Supreme Court Decision 2015Du46024 ( October 29, 2015)

The refund money of this case shall not be included in the total amount of income, but shall not be deducted as necessary expenses.

As long as the refund of this case is not prescribed as necessary expenses, it is reasonable to view that the expenses corresponding to the total amount of income include all the ordinary expenses generally accepted.

Article 55 of the Enforcement Decree of Income Tax Act

The revocation of revocation of a disposition to revoke the Busan High Court (Capwon) 2015Nu11823

AA

00. Head of tax office

Supreme Court Decision 2015Du46024 Decided October 29, 2015

on March 10, 2016

oly 2016.07

1. All appeals filed by the plaintiffs (appointed parties) and the appointed parties AA are dismissed.

2. The total cost of the lawsuit after filing the appeal shall be borne by the Plaintiff (Appointed Party) and the Appointed AA.

The judgment of the first instance court is revoked. Defendant BB director of the tax office’s revocation of the provisional disposition on the amount of KRW 54,700,346, and the additional tax of KRW 12,620,016, which was paid for 2010 and 2011 by Defendant BB director of the tax office on June 4, 2013. Defendant CCC director’s revocation of the provisional disposition on the provisional disposition on the amount of KRW 25,886,733 and the additional tax of KRW 6,427,675, which was paid for 2010 by Defendant CCC to AA on September 3, 2013.

1. Quotation of judgment of the first instance;

The reasons why the court should explain the instant case are added as follows:

Inasmuch as the reasoning of the judgment of the first instance is the same as that of the judgment of the first instance, Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act shall be cited as it is (see, e.g., Supreme Court Decision

The fact-finding and decision are not different.

2. Parts in height:

○ In the decision of the first instance court, the 'Plaintiff Yang Ho-ho' was the 'party to the selection', and the 'Plaintiff AA' was the 'party to the selection'.

As AA, "Plaintiffs" are treated as "Plaintiffs (Appointed Parties) and Appointeds AA."

From 4th to 19th to 4th to 13th to 19th to the court of first instance.

1) Article 19(2) of the Income Tax Act is applicable to business income for the pertinent taxable period’s total income.

Article 26 (10) of the Restriction of Special Taxation Act (hereinafter referred to as "the provision of this case") provides that the amount after deducting necessary expenses used in the case shall be refunded by the petroleum retailer pursuant to Article 106-2 (2) of the Restriction of Special Taxation Act.

The amount of tax paid shall not be included in the total income when calculating the amount of income in the relevant taxable period.

C.In addition, Article 106-2(2) of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201; hereinafter referred to as the "Special Taxation Restriction Act") provides that if petroleum products supplied to farmers, fishermen, etc. are petroleum products for use in agriculture, forestry or fisheries, a petroleum retailer may receive a refund of tax amount, such as individual consumption tax, etc., or deduct the amount of tax to be paid or collected from the amount of tax to be paid or collected.

Therefore, it is clear that the amount of individual consumption tax, etc. may not be included in the total amount of income if a petroleum retailer sells tax-free oil stipulated in Article 106-2 of the Restriction of Special Taxation Act at the tax-free price not added to individual consumption tax, etc. In order to obtain the total amount of income. However, the necessary expenses refer to the expenses used or consumed in order to obtain the total amount of income. Thus, even if a petroleum retailer is already expected to refund individual consumption tax, etc. at the time of sale and a refund of the individual consumption tax, etc. is not included in the total amount of income, so the amount paid when the initial petroleum retailer purchases petroleum from a tax office, etc. is not the expenses used or consumed in order to obtain the total amount of income. Furthermore, Article 106-2(2) of the Restriction of Special Taxation Act and Article 106-2(2) of the Restriction of Special Taxation Act and Article 106-2(2) of the same Act provide that the amount of refund should not be included in the total amount of income of individual consumption tax, etc.

3. The addition;

The refund of this case by the Plaintiff (Appointed Party) and the Appointed AA (hereinafter referred to as the "Plaintiff, etc.")

Money is not included in the total amount of income under Article 106-2 (2) of the Restriction of Special Taxation Act and is corresponding thereto.

(2) shall not be subject to the deduction of the total amount of income, including individual consumption tax, etc. as necessary expenses.

The reason is that the plaintiff et al. neglected his/her duty due to the doubt in the interpretation of the tax law.

Since there are no legitimate reasons, the imposition of penalty is unlawful.

Under the tax law, the taxpayer is to facilitate the exercise of the taxation right and the realization of the taxation claim.

(a) If any duty is violated, such as reporting and tax payment, as provided for in the law without justifiable grounds, the law shall be determined;

taxpayer's intentional and negligent acts are not considered as administrative sanctions imposed in accordance with such regulations.

The site, mistake, etc. of the Act does not constitute a justifiable ground that does not constitute a violation of the duty.

C. (See Supreme Court Decision 2002Du10780 decided Jun. 24, 2004; Supreme Court Decision 2001Du4689 decided Nov. 13, 2002)

Although the Plaintiff, etc. sold tax-free oil and received the refund pursuant to Article 106-2 (2) of the Restriction of Special Taxation Act are not included in gross income pursuant to the provision of this case, it is not possible to deduct individual consumption tax, etc. corresponding thereto from gross income, and thus, even though the Plaintiff, etc. did not receive the deduction of individual consumption tax, etc. from gross income, it is merely a mere fact that individual consumption tax, etc. is included in the necessary expenses by interpreting the same as that of statutes, and the Plaintiff, etc. did not err by misapprehending the legal principles on global income tax, or by misapprehending the legal principles on the judgment prior to remand, even if the Plaintiff, etc. filed a return of global income tax in accordance with the advice of the tax accountant, or by misapprehending the legal principles on the

4. Conclusion

Therefore, the claim of the plaintiff et al. is dismissed as it is without merit, and the judgment of the court of first instance is concluded.

Since the appeal by the plaintiff et al. is legitimate, it is dismissed and it is so decided as per Disposition.