Seocho 208west 3169 ( October 31, 2008)

The omission of cash sales, the use of borrowed accounts, and the false recording of account books is the act of fraud or other improper means.

false entry in books, repeated use of multiple borrowed accounts, and issuance of tax invoices with intent to evade value-added tax is an intentional omission in the return of value-added tax at the time of filing the final return of value-added tax.

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

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's imposition of value-added tax for the first term of March 7, 2008 against the plaintiff on March 7, 2008 and each disposition of KRW 40,380,130 for the first term of 202 and value-added tax for the second term of 2002 is revoked.

1. Circumstances of the disposition;

A. From September 1, 1997, the Plaintiff is an individual entrepreneur who runs a restaurant called ‘Yongdong-dong ○○○○○○○○○○ (Gu △△△△, hereinafter referred to as the “instant place of business”).

B. On March 7, 2008, the Defendant issued each of the instant dispositions imposing value-added tax 40,380,130, value-added tax 42,210, and value-added tax 42,210 for the second half year of 2002, on the ground that the Plaintiff’s tax investigation on the instant business establishment revealed that the amount omitted in cash sales in the first year of 2002 was 190,02 and 206,79,790,000 won in cash sales in the second year of 202.

[Ground for Recognition: Facts without dispute, Gap evidence 2 (including paper numbers; hereinafter the same shall apply), Eul evidence 1, the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The parties' assertion

The plaintiff asserts that the disposition of this case was unlawful since five years have passed since the tax liability became extinct at the time of the disposition of this case.

As to this, the Defendant asserts that the imposition and collection of taxes was considerably difficult due to the Plaintiff’s act of submitting a false seller’s tax invoice, which is less than the actual purchase amount, so that the Plaintiff did not know the fact of underreporting the sales amount, and that such act constitutes fraud and other subordinate acts, and thus, the exclusion period for the imposition of value-added tax should be deemed 5 years but 10 years. Accordingly, the instant disposition is lawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) When the Plaintiff reported value-added tax in 2002, the Plaintiff filed each under-reported the first period sales amounting to KRW 87,663,00 (190,024,182 out of cash sales) and the second period sales amounting to KRW 76,362,574 (206,798,909 out of cash sales).

(2) The Plaintiff underreporting the sales revenue as above, underreporting or omitting necessary expenses, such as raw material costs, etc. corresponding thereto, and accordingly submitted a list of total tax invoices written under-reported and under-reported than the actual input tax amount for the year 2002. The details revealed as follows.

【Ground for Recognition: Facts without dispute, Gap evidence Nos. 3, Eul evidence Nos. 2 and 3, the purport of the whole pleadings】

D. Determination

Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 9259, Dec. 26, 2008; hereinafter referred to as the "Framework Act on National Taxes") provides that the exclusion period for the imposition of national taxes shall be ten years from the date on which the national taxes may be imposed if a taxpayer evades, refunds, or deducts national taxes by deceit or other unlawful acts; seven years from the date on which the national taxes may be imposed if a taxpayer fails to file a tax base return within the statutory due date of return (subparagraph 2); five years from the date on which the national taxes may be imposed; 30 years from the date on which the national taxes may be imposed; 20 years from the date on which the tax base return may be imposed; 30 years from the date on which the tax base return may be imposed; 40 years from the date on which the tax base return may be imposed; 20 years from the date on which the former Punishment of Tax Evaders Act (amended by Act No. 8138, Dec. 30, 2006). 200

According to the above facts, the Plaintiff’s failure to issue a tax invoice to a customer for cash calculation with the intent to evade the value-added tax on cash sales was intentionally omitted in the return of value-added tax, and the Plaintiff received a tax invoice at an amount less than the actual transaction amount through prior consultation with the food materials buyer, etc. to make the tax evasion impossible. Accordingly, it is recognized that the Plaintiff’s act constitutes “Fraud or other unlawful act” as an active act that makes it impossible or considerably difficult to impose taxes and to make it difficult.

Therefore, the exclusion period of imposition of the first and second half of the tax year 2002 against the plaintiff is ten years. The defendant's disposition of this case is clear that the disposition of this case was made before ten years from the following day of July 25, 2002 and January 25, 2003, which is the period for the final return of each of the above value-added tax. Thus, the disposition of this case was made within the exclusion period of imposition of the national tax.

3. Conclusion

Inasmuch as the plaintiff's claim is groundless, it is dismissed.