Review Division 2009-0038 (2009.06.30)

Appropriateness of the assertion that there was no omission in purchase

Although it is alleged that there was no omission in purchase, if the entry of the Customer in the shipment statement is false, it was not disputed by denying the shipment statement at the time of the investigation, and the purchase statement was prepared on the basis of the shipment statement submitted by the informant and was not made voluntarily.

The contents of the decision shall be the same as attached.

Section AA

Gangwon-gu Director of the District Office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of value-added tax for the second period portion of 2003 against the Plaintiff on January 8, 2009 (204,967,200), value-added tax for the first period portion of 204 (5,140,850), and value-added tax for the second period portion of 204 (35,846,100) shall be revoked.

1. Circumstances of dispositions;

A. The Plaintiff is a business operator who runs the Do and retail business in the name of ○○○○○-dong 457-98, ○○○-dong, and △△△△△△.

B. As a result of conducting a tax investigation from October 6, 2008 to the 20th of the same month, the Defendant omitted sales from the second period of 203 (from July 1, 2003 to December 31, 2003), first period of 204 (from January 1, 2004 to June 30, 2004), second period of 204 (from December 1, 2004 to December 31, 2004), second period of 204 (from December 31, 2004 to 31, 204), 205 of the Enforcement Decree of the former Value-Added Tax Act (amended by 201,08, 205 to the Plaintiff’s total sales from the 1,018,891,076, 204, 209, 2018, 209, 209, 2019.

[Ground of recognition] Facts without any dispute, Gap 1,4,5 evidence, Eul 1,2 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i)In violation of the Regulations Prohibition of Re-Investigation (Dual Investigation).

Article 81-4 (2) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter referred to as the "former Framework Act on National Taxes"), Article 81-4 (2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter referred to as the "former Enforcement Decree of the Framework Act on National Taxes"), Article 63-2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010); Article 63-2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter referred to as the "former Enforcement Decree of the Framework Act on National Taxes") prohibiting a second investigation or duplicate.

Although the Plaintiff purchased the pet from △△, it did not have filed a value-added tax return by omitting the purchase fact, and the Defendant recognized that the Plaintiff omitted the purchase fact on the basis of only the following: (a) the Plaintiff did not present all the materials, such as the product principal documents, specifications, shipping certificates, and financial transaction materials, and without recognizing the value of evidence for the following reasons; and (b) the purchase statement (No. 2-2, hereinafter referred to as “written confirmation”) and the purchase statement (No. 2-3, hereinafter referred to as “the purchase statement

(A) On February 4, 2008 and around 4, 2008, the largest BB and Jung-CC, a certified tax accountant in △△, who is the representative director of △△△, requested the Plaintiff to sign the instant confirmation document and the purchase statement, stating that “The Plaintiff, who was subject to the investigation of △△, was entrusted to sell to other Do and retail and sold it, shall pay on behalf of the Plaintiff the amount of taxes on the commission and commission fees.” The Plaintiff, who was unable to refuse the request of △△, a large enterprise, requested the Plaintiff to sign the instant confirmation document and purchase statement, and the Plaintiff, who was aware that the said written confirmation and purchase statement, stated that “the Plaintiff, while receiving a return of value-added tax by supplying Do and retail from △△, was omitted.” Ultimately, the said confirmation document and purchase statement, knowing that “the Plaintiff, who was a large enterprise, signed the said confirmation document and purchase statement, entered the Plaintiff’s name and seal in the purchase statement or purchase statement.”

(B) According to the purchase statement of this case, the transaction amount between the Plaintiff and △△ in comparison with the transaction amount before and after the investigation period was conducted, and the Plaintiff did not have paid a large amount of goods in 2003 and 2004.

(C) No part of the completes indicated in the purchase statement of this case, such as shipclass ms, shall be sold only in large stores, such as department stores or sets, and they are handled by the Plaintiff.

(b) Relevant statutes;

It shall be as stated in the attached statutes, etc.

(c) Fact of recognition;

(1) When the ○○○ Regional Tax Office submitted a detailed statement of the release of the goods to the ○○○○ Branch of Korea (hereinafter referred to as the “written statement of the release of the goods”), which was held by the ○○○ Branch of Korea, and as part of the document, the ○○ Branch of Korea issued a false tax invoice to other companies than the purchasing company, instead of issuing the tax invoice.” The tax investigation was conducted with regard to the ○○ Branch of Korea.

(2) According to the Shipment statement of this case, the total amount of the shipment amount of △△ from January 1, 2003 to December 31, 2004, 11,45,004,071 won, which is the investigation period, is 4,54,479,643 won (the ex-factory amount is calculated by multiplying the shipment amount stated in the above Shipment statement by the unit price of the shipment for each product). Of the total shipment amount, the amount of the tax invoice issued is merely 4,211,046,996 won, and the amount of the tax invoice issued for the plaintiff is merely 88,454,88 won.

(3) During the above tax investigation process, △△ recognized the fact that the tax invoice was not issued for the total amount of KRW 7.243.957.075 (total amount of KRW 11,455,04,071 - the amount of KRW 4,211,046,996) equivalent to the total amount of KRW 3,366,166,500,000,000,000 in total as stated in the specifications of the shipment of this case, etc.

(4) On February 2008 and April 2008 of the same year, LB and PCC requested or recommended the Plaintiff to process that “if the Plaintiff handled 3,689,024,755 won, excluding the amount of KRW 888,454,888, which was the shipment amount of KRW 4,577,479,643, the Plaintiff issued the tax invoice to the Plaintiff, as the sales amount of KRW 3,689,024,755, which was the amount of the delivery amount of KRW 4,643,00,000,000,0000,000 won, would not exceed KRW 1,20,000,000,000,000,000 won, but it was difficult to recognize the consignment transaction due to the lack of relevant data such as the above entrustment contract or payment of fees, it found that ○○ regional tax office omitted the sales amount of KRW 3,689,024,755.

(5) The employee of the ○○○ Regional Tax Office made an X-cell file by adding the shipment price of each product to the instant shipment statement so that it can adjust the shipment details by trade line, and the instant purchase statement (the title is referred to as “purchase statement,” but its content is referred to as “sales statement,” which is referred to as “sales statement,” which is referred to as “sales statement,” to the Plaintiff in ○○○○○○○○○ Tax Office) separately arranged and printed out only the shipment details of the Plaintiff (△△△△△) from the above X-cell file. On April 208, 208, DaD, a person in charge of △△△△△△△, who is the Plaintiff’s dong and △△△△△△△, was affixed to the instant confirmation document stating the following contents, and was signed directly by the Plaintiff after the lapse of two to three days:

(6) On April 2008, △△△ was imposed a fine of KRW 320,169,820 on the ground of a violation of the duty to issue the tax invoice, and the Plaintiff was subject to the instant disposition from the Defendant on January 8, 2009.

(7) On March 24, 2009, the Plaintiff asserted that the product that was purchased by the Plaintiff without receiving the tax invoice was sold by the consignment transaction method, and that the Plaintiff is not aware of the details of the transaction and that the tax invoice should be received between △ and Do retail. However, on June 30, 2009, the Plaintiff was dismissed on June 30, 2009.

(8)On the other hand, among the companies which were subject to the imposition of value-added tax on the grounds of the omission of purchase from △△, the remaining companies other than the Plaintiff did not object to the imposition of value-added tax, and among which △△△, △△△, △△△, etc., the Plaintiff signed the instant confirmation document stating the fact that the Plaintiff is a consignment transaction against △, and subsequently filed a complaint against the Plaintiff under the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by deceiving the Plaintiff to the effect that he would make a substitute payment of taxes on the face of the State, and by deceiving the Plaintiff to the effect that the Plaintiff would make a substitute payment of taxes on the face of the State, and by deceiving the amount equivalent to the value-added tax and global income tax, the Plaintiff was charged with violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

[Ground of recognition] Facts without any dispute, Gap 1,4,5 evidence, Eul 1 through 8 (including various numbers), Eul 9-9's evidence 1,2,4,9,10,11,14 through 18,20, each part of Eul 9-3,12,13, and19, Eul 5's testimony, witness -D's partial testimony, and the purport of the whole pleadings

D. Determination

(i)In respect of the assertion that the prohibition of re-investigations (Dual Investigations) is violated;

Considering the overall purport of arguments in the statement No. 2-4, No. 10-2, No. 10-2, No. 11-2, and No. 12, the second tax investigation conducted for the same period as the investigation period after about 4 months have elapsed since the first tax investigation was conducted as the plaintiff's assertion, however, according to the above evidence, the first tax investigation is acknowledged as being conducted for the following reasons: (a) regardless of its title, the public official holding "on-site confirmation certificate" did not constitute "on-site verification certificate" for the handling of value-added tax data or the collection of evidentiary materials for the plaintiff; (b) the public official's "on-site verification" did not constitute "on-site verification under Article 3 subparag. 2 of the Regulations on the Processing of Investigations; (c) the second tax investigation does not constitute "on-site investigation" under Article 81-4 (2) of the former Framework Act on National Taxes; and (d) the second tax investigation does not constitute "on-site investigation" under Article 81-4 (2) of the former Framework Act.

(2) As to the assertion that there was no omission in purchase

If a tax authority received a written confirmation from a taxpayer that a certain portion of a transaction is a processing transaction in the course of a tax investigation, barring special circumstances, such as that it is difficult for the taxpayer to take the written confirmation as evidence of the specific fact due to forced preparation against his/her will or the lack of the content thereof, the evidence of the written confirmation cannot be readily denied (see Supreme Court Decision 2001Du2560, Dec. 6, 2002).

In full view of the above facts and the following circumstances acknowledged by the evidence as to this case, since it is difficult to see that the confirmation document of this case with the content of the person who omitted purchase was forced against the plaintiff's will or by deception of △△, or there is no other special evidence to deny the value of the above confirmation document due to the lack of its contents, it is difficult to consider it as evidence. Thus, the above confirmation document and purchase statement are based on the above confirmation document and purchase statement, and the plaintiff filed a value-added tax return after he purchased the full payment from △△, from △△, from 2003 to December 31, 2004, on the ground that the above confirmation document and purchase statement were not submitted, and the above disposition of this case was not made on the ground that the plaintiff omitted purchase of KRW 282,534,767, 204, and KRW 1,89,045,200.

(A) The purchase statement of this case is prepared on the basis of the specifications of the shipment of this case submitted by the informant, and is not a document prepared at will on the part of △△, which was undergoing a tax investigation. As long as the content of the confirmation and purchase statement of this case conforms to the content of the informant’s information, the Plaintiff’s recognition of the above confirmation and purchase statement does not lead to a more favorable position in its tax investigation.

(B) If the Plaintiff’s assertion was falsely entered in the statement of the shipment of this case, △△ did not dispute it by actively denying the statement of the shipment at the time of the tax investigation with regard to itself, and the Plaintiff did not assert that “the complete devices equivalent to the purchase amount of the tax invoice received are purchased from △ and the complete devices equivalent to the purchase amount of the tax invoice not received are consigned,” and did not assert to the effect that, as in the lawsuit of this case, it did not have any fact that there was no transaction of complete implements equivalent to the purchase amount of the tax invoice received.”

(c)In addition, in light of the fact that the transaction between the Plaintiff and △△ is a simple transaction rather than a consignment transaction and that there is a purchase amount not received by the tax invoice, it is difficult to view the Plaintiff as signing on the confirmation document and the purchase statement, solely on the ground that △ has recommended or demanded the Plaintiff to treat the purchase amount not received by the tax invoice as a result of the consignment transaction.

(D)On the other hand, the Plaintiff cannot believe that the transaction performance before and after the investigation period (see evidence A, 2,3,6, and 12) was excessively excessive compared to the transaction performance, but it is difficult for the Plaintiff to unilaterally prepare the instant confirmation document and the purchase statement to believe that the said transaction performance did not have any investigation conducted by the tax authorities, etc., and therefore, the value of the said confirmation document and purchase statement cannot be denied for this reason.

(e)In addition, in light of the fact that at the time of the request for review, the Plaintiff stated that the purchase-related data, such as the product principal documents, etc., were not remaining because they were immediately discarded upon the termination of the transaction (see, e.g., the “applicant” in the judgment on the evidence No. 1), and that △△ appears to have received the price mainly by cash settlement as to the transaction for which no tax invoice was received at the time (see, e.g., evidence No. 9-14 to 17), it cannot be deemed that the Defendant failed to prove that the Plaintiff did not produce the financial transaction data, etc. on the product principal documents, specifications, shipment certificates, and payment other than the above confirmation and purchase specifications

(f)It cannot be ruled out that, as the Plaintiff’s assertion, certain items, such as crates, among the pets listed in the purchase specifications of this case, are sold only in a department store or a large store such as crates, the possibility that the Plaintiff only sold in a large store, without receiving a tax invoice, can not be ruled out. Accordingly, the value of the evidence of the instant confirmation and purchase specifications cannot be denied on this ground.

3.In conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.