Appellate Court 2013west 3606 ( November 24, 2014)

It is reasonable to see that the tax base of global income tax was underreported by improper means to intentionally omit the cash sales amount from the original payment expenses entered in the electronic car ledger.

In preparation for a tax investigation, underreporting the comprehensive income tax by intentionally omitting the cash sales amount from the payment expenses originally entered in the electronic car with the intention to evade tax, such as continuously omitting the return, etc. for five years in preparation for a tax investigation, the imposition and collection of the tax has been significantly difficult. Therefore, the application of an unfair under-reported additional tax is legitimate.

Additional tax for underreporting Article 47-3 of the Framework Act on National Taxes

2015Guhap5897 global income and revocation of disposition

Park AA

Samsung Head of Samsung Tax Office

December 11, 2015

on 02 05 October 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's "attached Schedule" imposed on the plaintiff on May 2, 2013 is revoked in all the parts exceeding the amount stated in the "reasonable amount of the plaintiff's assertion" column of the imposition of additional tax for underreporting the amount of provisional tax for the taxable period stated in the "attached Schedule" is revoked.

1. Details of the disposition;

A. Since before 2007, the Plaintiff is a person who has been operating a mountain father and a hospital (hereinafter referred to as “a hospital”) in the name of “OO-O father and woman” in the O-O's O-dong O-O.

B. Around March 2013, the Defendant issued a tax investigation on global income tax for the Plaintiff in 2007 to 2011, and deemed that the Plaintiff omitted the return of the amount of income stated in the column for omission of initial sales listed in the attached Table, on May 2, 2013, the Defendant corrected and notified the Plaintiff on May 2, 2013, the name of the specific column immediately stated in the attached Table, as to the Plaintiff’s global income tax for the year 2007, for the year 2008, for the part attributable to the year 2009, for the part attributable to the year 2010, for the part attributable to the year 2010, for the latter (including each additional tax for the year 2010, for the cited specific column of the attached Table).

C. On August 1, 2013, the Plaintiff appealed and filed an appeal with the Tax Tribunal. On November 24, 2014, the Tax Tribunal rendered a decision to re-examine whether the amount of income was omitted or not with respect to the electronic tea in the amount equivalent to the KRW O00,000,000, which was presented by the Plaintiff, and to rectify the tax base and the amount of tax.

D. After re-investigation, the Defendant: (a) deemed that the omitted amount of the Plaintiff’s return was less than the amount stated in the column for omission of initial sales; and (b) reduced the amount of the Plaintiff’s return on February 2, 2015, the amount of the global income tax for the year 2007, which reverts to the year 2008, the amount of the OOO for the year 2008, the amount of the OO for the year 2009, the amount of the OO for the year 2010, the amount of the OO for the year 2010, the amount of the OO for the year 201, and the amount of the additional tax for the under-reported portion (hereinafter referred to as “the disposition imposing additional tax”).

E. At the time of imposing additional tax, the Defendant: (a) deemed that the Plaintiff omitted the return of the amount of income omitted from sales after re-investigation; and (b) calculated the amount of penalty tax as stated in the [Attachment List] column by applying the unfair underreporting rate, which is not the general underreporting rate

F. On March 30, 2015, the Plaintiff filed the instant lawsuit seeking the cancellation of the remaining disposition, and the Plaintiff did not omit the Plaintiff’s return of the amount of income stated in the “not omitting sales after re-inspection.” (2) Even if so, regarding the portion of the said amount of income, the tax base cannot be deemed as the “unfair method,” which is the requirement for an unfair underreporting penalty tax under Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same). Therefore, regarding this portion, the Plaintiff asserted that the penalty tax should be calculated by applying the underreporting rate rather than the unfair underreporting penalty tax, rather than the general underreporting rate.”

G. However, on December 10, 2015, the Plaintiff, while the instant lawsuit is pending, omitted the return of the amount stated in the column for omitting sales after re-investigation. The Plaintiff asserted that ① the withdrawal of the claim, ② the amount of the non-contentious dispute, while maintaining only the claim, is an unfair underreporting penalty rate, and the amount of the underreporting penalty tax calculated by applying the general underreporting penalty rate, respectively, to the amount of the dispute, is the legitimate amount of the Plaintiff’s claim, and reduced the claim for revocation of the portion exceeding the above “justifiable amount of the Plaintiff’s claim” in the disposition imposing penalty tax.

Facts without any dispute arising in recognition, Gap evidence 1, 2, 3, Eul evidence 1 through 19 (including those with a serial number; hereinafter the same shall apply), the purport of the whole pleadings and the purport of the whole pleadings.

2. Whether the imposition of additional tax is lawful.

A. Plaintiff’s assertion and the issues of this case

The plaintiff asserts that the part exceeding the above "reasonable amount of the plaintiff's assertion" among the imposition of additional tax on the grounds as above 1.f. The issue of this case is whether the plaintiff could be deemed to have omitted the return of income by improper means as stipulated in Article 47-3 (2) 1 of the former Framework Act on National Taxes.

(b) Related statutes;

It is as shown in the attached Form.

(c) Relevant legal principles;

1) In a case where an underreporting the tax base by an unlawful means, which is an element for an unfair underreporting additional tax under Article 47-3(2)1 of the former Framework Act on National Taxes, is filed by such an active act as making it difficult to find any taxation requirement requirement of the national tax or forging false facts, and such underreporting arises from the purpose of tax evasion, such as avoidance of progressive tax rates and application of the provisions on carried forward losses (see Supreme Court Decision 2013Du12362, Nov. 28, 2013).

2) In addition, the court may determine the existence of the purpose of tax evasion by comprehensively taking into account various circumstances, such as the circumstances under which each specific case was reported and the period under which the return was made and the under-reported amount was reported.

(d) Facts of recognition;

1) The Plaintiff was paid the medical expenses by credit card payment method or other means from the patients during the above taxable period.

2) The Plaintiff informed the Plaintiff of the total number of 31 accounts owned and managed in the name of two children and 3 children (hereinafter “the borrowed account”) to the borrowed account for the patients who wish to pay the medical expenses by means other than credit card, and had the Plaintiff transfer the medical expenses to the borrowed account, or deposit the expenses into the borrowed account from time to time at any time.

3) Of the stated amounts in the column for omitting sales after re-inspection, the "non-contentious amount" is the medical expenses that the plaintiff received from the patient to the next account as above, and the "point amount" is the medical expenses and other income that the plaintiff received in a different way.

4) The Plaintiff entered the details of receipt of medical expenses of a hospital in the account book that the Plaintiff directly manages at the center (hereinafter referred to as the “director’s account book”) or recorded the details of receipt of medical expenses in the electronic form in the tea (hereinafter referred to as “electronic tea”) using the computer program called “chart-prop 2000” or in a separate account book (hereinafter referred to as “Operation Book”). The details of receipt of medical expenses from January 1, 2013 to March 4, 2013 and from October 1, 2010 to March 3, 2013 are recorded.

5) The amount of income entered in an electronic set by the Plaintiff is less than the amount of income entered in the account book, but exceeds the amount of income reported by the Plaintiff; ② there are cases where the amount of medical expenses finally entered by a specific patient is increased compared to the amount of medical expenses initially entered in the account book; and there are cases where the amount of reduction is reduced. The amount of reduction is consistent with the amount of cash receipt entered in the account book, and the increased portion is consistent with the

6) At the time of the tax investigation, the Plaintiff responded to the investigating official as follows: “The Plaintiff omitted sales in preparation for the tax investigation” on the reason that the sales amount was reduced in the electronic set.

Each entry of evidence Nos. 2 through 13, 17, 19, and the purport of the whole pleadings.

E. Determination

In light of the aforementioned facts and the following circumstances revealed from the aforementioned evidence, it is reasonable to view that the Plaintiff’s failure to report not only the “non-point amount,” but also the Plaintiff’s income as well as the “indemnite amount,” as well as the “indemnite amount,” as well as the “indemnite amount,” as well as the “indemnite amount,” had the intent to evade tax, intentionally omitted the portion of cash sales from the payment expenses originally stated on the electronic set, and made it considerably difficult to impose and collect tax by underreporting the global income tax base based on the electronic set. This is reasonable to view that the Plaintiff’s aforementioned assertion was without merit, and that the instant disposition is lawful.

① During the tax investigation process, the Plaintiff responded to the investigative officer as follows: “The Plaintiff omitted sales in preparation for a tax investigation” on the grounds that the sales amount was reduced.

② The Plaintiff had been unable to report the income of the ‘point' for five consecutive years, and the amount also reaches the KRW 2007 OO, 2008 OO, 2009 OO, 2009, OOOO, 2010, and OOO in 201.

③ The Plaintiff’s portion of reducing the amount of medical expenses originally stated in an electronic set is about cash sales that is difficult for the tax authority to capture whether to receive income, and it is also difficult to find reasonable grounds for the Plaintiff to reduce the amount originally stated (i.e., the Plaintiff’s portion of medical expenses for the payment of income in the electronic set, in light of the characteristics of the mountain father and mother, where it is inevitable for the Plaintiff to inevitably reduce the amount of medical expenses and make entries in the electronic set because it is difficult for the patient to receive medical expenses due to the patient’s external disclosure. However, if the above explanation is persuasive, if the details of medical expenses received from a specific patient are stated in the electronic set, it should be recognized that the patient’s medical expenses are highly likely to be disclosed to the outside, and the Plaintiff did not prove any specific proof on this point). Meanwhile, even if the increased amount exceeds the initially increased amount, even if the tax authority received the credit card payment method by which it can easily understand the increase amount of income in the tax investigation process, the Plaintiff also did not appear to the effect that the Plaintiff received the above increase amount by itself.

④ Although the income amount reported by the Plaintiff falls short of the amount entered in the electronic set, if the tax authority failed to discover the operating register or the book of the president in the course of tax investigation and finds only the electronic set, the amount omitted sales recognized by the tax authority may vary. Therefore, it is difficult to recognize that the Plaintiff prepared the electronic set without the purpose of tax evasion solely on the ground that the reported income amount falls short of the amount entered in the electronic set.

3. Conclusion

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