Gwangju District Court-2014-Gu Partnership-1758 ( November 12, 2015)

Fraudulent and other unlawful acts in relation to service fees may not be applied to joint business operators for the different taxable periods.

There is no evidence that the service fee has not been paid, and the fraud or other unlawful act has been confirmed by the tax investigation, but any joint business operator may not apply this act to the other taxable periods.

Article 13 of the Value-Added Tax Act, Article 48 of the Enforcement Decree of the Value-Added Tax Act, and Article 8 of the Special Consumption Tax Act

2015Nu7462 Revocation of Disposition of Imposition of Value-Added Tax, etc.

In relation to service fees, the Plaintiffs are provided for in Article 26-2 (1) 1 of the former Framework Act on National Taxes.

I examine whether there was a "Fraud or other unlawful act".

을 제6호증의 기재에 의하면 이 사건 사업장에서 20○○˜20○○ 사업연도에 발

Recognizing that service charges are stated separately from sales on the credit card sales slip conducted;

the following, the evidence mentioned above and the evidence mentioned in sub-paragraphs 3 through 5 are deemed to have been incorporated:

In other words, the ratio of salaries to the sales revenue stated in the above credit card sales slip.

The payment year and credit card company are not specified for each credit card sales slip.

There is no evidence to acknowledge that the amount of the volunteer fee re-paid has not been paid to the employee.

(5) At the first day for pleading of the first instance trial by the Plaintiff AA, an employee employed by the business establishment of this case

Although the plaintiff A made a statement that 00% of the total amount was paid as salary, the plaintiff A made the above payment.

immediately after the statement is made, the customer will be in charge of additional money in addition to the sales amount.

If it is required to pay it by card, the statement that it shall be paid to the person in charge of the full amount.

In full view of the overall purport of the arguments, the statements of the plaintiff AA are as follows:

It appears to the effect that "all amount equivalent to the service charges specified in credit card sales slip was paid to the source"

(C) The plaintiffs did not operate the place of business of this case from 200,000,000 to 30,000,000.

Since considerable time has elapsed from the time to the time of each disposition of this case, the service fee payment for the plaintiffs

The plaintiffs did not submit the chapter to the employees of the workplace of this case.

It cannot be readily concluded that the amount equivalent to the service charges stated in the credit card sales slip was not paid;

④ At the time of the instant tax investigation (2000) (2000), a statement of account (No. 4) and a main new plate (No. 4)

No. 5) No. 2000. 2000. 2000. 2000. 2000. 2006

J, BB, or KKA found to have been later prepared (Evidence 3) but all of them are J, BB, or KA

With regard to the type of business during the period of operation of the instant workplace, the plaintiffs J, BB, K and

There is no way to jointly operate the instant place of business, and ⑤ Plaintiff DD from 200. 00. 00

In light of the circumstances alleged by the Defendant and the evidence alone, it is insufficient to recognize that there was a "Fraud or other unlawful act" under Article 26-2 (1) 1 of the former Framework Act on National Taxes in relation to the service charges of this case, and there is no other evidence to acknowledge such circumstances.

4) 나아가 원고들이 이 사건 사업장의 20○○˜20○○사업연도에 과세표준신고서를

There is no evidence to acknowledge that the service charges in this case were not submitted, and there is no other evidence to acknowledge that they were not submitted.

Article 26-2 (1) 3 of the Framework Act on Taxation shall apply 5 years for the exclusion period of national taxes.

데, 피고가 원고들에 대하여 이 사건 사업장의20○○˜20○○ 사업년도 부가가치세, 개별소비세, 교육세, 근로소득세를 부과할 수 있는 날로부터 5년이 경과한 20○. ○. ○.에

Since each disposition of this case was taken, each disposition of this case is subject to the exclusion period of national tax imposition.

The Supreme Court Decision 2013Du16975 Decided July 9, 2015 (Supreme Court Decision 2013Du16975 Decided July 9, 2015)

(see, e.g., Decision)

5) Accordingly, the plaintiffs' national taxes seeking revocation of each of the dispositions of this case within the scope of invalidation

The exclusion period of imposition and argument are with merit.

3. Conclusion

Thus, the plaintiffs' claims of this case are gathered without any need to examine the remaining arguments.

All of them are justified, and the judgment of the court of first instance is unfair with different conclusions.

Therefore, among the judgment of the court of first instance, the part against the plaintiffs shall be revoked and each disposition of this case shall be revoked.

this decision is delivered with the judgment of the court below.

AA and *

○ Head of tax office

February 9, 2017

February 16, 2017

1. The part against the plaintiffs in the judgment of the first instance shall be revoked.

2. The defendant's disposition on 200. 0. 00 against the plaintiffs is revoked as stated in the separate sheet No. 1. 1.

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

As shown in the Disposition (the co-Plaintiff BB of the first instance court withdrawn 00.00.00.00.00.00.000.)

HighCC withdrawn 200. 0. 0. The lawsuit was withdrawn.

1. Circumstances of each disposition of this case;

A. From 200. to 200.00., the Plaintiffs jointly operated the Plaintiff’s trade name “○○” (hereinafter referred to as the “instant workplace”) from 200. to 200.0., and the period of operating the Plaintiff AAA 20. to 200.0 to 200. 0. 2 D 200. 1 to 30. 3 E on 200. 3 to 20. 20. 3 E on 20. 20, to 200. 4. ○ on 4. 200 to 200. ○ on 4. ○ on 200, 200, from 5 G 200 to ○ on 5. 200, from 200 to 6. 20, 200 to ○ on 20,7. 207. 2. 20.

B. From around October 200 to October 200, J 70%, from around October 200, to around October 200, J jointly operated the instant workplace with 30% shares, and from around October 200 to around October 200, J jointly operated the instant workplace with 70% shares and 30% shares, respectively.

다. JJ, BB, KK는 위와 같이 이 사건 사업장을 공동으로 운영하며 이 사건 사업장의 20○○˜20○○사업연도에 대한 부가가치세 및 특별소비세신고를 하면서, 봉사료○○원을 과세표준에서 제외하고 부가가치세 및 개별소비세 신고를하였다. 라. 피고는 20○○년 이 사건 사업장의 20○○˜20○○ 사업연도에 대한 세무조사(이하 '이 사건 세무조사'라 한다)를 실시한 결과, JJ, BB, KK가 이 사건 사업장에서 20○○˜20○○ 사업연도에 발생한 수입금액 ○○원을 봉사료로 처리하고 이를 수입금액에서 누락하여 신고하였음을 확인하고, 그 무렵 JJ, BB, KK에게 부가가치세 ○○원, 개별소비세 ○○원, 근로소득세 ○○원을 각 경정・고지하는 처분을 하였다. "마. 감사원은 20○. ○. ○.부터 20○. ○. ○.까지세무조사 운영실태' 감사를 실시",하였는데, 이 사건 사업장에서 매출액의 25%를 일률적으로 봉사료로 구분 기재되도록 신용카드 결제기기를 임의로 조작하고 봉사료지급대장을 사후에 작성하는 등 사기 기타 부정한 행위로써 부가가치세 등을 탈루하였으므로, 구 국세기본법(2006. 12. 30. 법률 제8139호로 개정되기 전의 것, 이하 같다) 제26조의2 제1항 제1호에 따라 국세부과 제척기간 10년에 해당한다는 이유로, ○○에 이 사건 사업장의 20○○˜20○○ 사업연도에 대한 부가가치세 등에 대하여도 추가징수하도록 하는 내용의 시정요구를 하였다.

바. ○○은 피고에게 감사원의 위 시정요구를 통보하였고, 이에 피고는 20○. ○. ○. 이 사건 사업장의 20○○˜20○○ 사업연도의 연대납세의무자들인 원고들에 대하여 별지 1. 부과처분 목록 기재와 같이 부가가치세, 개별소비세, 교육세, 근로소득세를 경정・고지하는 처분(이하 '이 사건 각 처분'이라 한다)을 하였다. 사. 원고 FF를 제외한 원고 AA, DD, EE, GG, HH, II은 이 사건 각 처분에 불복하여 20○. ○. ○.감사원에 심사청구를 하였으나, 감사원은 20○. ○. ○. 원고 AA, DD, EE, GG, HH, II의 위 심사청구를 모두 기각하였다.

[Ground for recognition] Facts without dispute, Gap evidence Nos. 1 through 3 (including branch numbers if there are branch numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 6 through 10, 13 and 14, and the purport of the whole pleadings;

A. The plaintiffs' assertion

Each disposition of this case shall be revoked on the grounds that it is unlawful for the following reasons.

1) There is a procedural defect in the investigation of the instant case

Article 81-5 of the Framework Act on National Taxes provides that "A taxpayer may have an attorney-at-law, certified public accountant, or certified tax accountant participate in an investigation or state his/her opinion when he/she undergoes a tax investigation." However, the tax investigation of this case was conducted only with respect to theJ, etc., the representative at the time of the investigation, and the notification or investigation was not made with respect to the Plaintiffs who did not jointly operate the workplace of this case with J, etc. Accordingly, the Plaintiffs did not have the attorney-at-law’s assistance in relation

2) 이 사건 사업장의 20○○˜20○○ 사업연도의 봉사료는 부가가치세 및 개별소비세의 과세표준에서 제외되는 봉사료로 보아야 함이 사건 사업장의20○○˜20○○ 사업연도의 봉사료(이하 '이 사건 봉사료'라 한다)는 원고들이 종업원들과 고용계약을 체결한 바 없으므로 고용의 대가라 할 수 없고, 종업원들이 자유직업소득자로서 고객으로부터 심부름의 대가로서 지급받은 것이다. 원고들은 국세청고시인 '봉사료를 과세표준에서 제외하고자 하는 사업자가 지켜야 할 사항(국세청고시 제2001-17호)'에서 정한 바에 따라 신용카드매출전표 발행시 봉사료를 구분 기재하는 방식으로 발행하고, 종업원들은 이 사건 봉사료를 수령한 후 봉사료 지급대장에 서명하였으므로, 이 사건 봉사료는 부가가치세 및 개별소비세의 과세표준에서 제외되는 봉사료로 보아야 한다.

3) The Plaintiffs did not constitute fraud or other unlawful acts, which are not subject to 10 years of the exclusion period of national tax imposition, and they did not arbitrarily manipulate credit card payment instruments or prepare a payment register of service fees without customer’s intent. Furthermore, the Plaintiffs did not have any intention to commit fraud or other unlawful acts, since they received advice from a tax specialist and received tax investigation in 2000, and did not have any points about the instant service fees. Therefore, the Plaintiffs did not have any intention to commit fraud or other unlawful acts. Accordingly, the exclusion period of national tax imposition cannot be applied to the Plaintiffs.

2. Attached Table 2. It shall be as listed in relevant Acts and subordinate statutes;

C. Determination

1) Article 48(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930, Feb. 9, 2006; hereinafter the same shall apply) provides that "the tax base under Article 13(1) of the Act includes all monetary value related to consideration, regardless of the pretext thereof, such as the price, charge, fee, or other charge received from a transaction partner." Paragraph (9) of the same Article provides that "service charges of an employee (including free-income earners) who provides food, accommodation services or personal services, along with such consideration, shall not be included in the tax base if it is confirmed that the service charges have been paid to the employee separately from the price of the tax invoice, receipt, or credit card sales slip under Article 32-2 of the Act; however, the same shall not apply where the entrepreneur includes the service charges in his/her income from his/her own service facilities; however, Article 18(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Act No. 7840, Dec. 31, 20005, 20005) provides that "the former entertainment service charges.

Therefore, in a case where a business operator supplies food and accommodation services or personal service, and enters the service charges of employees received along with the price separately from the price on credit card sales slip, etc., if it is confirmed that the service charges were paid to the relevant employee, the service charges are not included in the tax base of value-added tax and individual consumption tax.

2) The legislative intent of Article 26-2(1) of the former Framework Act on National Taxes, in principle, includes unlawful acts such as making it difficult to discover the taxation requirements on national taxes, or forging false facts, while five years are excluded in order to promptly determine tax-related relations.

By doing so, it is difficult to expect the exercise of the imposition right because it is not easy for the tax authorities to find that it is the report of omission, and it is difficult to extend the exclusion period for imposition of national taxes to 10 years.

Therefore, "Fraud and other unlawful acts" under Article 26-2 (1) 1 of the former Framework Act on National Taxes refers to deceptive schemes or other active acts that make it impossible or considerably difficult to impose and collect taxes, and it does not constitute simply failing to report under the tax law or making a false report without accompanying any other acts (see, e.g., Supreme Court Decisions 2013Du7667, Dec. 12, 2013; 2014Do3411, Feb. 18, 2016). 3) The Defendant applied ten years to the Plaintiffs each of the instant dispositions under the premise that the act related to the service charges of this case constitutes "Fraud or other unlawful acts" under Article 26-2 (1) 1 of the former Framework Act on National Taxes. In light of the aforementioned legal principles, the Defendant took each of the instant dispositions by applying ten years to the Plaintiffs.