(영문) 서울고등법원 2016. 08. 24. 선고 2015누68705 판결

The judgment of the court of first instance shall be revoked. Since the Defendant’s dividend income amount exceeds 0,00,000 won of corporate tax for the Plaintiff on December 5, 2013 (including additional tax; hereinafter the same shall apply), those exceeding 00,000,000 won of corporate tax for 2010, those exceeding 00,000G income for 00,0000, those exceeding 000,000 won of corporate tax for 2000, those exceeding 00,000G income for 200, those exceeding 000,000, among bonus income amount for 2000,000, those exceeding 00G income for 200,0000, those exceeding 10,0000, among bonus income for 200,0000, 2007, 2000, 2000, 2000.

Reasons

1. Details of the disposition;

This Court's judgment concerning this part is identical to the corresponding part of the judgment of the court of first instance except for dismissal as follows, and thus, it shall be quoted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

"0,000,000 won for the year 2010 and 00,000,000" for 3 pages 13 shall be "0,000,000 for the year 2009" and "00,000,000 for the year 2010."

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Of the amount of entry into the instant account recognized by the Defendant as an omission in sales, KRW 00,00,000,000, which was individually borrowed from KimJ, and KRW 00,000,000, which was already reported by the Plaintiff as sales in the year of 2007. In addition, the Plaintiff reported KRW 00,000 as sales to Y○○○○ Corporation (hereinafter “YYY”) in the year of 2010, and the Plaintiff returned KRW 00,000,000 among them, was refunded through the instant account. ④ Of the amount of entry into the instant account, KRW 00,000,000,000 was deposited as the Plaintiff’s account and used as the Plaintiff’s expense. Therefore, each of the above amounts should be excluded from the earnings.

2) From the instant account, the Plaintiff paid KRW 00,000,000 in total to foreign workers, etc. as personnel expenses (However, labor expenses paid to leB were transferred to the account in the name of KimU at the request of leB), ② disbursed KRW 0,000,000 in total to the rent of real estate leased to use as a lodging house of the daily worker, and ③ additionally disbursed KRW 00,000,000 in addition to the amount recognized as deductible expenses at the time of each of the instant dispositions as the purchase price and other expenses for the customer who does not issue the tax invoice, as well as the amount recognized as deductible expenses at the time of each of the instant dispositions. However, since each of the above amounts was not originally included in the Plaintiff’s deductible expenses, it should be additionally included in deductible expenses as deductible expenses corresponding to the omitted amount.

3) On July 22, 201 and December 8, 2011, KRW 00,000,000, which was transferred from the instant account to another account of thisG, is merely an individual transaction of thisG, and KRW 00,000,000, which was transferred from the instant account to the other accounts of thisG on March 26, 2012 and August 9, 2012, it cannot be deemed that each of the said amounts was out of the company since it was deposited again into the Plaintiff’s account. In addition, since the instant account was transferred from the account to the KimU’s name, the said amount is not illegal since it was not an unlawful payment notice of the Plaintiff’s income amount and the instant disbursement notice of the instant change as personnel expenses, and thus, it is not an unlawful determination of the Plaintiff’s income amount and the instant disbursement notice of the instant income amount.

B. Relevant statutes

This Court's decision concerning this part is identical to the corresponding part of the judgment of the court of first instance (including five pages 5 and attached Form 5), so it shall be quoted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination on the disposition of imposition of the corporate tax of this case

1) Determination on the assertion of exclusion from earnings

A) Relevant legal principles

In general, when a taxpayer’s contents of a tax return are corrected due to an error or omission in the books or documentary evidence, the contents of the return may be corrected by other data when it is recognized that there is an error or omission in the books or documentary evidence. In such a case, on-site investigations may be conducted in an objective manner as long as it can be seen as an objective method to capture actual income. Thus, determination of a taxpayer’s total revenue by investigating the amount deposited in the financial institution account of the taxpayer is a legitimate on-site investigation with objectivity (see, e.g., Supreme Court Decision 2002Du12786, Dec. 12, 2003). In addition, in general, if it is found that the facts alleged in light of the empirical rule in the specific litigation process are proved, unless the other party proves that the facts in question are eligible to be subject to the application of the empirical rule, it cannot be readily concluded that the pertinent taxation disposition is unlawful (see, e.g., Supreme Court Decision 2002Du6466, Feb. 6, 2007).

On the other hand, even if the facts are not bound by the facts established in a criminal trial, the facts that have been recognized as the grounds for criminal judgment which became final and conclusive in the same facts are the flexible evidence in the administrative litigation. Thus, barring any special circumstance, it cannot be recognized that it is difficult to adopt a criminal judgment in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 98Du10424, Nov. 26, 1999).

B) Determination

With respect to the instant case, according to each of the evidence Nos. 1 and 6 (including each number; hereinafter the same shall apply) as stated in the separate sheet of crime, the following facts are found: (a) the Plaintiff and the actual operator of the Plaintiff were remitted sales amounting to KRW 000,000,000 from the relevant criminal case to the tax evasion of corporate tax for the business year of 2009 through 2012; and (b) the judgment became final and conclusive after being convicted of the violation of the Punishment of Tax Evaders Act due to the omission of the report; and (c) the specific contents of the judgment were evaded 00,000,000 won in total four times as shown in the separate sheet of crime; and (d) the above tax evasion amount of KRW 00,000,000,000 from the aggregate tax amount of the corporate tax imposition of the instant case to the Plaintiff. Accordingly, the burden of proof is consistent with the empirical rule, which is the taxpayer’s burden of proof.

However, each of the plaintiff's arguments on this part is without merit, since it is difficult to view that it has been sufficiently proven as follows.

(1) The Plaintiff asserts that the amount of KRW 00,00,000, which is a part of the amount admitted under the name of Kim J, is the amount of personal loan from KimJ. However, in light of the following circumstances, the Plaintiff did not submit objective evidentiary documents, such as the fact that this GG borrowed money from KimJ, i.e., the fact that this GG borrowed money from KimJ, i.e., the fact that this GG paid the principal of the borrowed money or interest thereon to the KimJ, and the fact that the Defendant paid KRW 00,000,000 among the amount admitted under the name of KimJ, and there is no special reason to view it as the amount of loan by distinguishing only the above amount of KRW 00,000,000,000 claimed by the Plaintiff, the mere evidence submitted by the Plaintiff alone is insufficient to deem it as an individual loan, and there is no other evidence to acknowledge it as an individual loan.

(2) The Plaintiff asserted that the amount of HH’s entry was collected from the accounts of 00,000,000 won as the annual sales amount of 2007. However, the Plaintiff’s assertion that the amount of the construction work completed around 2007 was collected over a period of about five years after the lapse of five years (from February 20, 2010 to December 31, 2012) is not easily obtained in light of ordinary transaction practices. The Plaintiff’s assertion that the amount of the construction work collected from H was 00,000,000 won, which is part of the total construction work cost of 00,000,000 won, from H on December 207, 2007. However, the Plaintiff’s assertion that only 00,000,000, 000, 00, 200, 200, 200, 200, 300, 300.

(3) On December 2010, the Plaintiff received 00,00,000 won for environmental control devices from Y0 from Y0, and reported it to 2010,000, after which it was paid to the Plaintiff’s account. The Plaintiff asserted that it was refunded through the instant account from December 7, 2010 to 10 of the same month after the reduction of 00,000, which is part of the above construction cost. However, in addition to the purport of the entire pleadings, this case’s evidence was revealed as follows, i.e., this G and H did not constitute a crime of 00,000, i.e.,, 00, 00, 000, 100, 200, 200, 200, 200, 300, 300, 300, 30, 300, 300, 30, 300, 200.

(4) The Plaintiff asserted that KRW 00,000,000, out of the amount deposited in the instant account, was returned to the Plaintiff’s account in the name of the Plaintiff and used as the Plaintiff’s expense, and that the said amount was already reported as sales in the business year of 2009 to 2012, but the evidence alone submitted by the Plaintiff is insufficient to acknowledge the said assertion, and there is no

2) Determination on the assertion of inclusion in deductible expenses

A) Relevant legal principles

Even if the tax authorities found the amount of income omitted from the taxpayer’s initial return in determining the tax base and amount of tax on the taxpayer’s income by the method of on-site investigation, it shall be deemed that the deductible expenses, such as necessary expenses corresponding thereto, have already been included in the gross deductible expenses corresponding to the total income, unless there exist special circumstances, such as account books or other documentary evidence revealed that they were separately disbursed. In such cases, if a taxpayer who seeks to include the expenses in deductible expenses intends to obtain the deduction on the ground that he/she omitted the report on the expenses corresponding to the omission income, he/she shall assert and prove the omission (see, e.g., Supreme Court Decision 2002Du2673, Nov

B) Determination

(1) As to the assertion on personnel expenses

In light of the above evidence and evidence as stated in Gap evidence Nos. 50, 74 through 77, and 81, the plaintiff argued that the above expenses were not included in the deductible expenses at the time when the return of corporate tax was made on the ground that the payment record for the labor expenses paid from the account of this case was not issued. However, the above payment record for the above daily labor income includes only the labor expenses paid to the worker of this case, but also the other party claiming the plaintiff includes the non-regular worker of this case such as HH and EP; ② Examining the president of each account of the plaintiff, the plaintiff's wage of 00 won was classified into the "wages 604" as separate account, and the labor expenses paid to those who are not workers of this case for the above 00 won as the deductible expenses for the above 00-year 200-year 200-year 1000-200-2000-31, 200-200-3.

(2) As to the allegation of rent in accommodation

The evidence mentioned above and the statements in Gap evidence Nos. 47 and 48 revealed the following circumstances, namely, ① each lease agreement in which the plaintiff asserted that RR and VV were prepared between RR and the tenant in the course of leasing a house for daily workers; ② No real estate (○○○○○○, Dong ○○, Dong ○○, and Dong ○○○-○ building) claimed by the plaintiff was actually used as a house for daily workers; ③ The plaintiff did not submit objective data to confirm that the real estate was actually used as a house for daily workers; ③ the real estate was not included in the house for welfare of the head of each account in 2011 and 2012, on the ground that the expenses were not stated as a house for RR and VV for the purpose of the entire argument, but the above expenses were not included in the losses of the plaintiff. However, considering the above circumstances, the possibility of the plaintiff's use of the house as a house for each account [the possibility of the plaintiff's use as a house for welfare expenses] cannot be excluded from the above.

(3) As to the assertion of purchase price and other expenditure

In addition to the amount recognized as losses at the time of each disposition of this case with the purchase price or other expenses for business partners who did not have issued a tax invoice, the Plaintiff asserted that additional expenses of KRW 00,000,000 were not paid, and it is difficult to acknowledge the above assertion because it did not submit any objective evidence, such as documentary evidence verifying the details of the specific use, and there is no other evidence to acknowledge it otherwise.

(4) The theory of lawsuit

Therefore, the plaintiff's assertion on this part is without merit.

D. Judgment on the notice of the change in the income amount of this case

This Court's decision concerning this part is identical to the corresponding part of the judgment of the first instance except for the addition of the following matters, and thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

The following shall be added at the end of 13 pages 8:

In addition, the plaintiff's assertion regarding notification of change in income amount to KimU and Lee H is based on the premise that the omission of sales and the recognition of expenditure in the disposition of the corporate tax of this case, which served as the basis of notification of change in income amount of this case, are illegal. As seen earlier, the disposition of the corporate tax of this case is legitimate. Thus, the prior plaintiff's assertion on this different premise is without merit.

3. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.

심급 사건

-수원지방법원 2015.11.11.선고 2014구합60642

서울고등법원 2016.08.24.선고 2015누68705

참조조문

참조판례

-대법원 1999. 11. 26. 선고 98두10424 판결