Incheon District Court 201Guu185 (201.019)

Cho High Court Decision 2009J3931 ( November 12, 2010)

The Plaintiff, a lessee, cannot be deemed to have transferred the right to charge the instant case.

In light of the fact that the instant sales contract was concluded by the owner of the filling station, that the sales contract did not separately calculate the sales right of the filling station, and that the Plaintiff cannot be deemed to have transferred the instant filling business right in the relevant lawsuit, etc.

Article 6 of the Value-Added Tax Act

2012Nu4700 The revocation of disposition imposing value-added tax, etc.

- Appellants

XX Co., Ltd

Incheon District Tax Office et al. and one other

Incheon District Court Decision 201Guhap185 Decided January 19, 2012

September 26, 2012

October 31, 2012

1.The judgment of the first instance shall be modified as follows:

A. On December 1, 2008, the head of Seocheon District Tax Office revoked the portion exceeding KRW 000 among the imposition disposition of KRW 000 of the corporate tax for the year 2004 by the Plaintiff, and the portion exceeding KRW 000 of the imposition disposition of KRW 000 of the value-added tax for the second year 2004.

B. On December 1, 2008, the director of the regional tax office of Jung-gu Regional Tax Office of Korea revoked the Plaintiff’s income earner’s income as Gangwon-A, and the amount exceeding KRW 000 out of the notice of change in the amount of income of KRW 000 in the year of 2004.

C. All remaining claims filed by the Plaintiff are dismissed.

2. Of the total litigation costs, 30% among the parts arising between the Plaintiff and the Defendant Seocheon Tax Office, the remaining 70% shall be borne by the Plaintiff, and 40% among the parts arising between the Plaintiff and the Defendant Seocheon Tax Office, by the Plaintiff, and the rest 60% shall be borne by the Deputy Tax Office of the Defendant Jungcheon Tax Office.

1. Purport of claim

The purport of the appeal is that the head of Seocheon District Tax Office, on December 1, 2008 (However, since the imposition of the value-added tax of No. 6 No. 2003, Nov. 21, 2008, No. 2003, Nov. 21, 2008, which was written in the complaint, appears to be erroneous, as to the part, "No. 1, 2008, which was written in the complaint." The disposition imposing corporate tax, value-added tax, and the disposition imposing value-added tax, which was written in the table below, issued against the Plaintiff on December 1, 2008 by the Director of Seocheon District Tax Office, on December 1, 2008, the Plaintiff’s income earner’s notice

A. The plaintiff: The part against the plaintiff in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is accepted.

B. The Defendants: The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. cite the judgment of the first instance;

The reasoning of this court’s judgment is as follows: (a) the Plaintiff and the Defendants added the judgment on the allegations made by this court in the following paragraphs; and (b) the reasoning of the first instance judgment is as follows. In accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure

O 5th 7th 7th 'in the course of operating the instant charging station', the term ‘from the 8th 'in the course of operating the charging station’ is as follows:

[In the course of operating the instant charging station, the Plaintiff’s assertion on the premise that the omitted amount of gas sales in the instant charging station is included in the notice of change in the amount of the value-added tax for the first period of 2004 to 2006, the sales related to the OUnemployment Co., Ltd. and the XX Specialized Driving Schools were omitted, and the sales amount of 00 won was omitted during the taxable period of the value-added tax for the first period of 2004 to 2006 (in the case of 2003, the Defendant imposed tax on the Plaintiff on the premise that the notice of change in the amount of the sales in the instant filling station was included in the value-added tax for the second period of 2003, the corporate tax for 2003 to 203, the income tax for 2003, and the notice of change in the amount of income

O 5th 9th '2.1 December 1, 2008' is the "2.1 December 1, 2008" (However, the date when the second value-added tax was imposed in 2003 is November 21, 2008).

The term "from the second half of the year 2003, which shall be the fifth below," shall be read as "from the lst of the year 2004," and the following third half shall be read as "00 won": "O 14, which shall be from the 3th to the 15th fiveth of the year 2004."

"The imposition of corporate tax of KRW 00 for the year 2004 on the Plaintiff on December 1, 2008, the imposition of KRW 000 for the second half-year value-added tax of KRW 000 for the year 2004, the Plaintiff's imposition of KRW 000 for the pertinent imposition on the part that the Plaintiff transferred the instant charging station's license toY, and the portion that exceeds KRW 00 for the bonus income of KRW 00 for the business year 2004 on the Plaintiff on December 1, 2008, for the Plaintiff on December 1, 2008, the Plaintiff's imposition of KRW 200 for the pertinent imposition of KRW 30 for the year 204, for the Plaintiff on December 1, 200, the Plaintiff's imposition of KRW 100 for the year 204, for the calculation of corporate tax of KRW 200 for the pertinent imposition of KRW 300 for the Plaintiff's calculation of KRW 200 for the year 204.

A. As to the assertion regarding the transfer of the goodwill and the determination thereof

The Defendants asserted that the instant charging station business right was sold from the Plaintiff with the sales amount of KRW 000 as the sales amount, according to the instant sales contract.

However, the instant sales contract was concluded between Gangseo, not the Plaintiff, andY (Evidence A7). The instant sales contract only determined the purchase price of the land, buildings, and facilities (Article 1) with the subject matter of sale as KRW 000 (Article 2), and did not calculate the instant charging station operating right as KRW 000,000. Even if the instant sales contract was calculated as KRW 00, which is alleged by the Defendants, the instant charging station operating right cannot be effective against the Plaintiff, other than the parties to the instant sales contract. In addition, in the appellate court of the lawsuit for change of the name of business license filed against the Plaintiff (Seoul High Court Decision 2010Na55325, April 1, 201), the judgment was finalized by the Supreme Court (Supreme Court Decision 201Da3498, July 14, 2011). The Defendants’ assertion is without merit.

B. The assertion that the disposition related to omitting sales was unlawful and the determination thereof is made

The Plaintiff asserts that the sales did not have been omitted even in this court. However, in the course of the tax investigation, the Defendants confirmed the difference between the vehicle number, quantity, and amount of the POS system that entered and stored in the amount of gas sales, and the reported amount, based on the computerized file prepared by the Plaintiff, such as the accounting day accounting statement, the settlement of disbursement and the statement of expenditure daily account statement, etc. In the case of a corporation under the POS system, the sales price was calculated at approximately 10% compared to the general unit price, and the gift certificates that private taxi used in the books were included as the "personal taxi and commercial taxi D/C" (the purport of the entire pleadings and the whole pleadings). The Plaintiff's representative Kang, unlike the accounting day accounting statement, filed a lawsuit seeking revocation on the portion of the reported sales in the gas filling station, but rejected the Plaintiff's assertion in this case (the Plaintiff's assertion that this part of the judgment did not have been accepted, and the Plaintiff's assertion that this part of the judgment was without merit.

C. Plaintiff’s assertion on the imposition of corporate tax for the year 2005 and determination thereon

1) The Plaintiff asserts to the effect that the assessment disposition of corporate tax for the year 2005 was imposed in duplicate. However, as the portion of the omission in sales, etc. on December 1, 2008, the corporate tax base for the year 2005 increased, the first disposition was issued to require a refund of KRW 000,000, plus interest pursuant to the laws and regulations, which was to be refunded by the Plaintiff on the premise that the loss occurred in the year 2005 (Evidence A 1-5). On the same day, separately from the refund as above, the disposition imposing KRW 00,00,000, corporate tax was imposed on the portion of the profit accrued due to the omission in sales (Evidence A-3). Accordingly, the above disposition is not overlapped.

2) In addition, the Plaintiff asserts to the effect that if the corporate tax base for the year 2004 differs, the amount of corporate tax for the year 2005 should be changed. However, the Plaintiff did not have any deficit until 2004, and refund the amount to be refunded for the corporate tax for the year 2005. As such, the amount of corporate tax assessment for the year 2004 differs from 000 to 000 won, it cannot be affected in the disposition of corporate tax for the year 2005. The Plaintiff’s assertion is without merit.

3. Conclusion

Of the instant dispositions, the imposition of KRW 000 of corporate tax for the year 2004, the imposition of KRW 200 on the Plaintiff on December 1, 2008, and the imposition of KRW 000 of value-added tax for the second period of value-added tax for the year 2004, and the imposition of KRW 000 on December 1, 2008 by the director of the Regional Tax Office of Seocheon District Tax Office of the Defendant, who made the Plaintiff the income earner as Gangwon A on December 1, 2008, shall revoke the portion exceeding KRW 00 of the notice of the change in the amount of bonus income for the business year 2004, which was made by the Plaintiff as Gangwon A, and all of the remainder claims of the Plaintiff shall be dismissed. Since the first instance judgment differs in part, the appeal filed by the director of the District Tax Office of Seocheon-gu