2016 Heavy0595 ( October 27, 2016)

The full amount of the taxation shall be revoked because it is impossible to calculate the amount of the legitimate tax which has been lawfully calculated;

The objective tax base and tax amount may be presented by assertion and materials supporting such objective tax base and tax amount until the closing of argument in the fact-finding court. When the amount of tax to be imposed lawfully is calculated based on such materials, only the portion exceeding the reasonable amount of tax should be revoked, but in other cases,

Restriction of Special Taxation

Suwon District Court 2016Guhap6385 (O. 23, 2017)

A. After the time of filing a lawsuit, a return was filed after the lapse of the period (the business income of each of subparagraphs A through 25).

Tax withholding receipts, etc.

3) Determination as to the part of the purchase of used cars via the intermediate prize such as Kimbb

The above 2) Circumstances known in the facts of recognition by adding to the overall purport of the pleading, namely, the Plaintiff and Kim

A contract for a consignment purchase made between B, etc. in the middle of the middle, such as Kimbbb, that the plaintiff is on the middle of the middle.

If the plaintiff purchases used cars such as Kimbb, etc. after paying the purchase price for the same car, the plaintiff Kimbb.

A certain fee shall be paid to the interim, and a used motor vehicle purchase shall be subject to the plaintiff's risk and responsibility.

account transaction between the Plaintiff and Kimbb, etc. that is planned to engage in the consignment purchase transaction;

In the flow of money revealed in the calendar, the Plaintiff’s certificate of automobile transfer to the intermediary, such as Kimbb, etc.

After remitting the same amount as the purchase money on the certificate of vehicle transfer on the date of sale, fees later;

of this section, in which case the money has been additionally transferred, in the form of transaction or entrustment to be proposed in the above contract.

is consistent with the general transaction form of purchase, and generally in simple purchases not entrusted purchases; and

L. L. L.C. different from the substance of the transaction, and the intermediate value of the transaction, such as Kimbbb, due to the sale of used cars

It is reasonable to deem that the tax has been imposed or the input tax has been deducted under the special provisions of this case.

No data, and the process of purchasing used cars in Korea due to the nature of the used cars export business;

additional expenses, such as transfer expenses, repair expenses, etc., are rarely required and exported immediately after purchase;

Therefore, it is necessary to take multi-level distribution structure compared to the domestic used vehicle sales business.

purchase price determination in order to gain a reasonable profit is relatively low; and

It seems that there is a high dependence on foreign market information held by the exporters of used cars such as the Plaintiff.

In full view of the fact that the Plaintiff is the subject of the final right to determine the amount of the funds.

used cars have been purchased from the owner on the basis of the risks and accounts of the owner, and intermediate, such as Kimbbb

The award shall be purchased from the plaintiff's used cars in accordance with the plaintiff's calculation, and the purchase funds and purchases thereof.

It is reasonable to view that services have been paid. It is reasonable to view that both the Plaintiff and Kimbb, etc. as remuneration for services.

Trading should be deemed as consignment sales rather than trading. The Plaintiff’s assertion on this part A. 1)

for the purposes of this section.

4) Other determination on the part of the purchase of used cars via intermediate markets

A) The evidence submitted by the Plaintiff alone is against this part of this part from the original owner.

It is insufficient to view that a motor vehicle was purchased (as stated in the evidence No. 8 and the purport of the whole pleadings).

of the other intermediate intermediate, Kimk, Rik, Kimm, Chonn, Soo, Hyp, q, Kimr,

purchase amount reported by the Plaintiff and the amount received by the original owner by the Plaintiff

may be recognized that there is a difference in amount, and the original owner or the plaintiff has the difference in amount.

When it was determined or the occurrence of the difference is specifically recognized, and it is reverted to the above intermediary.

In addition to the absence of any material to be seen as Kin, this part of this transaction or other intermediate

The plaintiff's above assertion about this part is without merit.

B) In addition, the evidence submitted by the Plaintiff alone and the nature of the instant case by a personal sear in the middle.

any person prescribed by Presidential Decree, that is, a person who does not carry on a taxable business of value-added tax;

or a simplified taxable person prescribed in the Value-Added Tax Act is not sufficient to recognize that such person is a simplified taxable person.

C. The above individual, who is rather aware of the purport of the evidence Nos. 5 and 8 and the whole pleadings

The highest number of deposits and withdrawals, the names of deposits and withdrawals, and the personal withstanding, which are revealed in the account transactions of Dr;

Wholesale, retail, or retail as a general taxable person under the Additional Tax Law after the taxation period of this case by Kim Ho-ho and Song Ho-ho; or

In light of the fact that the trade sector is registered as a business entity, the individual with the above individual with the value added tax;

It is reasonable to view that the Plaintiff is a general taxable person operating a tax business. The Plaintiff’s part concerning this part is reasonable.

The above argument is without merit.

(C) Finally, penalty tax under tax law is easy to exercise a taxation right and realize a taxation right.

for the purposes of this section, a taxpayer has violated all obligations, such as reporting and tax payment, provided for in the law without good cause.

taxpayer's intentional intent as administrative sanctions imposed in accordance with individual tax laws;

Negligence is not considered, while such sanction is not known to the taxpayer.

in this sense, there are circumstances in which it is reasonable to present it, or the obligations thereof.

The reason is that it is unreasonable to expect the parties to perform the obligation, such as when there are circumstances that it is unreasonable to expect them to do so.

(b) impose an obligation under tax law, unless there is a legitimate reason not to do so.

The Supreme Court Decision 96Nu18076 Decided July 24, 1998 and Supreme Court Decision 28 April 28, 201

2010Du16622, etc.) Reference to interpretation of the tax law as to the subject of the special provisions of this case

(suspect) A political party that cannot impose an additional tax, because it is difficult to see that there exists a conflict of opinion due to its intention;

There is no ground for this. The plaintiff's assertion on this is without merit.

D. Sub-committee

In the disposition of this case, the part of the purchase of used cars via other intermediate markets by the Defendant

In respect of this case, the input tax amount was not deducted because it is not subject to the special provisions of this case.

the purchase of used cars via the intermediate award, such as Kimbb, in the case of the foregoing

It is illegal to deduct input tax from input tax, considering that it is not subject to use.

However, whether the legality of the disposition in the revocation lawsuit for taxation disposition exceeds the legitimate tax amount

As a result, the parties are determined to have objective tax base until the closure of the trial proceedings.

and may lawfully submit arguments and material supporting the amount of tax, and by such material

If the reasonable amount of tax to be imposed is calculated, only the portion exceeding the reasonable amount of tax shall be revoked.

However, if not, the entire taxation disposition is to be revoked (Supreme Court Decision 4 April 1995).

28. The records submitted by the time the argument in this case is closed, and the records alone are presented until the time the argument in this case is closed.

reasonable value-added tax amount to be imposed lawfully on the Plaintiff for the taxable period

Therefore, the entire disposition of this case shall be cancelled.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

Category*

○ Head of tax office

2017.07.26

208.23

1. The Defendant’s imposition of value-added tax of KRW 100,952,860 (including additional tax of KRW 35,809,375) for the Plaintiff on October 1, 2015, and the imposition of KRW 71,108,720 (including additional tax of KRW 23,528,446) for the first year of 201, respectively, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same as the order of the Gu office (e.g., a clerical error in October 1, 2015, which is the date of disposition of the written complaint) is the same as the order of the Gu office (e.g., the date of disposition of the written complaint).

1. Details of the disposition;

A. On March 30, 2006, when the Plaintiff reported value-added tax on the first and second used cars (hereinafter “the taxable period of this case”) in 201, the Plaintiff: (a) operated a used car export business under the trade name of Dongaa; (b) deemed that the purchase amount of KRW 868,760,00 for 63 used cars purchased for the first and second term portion in 201; and (c) 608,350,000 for 36 used cars purchased for the second term portion in 201 (amended by Act No. 11873, Jun. 7, 2013); and (d) deemed that the aforementioned special provisions of Article 110(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) (hereinafter “the special provisions of this case”).

B. As a result of the tax investigation conducted from April 2, 2015 to July 20, 2015, the Defendant: (a) purchased 57 used cars for the first period of 201 as listed below; (b) purchased 57 used cars for the second period of 2011 as listed in the following table; (c) 576,250,00 won for the purchase price for 34 used cars for the second period of 201 as listed in the following table; and (d) notified the Plaintiff of the results of re-audit of 15,00 won for the first period of 34 used cars for the second period of 201 (FB(SC); (c) 205,00 won for the Plaintiff (hereinafter collectively referred to as “the intermediate order of this case”); and (d) 15,010,000 won for the first period of 20,000 won for the second period of 205,015.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Eul evidence 1-1, 2, Eul evidence 6 and 7, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The Plaintiff purchased used cars from the purchaser of used cars by entrusting the purchase of used cars to the middle of this case, and on the middle of this case, it is merely a fact that the Plaintiff purchased used cars from the purchaser of used cars in return for the provision of entrusted purchase services. The instant disposition, which was based on the premise that the Plaintiff purchased used cars from the middle of this case, is unlawful against the principle of substantial taxation, the principle of basis taxation, the principle of trust and good faith

2) Even if the Plaintiff purchased a used motor vehicle from the intermediate of the instant case, it cannot be deemed as an individual withstanding business operator. The instant disposition is unlawful to deem that the part purchased from an individual withstandingr does not constitute the subject of the instant special provisions.

3) Even if the principal portion of the instant disposition is lawful, it constitutes a significant significance in tax interpretation beyond the scope of statutory sites or misunderstandings, and thus, the Plaintiff’s failure to report and pay the penalty tax in the instant disposition constitutes a justifiable ground. Therefore, the penalty tax portion among the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Relevant legal principles

The special provisions of this case stipulate that "where an entrepreneur who collects used cars acquires and supplies used cars from a person prescribed by Presidential Decree, an amount calculated by multiplying the acquisition value by a certain ratio may be deducted from the output tax amount under the Value-Added Tax Act, and "the person prescribed by Presidential Decree refers to a person who is not engaged in a taxable business for value-added tax and a simplified taxable person prescribed in the Value-Added Tax Act", and the burden of proof of non-taxation requirements, deduction requirements, etc. is, in principle, liable for tax payment (see, e.g., Supreme Court Decisions 2008Du7830, Oct. 23, 2008; 2007Du4049, Jul. 9, 2009). Accordingly, the Plaintiff claiming an input tax deduction under the special provisions of this case shall prove that the Plaintiff purchased used cars from a person who is not the intermediate owner of this case or that the individual is a person prescribed by Presidential Decree among the intermediate owners of this case.

Meanwhile, the main sentence of Article 6(5) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) provides that when trading is conducted on consignment or by an agent, the truster or the principal shall be deemed to have supplied or received goods directly. Here, " commissioned consignment" refers to the purchase or sale of goods under his/her own name, and the sale or purchase by an agent means that a person, other than an employee, purchases or sells goods on a regular basis, acts as an agent or a broker for a trade belonging to the business category for a certain merchant and receives remuneration. All of them are not the supply of goods, but the supply of services to the truster or the principal. In such a case, the truster or the principal shall be deemed to have supplied or received goods directly (see Supreme Court Decision 97Nu20359, Apr. 27, 199).

The following facts may be acknowledged in full view of the descriptions of Gap evidence Nos. 4 through 258, Eul evidence Nos. 2, 4, 5, and 8 and the purport of the whole pleadings:

A) The Plaintiff purchased used cars through the middle of the instant taxable period, as indicated in the table (2 pages) No. 1.b. (b) prior to the instant taxable period, while engaging in the export business of used cars, and purchased used cars through the middle of the instant taxable period. Of the intermediate of the instant taxable period, the Plaintiff drafted a consignment purchase contract as of January 1, 201 with the following (see, e.g., Kimbb(c), Songdd (e.g. trade), Parkf (g trade), Yangh(ii), and Yangj(hereinafter collectively referred to as "other intermediate," hereinafter in total) (see, e.g., the consignment purchase contract as of January 1, 201).

B) As to the used cars purchased by the Plaintiff as above, the certificate of automobile transfer was prepared for the first owner, not the intermediate title of this case, and the transferee of the Plaintiff. The Plaintiff transferred to the intermediate title of this case the money corresponding to the sales price stated in the above certificate of automobile transfer (see each of the certificates No. 89, No. 258, No. 89, No. 4, and No. 5, the certificate of automobile transfer and the certificate of automobile cancellation, and each of the certificates No. 5).

C) Meanwhile, the Plaintiff, in the middle of Kimbb, transferred the amount set at an amount equivalent to approximately 1 to 3% of the sales price as above after the date of the sale to the intermediate prize such as Kimb, etc. separately under the name of "Allowance", "income" or "settlement of accounts" (see the detailed statement of passbook No. 6, Gap evidence No. 7, and a copy of the detailed statement of account No. 31 to 83, respectively).

D) The Plaintiff reported the withholding of business income for the year 2008 and the taxable period 2010 for the intermediate issues, such as Kimbb, etc., and the withholding of business income for the instant taxable period, as seen in this case.