Whether service fees on credit card sales slips constitute a substitute

In the relevant criminal case, the judgment became final and conclusive that the service fee cannot be deemed as the principal agent, and the service fee on credit card sales slip was proved to be the actual service fee, and the initial disposition of imposition, which is within the scope of the legitimate tax amount, was made to be recognized by the accounting account book, was legitimate.

Article 48 of the Enforcement Decree of the Value-Added Tax Act

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The decision of the first instance is revoked. The defendant's disposition of imposition of 219,859,310 won of global income tax listed in the attached Table No. 1 of the attached Table No. 1 against the plaintiff Lee 00 on December 11, 1998, the disposition of imposition of 267,210,180 won of total value-added tax listed in the No. 4 through 6 of the same Table as of December 9, 1998 against the plaintiffs, and the disposition of imposition of 475,131,110 won of each special consumption tax and education tax listed in the No. 8 through 10 of the same Table as of December 16, 1998 shall be revoked.

1. Details of the disposition;

A. The Plaintiffs have been operating an entertainment drinking club, which is an entertainment drinking club (hereinafter “instant workplace”) in the underground of 000 000 - 000 - 000 - 000 - 00 - 00 - 00 -.

B. Around October 7, 1998, the office of 00 branch offices of the 00 district public prosecutor's office (hereinafter referred to as "0 branch offices") conducted search, seizure, etc. of the instant establishment on the grounds of criminal facts that the plaintiffs evaded the special consumption tax, value-added tax, etc. by issuing credit card sales slip under the disguised credit card merchant name and omitting sales. On the 25th of the same month, the defendant (the disposition office of this case was 00 head of the tax office, but the disposition office of this case was integrated into 00 years old, around September 19999, the defendant succeeded to the authority of 1,053,67,343 won, 4,812,59,340 won, 26,863,636 won, etc., total of 26,839, 198, 1039, 1039, 310, 47, 199.

Accordingly, on October 27, 1998, the Defendant accused the Plaintiffs on the ground of the instant accounting books, etc. on the grounds that the Plaintiffs were evading total of KRW 3,412,553,827 from 1996 to 1998 by omitting sales of KRW 5,893,10,319 with respect to the instant workplace from 196 to 1998. On the other hand, on November 1, 199 of the same year, the Defendant filed an accusation against the Plaintiffs on the grounds that the Plaintiffs were evading total of KRW 3,412,53,827, including value-added tax, special consumption tax, education tax, and global income tax. On the other hand, on the other hand, the Defendant notified the Plaintiff 00 of the omitted amount of income accrued to the said Plaintiff’s global income tax amount of KRW 96,612,587 and the global income tax amount of KRW 476,09,764 for the remainder of the Plaintiffs

C. With respect to the fact of tax evasion filed by the Defendant, the Administration: (a) deemed that there is insufficient evidence that the accounting books of this case only secure part of the accounting books of this case; and (b) instead, the Plaintiff’s 00 entered part of the principal share in the credit card sales slips as if he were the service charges for the loan while operating the instant business establishment; (c) notified the Defendant of the aggregate of KRW 4,632,145,323 of the service charges on the credit card sales slips from January 3, 1996 to June 30, 198 (i.e., KRW 1,960,043,505 + KRW 1,766,420,809 + KRW 905,809, + KRW 905,000; and (d) notified the Defendant of the facts charged related to global consumption tax and KRW 214,214,532,79,797 and KRW 305,797.7.7.75.7).7.7.7.20.

D. According to the above notified taxation data, on December 9, 1998, the defendant notified the plaintiffs of the correction of each value-added tax (including each additional tax) from No. 1 to No. 1, 1996, as stated in the separate sheet No. 2 to No. 1, 1998, and on December 12, 1998, notified the plaintiff Lee 00 of the global income tax (including the additional tax) for the global income tax for the year 197, among the global income tax that was notified of correction as described in the above paragraph No. 1, and notified the remaining plaintiffs of the corrected amount of income to notify the district tax office having jurisdiction over the correction of the comprehensive income tax.

In addition, on December 16, 1998, the plaintiffs notified the correction of special consumption tax and education tax (including additional tax) from the reported portion of January 1997 (as to the omitted amount of sales in 1996) to the reported portion in June 1998 (hereinafter "each disposition of this case" in the attached Form Nos. 1, 4 through 6, 8 through 10 for which the plaintiffs seek cancellation in the attached Table).

[Evidence] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 4-1 and 5-3 (the same shall apply to Eul evidence Nos. 1-1 through 3), Gap evidence Nos. 9-1, 2, Eul evidence Nos. 2-1 (the same shall apply to Gap evidence Nos. 4-2), 2 (the same shall apply to Eul evidence No. 6), 3-1 through 3, Eul evidence Nos. 4-1 through 4, 5-1 through 4, Eul evidence Nos. 12-1 through 14, Eul evidence Nos. 13-1, 2, and Eul evidence Nos. 14-1 through 5, the purport of the whole pleadings, and the purport of the whole pleadings.

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

A. The defendant's assertion

The service charges stated on the sales slip of the credit card sales slip of the instant business place is merely a false entry of all or part of the share of the share of the Plaintiff as service charges in order for the Plaintiffs to evade taxes, and even if not, as the original market book on sales, the omitted amount of sales recognized by the accounting book, etc. of this case, which is recorded as the true fact, exceeds the total amount of service charges stated on the credit card sales slip, and thus, each disposition of this case is legitimate

B. The plaintiff's assertion

(1) Since service charges on credit card sales slips are not principal charges but service charges paid to entertainment loans, each disposition of this case on the premise that the above service charges are principal charges is unlawful.

(2) The omission of sales based on the accounting books, etc. of this case is not identical to the original grounds and facts of each disposition of this case. Thus, the grounds for each disposition of this case cannot be asserted.

In addition, the accounting account book of this case is recorded falsely in order to sell the shares of the place of business of this case to Japan through the 000 B/S 000, and thus, it cannot be the evidence of omission of sales.

In addition, the Defendant, on November 1, 1998, issued a tax disposition based on the instant accounting book, but revoked the tax disposition based on the instant accounting book on December 9 and December 16, 199, but it violates the principle of trust and good faith to reverse this disposition and make a new tax disposition based on the instant accounting book, etc. or to use it as the basis for each of the instant dispositions.

Since the submission of the revenue daily report and the revenue settlement statement among the Defendant’s accounting books of this case is submitted by the means of defense during the actual period, it shall not be admitted as evidence.

C. Relevant statutes

It is as shown in the attached Form.

(d) Facts of recognition;

(1) Of the credit card sales amount of KRW 4,818,877,300 in the instant business place in 1996, service charges of KRW 1,960,043,50 in the amount of KRW 5,234,249,628 in the amount of credit card sales in 197 (i.e., KRW 1,766,420,809 in the amount of KRW 1,766,420,809 in the amount of KRW 193,821,06 in the amount of KRW 193,82,59,803 in the amount of KRW 2,200,767,50 in the amount of KRW 1,998.

(2) In the criminal investigation process of the relevant criminal case, the plaintiff 00 reported to the person in charge of accounting as at the time of the commencement of the business's management that "the rate was 45%" and the plaintiff 45% of the total service charges under the credit card sales slips of the present business owner was 70% of the total service charges under the credit card sales slips of the present business owner, and about 30% of the total service charges were actually paid to the actual service provider. The plaintiff 100, 100, 200, 200 et al. were reported to the effect that "the service charges of the present business establishment were 45% of the total service charges, and 45% of the total service charges were arranged for all sales proceeds in the future, and the defendant 100, 200, 300, 200, etc. were to be issued with the credit card sales slips under the name of a disguised member store or franchise store, and 200, 200, 3000,000.

The facts charged in the relevant criminal case have been changed by omitting the sales amount of KRW 4,632,145,323 in the credit card sales slip of the instant business establishment from January 1, 1996 to December 31, 1998 as if the Plaintiff were a service fee for a loan (= KRW 1,960,043,505 + KRW 1,766,420,809 + KRW 905,000 + KRW 1,766,420,809 in 197 + KRW 905,681,09 in 1998) by omitting the sales amount of KRW 1,937,574,247, including value-added tax, special consumption tax and global income tax, and global income tax.

Although the first instance court's 00 branch court's 00 branch court's 00 branch court's 00 branch court sentenced guilty of the above facts charged, the appellate court's 00 court (200No714) acquitted of the above facts charged on September 19, 2001 on the ground that there is insufficient evidence to view the service charges on credit card sales slip as the principal. The above judgment became final and conclusive by the prosecutor's appeal was dismissed (2001Do505) on February 22, 2002.

(3) The tax base of the instant business place prior to each of the instant dispositions was calculated as KRW 1,97 upon the Plaintiffs’ report, etc., 1,915,238,387,238,2386, and KRW 1,334,791,580 in 198. The sales amount of the instant business place was calculated as KRW 1,334,791,580 in 1998. However, if the sales amount was re-calculated based on the accounting books of this case, the sales amount exceeded KRW 3,350,874,891 in 3,000 in 20,000 for KRW 3,350,636,50 in 198,000 in 30,000,000 won in 20,000 won in 1,435,636,891 in 29,000 in 197.

(4) Of the instant accounting books, daily revenue report, revenue and expenditure statement, etc., were printed out on the computer hard disc confiscated confiscated by the 00 branch office of the instant workplace’s accounting office. The daily revenue report remains only from November 1, 1997 to January 5, 198, which is the account book specifically arranged daily sales and inputs by each business owner from the accounting office of the instant workplace. The monthly revenue settlement statement remains from the account book of the instant workplace’s accounting office, including sales, revenue card, provisional payment, etc. on a monthly basis, and the provisional payment, sales, sales, wages, and shareholders’ profit distribution, etc. from October 21, 196 to October 21, 200, respectively.

[Evidence] Evidence of subparagraphs 6 through 8, Eul evidence of subparagraph 9-1, 2, 10, 11, Eul evidence of subparagraph 12-1 through 6, Eul evidence of subparagraph 14-2, Eul evidence of subparagraph 2-1, 2, Eul evidence of subparagraph 7-1 through 4, Eul evidence of subparagraph 9, Eul evidence of subparagraph 12-4, 5, 7 through 12, Eul evidence of subparagraph 13-1, 14-1 through 5, Eul evidence of subparagraph 15-1, 15-2, Eul evidence of subparagraph 16-1 through 7, Eul evidence of subparagraph 20-1 through 9, Eul evidence of subparagraph 21-1, 2, Eul evidence of subparagraph 35 through 39, Eul evidence of subparagraph 4-1 to 4, Eul evidence of subparagraph 5-1, evidence of the court of first instance, Eul evidence of subparagraph 4-1 to 5-4, evidence of subparagraph 5-1 to 30-4, evidence of the court

E. Determination

(1) Whether service charges on credit card sales slips are substituted by sales slips

(A) As a matter of principle, it is presumed that the amount stated as a service charge separately from the sales amount of credit card sales slip constitutes a service charge under the Value-Added Tax Act or the Special Consumption Tax Act excluded from the tax base of value-added tax, special consumption tax, etc., so the burden of proving that the service charge on credit card sales slip is not an actual service charge

다만, 그 입증의 정도에 있어서 증거자료 획득 및 제출의 곤란성에 비추어 과세관청으로서는 각 신용카드매출전표상의 봉사료가 실제 봉사료가 아니라는 것을 일일이 입증할 필요는 없고, 위와 같은 추정을 깰 수 있을 정도로 입증하면 족하다고 할 것이며, 이와 같이 신용카드매출전표상의 봉사료가 실제 봉사료라는 추정이 깨어지면, 사업자로서는 신용카드매출전표상의 봉사료가 실제 봉사료로서 종업원에게 지급되었음을 입증하여야 한다고 할 것이다

(B) In light of the Plaintiff 00’s statement in the relevant criminal case, there may be room to regard the service charges on the credit card sales slips of the instant business establishment as part of the principal, not the service charges actually paid to the service provider, but the service charges on the credit card sales slips of the instant business establishment. However, in the relevant criminal case, the judgment became final and conclusive that the service charges cannot be deemed as the principal agent in the relevant criminal case, and thus, the service charges on the credit card sales slip shall be deemed as having

Therefore, each of the dispositions of this case based on the premise that the plaintiffs omitted sales by way of entering the note in the credit card sales slip as service fees, is unlawful in this respect.

(2) Whether the omission of sales based on the instant accounting account book, etc. was recognized

(A) The determination of facts in the relevant criminal judgment is a flexible evidence in a civil trial, etc., barring special circumstances. However, in a civil trial, etc., where there are reasonable grounds that it is deemed difficult to adopt a judgment of a criminal judgment in light of other evidence submitted during the pertinent litigation process, the court may reject the determination of evidence (see, e.g., Supreme Court Decision 93Da30129, 30136, Mar. 10, 1995). Furthermore, since the subject matter of a tax disposition is objective and objective, if the tax authority is in the proceeding of a lawsuit, even if the relevant materials were in existence at the time of the closure of arguments at the time of the closure of arguments at the fact-finding trial, and if the same item of tax is within the same taxation unit, the tax authority may submit new materials that can support the legitimacy of the tax base or amount of tax recognized in the relevant disposition (whether it concerns cash sales, whether it is related to credit card sales or cash sales) or exchange and change the relevant reasons within the scope of maintaining the identity of the disposition (see, 20019Du14, etc.

However, even if it is recognized that the portion entered as service fees on credit card sales slips was not the principal price, but the actual service fees, as seen above, if it is found that there was an omission in sales based on the accounting records, etc. of this case, the grounds for each disposition of this case can be deemed as the grounds for each disposition of this case. On the other hand, in light of the above legal principles, the plaintiffs' assertion that the accounting records, etc. of this case cannot be used as the grounds for each disposition of this case cannot be accepted. According to each entry on the accounting records, etc. of this case, according to the accounting records, etc. of this case, the fact that the omission in sales exceeds the total amount of service fees on credit card sales slips of this case in the first and second years of 197, and 198, exceeds the total amount of each service fee on credit card sales slips of this case as seen in paragraph (3) of the above 2. D. As such, even if there is a defect found to be erroneous for the defendant to do so, each disposition of this case is legitimate.

(B) As to this, the Plaintiffs asserted that the instant accounting book, such as the revenue report, is a false book that requires the Plaintiffs to make up for the cash sales with the aim of selling the shares of the instant business establishment in excess of the amount of cash sales to Japan through 000 believerss, so it is difficult to believe in light of the following circumstances, each of the statements in No. 12-1, No. 12-6, and No. 13-1, and No. 13-2, No. 10, No. 11, No. 13-1, No. 13-2, and No. 29, and the testimony of the first instance trial witness is insufficient to recognize it, and there is no other evidence to acknowledge it.

Rather, even if the above statement of revenue card sales and revenue card sales amount was 00,000 won for 2 months, the above statement of 10,000 won and 2,50,000 won for 10,000 won for 20,000 won for each of the above statement of accounts (the above statement of 00,000 won for 10,000 won for 10,000 won for 10,000 won for 60,000 won for 10,000 won for 60,000 won for each of the above statement of accounts, 70,000 won for 10,000 won for 6,00 won for 10,000 won for 6,00 won for each of the above statement of accounts. Such statement of 0,000 won for 10,000 won for 6,00 won for 16,000 won for each of the above statement of accounts, 96,0,06,0.

(C) In other words, the Plaintiffs asserted that: (a) the Defendant issued a tax disposition based on the instant accounting books on November 1, 1998; (b) the Defendant revoked the instant tax disposition based on the instant accounting books on December 9 and December 16, 1998; (c) but (c) the reversal of the instant tax disposition based on the instant accounting books, thereby making a new tax disposition based on the instant accounting books or serving as the basis for each of the instant dispositions as the grounds for the instant

In this case, the principle of trust and good faith applies only to cases where there are special circumstances deemed that the protection of taxpayer's trust is consistent with the concept of justice even if it sacrifices the principle of legality (see, e.g., Supreme Court Decision 2001Du1253, Oct. 25, 2002). To apply such principle, the first tax authority must express the public opinion that is the subject of taxpayer's trust; second, there is no reason for taxpayer to believe that the taxpayer's opinion is legitimate; third, the taxpayer should trust the name of the opinion; third, the taxpayer's interest should be infringed by the disposition against the above statement of opinion; fourth, the tax authority's disposition against the above statement of opinion, which is contrary to the above statement of opinion. The defendant's disposition of tax correction on November 1, 1998, which was made later, and thus revoked each disposition of tax correction based on the accounting book of this case, and thus, it cannot be viewed that the defendant did not express its opinion that it is the subject of taxpayer's trust in the education tax of this case.

(D) The plaintiffs asserts that the submission of the revenue daily report and the revenue settlement table among the Defendant's accounting books of this case is the submission of the means of defense by the actual time limit, and thus, they shall not be admitted as evidence.

In light of the above, the court may dismiss the method of attack and defense which was submitted late at the time of the party's intention or gross negligence when it is acknowledged that the method of attack and defense would be delayed the conclusion of the lawsuit, and it may be done not only in the form of independent decision but also by the method of determining it among the reasons for the judgment. However, if the court has completed the examination of evidence as to the method of attack and defense without a decision of rejection as to the method of attack and defense of the party, it does not have any possibility of delaying the conclusion of the lawsuit. Thus, in such circumstances, it cannot be decided to dismiss the means of attack and defense of the party (see Supreme Court Decision 2003Du988, Apr. 25, 2003). Thus, it is evident that the above revenue report, and the statement of accounts settlement was submitted as evidence after the lapse of two years from the date of filing the lawsuit, but it cannot be delayed due to the completion of the examination without the dismissal by the court of the first instance. Thus, the above assertion on the premise is without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed because they are without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiffs' appeal is dismissed in entirety.