Busan District Court 2016Guhap22057 ( November 30, 2017)

No value-added tax shall be included in the omitted amount of sales and the purchase cost shall not be deemed to have been reduced.

The tax base of value-added tax is legitimate for determining the total amount omitted from sales as the value of supply, and the inclusion of expenses in deductible expenses shall be asserted and proved by the taxpayer, but the evidence submitted alone cannot be deemed to have been insufficiently ratified.

Article 19 (Scope of Deductible Expenses)

2018Nu20078 Disposition to revoke the imposition of value-added tax, etc.

○○○ Incorporated Company

Doegi Tax Director

Busan District Court Decision 2016Guhap22057 Decided November 30, 2017

8.04.27

8.06.15

1. The plaintiff's appeal is dismissed.

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

"The first instance judgment shall be revoked. The defendant's 23,41,047 won of value-added tax for the first period of December 1, 2011 (including additional tax), 26,367,34 won of value-added tax for the second period of February 2011 (including additional tax), 26,360,367,270 won of value-added tax for the 28,641,270 won (including additional tax) for the first period of January 2012; 26,360,367; 332,797,090 won for value-added tax for the second period of December 1, 2012 (including value-added tax); 32,261,2770 won for the second period of 20,360 won for the second period of 20,310 won for the second period of 20,261,251,2616,2701.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance except for dismissal or addition of part of the judgment of the court of first instance as stated in the following Paragraph 2. Thus, the meaning of the language used in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act is the same as that of the judgment of the court of first instance.

2. Parts to be removed or added;

○ The 11th page 20 of the 11st page "No. 7" means "No. 12".

○ The following shall be added to the fifth activity following that:

『④ 원고는 △△석유 매출내역(갑 제9호증)에 의하면 무자료 해상유 매입수량은 8,960,675ℓ이고, 이를 조세심판원의 재조사결정에 따라 유종별 단가율을 적용하여 매입원가를 산정하면 7,348,740,100원이며, 이와 수치상으로 거의 일치함과 동시에 정확한 내용을 담고 있는 2011년〜2013년까지의 월별 거래명세서(갑 제29호증의 1-30)를 엑셀표로 정리하면 △△석유 거래명세서 내역(갑 제46호증의 1-3)과 같고, 이를 근거로 조세심판원의 재조사결정에 따라 계산한 매입원가는 7,537,225,894원으로 위 △△석유 매출내역에 따라 계산한 매입원가와 대동소이하므로, 위 금액 중 어느 하나를 무자료 해상유의 매입원가로 인정하여 손금으로 추인하는 것이 타당하다고 주장한다.

However, as seen earlier, although the accurate quantity of the Plaintiff could not be known, it is clear that there exist a large quantity of the abnormal stock, and the Plaintiff sold it by pretending to purchase the abnormal stock quantity and the portion of the marine oil purchased at sea in a normal manner, and received a tax invoice from static, etc. for the purchase data. As such, the above △△△ Petroleum sales details and the monthly sales statement contain sales of the marine oil in addition to the amount of the marine oil sold at sea in addition to the amount of the abnormal stock. However, if the purchase cost for the abnormal stock is calculated based on the total amount of the marine oil sold at sea as alleged by the Plaintiff, the issue of ratification of the purchase cost for the abnormal stock would be unfair, and further, according to the above calculation method, the Plaintiff would lead to a contradictory conclusion that the Plaintiff was unable to obtain all profits from the purchase and sale of the non-marine oil at sea due to the fact that the purchase cost for the abnormal stock at sea was confirmed.

As to this, the Plaintiff alleged that since the Plaintiff purchased non-data marine oil and filed a normal tax return on illegal profits (30%) generated from normal sale, the unit price for marine purchase of non-data that is ratified as deductible expenses is larger than the omitted amount of the instant sales. However, the Plaintiff’s assertion is difficult to accept since there is no evidence to acknowledge that the Plaintiff filed a normal tax return on illegal profits.

⑤ The Plaintiff asserts that the amount of KRW 11.44 billion calculated by applying the unit price for each kind of oil presented by the Tax Tribunal to the amount of KRW 11.44 billion, which is calculated by applying the sales cost rate of KRW 6.8 billion determined by the Commissioner of the Busan Regional Tax Office, to the sales cost for the marine oil of KRW 779 billion, which is recognized by the Plaintiff during the instant taxable period, should be recognized as the purchase cost for the marine oil of which the purchase cost was determined by the Commissioner of the Busan Regional Tax Office. However, as seen earlier, the total marine oil sales should be deemed as included in the sales cost for the general marine oil of KRW 79,000,00,000,000, which is calculated by applying the unit price for each kind of oil produced by the Plaintiff during the instant taxable period. However, if the purchase cost for the marine oil of KRW 894,000,000,000,000,

○ From 12 up to 13 pages 13 up to 16 pages are as follows.

Whether the Defendant refused re-audit or violated the binding force of the re-audit decision.

1) The re-audit decision that takes place in practice as a type of the decision on a request for a review, etc. falls under a modified decision made by the disposition authority to wait for the results of re-audit of the matters pointed out in the decision of the disposition authority and take the contents of the subsequent disposition as part of the decision on the request for a trial, etc. Accordingly, the disposition authority can conduct a re-audit in accordance with the purport of the re-audit decision and only make a subsequent disposition supplementing the contents thereof. Therefore, it goes against the binding force of the re-audit decision to maintain the initial disposition contrary to the determination on the specific grounds for illegality of the disposition (see Supreme Court Decision 2015Du37549, May 11, 2017).

2) In light of the following circumstances acknowledged by comprehensively considering the overall purport of Gap evidence 11, Gap evidence 29-31, Eul evidence 33, Eul evidence 1, Eul evidence 8-10, and Eul evidence 8-10, the defendant's refusal to conduct a reinvestigation according to the decision of the Tax Tribunal, or the defendant's failure to calculate the purchase volume of non-data-free marine products as a result of a reinvestigation, and the defendant's maintenance of disposition, such as corporate tax, etc. of this case, as in the initial disposition, is not in conflict with the binding force of the

A) After the decision of the Tax Tribunal on the reexamination of the instant case, the Defendant conducted a reinvestigation of the inventory and sales volume through the data submitted by the Plaintiff from March 14, 2016 to May 6, 2016, and there is no other evidence to deem that the Defendant refused re-investigation according to the decision of the Tax Tribunal.

B) After examining the plaintiff and the defendant's assertion as to whether the purchase cost of unclaimed marine oil has been excessively confirmed, where the whole oil sales volume exceeds the inventory quantity and the purchase volume after re-examination of the plaintiff's inventory quantity and sales volume, the Tax Tribunal's decision to re-examination of the case in which "the tax base and tax amount should be corrected according to the results of re-examination by applying a pro rata unit price rate to the purchase volume of unclaimed marine oil as the purchase price of unclaimed marine oil." Thus, the above decision contains the purport of calculating the amount of losses to be included in the calculation of the loss amount on the basis of unclaimed marine oil purchase price.

C) However, in order for the Defendant to rectify the initial disposition according to the re-audit decision, the amount of inventory and sales should be confirmed as a result of the re-audit, and the amount of total oil sold exceeds the inventory and the amount of total oil purchased, so it is possible to compute the purchase quantity of non-data marine products. However, as seen earlier, despite the Defendant’s re-audit decision in accordance with the purport of the re-audit decision, there is no reliable data to calculate the quantity of stock and there is no abnormal inventory quantity whose quantity is unknown (it is difficult for the Tax Tribunal to deem that the existence of the abnormal inventory quantity was denied or existed, even if following the decision of the Tax Tribunal) due to the re-audit presented by the Tax Tribunal, it was impossible to accurately calculate the purchase quantity of non-data marine products.

D) As such, although the Defendant conducted a reinvestigation according to the purport of the re-audit decision by the Tax Tribunal, it was extremely difficult to calculate the purchase volume of non-data marine oil through a re-audit decision by the Tax Tribunal, and thus, maintained the disposition, such as the corporate tax of this case as it was originally rendered. Thus, this constitutes a case where the Defendant cannot make a subsequent disposition to supplement the content thereof in accordance with the purport of the re-audit decision, and even in such a case, it does not necessarily affect the binding

E) The Plaintiff asserts to the effect that, on the grounds of the decision of the Tax Tribunal, even though the Tax Tribunal separately presented the statement that "the circumstances of the transaction site concerning profits and losses from the ordinary oil and the illegal transactions of marine oil," it would conflict with the binding force of the re-examination decision that the Defendant maintained the original disposition contrary to this, even though it separately presented the statement that "the situation of the transaction site concerning profits and losses from the ordinary oil and the illegal transactions of marine oil x the fact that the commissioner of the Regional Tax Office applied the illegally marine oil 68% price x the purchase quantity of non-data 8,960,675 x 7,348,740,100 won for non-data x 7,348,740,100 won for non-data marine oil x the purchase price of non-data calculated by △△ Petroleum sales (Evidence No. 9) by the commissioner of the Regional Tax Office x the above determination of the Tax Tribunal is merely a mere reason or its re-audit decision and it is difficult to find the order requirements and its binding effect."

3. Conclusion

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