early 2010 Heavy0807 (201.06.07)

The taxation disposition of this case based on the tax investigation that violates the principle of prohibition of duplicate investigation is unlawful.

In light of the fact that the principle of prohibition of duplicate investigation aims to ensure the taxpayer's right in the procedural aspect through the taxpayer's freedom of business and the prevention of privacy infringement and the prior control over arbitrary tax investigation, the taxation disposition of this case based on a tax investigation that violates the principle of prohibition of duplicate investigation is unlawful.

Article 81-4 of the Framework Act on National Taxes

2011. Revocation of revocation of the imposition of value-added tax;

KimAA and Ten others

Head of Pyeongtaek Tax Office

April 27, 2012

May 25, 2012

1. As to the Plaintiffs on October 9, 2009:

A. The second value-added tax amount of 000 won in 2008, and

(B) impose the second value-added tax of 000 won in 2008;

The imposition of penalty tax of KRW 000 on the second half-year VAT in 2008, and each disposition shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

A disposition rejecting refund of KRW 000 as stated in the purport of the claim amended by April 19, 2012 seems to be a clerical error.

1. Details of the disposition;

(a) Acquisition of trade agreements and land, etc.;

(1) Around January 2007, the Plaintiffs entered into a trade agreement with the corporation established separately by purchasing land and warehouse owned by the EEchemical Co., Ltd. (hereinafter “Echemical”) within the CC, Pyeongtaek-si 000 (hereinafter “Echemical”) to jointly distribute profits, such as rent, etc. by leasing the land and warehouse to a third party.

(2) Pursuant to the above business arrangement, KimA, KangF, JungG, Hah H II, HaJ, Choi KK, and KimL (hereinafter referred to as "Plaintiff KimA, etc.") among the plaintiffs under the above business agreement, purchased co-ownership of shares on March 14, 207, and completed co-ownership registration on March 14, 2007, and completed co-ownership registration on March 14, 2007 with respect to each of the remaining shares on the aggregate of 3341.8718/6158.6 shares of Pyeongtaek-si 158/60 square meters in total, and on the aggregate of 4592.0482/8462.5 square meters in 192.65 square meters in 207, and completed co-ownership registration on each of the above shares on each of the remaining shares on each of the EAE chemical shares purchased by Plaintiff ParkM, ParkN, ParkN, Park PP, and completed the co-ownership registration on 284.160.485.65

"(3) Then, the plaintiffs, arising from the combination of the above lands and the division of common properties, shared the land of this case 8,462.5 square meters (hereinafter "the land of this case") by the plaintiffs KimA, KangF, KangF, Kim II, YJ, YJ, KimL 91.74/8462.5 shares, plaintiffs Cho NN 132.32/8462.5 shares, plaintiffs JongM, the largest KK 826.45/8462.5 shares, plaintiffs Park Young-M 176.2/8462.5 shares, plaintiffs Park Young-M 176.2/846.5 shares, plaintiffs Park Jong-M 176.19/8462.5 shares, and YPP 176.19/8462.5 shares, and 2.5 shares in each of the above land as new and new warehouse business operators' shares, and 2.5 shares in each of the above land as new and new warehouse business operators' shares.

(5) Meanwhile, on the ground of the instant land, there were 3,384 square meters of reinforced concrete tanks owned by EEchemical, but the Plaintiff, and KimA acquired them on July 2, 2007.

(b) Establishment and extension of warehouses of DDDR stock companies;

(1) 원고 김AA, 임JJ, 박MM, 박TT, 박PP, 김LL과 원고 정GG, 조UU, 김II, 최KK의 각 배우자 김VV, 박WW, 이XX, 박YY 및 원고 강FF의 형부 김ZZ은 황aa, 류AA와 함께 기존건물올 증축하여 창고업 등을 영위활 목적으로 2007. 8. 8. 자본금 30억 원으로 ㅇㅇㅇ농산 주식회사(이하 '소외 회사'라고 한다)를 설립하였고，원고들은 2008. 1. 7. 그들 명의로 이 사건 토지에서의 건물증축공사허가를 받았다.

(2) 소외 회사는 2007. 9. 10.경 bbbb건설 주식회사와 위 건물증축공사에 관한 도급계약을 체결하였고, 2008. 9. 12. 완공된 일반철골구조 경사판넬지붕 4층 공장・창고시설(1층 창고 5，603.94㎡，2층 사무실 760㎡，3층 공장 1.674.15㎡，3층 창고 3.925.83㎡.4층 창고 1.458.15㎡)에 대하여 사용승인을 받았다(이하 기존건물을 제외한 나머지 부분을 '1차 증축부분'이라 하고, 기존건물과 1차 증축부분을 더하여 '이 사건 증축건물'이라 한다). 한편 소외 회사는 l차 증축부분의 완공올 위하여 bbbb건설 주식회사에 대한 도급공사비 등 합계 000원 비용을 지출하였다.

(3) However, since the name of the building permit (the plaintiffs) for the first extension was different from the name of the existing building (the plaintiff KimA, etc.), the application for registration for the first extension was rejected, and the plaintiff, who is the owner of the existing building, prepared a written contract on the transaction of part of the shares of the plaintiff KimA, etc. to the plaintiff Parkmmm, Park LN, and Park PP and changed the owner of the existing building to the plaintiffs on November 17, 2008, and completed registration for change of title title of the existing building on November 19, 208 by changing the ownership ownership ownership transfer from the name of the plaintiff Parkm, Park LN, and Park PP to the plaintiffs.

(4) Around January 2009, Non-Party Company added an elevator to the instant extended building (hereinafter referred to as “the second extended part”). On January 2, 2009, upon completion of the second promotional part, the Plaintiffs completed registration for change of title on the registry of the instant extended building by changing the title section on July 8, 2009 into “the first floor warehouse, 5, 645.94 square meters, 760 square meters, 1,674.15 square meters, 3.8 square meters, 3.962.8 square meters, 4 stories, 1,45.15 square meters, and 458.15 square meters.

(c) Conclusion of a contract for use;

(1) On September 10, 2007, CCTV Co., Ltd. entered into a license agreement to the following effect with the non-party company regarding the instant building (hereinafter “instant license agreement”).

(2) On April 2, 2009, CCTV entered into an additional contract with the non-party company to the following purport:

(3) On May 25, 2009, CCTV entered into an additional contract with the non-party company to the following purport:

D. Disposition of this case

(1) On November 19, 2008, the non-party company issued and issued a tax invoice (hereinafter referred to as the "tax invoice of this case") at the value of 000 won equivalent to the construction cost of the first extension portion on the ground that it supplied the right to use the building of this case (hereinafter referred to as the "right to use the building of this case") to the CCF (Plaintiffs) for the 20-year period of the right to use the building of this case, and the plaintiffs paid value added tax only to the non-party company, and around February 27, 2009, upon the defendant's refund disposition of value-added tax around February 27, 2009, the non-party company was refunded KRW 00 (the amount that is not included in the estimated tax amount already paid by the plaintiffs) as the value-added tax refund for 200 won (the tax amount that the plaintiff would have already paid) under the contract of this case. On the other hand, the non-party company received KRW 00

(2) From March 4, 2009 to March 17, 2009, the Defendant conducted a tax investigation with respect to the Plaintiffs (hereinafter referred to as "previous tax investigation"); the subject tax item of the investigation is "value-added tax"; the period of investigation is from July 1, 2008 to December 31, 2008; and the scope of investigation was "on-site verification of the appropriateness of the receipt of the tax invoice for the transaction of the right to use the building purchased from the non-party company from the non-party company 2 in 2008. As a result of the tax investigation, the Defendant notified the Plaintiffs on March 17, 2009 that the amount of supply related to the right to use the building and the issuance of the tax invoice should be appropriate.

The Seoul Regional Tax Office (C) conducted a tax investigation with respect to the plaintiffs from May 14, 2009 to July 8, 2009 (hereinafter referred to as the "tax investigation of this case"). The investigation period is from May 25, 2007 to December 31, 2008, and the investigation period is from May 2007 to December 31, 2008. The investigation period is from May 2007 to 2007 to 2008 that "the person was selected as the person subject to investigation to verify the appropriateness of the contents of the tax return." Meanwhile, the Seoul Regional Tax Office also conducted a tax investigation with respect to the non-party company as the tax investigation of "the tax invoice of this case", "the tax invoice of this case includes the income tax, value-added tax, source tax, stock change, etc.", and it is difficult for the Seoul Regional Tax Office to view the plaintiffs' right to use the tax invoice of this case as the main tax invoice of this case to the non-party company, and its main tax invoice of this case for 20 years.

(5) On October 9, 2009, according to the purpose of the tax investigation result of the above Seoul Regional Tax Office, the defendant excluded 000 won of the input tax related to the tax invoice of this case from the list of input tax deduction, and ① accordingly, rejected the refund of the plaintiffs' second value-added tax (previous refund disposition was cancelled) in 2008, and ② the plaintiffs were jointly liable for tax payment after correcting the input tax amount as above, even though the above amount was increased and corrected, the defendant imposed 00 won of the tax amount paid for the second period of value-added tax in 2008, and ③ the additional tax for the second period of value-added tax (3) in 2008 (amended by Act No. 9915 of Jan. 1, 2010) on the aggregate of the total tax invoice of this case and the additional tax for 00-4 and 00-400 of the above additional tax (amended by Act No. 9910 of Nov. 1, 2010).

(6) The Plaintiffs were dissatisfied with the request for a trial to the Tax Tribunal, but were dismissed on June 7, 2011.

[Ground for recognition] In the absence of dispute, Gap evidence 1 through 5, Gap evidence 6-1, 2, 7, 8, 9, Gap evidence 13-1, 2, 3, Gap evidence 14, 15, Gap evidence 17, 18, Gap evidence 19-1 through 5, Gap evidence 23, 24, Gap evidence 29, 30, 31, 37, evidence 38-1 through 10, Gap evidence 39, 42, 45, 47, and evidence 72-1 through 4.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The first argument

The plaintiffs and the non-party company completed the first extension part of the extended building in full, and the non-party company paid the construction cost and completed the first extension part, which shall belong to the plaintiffs, and the plaintiffs provided the non-party company with the right to use the building of this case as construction cost. However, the non-party company transferred the right to use the building of this case again to the plaintiffs as the reasons of the non-party company did not require the right to use the building of this case. The plaintiffs were entitled to use the building of this case after being supplied with the right to use the building of this case from the non-party company and allowed the non-party company to conduct its own business using the whole of the extended building of this case. Unlike the first and second short use right of this case, the long-term exclusive use right of this case for 20 years, unlike the first and second short use right, constitutes an intangible property right and its transfer

(2) The second assertion

Article 81-4(2) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; h the same) provides that a reinvestigation cannot be made for the same tax item and the same taxable period. Around March 3, 2009, the Defendant had already conducted a tax investigation on the second taxable period value-added tax of the Plaintiffs in 2008. The Seoul Regional Tax Office investigated the second taxable period value-added tax of the Plaintiffs in 2008 without any particular reason. As such, it constitutes an illegal investigation conducted in duplicate with regard to the same tax item and the same taxable period, the instant disposition based on the result of the instant tax investigation is unlawful.

(3) The third assertion

설령 이 사건 건물사용권의 공급이 재화의 공급에 해당하지 아니하고 이 사건 세무조사가 중복조사금지에 위반되지 않는다 하더라도, 원고들은 이 사건 세금계산서의 수취로 어떠한 경제적 이득이나 조세부담 경감을 얻으려 한 것이 아니고, 오직 세법을 충실하게 지키고자 선량한 납세자의 의도로 발행하여 수취한 것일 뿐이며, 소외 회사로서는 이 사건 건물사용권을 재산적 가치가 있는 재화로 보고 부가가치세 과세대상이 된다고 판단하였고, 더욱이 원고들과 특수관계자였기에 세금계산서를 발행하지 않으면 아니 된다고 판단하였으며, 세무사 ㅇㅇㅇ도 이에 대한 자문을 하면서 같은 의견을 제 시하여 세금계산서를 발급하지 않을 것을 기대할 수 없었다. 그리고 피고 역시 CC농산에 대한 세무조사 당시 이 사건 건물사용권 관련 공급가액 및 세금계산서 교부 등이 적정하다고 판단하였다. 따라서 이 사건 세금계산서 수수는 세법 해석상의 의의로 인한 견해의 대립이 있는 경우라 할 것이어서 원고들의 의무 위반을 탓할 수 없는 정당한 사유가 있으므로, 이 사건 가산세 부과처분은 위법하다.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Determination on the first argument

(A) Whether the owner’s primary extension portion at the time of issuance of the tax invoice of this case complies with the existing building

In light of the fact that the extended part of the existing building is not deemed to coincide with the existing building, it is necessary to determine whether the extended part can be separate objects from the existing building in terms of its use and function as well as physical structure attached to the existing building, and whether it can be separate from the existing building in terms of its use and function (see, e.g., Supreme Court Decision 9Da24256, May 10, 2002). Each entry and pleading of evidence No. 6-1, No. 2, No. 23, 29, and 50 can be combined with that of the existing building, that the extended part was installed on the first floor to be used as an independent 4th floor, and that the extended part was not within the first floor to be used as an independent warehouse, and that the extended part was not within the first floor to be used as an independent warehouse, and that the extended part was not within the first floor to be used as an independent warehouse, and that the new part was within the first floor to be used as an independent warehouse, an agricultural 4th floor to be used as an independent warehouse.

2) The agreement on ownership ownership of the instant extended building

The main text of Article 256 of the Civil Act provides that the owner of an existing building shall acquire ownership of an article attached to the existing building. According to such provision, only one ownership shall be recognized for an article generated by the existing building as one article. However, the above provision of the Civil Act on who ownership of the article belongs to a person is a voluntary provision, and if the owner of the article in question and the person who made efforts to acquire another article in accordance with the above provision agree otherwise, the ownership shall be attributed to the owner of the article in question. As seen above, the first extension portion was completed by the non-party company's efforts and cost, and the content of the contract made between the non-party company and the plaintiffs is premised on the fact that the non-party company is the owner of the above extension portion (the first extension portion may infringe on the rights of CCTV due to the seizure of the non-party company, and the part of the contract made between the non-party company and the non-party company's new owner of the building in the name of the non-party 1, 209.

(B) Sub-decisions

Therefore, it is reasonable to deem that a contract for ownership and use of the first extension is leased for 20 years prior to the increase of the first promotional portion to the Plaintiffs by the non-party company, the owner of the first promotional portion, and the receipt of KRW 00 per month of the rent. It cannot be viewed as a contract for use of intangible rights having independent and property value. Accordingly, the plaintiffs' assertion that the transfer of the right to use the building of this case constitutes the transfer of intangible property rights is without merit.

(2) Whether the second assertion constitutes a duplicate investigation

The term "tax investigation" means an act of asking questions to taxpayers, etc. as necessary for their official duties by exercising the right of questioning and inspection or questioning as stipulated in each tax-related Act and investigating related documents, books and other articles or ordering them to submit them [see, e.g., Article 122 of the Corporate Tax Act, Article 2 subparag. 1 of the Regulations on the Management of Investigations (amended by National Tax Service Directive No. 1765, Aug. 24, 2009; hereinafter the same shall apply], Article 81-3 of the former Framework Act on National Taxes, Article 63-2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter the same shall apply], and Article 13 of the Regulations on the Management of Investigations and Investigations, if a tax official permits repeated tax investigation, thereby preventing abuse of the previous tax investigation by the tax-related authority for the reasons that it does not overlap with the previous tax investigation period.

(B) Whether it constitutes exceptional grounds for permission

1) Whether the investigation of the opposite contractual party is necessary

The defendant asserts that the tax investigation of this case by the director of Seoul Regional Tax Office constitutes "where it is necessary to conduct an investigation on the other party to the transaction" under Article 81-4 (2) and (2) of the former Framework Act on National Taxes. However, even if the director of Seoul Regional Tax Office conducted a tax investigation on the non-party company on the date of the tax investigation of this case, it is reasonable to deem that the tax investigation of this case does not constitute an exception under the above provision insofar as it is not possible to conduct an investigation on the non-party company, which is the counter-party company at the time of the previous tax investigation, as long as it is not possible to conduct an investigation on the right to use the building of this case

2) Whether a case constitutes re-revision without an on-site investigation

The Defendant asserts that this case’s tax investigation constitutes an exception to double investigation permitted because it constitutes a case of re-revision without recourse to the on-site investigation. Here, “on-site investigation” refers to a tax investigation conducted on a taxpayer’s office, workplace, factory, address, etc. and directly against the relevant taxpayer or related person (Article 2 subparag. 22 of the Regulations on the Management of Investigation Affairs). However, according to each of the evidence No. 48, No. 69-1, and No. 70, the Seoul Regional Tax Office’s investigators visiting theCCF office without prior notice at the time of the investigation of this case, and the documents related to the on-site investigation are prepared and submitted to the Seoul Regional Tax Office during the investigation period. Thus, it cannot be deemed that the instant tax investigation constitutes a case of re-revision without prior notice.

3) Whether it constitutes a confirmation investigation for determination of national tax refund

The Defendant asserts to the effect that the previous tax investigation constitutes an exception to the duplicate investigation under Article 63-2 subparag. 2 of the former Enforcement Decree of the Framework Act on National Taxes, which is an exception to the determination of national tax refund. However, the grounds for exception to the determination of national tax refund under the above provision are not the previous tax investigation, but the later tax investigation constitutes the confirmation and investigation for the determination of national tax refund, and it is clear that the instant tax investigation does not aim at the determination of national tax refund.

(C) Whether a disposition based on a tax investigation that violates the principle of prohibition of duplicate investigation is legitimate

However, in light of the fact that the principle of prohibition of duplicate investigation aims to guarantee taxpayers' rights through the taxpayer's freedom of business and the prevention of privacy infringement and the prior control over arbitrary tax investigation, taxation based on a tax investigation that violates the principle of prohibition of duplicate investigation is unlawful (see Supreme Court Decision 2004Du12070, Jun. 2, 2006). Therefore, the disposition of this case is unlawful in violation of the principle of prohibition of reinvestigation under Article 81-4(2) of the Framework Act on National Taxes, and thus, this part of the Plaintiff's assertion is justified (for the second argument of the Plaintiff, it is not judged as to the third argument).

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.