Daejeon District Court 2009Guhap203 ( August 12, 2009)

Additional tax for failure in filing a final return and filing a return by estimated income calculation;

In cases where a final return on the tax base of global income is filed through the method of calculating estimated income, if it is found that a return and payment is made short of a legitimate tax amount by means of an ex post facto tax investigation, etc., the additional tax on negligent tax return and additional tax shall be

The contents of the decision shall be the same as attached.

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 shall be revoked. Each part of the disposition imposing global income tax of KRW 548,972,350 on June 2, 2008, exceeding KRW 419,30,08 among the disposition imposing global income tax of KRW 548,972,350 for the year 2005 by the Defendant against the Plaintiff ParkB, and each part of the disposition imposing global income tax of KRW 301,736,170 for the year 2005 ( KRW 301,736,173, and KRW 301,736,170 for the global income tax of KRW 30,780 for the year 205 shall be deemed to be erroneous) shall be revoked.

1. Details of the disposition;

A. The Plaintiffs jointly concluded a joint business agreement to jointly engage in real estate business and real estate sales business (Plaintiff Park Jong-A: 64.5%, Plaintiff KimB: 35.5%) and completed joint business registration on July 1, 2005 as the date of commencing business.

B. On August 30, 2005, the Plaintiffs sold 8,819,900,000 square meters of over-water and forest land of 21-4 and 17.151 square meters in lots, ○○○○, ○○○, ○○, ○○-dong, and four (4), and sold 30,643 square meters of forest land of 2 lots, 45,000,000 (hereinafter referred to as “each of the instant lands”) and the amount calculated by deducting the amount obtained by selling each of the instant lands from the income amount of 8,864,90,000,00 won multiplied by the simple expense (80.9%) of real estate sales business of 205 as indicated below. The Plaintiffs filed a final return on global income tax base and tax amount for 2005, as indicated in the following table:

C. On December 17, 2007, the Defendant conducted a tax investigation on the Plaintiffs, and deducted the acquisition value, acquisition tax, and registration tax payment amount of each land of this case as the expenditure from the transfer value of each land of this case, which is confirmed as necessary expenses, from the transfer value of each land of this case, as the real estate sales income amounting to KRW 2,209,068,168,168, and Plaintiff ParkB as KRW 1,215,843,721, and Plaintiff ParkB as the total income tax of KRW 939,303,666 (including additional tax on negligent tax and additional tax on negligent tax) for the year 205 of Plaintiff ParkB as the total income tax of KRW 939,303,666 (including additional tax on negligent tax and additional tax on negligent tax on negligent tax)

After each correction, 533,090,390 won, which remains after deducting the already paid tax amount from the already paid tax amount, and 292,611,600 won, which remains after deducting the already paid tax amount from the Plaintiff KimB.

D. On April 3, 2008, the Defendant calculated some necessary expenses, and adjusted the reduction of KRW 69,761,540 to Plaintiff ParkB, and KRW 37,985,330 to Plaintiff KimB, respectively. On June 2, 2008, the Defendant corrected the error in the period during which profit and loss reverts, thereby adding KRW 85,643,508 to Plaintiff ParkB, and KRW 47,109,904 to Plaintiff ParkB, respectively, adjusted the respective increase of KRW 548,972,350 (including additional tax and additional tax on negligent tax) to Plaintiff ParkB, and imposed each additional tax (including additional tax and additional tax on negligent tax) to Plaintiff ParkB, which was calculated by deducting the already paid tax (including additional tax and additional tax on negligent tax on negligent tax) (hereinafter referred to as “each of the above dispositions imposed each of the Plaintiffs’ additional tax on June 2, 2008”).

E. If the Defendant arranged the content of each of the disposition imposing additional tax, including each of the dispositions in this case against the Plaintiffs, it is as listed below.

[Reasons for Recognition]

The facts without dispute, Gap evidence 1, Eul evidence 2-1, Gap evidence 2-2, Gap evidence 3 through 5, Gap evidence 6-1,2, Gap evidence 11,12, and 14, Eul evidence 1, Eul evidence 2-1,2, Eul evidence 5-1, 5-2, Eul evidence 6-1, 6-2, Eul evidence 7-1, 7-2, and the purport of the whole pleadings;

2. Determination on the Defendant’s defense of this safety

The defendant asserts that the lawsuit in this case was instituted without going through the procedure of the previous trial and it is unlawful. As such, if a correction disposition such as the instant disposition is made, it shall be deemed that the original return or decision would lose its independent existence value by absorbing the original return or decision into the correction disposition. Thus, in principle, it shall be interpreted that only the correction disposition would be subject to an appeal litigation regardless of the lapse of the objection period against the initial return or decision (see Supreme Court Decision 2006Du17390, May 14, 2009). Therefore, it shall be determined based on the correction disposition as to whether it goes through the procedure of the previous trial. According to the evidence Nos. 7 and 8, the plaintiffs filed an appeal with the Tax Tribunal on June 30, 2008, and the Tax Tribunal dismissed the above appeal on October 14, 2008. Thus, the defendant's defense is without merit.

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

A. The plaintiffs' assertion

The plaintiffs continuously and repeatedly purchased each land of this case for the purpose of temporary and non-redual investment. Since each land of this case falls under a land transaction permission zone, they cannot file a report on global income tax as business income. Accordingly, the plaintiffs did not have any obligation to keep the books required for a business operator, and there is no evidentiary document such as the books kept and kept and recorded on the sales income of each of the land of this case, so they filed a final return on global income tax according to the estimation method pursuant to Article 70 (4) 6 of the former Income Tax Act (amended by Act No. 7387 of Dec. 31, 2005; hereinafter the same shall apply). Accordingly, even if the defendant made a decision on the correction of global income tax by a field investigation and it is acknowledged that the plaintiffs are under-reported and paid under the tax law, each of the dispositions of this case, which is an additional tax on negligent tax returns, should be revoked.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

In cases where the amount of income to be returned under Article 70 of the former Income Tax Act is below the amount of income to be returned, an additional tax shall be imposed pursuant to Article 81 (1) 2 of the former Income Tax Act, and where the amount of income to be paid is below the amount of income to be paid, an additional tax shall be imposed pursuant to Article 81 (4) of the former Income Tax Act. Under the tax law, where a taxpayer violates a tax return and tax liability under the tax law without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an administrative sanction imposed pursuant to the tax law is imposed in cases where the taxpayer violates the tax law without justifiable grounds. In such cases, it is unreasonable for the taxpayer to be unaware of his/her duty, or it is unreasonable to expect the party to fulfill his/her duty (see, e.g., Supreme Court Decisions 2001Du4849, Nov. 8, 2002; 9Du3515, Aug. 20, 1997).

Although Article 70(4)6 of the former Income Tax Act recognizes a final return of global income tax base by submitting an estimate income statement prescribed by Presidential Decree in cases where the amount of business income is not calculated on the basis of books and documentary evidence kept and recorded pursuant to Articles 160 and 161 of the same Act, the tax base and tax amount of global income tax shall be determined on the basis of the actual amount revealed by the method of tax investigation, etc. if any omission or error is found in the details of return pursuant to Article 80(2) of the former Income Tax Act, and it does not constitute an exception that makes a final return of global income tax base by the method of tax investigation, etc., even in cases where a final return of global income tax base is filed on the basis of the method of calculating estimated income, if it is found that the amount of tax is short of the legitimate amount of

In light of the above legal principles, (1) business operators are not obliged to receive and keep account books, and (2) business operators are less than a certain size prescribed by the Presidential Decree, except where they keep account books and faithfully enter the facts of transactions on their business, and shall keep and manage account books by double entry bookkeeping so that all transactions on their business can be objectively grasped (hereinafter referred to as "person subject to double entry bookkeeping under the former Income Tax Act"), and where a resident intends to calculate necessary expenses in calculating business income, he/she shall receive documentary evidence of the expenses and keep them for five years from the end of the final return period. Thus, it is difficult for the business operators to acknowledge that the plaintiffs' duty to receive and keep account books, keeping account books and expenses, etc. 7-1 and 160-2 of the former Income Tax Act, and it is difficult for the plaintiffs to receive and keep account books and other necessary expenses that are less than a certain size prescribed by the Presidential Decree, and the plaintiffs' duty to receive and keep account books and other necessary expenses that are less than the plaintiffs' duty to report and pay account books are less than 1).

4. Conclusion

Therefore, the plaintiffs' claims in this case are all without merit, and the judgment of the court of first instance is justified, and all appeals of the plaintiffs are dismissed, and it is so decided as per Disposition.