Cho High Court Decision 201Do1258 ( November 05, 2012)

propriety of the disposition imposing tax by deeming it a false tax invoice

It is reasonable to regard the false tax invoice as a false tax invoice because it is not sufficient to prove that the tax office has prepared a false tax invoice to a considerable extent, and that the evidence submitted by the plaintiff alone was actually spent.

2013Guhap2235 Revocation of Disposition of Imposition of Corporate Tax, etc.

AA General Construction Corporation

2 other members of the Seoul Regional Tax Office

May 22, 2013

June 21, 2013

1. All of the plaintiff's claims are dismissed.

2. The plaintiff shall bear the costs of lawsuit.

(1) The disposition of value-added tax as stated in the separate sheet as of November 1, 2010 by the director of the Seoul District Tax Office, and the disposition of imposing corporate tax and value-added tax as stated in the separate sheet as of December 1, 2010 by the director of the Seoul District Tax Office, and (3) the disposition of imposing value-added tax as of December 1, 2010 by the director of the Seoul District Tax Office is revoked.

1. Details of the disposition;

(a) The Seoul Regional Tax Office: (a) conducted an integrated corporate tax investigation on the Plaintiff from April 2010 to November 2010; (i) conducted an integrated tax investigation on the Plaintiff; (ii) conducted a 12 & 13th of AAE; and (iii) conducted a three-dimensional construction project, etc.; (iv) DD Construction Co., Ltd (hereinafter referred to as “D”); (e) EE Construction Co., Ltd (hereinafter referred to as “E”), and (hereinafter referred to as “FF”) received from the FF Industry Development Co., Ltd. (hereinafter referred to as “GG”) for each business year of 00,000 won, with respect to the difference between 00 won and 00,000 won, and 200,000,000 won, and 00,000,000 won, and 205,000,000 won or more, for each business year of 20,000,000 won or more.

(2) The head of the tax office, and the head of the tax office, upon receipt of the aforementioned taxation data from the head of the Seoul Regional Tax Office, and on December 1, 2010, the Seoul Regional Tax Office corrected and notified the corporate tax and value-added tax as stated in the disposition imposing corporate tax and the disposition imposing value-added tax.

C. On February 18, 2011, the Plaintiff appealed and filed a request for judgment on February 18, 201, and on November 2, 2012, the Tax Tribunal rendered a decision that ① on behalf of K and OOF Bas Co., Ltd., the amount of KRW 7 billion paid to Dongyang Textiles Co., Ltd and J Co., Ltd., and J Co., Ltd. is loans, and ② the amount of the construction right acquired from HH is excluded from the disposition of income, and the input tax is deducted from the calculation of deductible expenses, and ③ the remainder of the claim is dismissed.

(d) Accordingly, the director of Seoul Regional Tax Office and the director of Seoul Regional Tax Office have corrected the amount of income for the business year 2007 and 2008 and the corporate tax for the business year 2008 (hereinafter referred to as "each of the instant dispositions in which the plaintiff seeks revocation after correction) as stated in the column of "amount of reduction in trial" in the notice of changes in the amount of income and imposition of corporate tax," (which is the ground for recognition).

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

A. The plaintiff's assertion

(1) With respect to the tax invoice of this case (value added tax for the business year 2007 and 2008, and for the business year 2006 through January 2008), the Plaintiff, a representative director, withdrawn cash from the borrowed account of LL, received O’s cover notes, bank checks, and negotiable certificates, and paid construction expenses to D, etc. with them, and the Plaintiff paid them, and if non-deductible expenses, the cost rate (the purchase cost/sale price) reaches 54.73% and the cost rate falls short of the standard expense rate of the National Tax Service. The tax invoice of this case is not a false tax invoice, and it is unlawful to impose value added tax for the business year 2007 and 2008 and 2006 through 2008 on the premise that the tax invoice of this case is false tax invoice.

(2) Disposition of income in the business year 2005 and the business year 2006 relating to the damage of books and computer files

The accounting books pertaining to the business year 2005 and 2006 (hereinafter referred to as the “instant accounting books”) were destroyed and discarded by the string operation on August 20, 2007. The mountain files pertaining to the instant accounting books were deleted by the number of employees’ rooms in the process of replacing the string disc in preparation for the crackdown on the use of illegally reproduced software around August 2008. Therefore, such reasons fall under the case where the account books were destroyed by force majeure, and they fall under the proviso of Article 68 of the Corporate Tax Act (amended by Act No. 10361, Dec. 30, 2010; hereinafter the same shall apply) and the proviso of Article 106 (2) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 23589, Feb. 22, 2012; hereinafter the same shall apply) and are illegal as the “tax base and other net income for the pertinent business year or other changes in the amount of income for the pertinent business year.”

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Investigation and trial results of EO

(A) EO was convicted of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) and the Act on the Aggravated Punishment, etc. of Tax Evaders (Tax) on July 8, 2011 (Seoul Central District Court 201No101No1011) that it received a false tax invoice from D, etc., which is a subcontractor, on May 31, 11207 and February 28, 2008, and that it evaded corporate tax for the business year 2007 and 2008.

(B) On August 31, 201, the prosecutor of the Seoul Central District Prosecutors' Office reversed the account books, etc. of this case for the purpose of destroying evidence to evade taxes, around August 11, 2007, and received 33 copies of false tax account statements from D, etc. without supplying goods or services from September 11, 1206 to January 2008. The 11th of each violation of the Punishment of Tax Evaders Act and the Act on the Aggravated Punishment, etc. of Specific Crimes (taxs) were each suspected of having committed a violation of the Punishment of Tax Evaders Act and the Act on the Aggravated Punishment, etc. of Specific Crimes.

(2) Disposition by the director of Seoul Regional Tax Office

(A) Defendant Seoul Regional Tax Office refunded value-added tax to D et al. on the ground that the instant tax invoice was issued falsely, and denied labor costs.

"(B) On November 29, 2010, the director of the Seoul Regional Tax Office notified the directors who are D and its representative director under Article 11-2 (1) 1 of the Punishment of Tax Evaders Act (amended by Act No. 9346 of Jan. 30, 2009), Article 9 (1) of the Procedure for the Punishment of Tax Evaders Act (amended by Act No. 9920 of Jan. 30, 2010), and Article 4-4 of the "Regulations for the Determination of Amount of Penalties" (National Tax Service Directive No. 1782 of the National Tax Service Directive No. 1782), of the payment of a fine of 00 won, and 00 won, and 00 won, 00 won, and 00 won, from O and oO who are the F and its representative director, to the oO and oO, each of which is the representative director, and Do and its representative director.

(A) Statement of EE on July 14, 2010 of EO, a management director.

(Omission)

(B) Statement of August 10, 2010, the representative director of EE, NoO

(Omission)

(C) Each statement made on August 2, 2010, as the representative director of GG, and on September 7, 2010.

(Omission)

(D) Each statement made on August 17, 2010 and September 9, 2010 of the FO, the representative director of F.

(Omission)

(E) Each statement dated August 10, 2010, the representative director of DD, and September 6, 2010, and September 27, 2010, respectively.

(Omission)

[Grounds for recognition] The descriptions of Gap evidence 33 (including natural disaster) and Eul evidence 6 to 14, and 16 to 19 (Ga number 9), and the purport of the whole pleadings

D. Determination

(1) As to the instant tax invoice

(A) It is necessary for a taxpayer to prove that a tax invoice on a part of the expenses reported by the taxpayer was prepared in a false manner without real transactions to the extent that it was proved by the tax authority to a considerable extent as to whether it is an actual cost and, in cases where the purpose of the expenses alleged by the taxpayer and the other party to the payment thereof have been proved to a considerable extent, and where it is proved that such expenses were actually paid, it is easy for the taxpayer to present data, such as books and evidence (see Supreme Court Decision 2007Du1439, Aug. 20,

(B) Although there is no financial material to support that the LL was paid in cash, etc. even though the amount paid to the health stand, D, etc. was a large amount of money to KRW 31,000, there is no financial material to support that the LL was paid in the cash (the entry of evidence No. 31, it is recognized that part of the LL was terminated in the name of D, F, 2005, and the name of F), and that it is insufficient to support payment only with the cash check, cash check, and deposit slip, and that O receives the tax invoice of this case from D, etc. at the time of criminal punishment by false tax invoices, the defendant submitted books before the disposition of this case, and that the other portion except for the portion of the LL insurance, national housing bond, and cashier's checks, and that the other portion of the tax invoice was not submitted by the tax authorities to the extent that it was insufficient to prove that there was a lack of evidence to prove that there was a lack of evidence to prove that the tax invoice of this case was issued by the plaintiff 95.

(2) As to the damage of books and computer files

Under the proviso of Article 68 of the Corporate Tax Act, and the proviso of Article 106 (2) of the Enforcement Decree of the same Act, the account books and other documentary evidence are destroyed due to natural disasters, and they are estimated under the conditions as prescribed by the Presidential Decree, and the difference between the net income on the balance sheet of the corporation and the net income on the balance sheet of the corporation shall be deemed other outflow from the company. According to Article 107 of the Enforcement Decree, and Article 104 (2) and Article 104 (2) 2 of the same Act, if the account books and other documentary evidence are estimated under the conditions as prescribed by the Presidential Decree, "I are destroyed or lost due to natural disasters or other force majeure." It is difficult to recognize that the account books and other documentary evidence of the Plaintiff were destroyed or lost, and that it is difficult to recognize that the account books and other documentary evidence were destroyed or damaged to the extent that they were destroyed or damaged, and that it is difficult to interpret the provisions of Article 13 subparagraph 1 (Deduction of Loss and Other Force Majeure.

3. Conclusion

If so, all of the claims of the plaintiff are dismissed, and it is so decided as per Disposition.