded in the account book, for instance, constitutes aggressive fraud or other unlawful act which makes it difficult to impose and collect taxes (see, e.g., Supreme Court Decisions 89Do283, Sept. 26, 1989; 2002Do2596, Sept. 24, 2002). As such, if the Plaintiff intentionally omitted the sales revenue of the Plaintiff at the time of filing the final tax return with the intention to evade value-added tax, it constitutes “an affirmative fraud or other unlawful act that makes it considerably difficult to impose and collect taxes” (see, e.g., Supreme Court Decisions 85Do842, Sept. 24, 1985; 2005Do9519, Feb. 8, 200).

In general, in order to apply the principle of trust and good faith to the acts of tax authorities in tax and law relations, the tax authorities must name the public opinion list that is the subject of trust to taxpayers, the taxpayer's trust in the name of the tax authorities is not attributable to the taxpayer, and the taxpayer must act in trust and what is the subject of the opinion list, and the tax authorities' disposition against the opinion list should result in infringing the taxpayer's interest by making the tax authorities' disposition against the opinion list (see Supreme Court Decision 2001Du9103, Nov. 26, 2002);

As alleged by the Plaintiff, the o regional tax office has notified the Plaintiff of the non-approval of the tax offense investigation by the o regional tax office, and the Defendant initially applied the general penalty tax against the Plaintiff, the circumstance that the Defendant issued a public opinion statement that is the subject of trust to the Plaintiff, or that the Plaintiff did not have any cause attributable to the Plaintiff with respect to the Plaintiff’s trust that the Defendant’s statement of opinion was justifiable. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

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