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서울행정법원 2012. 03. 09. 선고 2011구합29458 판결
강사료 지출내역을 증명할 만한 영수증이나 금융거래내역 등 객관적 자료를 제시하지 못하므로 인정할 수 없음[국승]
Case Number of the previous trial

National Tax Service Review Corporation 2011-0015 (Law No. 27 June 2011)

Title

It shall not be recognized that it is impossible to present objective data, such as receipts proving the details of tuition fees or financial transaction details.

Summary

There is no interest in litigation to seek revocation again for the part lawfully revoked due to the reduction reduction disposition, and the evidence and testimony submitted by the Plaintiff alone are insufficient to recognize that the instructor fee claimed by the Plaintiff was paid, and it cannot be recognized as not being able to present objective data, such as receipts or financial transactions, which can prove the details

Cases

2011Guhap29458 Revocation of Disposition of Corporate Tax Imposition

Plaintiff

XX Co., Ltd

Defendant

The Director of Gangnam District Office

Conclusion of Pleadings

February 3, 2012

Imposition of Judgment

March 9, 2012

Text

1. Of the instant lawsuits, the portion exceeding KRW 28,289,70 from corporate tax of 2006 to KRW 28,289,70 from corporate tax of 2006, the portion exceeding KRW 140,148,750 from corporate tax of 145,036,060 from corporate tax of 207, the portion exceeding KRW 140,148,750 from corporate tax of 2007, and the portion exceeding KRW 164,193,410 from corporate tax of 2008 to KRW 156,72,260 from

2. The plaintiff's remaining claims are dismissed.

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

Purport of claim

The Defendant’s imposition disposition of KRW 20,00,000 in corporate tax for the business year 2006 to the Plaintiff on June 1, 2010, in excess of KRW 20,000,000, in excess of KRW 120,000 in the imposition disposition of KRW 145,036,060 in the business year 207, in excess of KRW 120,000 in the imposition disposition of KRW 164,193,410 in the business year 208, and in excess of KRW 120,000 in the imposition disposition of KRW 164,193,

Reasons

1. Details of the disposition;

A. The Plaintiff was established on June 22, 2006 and was demoted to study and prepare against the SAT test. The director of the Seoul Regional Tax Office conducted a tax investigation on the Plaintiff from March 16, 2010 to May 7, 2010, and confirmed the omission of tuition fees and the inclusion and omission of the processing personnel expenses on the account book and notified the Defendant of the data.

B. On June 1, 2010, the Defendant imposed corporate tax of 29,77,200 for the business year 2006, corporate tax of 145,036,060 for the business year 207, and corporate tax of 164,193,410 for the business year 2008 (hereinafter “the original disposition”).

C. On September 7, 2010, the Plaintiff filed an objection against the above disposition with the Defendant, and the Defendant recognized the amount of KRW 3,846,650 in terms of equipment for departure from Korea, KRW 11,94,039 in 207, KRW 19,68,50 in 208, and KRW 19,68,50 in terms of equipment for departure from Korea, and subsequently corrected the corporate tax of KRW 487,50 in 2006 for the business year of 2006, KRW 487,50 in terms of the above disposition on February 8, 201, and KRW 4,887, KRW 310 in the business year of 207, KRW 7,421, and KRW 150 in the business year of 208 (hereinafter “the instant corrective disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the National Tax Service on April 6, 201, but the said request was dismissed on June 27, 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 to 8, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

ex officio, the part concerning the claim for revocation of the original disposition of this case which exceeds the tax amount due to the rectification of the reduction in the original disposition of this case is deemed lawful. After the tax imposition disposition of this case, the tax authority has issued a decision to revoke part of the original disposition of this case and there is a correction disposition to revoke and reduce part of the original disposition of this case, and the taxpayer has not yet been revoked due to the rectification disposition of this case and the remaining part is illegal, the subject of appeal litigation is the remaining part of the original disposition of this case which is not revoked by the rectification of the reduction in the original disposition of this case. Therefore, it is reasonable to seek revocation of the original disposition of this case which was lawfully revoked by the rectification of the reduction in the original disposition of this case (see, e.g., Supreme Court Decisions 81Nu393, Nov. 23, 1982; 2006; 207Du77081, Jul. 16, 2007; 2006Du28816, Jan. 7, 2007

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant did not calculate the Plaintiff’s tuition fees of KRW 5,629,345 in 2006, KRW 72,455,40 in 207, and KRW 116,951,607 in 2008 as deductible expenses. According to the sales report, etc. prepared by the Plaintiff, the above disbursement details can be recognized. Thus, the instant disposition that did not reflect it is unlawful.

B. Relevant statutes

Article 19 of the Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010)

(1) Deductible expenses shall be the amount of losses incurred by transactions which reduce the net assets of a corporation, excluding return of capital or financing, disposition of surplus funds, and what is provided for in this Act.

(2) The losses under the provisions of paragraph (1) shall be losses or expenses generated or spent in connection with the business of a corporation which are generally accepted as normal or directly related to profit, except as otherwise prescribed by this Act and other Acts and subordinate statutes.

(3) Matters necessary for the scope and types of losses under the provisions of paragraphs (1) through (3) shall be prescribed by Presidential Decree.

[Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302 of Feb. 4, 2009)]

Except as otherwise provided for in the Act and this Decree, the losses under the provisions of Article 19 (1) of the Act shall be those as provided for in the following subparagraphs:

3. Personnel expenses;

C. Determination

1) The burden of proving the tax base, which serves as the basis for taxation in a lawsuit seeking revocation of disposition of revocation of corporate tax, is the tax authority. Since the tax base is deducted from the acceptance of the case, the tax authority bears the burden of proving the revenue and necessary expenses. However, when a tax assessment is conducted on the omitted income by the on-site investigation decision, unless there is any evidence that there was a separate expense corresponding to the omitted income amount, it accords with the empirical rule and the principle of equity (see, e.g., Supreme Court Decision 2010Du28076, Apr. 28, 2011).

2) In light of the above legal principles, considering the Plaintiff’s assertion that there are many cases of paying tuition fees in cash, the Plaintiff’s statements in Articles 5 through 10 (including each number), as well as the testimony in EA and EB, are insufficient to recognize that the Plaintiff’s assertion was made, and there is no other evidence to acknowledge that the Plaintiff’s assertion was made. Accordingly, the instant disposition is lawful.

A) As seen earlier, the Defendant already included the instant disposition in deductible expenses for KRW 352,350,248 as to the Plaintiff’s corporate account, the account in the name of the Plaintiff’s representative, the Plaintiff’s account in the name of BB, etc., and the tuition fees of KRW 352,350,248. The details of the Plaintiff’s payment of tuition fees are unilaterally written, and the Plaintiff did not present objective data, such as receipts and financial transactions, which can prove the details of the Plaintiff’

B) The Plaintiff did not submit the Plaintiff’s withholding data on the tuition fee claimed by the Plaintiff, or the Plaintiff’s earned income tax payment data.

4. Conclusion

Therefore, among the lawsuits in this case, the part exceeding 28,289,700 won from corporate tax of 2006 to corporate tax of 29,777,200, the part exceeding 140,148,750 won from corporate tax of 2007 to corporate tax of 145,036,060, and the part exceeding 140,148,750 won from corporate tax of 2007, and each claim for revocation exceeding 156,772,260 won from corporate tax of 164,193,410 won from corporate tax of 2008 is dismissed, and it is so decided as per Disposition. The remaining claims of the plaintiff

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