Early High Court 2013J 3374 ( November 26, 2013)

Determination of total sales by investigating the amount deposited in the account is a legitimate on-site investigation method with objectivity;

The determination of total sales by investigating the amount deposited in each account when it is impossible to verify the actual sales amount of the documentary evidence kept in the custody is a legitimate on-site investigation method as a means of objectivity. Therefore, the plaintiff's assertion on this part is rejected.

Article 14 of the Framework Act on National Taxes and Article 21 of the Value-Added Tax Act

2014 disposition of revocation of imposition of value-added tax

AA

Deputy Director of the Tax Office

August 21, 2014

October 2, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of value-added tax No. 1 in 2007 against the Plaintiff on March 12, 2013 and the imposition of value-added tax No. 2 in 2007 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff and his spouse, from March 20, 2007 to June 3, 2008, operated the business registration from ○○○○ to June 3, 2008, and run the entertainment bars, which are entertainment taverns (hereinafter “the instant entertainment bars”).

B. In relation to the value-added tax for the first period of the year 2007 on the Defendant in 2007, △△△○○○○○, the purchase amount ○○○○, and the refundable tax amount ○○○○○○○○. As to the value-added tax for the second period of the year 2007, the TPP reported the tax base of sales, purchase amount, ○○○, and the payable tax amount

C. From November 30, 2012 to January 19, 2013, the Defendant conducted an investigation into the value-added tax for the first and second period of the entertainment tavern 2007, and subsequently notified the Plaintiff of KRW 107,00,00 for the reason that the instant entertainment tavern 23 to July 22, 2007 was jointly operated by the Plaintiff and the Plaintiff’s relative-gu dedicated unit 60:40 for the period from March 23, 2007 to July 22, 2007, and was operated by the Plaintiff during the period from July 23, 2007 to June 3, 2008. On March 12, 2013, the Defendant changed the representative of the instant entertainment tavern 200,000 won for the first and second period sales revenue 207 to the Plaintiff on the ground that “the value-added tax base was omitted from the sales tax base.”

D. As the Plaintiff filed an objection on May 9, 2013, the Defendant, following a reinvestigation, deemed that the first sales revenue of July 23, 2013 and the second sales revenue of 2007 were omitted from filing a return on the tax base in the sales revenue. In 2007, the first value-added tax of 2007 was reduced to ○○○○ and 2007 by reducing the second sales revenue of 2007 to ○○○○ and 2007 (hereinafter referred to as the “instant disposition”).

E. On June 20, 2013, the Plaintiff filed an appeal by the Tax Tribunal, but was dismissed on November 26, 2013.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 6 (including virtual number), Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant entertainment tavern operated an existing entertainment bar and operated the instant entertainment bar jointly with the Plaintiff’s family dedicated to the Plaintiff’s claim. Since the Plaintiff was friendly with the Plaintiff’s spouse, the instant disposition made on the premise that the Plaintiff was an actual business owner of the entertainment tavern in this case is unlawful.

2) Since the Plaintiff did not evade national taxes due to fraud or other unlawful act, the exclusion period for imposition of five years shall apply. The liability for the payment of value-added tax for the first and second years in 2007 shall expire five years from the exclusion period for imposition on July 26, 2012 and January 26, 2013, the instant disposition shall be revoked.

3) Of the money as seen in the omission of sale, the Defendant’s ○○○○○○ out of the money as seen in the omission of sale, deposited the balance into the account of △▽▽▽ or the Plaintiff’s account, and the ○○○○○○○ was deposited in money that was partially deposited in another account after withdrawing from and using the account of the ▽▽▽▽▽△ or the Plaintiff’s account, and thus, it is unreasonable to deem it as an omission of sale as the amount of sales. In addition, the Defendant deemed both the instant entertainment drinking house sales regardless of the source of money deposited in the account of the Plaintiff or the ▽▽▽▽▽▽▽▽△△△△△, and the Defendant’s act based on the details of bank transactions between the Plaintiff and the Plaintiff, other than the daily handbook,

4) The Defendant’s view of the annual sales of the entertainment tavern 2007 as ○○○○○○, and that it was unlawful to recognize the purchase and amount of expenditure corresponding thereto based on separate evidentiary materials.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On April 2, 2007, the ▽▽▽△ and the dedicated set-off contract was drafted, and the Plaintiff entered into the said contract as a guarantor of the ▽▽▽△△△△.

2) 원고는 이 사건 유흥주점의 일부를 임차한 ●●●에게 임대보증금을 반환하기위하여 2007. 6. 11.경 이 사건 유흥주점에서 웨이트리스로 근무하던 ◆◆◆로부터 ○○○원을 빌렸고, ◎◎◎은 원고의 위 차용금반환채무를 보증하였다. 원고는 2008.6. 1. ◆◆◆에게 위 돈 중 ○○○원을 변제하였다.

3) On September 11, 2007, the Plaintiff sent a content-certified mail, stating that “The dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated

4) ◎◎◎은 원고의 보증인으로서 ◆◆◆에게 ○○○원을 변제하였다는 이유로2009. 7. 15. 원고를 상대로 구상금 청구를 하였다(인천지방법원 ○○○가단○○○, 인천지방법원 ○○○나○○○, 이하 '관련 소송'이라 한다). 관련 소송 과정에서 ◎◎◎은 "원고가 재산이 없는 ▽▽▽ 명의로 사업자등록을 내는 것이 좋다고 하였고, 원고는 탈세목적으로 ▽▽▽ 명의로 사업자등록을 한 것"이라고 주장하였으며, 원고는 "원고와 ◎◎◎은 이 사건 유흥주점 동업계약을 체결하면서 처음에는 원고와 ◎◎◎ 공동명의로 사업자등록을 하려고 하였으나, ◎◎◎이 사업자등록을 재산이 없는 ▽▽▽의 명의로 하는 것이 사업상 안전하지 않겠냐고 제안하였다. ▽▽▽는 이 사건 유흥주점 사업에 대하여 전혀 알지 못하였다"고 주장하였고, ◆◆◆는 "원고와 ◎◎◎이 동업관계에 있었고, 실제 전반적인 운영은 원고가 하였기 때문에 원고에게 차용증을 직접 작성해 달라고 하였다"는 내용의 진술서를 제출하였다.

5) At the time of the tax investigation, the ▽▽△△△△ stated that the Defendant’s public official stated, “I had a house or a building, and the author had a business registration in the future, because there is no property before it.”

[Reasons for Recognition] Facts without dispute, Gap evidence 13, Eul evidence 2-3, Eul evidence 10-6, 7, and 10-10, the purport of the whole pleadings

D. Determination

1) Whether the Plaintiff is an actual business owner of the instant entertainment tavern

In accordance with the principle of substantial taxation under Article 14 (1) of the Framework Act on National Taxes, the confirmation of a taxpayer must be based on legal substance, not external appearance. If the ownership of income, profit, property, act or transaction is merely nominal and there is another person to whom it actually belongs, the person to whom it actually belongs should be the taxpayer.

위 인정 사실에 이 사건 기록에 의하여 알 수 있는 다음과 같은 사정, 즉 원고가 친구 사이인 ◎◎◎과의 동업관계 형성을 주도하였을 것으로 보이는 점, 원고가 이 사건 유흥주점 임차인에게 보증금을 반환하기 위하여 주채무자로서 ◆◆◆로부터 돈을 빌리고 위 돈 중 일부를 변제하였으며 원고와 ▽▽▽ 명의의 이 사건 유흥주점 사업용 통장을 소지하는 등으로 이 사건 유흥주점 운영에 적극적으로 개입한 점 등을 더하여 보면, 이 사건 유흥주점의 실질적인 사업주는 원고(2007. 7. 23.까지는 ◎◎◎과 함께)라고 봄이 상당하다.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the exclusion period has expired

The legislative purpose of Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) is to extend the exclusion period for the imposition of national taxes to 10 years because it is difficult to expect the exercise of the imposition right because it is difficult for the tax authority to find out that there is any fraudulent act, such as making it difficult to detect the taxation requirement of national taxes or making it difficult for him/her to find out any false fact, so it is difficult for him/her to do so. Thus, the term "Fraud and other unlawful act" under Article 26-2(1)1 of the former Framework Act refers to a fraudulent act or other active act that makes it impossible or considerably difficult to impose taxes or make it difficult to collect taxes. Therefore, if income is obtained through a disguised title but it is not related to tax evasion, it can be said that it constitutes a fraudulent act or other unlawful act under Article 26-2(1)1 of the former Framework Act on National Taxes, such as preparing a false tax evasion or other unlawful act.

According to the above facts and the records of this case, the Plaintiff’s business registration regarding the entertainment tavern in this case was made in the name of ▽▽▽▽△ for the purpose of evading taxes. Furthermore, active acts such as preparation of a false business contract, etc. to prevent such fact from being discovered, and filing a report on global income tax by simple books other than the daily veterinary division. This constitutes “Fraud or other unlawful acts” under Article 26-2(1)1 of the former Framework Act on National Taxes, and thus, the exclusion period for imposition of value-added tax shall be ten years.

Therefore, this part of the plaintiff's assertion is without merit.

(iii) the omitted amount of sales.

In general, when the taxpayer’s contents of a tax return are corrected due to errors or omissions in the books or documentary evidence, it can be corrected by other data if there are errors or omissions in the details of the return and it is possible to conduct a field investigation. In this case, on-site investigations do not have any special method to the extent that it can be objectively acknowledged as a means of gathering actual income. Thus, the determination of the taxpayer’s total amount of income by investigating the amount deposited in the account of the financial institution of the taxpayer falls under a legitimate on-site investigation with objectivity (see, e.g., Supreme Court Decisions 97Nu9895, Mar. 24, 1998; 2002Du12786, Dec. 12, 2003). In addition, if the facts revealed in light of the empirical rule in the specific litigation process, the burden of proof on the facts subject to taxation can be imposed on the person entitled to taxation, or if not, it cannot be readily determined that the other party did not meet the pertinent requirement of taxation (see, e.g., Supreme Court Decision 2007Du606).

In full view of the purport of the arguments as indicated in the evidence No. 1, No. 2-3, No. 9, and No. 10-10, the Plaintiff alleged that the monthly sales of the entertainment tavern of this case was KRW 000 per month by combining admission fees and the annual revenue, and that the monthly sales of the entertainment tavern of this case was KRW 00,000 (the sales during about nine months from March 20, 2007, which is the starting date of business to December 31, 2007, are the volume of KRW 00,000), the ▽▽▽△△△ reported the tax base for the entire sales of 2007 as KRW 0,000 (○○○○ + KRW 00,000). The Defendant determined that the sales of the entertainment tavern of this case from around September 207, 207, which was recorded in the daily revenue book submitted to the Defendant, was more than the total sales of the Plaintiff and the Defendant’s account of this case.

In light of the above facts in light of the legal principles as seen earlier, it is reasonable to view that there was an error or omission in the details of the report on the sales of entertainment tavern 2007. The plaintiff does not keep evidentiary documents verifying actual sales, or the plaintiff's evidentiary documents cannot be verified. Thus, the defendant's determination of total sales by investigating the amount deposited into each of the above accounts constitutes a legitimate on-site investigation method as objectivity. The defendant's total sales calculated as above seems to be reasonable level.

Therefore, we cannot accept this part of the plaintiff's assertion.

(iv)the purchase and the amount of expenditure;

Although the Plaintiff asserts that the purchase amount of the entertainment tavern in this case and various expenditure amount are about 00 billion won per month and they actually did not have any profit from the operation of the entertainment tavern in this case, the taxpayer should assert and prove that the purchase amount corresponding to the omission of sales exists and the purchase amount is related to the business in the case of taxation by a field investigation decision on the omission of sales. The records of this case are not only insufficient to recognize it, but also the value-added tax, which adopts the tax credit system, has the form of transaction tax imposed on the external appearance of transaction, not substantial income, unlike the income tax and corporate tax, has the form of transaction tax imposed on the external appearance of transaction, and there is no concept of deduction of expenses. Thus, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.