Seoul Administrative Court 2009Guhap15791 ( November 26, 2009)

early 2008west0943 ( October 17, 2009)

Where a bond broker fails to prove the fact of bonds purchase from a resident, interest income;

Even if a bond broker has no actual period of holding bonds, etc., he/she is unable to prove the fact of purchasing bonds from other residents, etc. by such methods as prescribed by Presidential Decree, the interest income accrued from such bonds

The contents of the decision shall be the same as attached.

1.The decision of the first instance shall be revoked.

2. The plaintiff's claim is dismissed.

3. The total costs of the litigation shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposing global income tax of KRW 333,195,100 for the Plaintiff on February 5, 2008 is revoked.

2. Purport of appeal

Judgment such as the statement.

1. Details of the disposition;

The following facts may be acknowledged in the absence of dispute between the parties, or by integrating the whole purport of the pleadings in each of the evidence Nos. 1, 2, and 2 of the evidence No. 1-2.

A. From March 15, 200 to ○○○○○○-dong 43 △△△△△ building 1107, the Plaintiff was a person who has engaged in the business of buying and selling national and public bonds in the trade name, ○○○○○○○○○○○○○○○○○○○ building, and at the same time, reported the total income amount of KRW 15,015,829,532, necessary expenses, KRW 15,006,975,027, and KRW 8,854,505,50.

B. As a result of the Plaintiff’s tax investigation on global income tax for the tax year 2004, the Defendant deemed that the interest accrued from bonds sold by the Plaintiff to corporations, etc. was reverted to the Plaintiff and included in the Plaintiff’s global income. The Defendant also decided to estimate business income on February 5, 2008 on the ground that there is insufficient evidence of the amount of bonds purchase submitted by the Plaintiff, and imposed KRW 33,195,100 on the Plaintiff on February 5, 2008 (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that: (a) the Plaintiff: (b) as a person who is engaged in the sales business of bonds, etc., purchased several bonds from the holder of bonds, etc. or the intermediary purchaser on the date of purchase and sold them to an individual or securities company; and (c) the Plaintiff does not have actual ownership of interest accrued from the holding period; and (b) the aggregate taxation of all the interest accrued from bonds, etc. sold by the Plaintiff on the Plaintiff’s income is unlawful in light of the substance over form principle; and (b) even if the Plaintiff submitted sufficient purchase evidence necessary for calculating the tax base, the estimated

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Facts recognized

The following facts may be acknowledged by comprehensively taking into account the evidence mentioned above, the evidence mentioned in subparagraph 3-1 through 12, the evidence mentioned in subparagraphs 1 through 4, and the whole purport of oral proceedings:

(1) The Plaintiff, as a national and public bond dealer, has purchased national and public bonds from individuals or other bond buyers and sold them again to securities companies, etc. to obtain gains from them.

(2) When the Plaintiff sells bonds to a corporation, including a securities company, the pertinent corporation, at the time when it pays the bonds to the Plaintiff, shall be the date of issuance of the pertinent bonds or immediately preceding interest payment date, etc. under Article 46 of the former Income Tax Act (amended by Act No. 7319, Dec. 31, 2004; hereinafter referred to as the “former Act”) which was in force at the time when it pays the bonds to the Plaintiff, and the amount equivalent to the interest calculated by applying the tax rate under Article 129(1)1 (c) of the former Act as to the amount equivalent to the interest calculated by the closing date of sale, shall be calculated by deducting the interest income tax from the source and then issuing the withholding receipt to the Plaintiff. The amount equivalent to the

(3) At the time of filing a global income tax return in 2004, the Plaintiff filed a total amount of KRW 15,015,829,532 with the securities company, etc. during the pertinent period, and filed a report on the total amount of income. Here, the Plaintiff deducted KRW 15,006,975,027, including the purchase price of bonds and the necessary management expenses, from KRW 15,006,975,027, which is the purchasing agency, and filed a report on the total amount of KRW 8,854,505,

(4) However, the Defendant determined that the Plaintiff’s interest income tax withheld under the Plaintiff’s name was the interest income that ought to be added to the Plaintiff’s global income, and further, deemed that this was included in KRW 15,015,829,532, which the Plaintiff received from a corporation, etc.; and accordingly, deemed that only the remainder of KRW 14,176,227,535 (15,015,829,829,532 - 839,601,97) was the business income resulting from the bond sale business.

(5) Furthermore, the Defendant, without reliance on the entire evidence of purchase submitted by the Plaintiff, classified the business income calculated as above into cases where a securities company files a business income for a securities company and an ordinary person, and calculated necessary expenses by applying each standard depreciation rate and estimated the business income.

(6) The specific difference between the Plaintiff’s initial contents and the Defendant’s corrected contents is as follows. (7) Meanwhile, the details of the bond transaction asserted by the Plaintiff are as shown in the attached Table of Bond Transactions. The Plaintiff’s sales of the bonds purchased from the purchaser on the date of purchase is indicated in the attached Form of Purchase.

D. Determination

(1) Whether the substance over form principle is violated

(A) Reversion of comprehensive taxation on financial income and interest income;

In 196, the Income Tax Act imposed financial income separately from global income such as earned income by 1996, but in order to prevent imbalance in tax burden arising from the application of the same tax rate uniformly regardless of a large amount of income and deficit. This refers to the method of calculating total income by adding the financial income acquired through financial transactions, such as interest income and dividend income. In addition, the method of calculating the total amount of income according to the progressive tax rate after adding the financial income acquired through financial transactions to other income. In addition, the change from the method of withholding at the time of interest payment (interest recipient taxation method) to the method of reverting the interest income to each holder of the credit (interest period taxation method) for the period in which the interest recipient’s income reverts to the interest recipient’s income at the time of interest payment (interest recipient taxation method), which was to prevent the financial institution from developing the goods subject to comprehensive financial income taxation by re-purchasing prior to the maturity of the credit amount and to reduce the effectiveness of the comprehensive taxation system. In addition, as an individual is able to avoid the comprehensive taxation through adjustment of the period of possession period, on the account or notarial method.

In light of the above purport of global taxation on financial income, where a resident, etc. who sells bonds, etc. to a corporation or receives interest, etc. pursuant to Article 46 (2) and (5) of the former Act does not prove that he/she purchased such bonds, etc. from another resident, etc. during the period of individual possession as prescribed by Presidential Decree, the amount of income shall be calculated by deeming that the amount equivalent to the interest during the period of individual possession belongs to the resident, etc. who sells bonds, etc. or receives interest, etc. to the corporation. Article 102 (8) of the former Enforcement Decree (amended by Presidential Decree No. 18705 of Feb. 19, 2005) of the former Enforcement Decree of the Act provides that "the method of verifying the amount of interest income, etc. through an account opened in a financial institution" under Article 46 (2), (4) and (5) of the former Enforcement Decree of the Act shall be limited to the amount of bonds issued by the relevant financial institution's electronic data processing system or head of passbook, and where bonds, etc. were purchased from an individual.

(B) Determination on the instant case

As seen earlier, the Plaintiff purchased all bonds, etc. from an individual entrepreneur except for the transaction with EE securities on September 20, 2004 and the FF securities on October 20, 2004. Since the Plaintiff failed to submit and prove a notarial deed stating the name, address, resident registration number, date of sale and purchase, type of bonds, issue number and face value of the transaction partner to support such purchase, it is deemed that the interest income accrued from the bonds purchased from an individual entrepreneur on the attached Form 'the details of bond transaction' belongs to the Plaintiff in full. Accordingly, this part of the Plaintiff's assertion on a different premise is without merit because it is merely a notarial deed prepared by a notary public under the provisions of the Notary Public Act on the period of possession and purchase from an individual under Article 102 (8) of the Enforcement Decree of the former Enforcement Decree of the Act, and it is not acceptable to accept the Plaintiff's assertion that the Plaintiff actually purchased the bonds, etc. on the basis of the transaction details of financial institutions or objective data equivalent thereto, and there is no evidence and evidence presented otherwise.

(2) Whether the taxation by estimation is lawful

The tax base and tax amount of global income tax shall, in principle, be determined by the actual amount revealed by the field investigation method, and in order to determine it by the estimation investigation method, it shall be exceptionally permitted only when there is no taxpayer’s account books or documentary evidence, etc., or when there is no other method by which the tax authorities can disclose the actual amount of income without credibility because the important part is insufficient or false. The burden of proving the requirements for estimation taxation shall be borne by the tax authorities (see, e.g., Supreme Court Decision 98Du915, Oct. 8, 199)

이 사건에 관하여 보건대, 앞서 든 각 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 원고가 ◁◁상사의 김AA에게 채권 매입대금을 계좌이체하면서 굳이 직원이나 다른 제3자 명의의 계좌로 입금시킬 만한 별다른 이유가 없고(원고가 매입대금을 입금해 준 허BB이나 이CC은 ◁◁상사의 직원이 아니다), 더구나 개인으로부터 매출대금으로 받은 수표를 ◁◁상사의 직원인 이계식에게 그대로 지급하였다고 하면서 수표 사본 등의 제시 없이 단지 이계식의 사실확인서만을 제출하고 있는 점,② 원고가 △△상사의 DD에게 60억 원 상당의 채권 매입대금을 지급하였다고 주장하나 계좌이체내역 등의 금융자료 없이 DD의 사실확인서만으로는 이를 인정하기에 부족하고, 위 매입대금 중 24억 원을 정EE의 계좌로 이체하였는데 위 정EE은 △△상사의 직원도 아니고 위 매입대금의 귀속과 어떠한 관련이 있는지 밝혀지지 않았을 뿐만 아니라, △△상사는 2004년 귀속 종합소득세로 8,379,000원을 신고하고 있어 원고의 ◁◁상사에 대한 매입금액이 60억 원 상당임을 그대로 믿기 어려운 점,③ 원고는 이 사건 채권을 당일 매입하고 바로 당일 매출하여 중개하였을 뿐이라고 주장하나, 이 사건 채권의 거래일자 및 횟수, 채권거래의 현실 등을 감안하면 거래 당일 수억 원 내지 수십 억 원 상당의 채권을 매입 ・ 매출하였다기보다는 일정한 기간 동안 여러 차례에 걸쳐 채권을 매집한 뒤 일정 기간 동안 보유하다가 각 거래일자에 매출한 것으로 보이는 점,④ 원고가 지급한 채권 매입금액 총액 약 146억 원 중 앞서 본 바와 같이 거래처나 송금내역이 불분명하거나 거래상대방의 인적사항이 불분명한 금액이 86억 원에 이르는 점 등에 비추어 보면, 이 사건의 경우 원고의 채권거래와 관련한 장부나 증빙서류 등이 없거나 그 중요부분이 미비 또는 허위로 기재되어 신뢰성이 없고 달리 과세관청이 그 소득의 실액을 밝힐 수 있는 방법이 없는 때에 해당한다고 볼 것이므로 피고가 추계과세의 방법으로 이 사건 처분을 한 것이 위법하다고 보기 어렵다. 따라서 이와 다른 전제에 선 원고의 이 부분 주장도 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be dismissed as it is unfair, and it shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.