Early High Court Decision 2009J3701 ( December 15, 2009)

The entire end of a person who is not a taxpayer shall not be considered as a taxation data without a supplementary investigation.

A statement made by a person who is not a taxpayer in the course of investigation by an investigative agency or a tax authority is merely a unilateral statement, unless there is evidence that conforms to the statement or there is no complementary investigation such as confirmation of the facts about the taxpayer, and thus it cannot be deemed a taxation data for the taxpayer unless there are other special circumstances.

1. The Defendant’s imposition of value-added tax for the second period of August 1, 2006, 102, 651,290 won for the second period of value-added tax for the Plaintiff on August 1, 2009, and 13,73,010 won for the first period of value-added tax for the year of 2007, and 26,315,870 won for the special consumption tax for October 7, 2009, and 7,321,40 won for the education tax for the year of 2006, and 39,349,600 won for the special consumption tax for the year of 206, and 10,957,010 won for education tax for the year of 206, and the imposition of special consumption tax for the special consumption tax for the year of 206, 31,720,390 won for education tax for the year of 207, 3005 won for each.

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

The same shall apply to the order.

1. Circumstances of the disposition;

A. On August 2005, the Plaintiff was awarded a successful bid for the instant building at public auction at Suwon-si AAdong 1009-6 BBD (hereinafter “instant building”).

B. In the instant building, from September 19, 2006 to October 10, 2007, the “DDD” entertainment bars (hereinafter “DDD”) in the name of Non-Party RoCC were operated. During the same period, sales slips of the credit card sales amounting to KRW 10,123,182,00 were prepared in total over 1,118 times in the name of the instant main office.

C. However, the Suwon District Prosecutors' Office notified the Defendant of the fact that the Plaintiff, who was the actual operator of the instant main office for the purpose of evading taxes, established a business registration and a credit card merchant under the name of the UCC, and transferred the sales claims arising from the issuance of credit card sales slips to the Nonparty E.

D. Based on the above notice, the Defendant: (a) deemed the Plaintiff as the actual operator of the instant main store on August 1, 2009; and (b) imposed the Plaintiff the value-added tax of KRW 102,651,290 on August 1, 2006; (c) KRW 13,73,010 on the first term portion of value-added tax in 2007; and (d) imposed the special consumption tax of KRW 26,315,870 on August 7, 2009; and (b) KRW 7,321,40 on the education tax of KRW 7,349,60 on November 39, 206; and (c) KRW 10,957,010 on the special consumption tax of KRW 31,720,390 on the portion of December 31, 206; and (c) KRW 8,382,39,139,2007.

E. On October 5, 2009, the Plaintiff appealed to the Tax Tribunal, but was dismissed on December 15, 2009.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 (including branch numbers, if any) and the purport of the whole pleadings

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

A. The plaintiff's assertion

The plaintiff merely leased the building of this case to the "F President", and the actual operator of the main shop of this case is illegal each disposition of this case imposed on the plaintiff as the actual operator of the main shop of this case even though the plaintiff is not the actual operator.

B. Determination

(1) The following facts can be acknowledged according to each of the statements in Gap evidence 6 and Eul evidence 1 (including paper numbers).

① Although DaCC is not the actual operator of the instant main point, DaCC prepares a false lease agreement on the instant building in the name of DaCC, and DoCC has registered as the representative of the instant main point. ② CE provided the actual operator of the instant main point with the name of the operator of the mobile heat and the name of the credit card franchise store. ③ CE acquired credit card sales slips generated from the instant main point from the actual operator of the instant main point and paid the remainder to the actual operator in cash after deducting the amount equivalent to 13% of the sales amount from the sales amount. ④ In the process of undergoing an investigation into the said act at the Suwonnam Police Station as a violation of the Specialized Credit Finance Business Act, CE stated that the actual operator of the instant main point is the Plaintiff.

(2) On the other hand, the following facts are also acknowledged in light of the overall purport of the arguments in Gap evidence Nos. 3, 4, and 6 (including branch numbers).

① On October 21, 2005, the Plaintiff registered as a business operator to the effect that the instant building is running a real estate rental business. ② The Plaintiff paid KRW 4,818,397 in aggregate as value-added tax with respect to the said real estate rental business during the taxable period from July 1, 2005 to June 30, 2009. ③ The Plaintiff was not prosecuted with respect to suspected facts that the instant main store was leased from DaCC. ④ The Plaintiff was present as a witness of Suwon District Court 2009Guhap1816, and testified to the effect that “The actual operator of the instant main store is not the Plaintiff, but the Plaintiff stated that the actual operator stated the Plaintiff as the Plaintiff at the time of the police investigation.” On the other hand, the Plaintiff asserted that the instant building was leased to Da, but it was difficult to conclude that the instant building was leased to the president of the instant building due to an erroneous withdrawal or withdrawal of the pertinent complaint, and thus, the Plaintiff asserted that it was against the pertinent complaint.

In light of the above facts and the fact that the defendant was the person who had reached the disposition of this case on the basis of the details notified by the Suwon District Prosecutors' Office without any additional fact-finding as seen earlier, the former statement made by a person who is not a taxpayer in the course of investigation by an investigation agency or a tax authority is merely a unilateral statement made by the person who is not a taxpayer unless there is evidence that conforms to the contents of the statement or there is no complementary investigation such as confirmation of facts about the taxpayer, etc., and thus, it cannot be viewed as taxation data on the taxpayer unless there are other special circumstances (see, e.g., Supreme Court Decision 2009Du5022, Jul. 9, 2009). In full view of the above facts and the fact that the statement made in the process of investigation cannot be easily employed as evidence to acknowledge the fact that the plaintiff is the actual operator of the main office of this case, and the fact of recognition under the above paragraph (1) alone is insufficient to recognize that the plaintiff actually operated the main

(3) Ultimately, the Plaintiff’s assertion is with merit.

3. Conclusion

Since the plaintiff's claim for this case is well-grounded, I accept it.