Whether or not the exclusion period of imposition can be applied as a service fee of this case, and whether the exclusion period of imposition is 10 years.

원고가 마담의 목표 매출액의 15〜20% 상당액을 미리 주는 마담 PR비는 마담이 공급하는 유흥접객원을 통해서 원고가 목표 매출액을 올리는 것을 조건으로 하는 원고와 마담사이의 매출계약의 계약금으로 봄이 타당하고 적극적 은닉의도가 분명하게 드러나는 원고의 과소신고행위를 '부정행위'로 보아 장기부과제척기간과 부당과소신고가산세를 적용한 이 사건 처분은 적법함

Article 13 of the Value-Added Tax Act

2017Guhap74191 Revocation of Disposition of Imposition of Value-Added Tax, etc.

AA and 1

F. F. Tax Office et al. 1

December 21, 2018

on October 15, 2019

1. The plaintiff's claims against the defendants are all dismissed.

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

Cheong-gu Office

1. The amount of the tax imposed by Defendant BB Head of the tax office (attached Form 1) on the Plaintiff on the date of each "disposition" listed in the 1-3 list shall be revoked in all exceeding the amount stated in the "political tax amount" column.

2. On December 7, 2010, the notice of imposition on the Plaintiff (attached Form 1) No. 4’s Schedule that the head of the DefendantCC Tax Office imposed on the Plaintiff on the Plaintiff on December 7, 201 X is revoked in all of the parts exceeding the respective amount indicated in the “political tax amount” column.

1. Details of the disposition;

A. The Plaintiff and DD jointly run an entertainment drinking house business (room harassment) with the trade name of 20 XX. X. from X. to X. 20 XX. from 16, Seoul FF-Gu FF-702-16 to GG's 1st underground floor (former HH), from 200 XX. X. to x. X. of the same building to 20 XX. X. X., from 20, to 20, from 20, from 20, X., to x. X. of the same building, the Plaintiff and DD jointly carried out an entertainment drinking house business (room harassment) with each JJ as its business owner.

B. The chief prosecutor of the Seoul Central District Prosecutor’s Office requested the head of the Seoul Central District Prosecutor’s Office to file a criminal charge against the Plaintiff on the ground that the Plaintiff was guilty of evading business income tax, value-added tax, and individual consumption tax (tax) during the actual process of operating the 20 XX. XX. from 201X-X-E-E-E-E-E-E-E-E-E-E-S-E-E-E-S-E-E-S-E-S-E-S-E-S-

C. The director of the Seoul Regional Tax Office, upon conducting a tax offense investigation on the key place of business from X. X. 200 to XX. 200, performed the tax offense investigation on the key place of business, filed a complaint with the Plaintiff as a suspicion of tax evasion, and filed a complaint with the Seoul Central District Public Prosecutor’s Office on around October 201 X., on the grounds that the Plaintiff and DD distributed the proceeds to 7:3 percentage while operating and operating the key place of business in disguisedly under the name of JJ, and by falsely and excessively appropriating the service fees that were omitted or not paid in cash sales, the sum of the proceeds from 200,000 won from 20:0 to 200:0,000 won from 20:0,000 won from 20:0 won from 20,000 won from 20,000 won from 20, and notified the Defendants of the relevant taxation data.

D. Defendant FF director of the tax office notified the Plaintiff of the total value-added tax amount of KRW 000 (including additional tax), the total amount of individual consumption tax and education tax for X from X in 200 X to X in 200 XX, and the total amount of KRW 000 (including additional tax) for the individual consumption tax and education tax for the period from X in 200X to X in 200 X, and the head of the tax office of the tax office of the DefendantCC notified the Plaintiff of the total amount of KRW 000 (including additional tax) for the global income tax for the period from X in 200 to 20X (hereinafter referred to as “the first disposition”).

E. The Plaintiff appealed to the Tax Tribunal on X. XX. The Tax Tribunal rendered a decision that the assessment of global income tax amount of KRW 000 (including additional tax) accrued from 200X to 200 X. X. that the DefendantCC Director reported to the Plaintiff on X. 201X to the Plaintiff on October 201 X. The tax Tribunal made a decision that the assessment of global income tax amount of KRW 000 (including additional tax) shall be conducted by re-assessment of the malimaticPR cost payment specifications and the cost of off-the-counter expenses (charges) that the Plaintiff submitted on an annual and personal basis, and the cost of off-the-annual expenses that the Plaintiff submitted on the monthly settlement table, thereby correcting the tax base and the tax amount according to the results, and dismissed the remainder

F. According to the results of a reinvestigation conducted from X. XX. to X. XX. 201X., DefendantCC director recognized 00 million won as necessary expenses for attracting customers and managing entertainment reception workers, the amount of labor cost of KRW 00 million, which was verified in the sale daily newspaper, was also recognized as necessary expenses, and the amount of KRW 000,000,000,000,000,0000,000,000,000 won (including additional tax) accrued from X.X. 200 to 201 XX.

(g) On October 10, 201 X. 10, in the course of the instant lawsuit, there is an error in the tax base by some taxable periods (the total amount of the tax base is the same) as indicated in the table below, the head of Defendant BB corrected the individual consumption tax and the education tax for the period from 200 X to 201 X (hereinafter referred to as “the disposition of this case where the reduction or correction was made after the reduction or correction was made as described in the initial disposition”). This is the disposition of this case (attached Form 1/3), which is the date of each disposition in the list 1 to 3, the amount of value-added tax imposed, the amount of individual consumption tax imposed, the amount of education tax imposed, the amount of tax imposed on the global income tax on December 7, 2015 in the list 4, the fact that there is no dispute with the recognition grounds, the evidence No. 111, No. 14, No. 17-17-9, and the purport of the entire pleadings as a whole pleadings.

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) The Plaintiff’s 000 won, which was reported as service fees, minus the amount of 000 won, which the Defendants recognized as service fees, (hereinafter “the amount of dispute”) is also “service fees” and thus, should be excluded from the value-added tax, individual consumption tax and education tax base.

2) Since the Plaintiff did not engage in 'Fraud or other unlawful act' or 'unfair act', it is unlawful to apply the long-term exclusion period of 10 years and 40% of the penalty tax for unlawful underreporting in the process of the instant disposition.

B. Relevant statutes

[Attachment 2] The entry is as follows.

(c) Fact of recognition;

1) The details of credit card sales, service charges, etc. submitted at the time of filing a value-added tax return from 200X to 201X are as follows (Evidence 9). The service charges reported on the performance report from 200 X. to X. 201X, which is the instant taxable period, are 00 won in total.

2) The details and proportion of the sales daily (Evidence 5) of the key place of business prepared by KK, the accounting officer of the key place of business, from X. 200 to X 201X, 200, monthly settlement (Evidence 20-2, A. 42, A. 7), and the total sales, service charges, Malili-PR expenses, etc. as shown in the total settlement statement of accounts of 2007 (Evidence 6) are as listed below.

3) At the time of the investigation of the tax offense, the key contents of the witness examination protocol (at the time of the investigation of the tax agent LL) of KK on October 5, 2015 are as follows:

4) Judgment of the court of the first instance on the Plaintiff’s violation of the Aggravated Punishment, etc. of Specific Crimes (Tax)

The Seoul Central District Court found that the Plaintiff was not guilty of KRW 200,000 (including value-added tax, education tax, global income tax, hereinafter the same shall apply), X 200, X 2000, X 2010, X 2010, 2010, 2010, 2010, 2010, 2010, 2010, 2000, 2010, 2010, 200, 200, 2000, 200, 200, 200, 2000, 200, 200, 200, 200, 200, 200, 200,000, 200,000,000,00,000,00,000,00,00,00,00,00).

The plaintiff and the prosecutor appeal against the above judgment and continue the trial as Seoul High Court No. 201ONo000 (hereinafter referred to as "related criminal appeal case").

5) Main contents of the statement of the Plaintiff with respect to KK, which was conducted in the course of investigating the case against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the Plaintiff.

6) 관련 형사사건에서 이루어진 쟁점 사업장의 마담 QQQ, 경리직원 KKK에 대한 각 증인신문조서의 주요 내용

7) Main contents of the protocol of examination of the witness to the representative JJ in the name of the workplace at issue at issue in the relevant criminal appellate trial case

8) Main contents of the Notice of the Matters to be Observed by the Business Operator who intends to exclude service charges from the tax base (Notice of the National Tax Service Notice No. 2001-17 through August 24, 2012, amended on June 1, 2001, No. 2012-49, hereinafter referred to as “Public Notice of Service Charges”)

Each entry in evidence Nos. 27, 29, 35, 39-49, Eul evidence Nos. 5-11, 13, 15, and 16 (including these numbers), and the purport of the whole pleadings.

D. Determination

1) Whether the MPR costs constitute volunteer charges that are excluded from the tax base

A) Article 48(1) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that “The tax base under Article 13(1) of the Value-Added Tax Act includes all monetary value related to consideration, regardless of the pretext, such as the price, charge, and fees received from a transaction partner.” Article 13(9) of the same Act provides that “Where a business operator enters the amount of food and accommodation services or personal services supplied to an employee (including free-income earners) separately from the price of the tax invoice, receipt, or credit card sales slip, the service charge shall not be included in the tax base if it is confirmed that the service charge has been paid to the employee.” In addition, Article 2(1)11 of the former Enforcement Decree of the Individual Consumption Tax Act (wholly amended by Presidential Decree No. 2031, Feb. 18, 2010) provides that the person who received the receipt of the service charge shall not be included in the amount of the individual consumption tax receipt or service charge.

According to the contents and purport of the above-mentioned statutes, in case where a business operator enters the service charges of employees separately from the charges for the provision of his service, the service charges are not, in principle, included in the tax base for value-added tax and individual consumption tax, and in this case, the "employee's service charges" means the amount which the customer pays to the employee who provided the service in question as the price for intangible service, such as the speech, friendship, and consideration, which are provided by the business operator in connection with the provision of service, separately from the price for the service provided by the business operator. Therefore, if the business operator enters the service charges of employees who received the service in question separately from the price for the provision of food and accommodation service or personal service, and if it is confirmed that the service charges were paid to the employee in question, the service charges shall not be included in the tax base for value-added tax and individual consumption tax, but if the service charges were prepared formally in the form of the service charges payment ledger, it shall not be deemed that the service charges are excluded from the tax base for value-added tax and individual consumption tax.

B) Comprehensively taking account of the following circumstances acknowledged in light of the aforementioned legal principles and the purport of the entire pleadings, the key amount is not so-called Malito SPR fee, which is reverted to the marina that employs and manages the entertainment reception receptionist rather than directly serving customers, and does not constitute a service fee excluded from the assessment basis of value-added tax and the individual consumption tax. Accordingly, each part of the evidence Nos. 39 and Nos. 50-54 (including the virtual number) are not believed.

(1) The instant place of business, as a direct entertainment receptionist, directly provided entertainment receptionist with a customer rather than engaged in drinking with, or singing or dancing to encourage the customer to provide such an act, and the customer himself/herself directly provided the service of having the entertainment receptionist. Therefore, it is difficult to deem that the instant place of business paid service fees to the entertainment receptionist with the intent to directly belong to the entertainment receptionist, and that the customer was paid with the intention to assign the entertainment receptionist to the marina who employs and manages the entertainment receptionist.

(2) It is reasonable to view that the cost of Madam’s sales equivalent to 15 to 20% of the target sales amount of Madam’s sales is a down payment under a sales contract between the Plaintiff and Madam’s sales conditioning the Plaintiff to raise the target sales through the amusement reception source supplied by Madam. Even if the Plaintiff received a promissory note, cash storage certificate, loan certificate, etc. from Madam’s Madam’s sales with the payment of Madam’s sales, it is to guarantee the return of the down payment in preparation for the failure to perform the Madam’s sales contract, and it

(3) In addition to the Marinsian Posium, the Plaintiff received service charges equivalent to 30 to 32% of the total monthly sales from the Plaintiff and paid them to the entertainment reception workers employed and managed by the Plaintiff. In a case where the Marins paid part of the service charges out of the Masian Posium to the entertainment reception workers employed and managed by the Plaintiff prior to the settlement of each month, it is deemed that the above service charges that were settled monthly by the Plaintiff were paid to the entertainment reception workers. Therefore, it is difficult to view the Masian Posium as the service charges that directly belonged to the entertainment reception workers.

(4) According to the statement of KK, which is an accounting officer of the pertinent workplace, it is difficult to believe that KK arbitrarily determines service charges on credit card sales slip or service charge payment ledger, etc., and it is also difficult to believe that the rate of service charges on credit card sales reported by the pertinent workplace exceeds 30-32%, which is 5-60% of the service charges on the sales day and monthly settlement of accounts at the pertinent workplace, since the rate of service charges on credit card sales reported by the pertinent workplace exceeds 5-60%. Therefore, it is difficult to believe that the statement to the effect that the entertainment bars, such as the instant workplace and similar workplace, written by the Plaintiff, are 4:6% of each service charges, considering the aforementioned circumstances, it is difficult to believe that the entertainment bars, etc., which cannot be viewed as service charges, are included in all service charges in the service charges.

2) Application of long-term exclusion period and unfair underreporting penalty tax

A) The legislative intent of Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same) is to extend the exclusion period of imposition of national taxes to 10 years, in principle, in a case where there is a fraudulent act, such as making it difficult for the tax authority to detect the taxation requirements on national taxes or making it difficult for it difficult for it to find out the fact of omission, and making it difficult for it difficult for it to exercise its imposition rights. Furthermore, in a case of underreporting by a fraudulent act, Article 47-3(2) of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same) to induce a person liable for tax payment to faithfully report the tax base by imposing additional taxes more than those on the general underreporting, because it is impossible or considerably difficult to impose and collect taxes, and thus inducing the person liable for tax payment to faithfully return the tax base.

Therefore, the term “unlawful act” under the former Framework Act on National Taxes refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere failure to file a return under the tax law or making a false return without accompanying any other act. However, in cases where the circumstances indicate the intention of active concealment, such as failure to file a return or underreporting taxable objects and intentionally failing to enter revenues and sales in the books, etc., it may be deemed that the imposition and collection of taxes are impossible or remarkably difficult (see, e.g., Supreme Court Decision 2014Du2522, Sept. 15, 2015).

In such a case, whether active concealment intention is objectively revealed should be determined based on whether the basic book stating import or sale is falsely prepared, as well as on whether the method of determining the relevant tax is a tax return method or a tax imposition method, the developments leading to a failure to file a return or a false return, etc., and degree different from facts; the specific details of false matters in the case of a false report; and the method which pretends to be false in the case of a false report; and the function of documents related to calculation of the tax base if a false document is submitted, etc. (see, e.g., Supreme Court Decision 2013Do13829, Feb. 21, 2014).

B) Comprehensively taking account of the following circumstances acknowledged in light of the aforementioned legal principles and the purport of the entire pleadings, it is reasonable to deem that the Plaintiff did not merely lead to underreporting the sales but made it significantly difficult to impose and collect the Defendants’ taxes through active concealment. Therefore, the instant disposition that applied the long-term exclusion period and the unfair under-reported penalty tax by deeming the Plaintiff’s under-reported act as “unlawful act” is lawful.

(1) The Plaintiff, along with DD, was the actual business operator of the pertinent workplace, who had maintained business registration under the JJ for a long time from 200 X. to 20 XX. X, reported that only earned income of KRW 200,000,000 and business income of KRW 201X from the key place of business was received from the key place of business, thereby making it difficult for the Plaintiff to identify the taxpayer as the actual business operator of the pertinent workplace.

(2) As seen earlier, the Plaintiff arbitrarily prepared a credit card sales slip or service fee payment ledger, etc. as if Malito SPR costs, which do not fall under the service charges excluded from the tax base, and forged false evidential data as if they correspond to the service charges directly paid to the entertainment service providers (the fact that Malito SPR costs are not indicated in the monthly settlement slip and the income statement itself shows that the Malilito SPR costs do not have direct relations with the provision of entertainment services to the customers, and the Plaintiff’s entry, however, in the payment ledger of credit card sales slips and service charges, is limited to the preparation of false books.

(3) The Plaintiff’s evasion of taxes by means of unfairly withdrawing service charges of KRW 0 billion from 200X to 200 XX, including the period, ratio, and amount of omission, but the intention of active concealment is clearly revealed.

(4) As long as value-added tax, individual consumption tax, education tax, and global income tax are assessed on the method of filing a tax return, the Plaintiff’s false evidence and under-reported it, it seems that the Defendants’ confirmation and legitimate exercise of the right to impose taxes would have significantly impeded.

3. Conclusion

Thus, the plaintiff's claim against the defendants is dismissed as it is without merit.