Examination-Supplementary - 2013-0042 (Law No. 27, 2013.05)

In a matter that can be found after investigating the facts, even if there is a defect in the disposition of imposition, it shall not be null and void.

Even if there is any defect in the attribution of the remittance amount of this case, it can only be found that it is clear that it is possible to accurately investigate the facts. Thus, it cannot be seen as apparent in appearance.

Article 21 of the Value-Added Tax Act

2013Guhap21724. Invalidity of the disposition of imposition of value-added tax

Section AA

00. Head of tax office

February 26, 2014

March 7, 2014

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 of KRW 32,31,350 for the first period of December 13, 2010, KRW 182,610 for the first period of December 2004, KRW 204, KRW 31,753, KRW 730 for the second period of December 31, 2004, and KRW 32,311,350 for the first period of November 1, 2005, and KRW 2,742,970 for the second period of November 2004, and KRW 7,049, and KRW 490 for each global income tax of KRW 204 for the first period of November 201.

1. Details of the disposition;

A. After investigating BB on June 2008, the head of the PP Tax Office notified the Defendant of the taxation data stating that “B from B to the account in the Plaintiff’s name, the sum of KRW 1,221,818, KRW 189,441,818, KRW 2004, KRW 380,50,000 in 2005, KRW 570,163,636 in 208 was remitted.”

B. Accordingly, the Defendant: (a) made ex officio business registration for the reason that “com-CC” was “from January 1, 2004 to January 18, 201; and (b) made the wholesale and retail business for the business container; and (c) notified the Plaintiff of each of the aggregate income tax of KRW 182,610 for the first period of December 13, 2010, KRW 182,610 for the second period of February 2004, KRW 31,753,730 for the second period of February 2004, KRW 61,900, KRW 410 for the first period of January 2005, and KRW 2,742, KRW 970 for the second period of November 1, 201, and KRW 15,517,870 for the year 205.

"다. 이후 피고는 2012. 12.경 2005년 제1기 매출과세표준액 중 주식회사 컴CC(이하컴CC'라 한다)의 ▲▲은행계좌, 김DD 명의의 △△은행계좌에 입금된 금액을 제외한 180,864,000원(이하이 사건 송금액'이라고 한다)만을 원고에게 귀속된 금액으로 보아 2012. 12. 26. 2005년 제1기 부가가치세를 32,311,350원으로, 2005년 종합소득세 7,049,490원으로 감액(이하 감액되고 남은 부가가치세 및 종합소득세를이 사건 처분'이라 한다)하였다.",라. 이에 불복하여 원고는 2013. 3. 5. 심사청구를 하였는데, 2013. 5. 27. 국세청으로부터 각하결정을 받았다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 8, 9, Eul evidence Nos. 1 through 6, 10, 11 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The actual operator of the ComCC is KimD, and the Plaintiff served as the staff of the ComCC from January 1, 2004 to December 30, 2005. In addition, KimD was engaged in transactions between EE and EEcom, and EEcom, and BB, and received transaction payment using the Plaintiff’s account in the Plaintiff’s name. As such, the person to whom the instant remittance amount belongs is attributed is complianceCC or KimD. Accordingly, the instant disposition that the Plaintiff deemed the person to whom the instant remittance amount belongs as the Plaintiff is illegal in violation of the principle of no taxation without the law, the principle of taxation without the law, the principle of substantial taxation, and the principle of substantial taxation, and the degree is significant and apparent, and thus, the confirmation is sought.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) After investigating BB, the Director of the PPP Tax Office notified the Defendant of the taxation data, he/she included the following information in the attached files:

BBL Bank (LLxx-x-xx)

Date

Withdrawal of money

Transaction Records

Details

Jinay

June 28, 2004

244,000

Bank-AA

Purchase of Parts

comCC

July 30, 2004

1,288,000

Bank-AA

Purchase of Parts

comCC

August 5, 2004

4,150,000

Purchase of Parts

comCC

(Interim omitted)

may 3, 2005

2,000,000

Bank-GlaD

Purchase of Parts

comCC

March 25, 2005

5,000,000

Bank-GD-CCC

Purchase of Parts

comCC

(Interim omitted)

(2) From January 1, 2004 to December 30, 2005, the Plaintiff was subscribed to the National Pension Scheme as an employee of ComCC, and reported the earned income to the tax authorities during the above period. Meanwhile, the details of the Plaintiff’s business registration are as follows.

Trade Name

Type

Type/Types of Business

Opening date of business

Closure

ZZ;

GENERAL

Manufacture/Small Publications

February 19, 1997

December 31, 1998

WW

A corporation

Manufacture/ Textiles

November 12, 1999

March 31, 2002

TT

GENERAL

Wholesale/computer and peripheral devices

January 31, 2006

December 31, 2009

(3) According to the corporate register of compliance, the most FF was registered as a representative director and the most FF person from July 29, 201 to June 5, 2011, respectively as an internal director.

(4) On July 19, 2011, the Plaintiff filed a grievance settlement report with the Defendant, “The instant remittance amount was attributed to ComCC because ComCC received mail order payment using a deposit account in the Plaintiff’s name.” On August 11, 2011, the Plaintiff asserted that “the instant remittance amount was used in the payment of the price for the mail order of LLL,” and filed an application for a payment order seeking value-added tax equivalent to value-added tax with the purport that “the amount of the instant remittance was taxed on the Plaintiff.” On February 17, 2012, the Plaintiff asserted that “The instant remittance amount was attributed to ComCC since ComCC was deposited.”

(5) The KimD made the following statements in the letter of confirmation on March 4, 2013 and in this court:

○○ KimD is the actual business owner ofcom.

around July 2004, the remittance amount of the instant case was reverted to ComCC after receiving a proposal for purchase at low price except value-added tax from EEE and supplying non-data.

(6) The Court of Justice, on December 4, 2013, stated as follows:

○ The amount of remittance of this case was transferred from the account of YL by the Court of Justice, and was due to non-data transactions with complianceCC and EE, EE,com, BB, etc.

(7) 피고는 원고로부터 "2005년 제1기 매출누락금액 380,500,000원 중 219,600,000원은 김DD 명의의 계좌에 입금되었다."는 김DD 작성의 2012. 12. 6.자 확인을 제출받고, QQ세무서장에게 과세자료를 통보하였다. 이에 QQ세무서장은 2013. 4. 8. 김DD에게 2005년 종합소득세 7,934,014원을 부과처분하였다. 한편, 컴CC는 과세관청으로부터 법인세 등을 부과받지 아니하였다.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 3, 4, 8, 11, 14 (including paper numbers), Eul evidence Nos. 9, 10, and 11 (including paper numbers), the witness KimD's testimony, and the purport of the whole pleadings

D. Determination

(1) In an administrative litigation claiming the invalidity of a taxation disposition as a matter of course and seeking the invalidity thereof, the Plaintiff is liable to assert and prove the reason why the taxation disposition is null and void (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010). In addition, in general, a taxation disposition rendered to a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to have a significant and apparent defect. However, in a case where there are objective circumstances that make it possible to believe that a certain legal relation or fact which is not subject to taxation is subject to taxation, and where it is necessary to accurately investigate the factual relation, whether it is subject to taxation or not is subject to taxation, it cannot be deemed to have been apparent even if the defect is serious, and thus, it cannot be deemed to have been null and void as a matter of course (see, e.g., Supreme Court Decision 2001Du7268

(2) According to the taxation data (Evidence A8) notified by the head of the PP tax office, the case is described as 'comCC', 'comCC', 'comCC', and 'comCC' in the transaction recording column, as well as 'comCC', and 'comCC', and the data on taxation are described in the name of the plaintiff and KimDD, i.e., whether the transaction amount was paid to the plaintiff, KimD, (State), complianceCC, and ComCC, or whether the transaction amount was paid to the plaintiff can not be determined or not, but the taxpayer needs to prove special circumstances, such as whether the transaction amount was paid to the plaintiff, KimD, (State), and if the deposit was made in the taxpayer's name, it is inevitable for the tax authority to impose tax on the taxpayer. In light of the fact that the defendant requested the plaintiff to explain, but failed to comply with it, the defendant was objectively under the objective circumstance that the "the remittance amount was reverted to the plaintiff."

In addition, although the defendant did not exercise his right to investigate but imposed tax only based on the name of the deposit account, the plaintiff's assertion is inconsistent, such as LLL orcom as to the attribution of the remittance amount of this case. The court of Justice claims that it is non-data transaction and thus does not coincide with the plaintiff's assertion. The original disposition was partially cancelled, and KimD was imposed on the ground that part of the remittance amount of this case belongs to KimD, and it was imposed on KimD, but it was based on the confirmation of facts (No. 10-2) of KimD, and it is not recognized that KimD entirely reverts [On the other hand, the plaintiff submitted the confirmation of facts (No. 11) of KimD's KimD on March 4, 2013, but it can not be readily determined that the remittance amount belongs to KimCC's first document (No. 10-2 of evidence 10-2 of this case) and it can not be determined that it was impossible to consider the relation between the remittance amount and this case's taxation disposition of this case.

(3) Therefore, the instant disposition is lawful since there is no significant and obvious defect.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.