Suwon District Court 2013Gudan2932 (O6.27)

The recording alone does not constitute a clear evidence to prove the suspicion of tax evasion, and the investigation that began based on the record constitutes a duplicate investigation.

The recording is not sufficient to say that the record alone is a new material to the extent that it is reliable to confirm the omissions of taxes in preference to all the existing materials, and therefore it is reasonable to view that the second tax investigation that began on the basis thereof is a duplicate investigation which is not legally allowed.

2014Nu5778 Revocation of Disposition of Imposing capital gains tax

○ Kim

○ Head of tax office

Suwon District Court Decision 2013Gudan2932 Decided June 27, 2014

April 15, 2015

May 6, 2015

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 123,665,290 (including additional tax) for the year 2010 owed to the Plaintiff on August 1, 2012 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. The part citing the judgment of the court of first instance

The reasoning of this court's judgment is as follows, except for the dismissal of the following matters among the judgment of the court of first instance, and the replacement of five and four pages or less as follows: therefore, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ 2 pages 9 " June 24, 2011" shall be "from June 16, 2011 to June 24, 201".

○ 3 pages 3, “The instant disposition was made to the Defendant,” and “The Plaintiff determined and notified 123,665,290 capital gains tax for the year 2010 (including additional tax) to the Plaintiff (hereinafter “instant disposition”).

2. The judgment of this Court

Article 81-4(2) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same) provides that a tax official may not conduct reinvestigations on the same items of taxation and the same taxable period except in cases falling under each subparagraph of the same paragraph, such as “where there is clear evidence to acknowledge a suspicion of tax evasion.” Furthermore, a tax investigation must be conducted to the minimum extent necessary for appropriate and fair taxation, and a reinvestigations on the same items of taxation and taxable period may seriously infringe on taxpayers’ freedom of business and rights and interests, as well as arbitrarys on the grounds that there is a lack of risk of arbitrary tax investigations by the tax authorities, barring special cases that considerably go against the principle of fair taxation. In addition, it is reasonable to interpret that a tax investigation should be conducted to the extent that it is unreasonable to determine that there is a reasonable and reasonable basis to acknowledge a taxpayer’s specific tax evasion report on a taxpayer” under Articles 81-3 and 81-6(2) of the former Framework Act on National Taxes and to the extent that it constitutes an exceptional provision of Article 20.

In light of the facts acknowledged by the aforementioned evidence and the overall purport of oral argument and the following circumstances revealed, namely, ① the recording recording constituting the basis for commencement of the second tax investigation is merely the Plaintiff’s dialogue with ○○○○○○○○○, including the Plaintiff’s own absence of self-defence, and there is no other objective data supporting the recording. ② The recording recording cannot be readily concluded that the Plaintiff does not have self-defence. ③ The recording recording recording recording containing the contents of the conversation of related persons may also be difficult to confirm objectively, such as the subject of the conversation, time, etc., and it is desirable for the tax authorities to use the recording as the basis for commencement of reinvestigation as the basis for the first tax investigation and the previous disposition of this case, and the procedure for raising an objection thereto, and it is reasonable to see that the record was unlawful by giving out all the statements of this case to the Plaintiff’s ○○○○○, which is merely an unlawful statement, to the extent that it is difficult for the Defendant to acknowledge credibility of the previous statement to the effect that it is unlawful after examining the above evidence.

3. Conclusion

The judgment of the first instance shall be revoked, and the disposition of this case shall be revoked.