Busan District Court 2010Guhap284 (2010.03)

Cho High Court Decision 2009Da3255 ( December 11, 2009)

Joint business operators of the game room and no defect in the calculation of tax base

It is reasonable to see that a business proprietor of a game room is a business proprietor, and the calculation of the value-added tax base based on the purchase ledger of gift certificates for free use, and each transaction specification table cannot be deemed defective

2010Nu4988 Revocation of Disposition of Imposition of Value-Added Tax

Park AA

○ Head of tax office

Busan District Court Decision 2010Guhap284 Decided September 3, 2010

May 25, 2011

June 22, 201

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's imposition of value-added tax for the first term of 2006 against the plaintiff on July 7, 2009 and value-added tax for the second term of 2006 and value-added tax for the second term of 2006 shall each be revoked.

1. Details of the disposition;

A. (1) The game room (hereinafter “instant game room”) with the trade name “○○○○○○○-dong 000 ○○○○○-dong 000,” was registered and operated in the name of KimA during the period from January 2, 2006 to August 27, 2006.

(2) Accordingly, on January 26, 2007, the Defendant calculated the value-added tax base for the first quarter of 2006 and revised and imposed value-added tax amounting to KRW 299,730,640 for the second quarter of 2006 on the ground that the game of this case was omitted sales in the game of this case.

B. After that, the defendant, as a result of a local investigation on the game of this case, determined that the actual business operator of the game of this case was this BB, KimCC, KimD, Gangwon-D, Gangwon-E, and the plaintiff (hereinafter referred to as "the plaintiff et al.") and revoked the correction and imposition of each of the above correction and imposition. On June 14, 2007, the defendant re- corrected and imposed value-added tax of 968,378,810 won for the first period of 2006 and value-added tax of 309,115,300 won for the second period of 206 (hereinafter referred to as "first disposition").

C. The plaintiff is dissatisfied with the original disposition and filed an administrative appeal with the Tax Tribunal on December 11, 2007. However, the Tax Tribunal dismissed the plaintiff's claim on June 20, 2008, and the plaintiff filed a lawsuit against the defendant on July 25, 2008 against the defendant as ○○ District Court 2008Guhap328.

However, on February 11, 2009, the above court ruled against the plaintiff.

D. When the initial disposition was revoked on the ground that it was erroneous in calculating the revenue amount by the trade partner type in the administrative appeal against the initial disposition that KimD filed by the tax Tribunal during the appellate trial (○○ High Court 2009Nu1525) on the above judgment, the Defendant revoked the initial disposition, while the Defendant calculated the revenue amount based on the gift certificate purchase ledger and transaction statement submitted to the Plaintiff on July 7, 2009, on the basis of value added tax 195,371,90 won for the first period of 2006 and value added tax 5,538,420 for the second period of 206 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 3, 17 evidence, Eul evidence 2, 3, 8 evidence, 14 through 25 evidence (including all relevant branch numbers), the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Defendant determined the Plaintiff as a joint proprietor of the instant game room on the grounds of the written statement, confirmation, and written answer by other joint operators of the instant game room, including KimA and LeeB, and the financial data on the money repaid after the Plaintiff lent to KimD, and the money received as sales proceeds of gift certificates supplied for the instant game room. However, the instant disposition was unlawful since the Plaintiff was not a joint proprietor of the instant game room.

(2) Even if the Plaintiff was a joint proprietor of the instant game room, the tax base was calculated based on the gift certificates receipt payment schedule and the transaction statement submitted by KimD, but there was a defect in the calculation of the tax base, so the instant disposition was unlawful.

(b) Fact of recognition;

(1) On March 6, 2007, KimA submitted to the Defendant a written statement, etc. dated March 2, 2007, stating that the actual business operator and his share in the instant game room are 40% of this BB, 20% of the funeral line, KimCC, KimDD, Gangwon EE, and 10% of the Plaintiff respectively, and submitted a written statement, etc. on March 2, 2007, and ② on March 21, 2007, upon filing an objection against the disposition of value-added tax imposed on January 26, 2007, the actual business operator and their shares were 50% of this BB, KimCC 20%, Kim DD, Gangwon EE, and 10% of the Plaintiff respectively.

(2) On March 22, 2007, KimCC submitted to the Defendant a letter of confirmation that the Plaintiff et al. has a share of 20% in this case, KimCC 20%, KimDD, lectureE, and 10%, respectively, as the actual business operator of the game site of this case. ② On May 4, 2007, the actual business operator of the game site of this case was five persons, and the amount of investment was KRW 412.5 million, KimCC 16.5 million, and KRW 82.5 million, respectively, and KRW 5 million, among the real estate of △△△ office located on the fourth floor of the game site of this case, the Plaintiff et al. made a statement that there was a defect in the overall business operation of the game site of this case.

(3) On April 19, 2007, B was investigated by ○○○ Tax Office. ① KimA was merely a business operator in the name of the game site of this case, KimA was aware of 50% of this BB, KimCC 20%, KimD, Gangwon EE, and 10% of the Plaintiff’s shares, but the details of the shares were not known, but the profit distribution was carried out in checks or in cash at the above △△ real estate office. The Plaintiff’s share distribution was known to have been received, and the documents such as the contract was not prepared. ② On May 4, 2007, 200, the actual business operator of the game site of this case was five persons, and the amount of investment per head was 82,500,000 won, and the amount of investment per head was 82,500,000 won, and the amount of investment was 250,000,000 won,00 won and 50,000,00 won,00 won.

(4) On the other hand, on May 2, 2007, when the local verification period was under way, the Plaintiff directly visited Seo ○○○○ Tax Office on May 2, 2007 and alleged that he did not participate in the game of this case and lent funds to KimD.

"(5) (A) on August 31, 2005, the Plaintiff deposited KRW 90 million in its own account from ○ bank and deposited KRW 90 million in its own account on the same day. On September 1, 2005, the said check deposited in the account under the name of B, and on September 13, 2005, the B deposited KRW 90 million in its own account from ○○ bank account, and on September 15, 2005, the said check was deposited in the ○○ bank account on September 15, 2005. On the other hand, the Plaintiff stated that the Plaintiff returned KRW 90 million to ○ bank account on September 20, 2005, and that the Plaintiff deposited KRW 00,000 in its own account on September 20, 2005.

(C) Kim H, an employee of the instant game site, is the Plaintiff’s above ○ bank account, KRW 4,830,00 on December 26, 2005, KRW 9,660,00 on August 21, 2006, KRW 20,000 on August 23, 2006, and KRW 7,367,960 on August 23, 2006.

A total of 41,857,960 won was remitted.

[Ground of recognition] Facts without dispute, Eul evidence Nos. 4 through 14, each entry of evidence Nos. 26 through 30, the purport of the whole pleadings

C. Determination

(1) The plaintiff was not a joint proprietor of the game of this case

Comprehensively taking account of each of the facts acknowledged above and all of the following circumstances acknowledged by the purport of the entire pleadings, it is reasonable to see the Plaintiff as joint business operators of the game of this case. Therefore, the Plaintiff’s assertion on this premise is without merit.

(A) The Plaintiff asserted that the amount of KRW 90 million deposited in the bank account of thisB on September 20, 2005 is the money that he/she gave to his/her friendship KimD. However, corresponding thereto, it is difficult to believe that the Plaintiff is, in light of the Plaintiff’s personal relationship with KimD and the Plaintiff, and the content of the instant arrangement (the principal and interest rate of KRW 12 per annum after three years).

In addition, on August 14, 2007, KimD remitted KRW 110 million to the Plaintiff’s bank account at the Plaintiff’s wife. However, the Plaintiff did not receive any security from KimD despite asserting that the Plaintiff loaned the loan to KimD with a financial institution, ② deposited the loan into the bank account of LeeB, not the borrower KimD, ③ transferred the above money on August 14, 2007 after the initial disposition was issued, which is different from the due date under the above monetary loan agreement, and the No.40 million won was created for the above money, but considering that the interval between the remittance date and the above loan date was too high, it is difficult to view that the Plaintiff loaned the above money to 90 million to DoB solely on the fact that the above money was remitted to DoB.

In addition, on August 31, 2005, prior to September 20, 2005, a check of KRW 90 million was deposited in the Plaintiff’s deposit account of thisB, and on September 13, 2005, a check of the same amount withdrawn from the Plaintiff’s deposit account of thisB was deposited in the Plaintiff’s deposit account of thisB. As seen earlier, the said check was deposited in the Plaintiff’s deposit account of September 15, 2005, and the said date is inconsistent with the date specified in the said monetary loan agreement.

(B) On September 20, 2005, the time of deposit of KRW 90,00,000 deposited into the bank account of thisB, its route, amount (an amount equivalent to about 10% of the total amount of investment) etc. are known to the KimA, KimD, LeeB’s statement on the Plaintiff’s investment shares, and the opening and substitution of the game site of this case.

(C) On April 5, 2007 and May 18, 2007, KimD and Kim H stated that the investors in the game of this case were examined by the police and stated that the investors in the game of this case were B, KimCC, KimD, and J 4. KimD appeared in the court of first instance and testified to the same effect as a witness. KimCC and LeeB also prepared a written statement to the effect that the plaintiff is not the actual business operator of the game of this case by reversing the statement before June 2007 or around September 2007. However, the written statement to the effect that the plaintiff is not the actual business operator of the game of this case, such as KimCC and LeeB's written answer, etc. prepared at the time of the investigation of the previous letter of ○○○ and LeeB, which were made at the time of the investigation, was highly reliable because the plaintiff's investment and return amount to the game of this case, the place of meetings related to the operation of the game of this case and the contents of the plaintiff's statement at the above time.

(D) The Plaintiff asserted that, while conducting a tax investigation in the Seocho ○○ Tax Office, the Plaintiff failed to conduct an investigation with respect to himself/herself, and failed to obtain an opportunity to vindicate his/her assertion. However, on May 2, 2007 during the pertinent tax investigation period, the Plaintiff asserted that he/she was not an actual business operator of the instant game site by visiting the said tax office.

(E) The Plaintiff asserted that the same business as the instant game room is a person with a large organized violence or a trust, and the game room of this case was led by this BB, KimCC, and Gangwon-E, a organized violence, and KimD merely sold the game room building of this case to this BB and did not receive any balance of KRW 100 million. The Plaintiff did not have any one-way type with this BB, KimCC, and Gangwon-E, and contributed to the community while engaging in various social activities. Thus, the Plaintiff cannot be deemed a joint proprietor of the instant game room. However, the Plaintiff also supplied gift certificates necessary for the instant game room business, and the supply of gift certificates was one of the interest coupons with a large amount in the ordinary game room business, and if Kim DD was unable to receive any balance, it cannot be readily concluded that the Plaintiff could not be a joint proprietor of the instant game room solely on the basis that the Plaintiff asserted that the Plaintiff did not have any further investment.

(2) The assertion that there is an error in the calculation of tax base

According to the statements in Eul evidence 21 to 24 and evidence 25-1 to 92, the defendant specified the actual number of merchandise coupons supplied to the game of this case on the basis of the purchase ledger for merchandise coupons for free gift submitted by KimD, a joint business proprietor of the game of this case, and each transaction specification table, and determined the actual number of merchandise coupons supplied to the game of this case on the basis of the 1,407,177,000 won, and the tax base of 2, 2006 calculated the tax base of 417,703,00 won respectively, and there is no counter-proof. Accordingly, according to the above facts, the defendant cannot be deemed to have any defect in calculating each tax base of this case. Thus, the plaintiff's above assertion is without merit (the plaintiff asserted the defect in the calculation of the tax base and asserted the specific defect without specifying it).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.