Incheon District Court 2009Guu2683 (Law No. 21, 2011)

early 2008 Heavy008 (2009.04.03)

No sales may be deemed to have been excessively appropriated in connection with creative construction works, etc.

In light of the fact that there was no assertion or submission of materials about excessive appropriation of processing or sale in the administrative appeal procedure, it is difficult to believe this, and it cannot be recognized as personnel expenses for employees.

2010Nu26799 Revocation of Disposition of Imposing corporate tax, etc.

○○ Co., Ltd.

○ Head of tax office

Incheon District Court Decision 2009Guhap2683 Decided July 22, 2010

April 21, 201

May 19, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and each disposition of imposing corporate tax of 84,551,110 won on the plaintiff on April 16, 2007 by the defendant and disposition of disposing of income of 541,828,550 won on April 18, 2007 as dividends is revoked.

1. Details of the disposition;

A. Since its establishment on June 10, 2003, the Plaintiff is a legal entity that runs wholesale and retail business (stegying and glass business) and construction business (stegying and glass business).

B. When the Plaintiff reported and paid the corporate tax in 2004, the Plaintiff included KRW 209,140,000 in the supply price on the purchase tax invoice received from ○○○ Co., Ltd. (hereinafter “the purchase tax invoice of this case”) and KRW 15,400,000 in the deductible expenses.

C. In addition, the Plaintiff, in lieu of KRW 541,828,550, was not paid by ○○○-dong 248-7 △△△△, 106, 107, and 108 (hereinafter “instant commercial building”) and completed the registration of ownership transfer on May 30, 2006 under the name of ○○-si ○○○-dong 248-7 △△△△, 106, 107, and 108 (hereinafter “instant commercial building”).

D. On April 16, 2007, the Defendant denied the inclusion of the amount of loss to the Plaintiff on the ground that the purchase tax invoice of this case is a tax invoice for processing without real transactions, and that it paid personnel expenses, and imposed corporate tax of KRW 84,551,110 on the Plaintiff on April 16, 2007 (hereinafter “instant disposition”), and on the registration of transfer of the instant commercial building in the name of the rightB, the Plaintiff deemed that it was distributed to the rightB on April 18, 2007, and notified the Plaintiff of the change in the amount of income disposed of as dividend (hereinafter “instant notice disposition”).

E. In addition to each of the instant dispositions, the Defendant issued a notice of the imposition of value-added tax on the Plaintiff from February 2003 to January 2006, 2003 and imposition of corporate tax in 2005, 2003, 2004, 2005 and 2005, each of the certain incomes in 2005, as bonus to the representative director BB, and the notice of the change of the amount of income that was disposed of as a dividend to the shareholder rightB.

F. On July 10, 2007, the Plaintiff filed an objection with the Tax Tribunal on December 14, 2007. Among the above dispositions, the imposition disposition of corporate tax in 2005 against the Plaintiff, the disposition of bonus in 2005 against the representative director and the disposition of bonus in 2005 against B by the representative director was partially recognized and the amount of tax was reduced, and the disposition of dividend in 2005 against the rightB was revoked, and all the remaining claims were dismissed.

[Ground of recognition] Facts without dispute, Gap evidence 1, 21 evidence, Eul evidence 1 to 3, 5 to 8, and 12 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff asserts that each of the dispositions of this case should be revoked for the following reasons.

A. As to the disposition of this case

1) The fact that the purchase tax invoice of this case was issued without real transaction as alleged by the Defendant, but the Plaintiff’s sales revenue in 2004 was excessively appropriated as the processing sales revenue upon the request of the transaction partner, which ought to be excluded from the gross income accrued in 2004 under the principle of substantial taxation.

A) On September 8, 2003, the Plaintiff subcontracted 46,000,000 won of the new construction of △△△ Office building by △△ Construction Co., Ltd. (hereinafter referred to as "△△△ Construction"), but upon the request of △△ Construction, the Plaintiff prepared a construction contract with the price of KRW 66,00,000,000, and issued and issued a tax invoice accordingly, and returned KRW 10,000,000, respectively, to △△ Construction.

B) On August 25, 2004, the Plaintiff subcontracted to 41,800,000 won of the newly-built glass construction of the △△△ School in Do, Seoul Special Metropolitan City (hereinafter “Seoul Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Construction at the request of

다) 원고는 주식회사 ■■건설(이하 '■■건설'이라 한다)로부터 ① 2003. 12. 20. AA프라자 신축 유리공사를 54,520,180원에 하도급 받았으나 ■■건설의 요구로 그 대금을 99,256,850원으로 하는 공사계약서를 작성하고 그에 따른 세금계산서를 발행, 교부한 후 2004. 3. 11. ■■건설에 그 대금 중 42,023,000원을 반환하였고, ② 2004. 2. 2. BB프라자 신축 유리공사를 46,866,380원에 하도급 받았으나 ■■건설의 요구로 그 대금을 68,247,300원으로 하는 공사계약서를 작성하고 그에 따른 세금계산서를 발행, 교부한 후 2004. 3. 29. ■■건설에 그 대금 중 21,043,000원을 반환하였으며,③ 2004. 2. 23. CC프라자 신축 유리공사를 68,638,020원에 하도급 받았으나 ■■건설의 요구로 그 대금을 90,640,000원으로 하는 공사계약서를 작성하고 그에 따른 세금계산서를 발행, 교부한 후 2004. 3. 11. ■■건설에 그 대금 중 20,000,000원을 반환하였고, ④ 2004. 7. 28. DD스 신축 유리공사를 115,500,000원에 하도급 받았으나 ■■건설의 요구로 그 대금을 148,500,000원으로 하는 공사계약서를 작성하고 그에 따른 세금계산서를 발행, 교부한 후 2004. 11. 12. ■■건설에 그 대금 중 30,000,000원을 반환하였다.

2) Since Western is an employee of the Plaintiff, personnel expenses paid to it shall be included in the loss for the year 2004.

B. As to the notice disposition of this case

The Plaintiff bears the 615,749,412 provisional payment obligations against the rightB, and the Plaintiff completed the registration of ownership transfer of the instant commercial building to the rightB as a repayment claim. Therefore, the Defendant’s deeming it as a dividend against the rightB is unlawful.

3. Determination on the defense prior to the merits

The defendant argues that the plaintiff's assertion of excessive appropriation of processed sales among the above allegations was unlawful because it did not go through the pre-trial procedure. However, since the subject matter of the disposition of revocation is the objective existence of the tax amount determined by the tax authority or entered in the tax base return and its identity is specified only in the purport of the claim, the grounds for each illegality are merely an attack and defense that the plaintiff asserts that his claim is justified (see Supreme Court Decision 2002Du9261, Aug. 16, 2004) and the fact that the plaintiff alleged that the disposition of this case was in fact during the pre-trial procedure is proved to have been in fact, the defendant's defense of the above merits cannot be accepted as various arguments.

4. Whether each of the dispositions of this case is legitimate

(a) Related Acts and subordinate statutes;

It is as shown in the attached Form.

B. Determination

1) Legal principles on burden of proof

In general, in a lawsuit seeking the revocation of a tax imposition disposition, the burden of proving the facts of taxation requirements shall be borne by the imposing authority. However, if it is proved that the facts of taxation requirements have been presumed in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the taxation requirements unless the other party proves that the facts in question were not eligible for application of the empirical rule (see, e.g., Supreme Court Decisions 2002Du6392, Nov. 13, 2002; 2002Du639

2) As to the Plaintiff’s assertion of excessive appropriation for processed sales

원고의 이 부분 주장은 원고 스스로 ◇◇건설, ☆☆건설, ■■건설과 실거래를 전제로 공사계약을 체결하고 그에 따라 매출세금계산서를 발행, 교부한 후 대금을 모두 지급받았음에도 나중에 자신의 행위를 부인하면서 그 중 일부가 가공매출로서 지급받은 대금 중 일부를 반환하였다는 것이므로, 이 부분 법인세 과세요건사실은 경험칙상 추정된다고 할 것이니, 원고가 그 주장과 같은 사정을 증명하여야만 할 것이다.

However, as shown in the plaintiff's above argument, Gap evidence 1-3, Gap evidence 2-2 through 4, Gap evidence 3-2, Gap evidence 4-3, Gap evidence 4-2, Gap evidence 5-2, and Gap evidence 6-3 are stated in Gap evidence 1-3, Gap evidence 2-3, Gap evidence 5-2, and Gap evidence 6-3. ① The plaintiff did not submit all arguments or materials relating to the disposition of this case or in the administrative appeal procedure. ② The financial materials that recognize that the amount deposited from the plaintiff's account up to the plaintiff's account falls short of △△ Construction, etc.; ③ Since the difference between the actual construction price claimed by the plaintiff and the construction price excessively appropriated is different from the amount that the plaintiff returned, it is insufficient to acknowledge facts as alleged by the plaintiff, and there is no other evidence to acknowledge this part of the plaintiff's assertion that the plaintiff's construction contract was excessive in 00, 200, 200, 2000, 200, 4000.

3) As to the Plaintiff’s assertion on labor cost

In full view of the purport of the entire arguments in the statement Nos. 5 and 9-1 of the evidence Nos. 9-1, it may be recognized that the title of the plaintiff, the representative director of the plaintiff, opened a sexual glass business and traded as the plaintiff's subordinate business, and did not have an employee of the plaintiff. Thus, the plaintiff's assertion on this part cannot be accepted.

4) As to the assertion that there is a claim against the rightB for the existence of such a claim

In lieu of the construction cost that the Plaintiff received the instant commercial building in lieu of the construction cost that was not paid from △ Construction, and the fact that the Plaintiff completed the registration of ownership transfer to the representative director and the rightB, a shareholder, is the Plaintiff. Therefore, as alleged by the Plaintiff, the Plaintiff bears the obligation to collect the provisional deposit and accordingly, the Plaintiff must prove that the registration of ownership transfer was completed as above.

However, as shown in the Plaintiff’s above assertion, there were testimony between Gap’s No. 14, 15, and 32 as witnesses of the first instance trial and Eul’s testimony. However, considering the following circumstances, although Gap’s evidence No. 18-1, Eul’s evidence No. 6, 13, 19, 20, 23, 25, and 26 (including each number), it is difficult for the Plaintiff to use the amount of 684,94,000 won when the Plaintiff raised an objection against the rightB, 610,000 won when the Plaintiff requested a trial, 408,283,705 won when re-audit, and 615,749,412 won when the Plaintiff claimed that the amount of 300,000 won would not have been settled, 205,300,000 won, 205,305,300,000 won, 305,200.

In addition, considering the fact that the money withdrawn from the account of the rightB is not presented objective data, such as financial data that the plaintiff or the plaintiff's creditor directly collected, and it is also difficult to easily obtain a loan by withdrawing and lending a large amount of money in cash, not by account transfer, etc., the entries of the evidence Nos. 8 through 13 alone are insufficient to acknowledge the plaintiff's assertion, and there is no other evidence to acknowledge it, the plaintiff's assertion on this part cannot be accepted.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and it is so decided as per Disposition.