Seocho 2010west 1531 (Law No. 9.10, 2010)

Value-added tax is legitimate for the disposition of value-added tax by deeming the amount deposited in the account of a financial institution as its sales.

The calculation of the sales amount of the publicly announced source's account by calculating the amount deposited to the financial institution account is a objective field investigation method. In full view of the fact that there is no source of income other than the place of business, the money deposited to the above account is recognized as being imported as a deposit and actual fee of the place of business, barring special circumstances

2010Guhap38745 Disposition to revoke the imposition of value-added tax

1.김〇〇2.오△△3.송◇◇

〇〇세무서장

March 25, 2011

1. All of the plaintiffs' claims are dismissed.

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

On January 15, 2010, the Defendant sought revocation of the imposition of value-added tax of KRW 12,566,220 on the second term portion of 204 against the Plaintiff.

1. Details of the disposition;

가. 원고 김AA과 원고 오BB은 부부이고, 원고 송CC는 원고 오BB의 자매인 오DD의 남편이다. 원고들은 2004. 4. 1.부터 공동으로 〇〇 〇〇구 〇〇동 264-255에서 '〇〇텔'(이하 '이 사건 사업장')이라는 상호로 고시원을 운영하였다.

B. The Plaintiffs reported KRW 16,250,000 as the value-added tax base for the second term portion of 2004, and accordingly reported and paid the value-added tax accordingly.

C. From December 4, 2009 to December 24, 2009, the Defendant conducted a tax investigation with respect to the Plaintiffs, and then discovered errors in calculation on January 25, 2010 in the amount deposited in the account of Plaintiff KimA and the above Plaintiff’s wife, 95,245,000 won remaining after excluding the transaction amount between Plaintiff KimA and OD, the transaction amount between Plaintiff KimA and OD, the transaction amount between Plaintiff KimA and OB, and the amount recognized as a high-amount fund transaction or other source, etc., were deemed to be the sales amount of the instant business establishment, and notified the Plaintiffs of correction of value-added tax 14,405,670 won for the second period of 204 to the Plaintiffs on January 15, 2010, and reduced the above tax amount from 1,839,470 won to 470 won.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 8, Eul evidence No. 1 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The taxation authority on the total of KRW 48,105,00 and KRW 1,900,000 deposited in the passbook of the Plaintiff KimA, regardless of the sales of the instant place of business, by concluding that the tax authority imposed tax on the total of KRW 50,005,00,000, which was paid by the Plaintiff KimA to the head of the Plaintiff KimA, regardless of the sales of the instant place of business, is unlawful in violation of the principle of taxation based on the grounds that the tax authority imposed tax on the total of KRW 50,000,000, which was paid by the Plaintiff KimA

2) As to the money deposited in the Plaintiff KimA’s passbook, the Defendant calculated the sales amount by deeming the deposit amount to be the deposit amount, and then calculating the sales amount by deeming the deposit amount to be the deposit amount. For example, even if the user of the notified source pays the money in installments, the above amount to be treated as the deposit amount can be deposited in a unit of less than one million won if the user of the notified source pays it in installments, it is unlawful because the calculation method is arbitrary and unreasonable.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiffs newly constructed the Gowon building on the seventh 95 floor size, and commenced the business after the business registration as the Gowon on April 1, 2004 (However, even though Plaintiff KimA and Plaintiff AB were registered as joint business operators, Plaintiff SongCC was added to joint business operators from October 1, 2004 to joint business operators).

2) The Plaintiffs received KRW 1,00,000 from the facility users of the instant plant at KRW 3.20,000 from the facility users at KRW 1,20,000 per unit. The instant plant was located between AA University and BB University and its location conditions were good, and facilities were also improved following the new building.

3) The Plaintiff KimA managed the facilities and revenues of the place of business in the position of the president from the beginning of the instant place of business. In particular, the management of revenues was conducted through the Plaintiff KimA’s deposit account (hereinafter “GlaA account”) and the OD’s deposit account (hereinafter “DD account”). Meanwhile, Plaintiff KimA did not have any income source other than the instant place of business.

4) At the time of the tax investigation, the Defendant investigated the details of the above seal of approval and OD account transactions and calculated the tax base as listed below, considering that there were omissions in the details of the final tax return filed by the Plaintiffs with respect to the value-added tax for the second period of February 2004 (the calculation based on the re-revision disposition issued on January 25, 2010).

5) In calculating the above deposit and the fee for entry, the defendant applied the above one million won standard to the sum of the amount deposited into the account of plaintiff KimA and OD as the entry fee item, and the amount exceeding one million won as the deposit item up to one million won, and the balance shall be calculated as the entry fee item, and the amount deposited continuously on the same day shall be calculated as the entry fee item.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 9, Eul evidence 1 and 2, and the purport of the body before oral argument

D. Determination

1) As to the assertion of violation of the underlying taxation principle

A taxpayer’s final return on tax base may be deemed to be based on account books or evidence in correction of errors or omissions in the details of a tax return, but if it is recognized that there are errors or omissions in the details of a tax return by other data and a field investigation is possible, it may also be corrected by other data. On-site investigation is an objective method so long as it is based on the actual income distribution method. Determination of the taxpayer’s sales by investigating the amount deposited in the financial institution account of the taxpayer falls under a objective on-site investigation. Generally, in a lawsuit seeking revocation of tax imposition, the burden of proof as to the facts of taxation should be deemed to be the taxpayer, but if it is proved that the facts in question were proved to be eligible for the application of the empirical rule, unless it proves the circumstances that the facts in question are not eligible for the application of the empirical rule in light of the empirical rule in the specific litigation process (see, e.g., Supreme Court Decision 2003Du14284, Apr. 27, 2004).

이 사건으로 돌아와 살펴보면, 원고들이 과세표준을 확정하는데 필요한 장부나 증빙자료를 전혀 제출하고 있지 않은 상황에서 피고가 원고들의 사업계좌인 원고 김AA 및 오DD의 금융기관계좌에 입금된 금액을 계산하는 방식으로 이 사건 영업장의 매출금액을 계산한 것은 객관성이 있는 실지조사방법에 속한다고 할 것이다. 또한, 위 인정사실과 더불어 원고 김AA이 이 사건 사업장 이외에 별다른 소득원이 없는 점, ATM, CD기에 의하여 김AA 계좌에 입금된 거래는 주로 이 사건 사업장과 가까운 우리은행 〇〇동지점, △△동지점인 점 등의 사정을 종합하여 보면 위 계좌에 입금된 돈은 특별한 사정이 없는 한 이 사건 사업장의 보증금 및 입실료로서 수입된 것으로 인정된다.

As to this, the plaintiffs asserted that KRW 48,105,00, out of the money deposited in KimA account, the income earned in the restaurant business and merchandise coupon exchange business under the name of "△△△△○○○," Plaintiff 2, who operated the restaurant business and the merchandise coupon exchange business, was deposited in the KimA account. In addition, according to the evidence No. 8, the fact that Plaintiff 2 operated the above restaurant is acknowledged, but the above fact alone is insufficient to reverse the recognition of the above income (in addition, according to the evidence No. 5, it can be recognized that the above △△△△△△’s report on the use of credit card at the same place of business as sales and the fact that there was no report on the tax-free income amount, which is the merchandise coupon exchange income, on the same period, at the same place of business. Accordingly, there is no evidence to acknowledge that the money received from the above place of business of OB, was deposited in the KimA account) and there is no other source.

In addition, although the plaintiffs asserted that KRW 1,900,000, out of the money deposited in the KimA account, was paid as condolence expenses, there is no evidence to acknowledge this. Accordingly, the plaintiff's assertion on this part is without merit.

2) As to the assertion that arbitrary calculation method is a method

The Defendant’s calculation based on the unit of one million won is somewhat conceptually conceptual and is likely to be consistent with the nature of the amount actually received. However, in the nearest situation where it is impossible for the tax authority to accurately capture the real nature of revenue because the amount of one million won is set at one, the reasonableness is recognized as to the classification of the deposit and the amount of the actual amount based on the above amount, and when comparing the amount of the deposit and the amount of the actual amount of the deposit calculated by the Defendant, it cannot be deemed that the method of calculating the tax base of the instant taxation is unlawful. In full view of the circumstances, etc., such as the Plaintiffs’ assertion that the method of calculating the tax base of the instant taxation is unlawful is without merit.

3. Conclusion

Therefore, the plaintiffs' claims against the defendant are dismissed in entirety as there is no reason.