Cho High Court Decision 2012 father0102 (2012.05.04)

It is reasonable to deem that the Plaintiff sold alcoholic beverages by lending the name of other business entity to the existing business entity during the period of suspension of business.

The fact that a tax invoice has been issued in the name of another business entity during the period of suspension of business and a non-licensed sales business entity registered as an employee is sold to the customer and that a value-added tax has been imposed on the issuance of the tax invoice in the name of the plaintiff was finally found guilty in all criminal cases, such as the plaintiff, the representative of the plaintiff, and

Article 16 of the Value-Added Tax Act

2012 disposition of revocation of imposition of value-added tax, etc.

AAAAA

Head of the tax office

March 22, 2013

April 19, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of corporate tax (this tax) for the business year 2009, June 1, 201, and 2009, on June 2, 2011, of value-added tax (additional tax) for the second period of 2009, and 000 won for the second period of 2009, December 1, 2012, and of value-added tax (additional tax) for the second period of 2009, and 000 won for the first period of 200, and 000 won for the second period of 200 (additional tax) for the second period of 2010.

1. Details of the disposition;

A. The Plaintiff is a corporation that runs the sales business of alcoholic beverages.

B. The Defendant: (a) borrowed from July 15, 2009 to October 14, 2009 the Plaintiff’s tracking investigation results of alcoholic beverage distribution process, and from July 15, 2009 to October 14, 2009, sold alcoholic beverages by borrowing the name of a limited liability company (hereinafter “DB”) and a limited liability company BB, and issued a tax invoice under the Plaintiff’s name after selling alcoholic beverages to a customer through a non-licensed seller registered as the Plaintiff’s employee in the form from February 2, 2009 to February 2010; and (b) determined that the tax invoice was insufficiently and excessively issued to the Plaintiff; (c) imposed on the Plaintiff KRW 00 corporate tax for the business year 2009 to June 2009 and KRW 200 to October 20, 2010 and KRW 200 to October 20 to 20.

C. After a reinvestigation under the Plaintiff’s filing of objection, the Defendant reduced the corporate tax of 2009 year to 000 won, the value-added tax of 2009 year to 000 won, the value-added tax of 1 year 2010 to 000 won, and the value-added tax of 2 year 2000 won to 00 won.

D. The Plaintiff appealed and tried on November 22, 201, but was dismissed on May 4, 2012.

E. Since then on December 1, 2012, the Defendant revoked the portion of the additional tax among the corporate tax and the value-added tax that was reduced before December 1, 2012, and subsequently imposed tax amount of KRW 000 for the business year 2009, the value-added tax (additional tax) for the second period in 2009, and KRW 000 for the first period in 200, and the value-added tax (additional tax) for the second period in 2010.

[Grounds for Recognition] The entry into the non-speed facts, Gap evidence 1, 2, and 3, and Eul evidence 1 through 4, and 14 through 18, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) In order to maintain business partners during the period of business suspension, the Plaintiff supplied alcoholic beverages to the D Company and BB License Sales Board to the Plaintiff’s business partners, askeding them to provide alcoholic beverages, and supplied alcoholic beverages to D Company and BB License Sales Board according to their responsibilities and accounts, and the Plaintiff did not borrow the names of D Company and BB License Sales Board.

2) The Plaintiff employed his employees to pay piece rates in addition to the basic pay, and did not sell alcoholic beverages to his employees.

3) Even if the Plaintiff had sold alcoholic beverages by lending the name of DD companies and BB, and sold alcoholic beverages to its employees, there is a justifiable reason that the imposition of additional tax is illegal or not attributable to the Plaintiff’s breach of duty.

4) As long as the Plaintiff was imposed penalty tax due to the failure to issue the tax invoice, additional tax due to the failure to submit a list of the total tax invoices premised on the issuance of the tax invoice cannot be applied in duplicate to the Plaintiff.

B. Determination

1) As to the plaintiff's first argument

The plaintiff's representative director KimCC, employed the plaintiff's employees during the period of suspension of business in the Busan regional tax office based on the overall arguments, as follows. ① The plaintiff's representative director KimCC, a disguised employment on D companies and BB Jeju, issued a tax invoice under the name of D companies and BB company after purchasing alcoholic beverages from D companies and BB company during the period of suspension of business, and stated that the plaintiff's employees including D companies and BB company were to engage in credit transactions for 2 to 3 days, and that the plaintiff's employees including the actual fixed number of 6 workers including the plaintiff's 0 were also subject to the above 00-year period of suspension of business, and that the plaintiff's employees were also subject to the above 20-year period of suspension of business (the plaintiff's 20-year period of suspension of business after being employed in D companies and BB market, and that the plaintiff's employees were also subject to the above 10-year period of suspension of business, and that the plaintiff's employees were also subject to the above 20-year 20-year period of suspension of business suspension of business.

2) As to the second argument by the Plaintiff

Then, considering the following circumstances, i.e., e., e., EF, EG, EH, HaK, and L, 7 members, who were in charge of the Plaintiff’s management, agreed to divide sales earnings at a certain rate between the Plaintiff and the 11st unit of the sales. ② The Plaintiff paid monthly salary to EF, but paid the remaining amount after deducting monthly salary from the sales earnings to EF, etc., the above monthly salary was merely formal, and Ⅲ FF, who were in charge of the Plaintiff’s sales and sales of alcoholic beverages from EF, and those who were in charge of the Plaintiff’s sales and sales of alcoholic beverages from EF to EF, and those who were in charge of the Plaintiff’s sales and sales of alcoholic beverages from EF, and those who were not in charge of the Plaintiff’s sales and sales of alcoholic beverages from EF to EF, and those who were in fact in charge of the Plaintiff’s sales and sales of the Plaintiff’s OF, and those who were not in charge of the Plaintiff’s sales and sales of EF.

3) As to the third argument by the plaintiff

A) First of all, with respect to the argument that the Plaintiff paid taxes in the name of DD companies and BB, the Plaintiff purchased alcoholic beverages from D companies and BB owners, and sold them to the customer, and since the Plaintiff’s sales of alcoholic beverages and the sales of alcoholic beverages from D companies and BB owners are separate transactions, it is difficult to view that the Plaintiff’s liability to pay the value-added tax on the sales of alcoholic beverages was extinguished solely on the ground that D companies and BB owners paid the value-added tax. This part of the Plaintiff’s assertion is without merit.

B) Furthermore, according to the facts found by the Plaintiff’s assertion that the Plaintiff paid all taxes on the portion of sales of alcoholic beverages to EFF, etc., the Plaintiff issued a tax invoice under the Plaintiff’s name as if the Plaintiff sold alcoholic beverages to a business partner, and paid the value-added tax accordingly, as if the Plaintiff sold alcoholic beverages to EF, etc., and considering the circumstances in which the Plaintiff paid the value-added tax, the Defendant recognized that only an additional tax on the non-issuance or disguised issuance of the tax invoice was imposed on the Plaintiff, and that even when the Plaintiff paid the value-added tax, the Plaintiff’s assertion on this portion is subject to additional tax, so long as the Plaintiff’

C) Next, with respect to the assertion that there is a justifiable reason for the Plaintiff’s neglect of duty, the additional tax under the tax law is an administrative sanction imposed as prescribed by the law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, where a taxpayer violates various obligations, such as a taxpayer’s intentional or negligent act, and tax payment, etc., and does not constitute a justifiable reason that does not constitute a breach of duty (see, e.g., Supreme Court Decision 2002Du10780, Jun. 24, 2004). As seen above, as long as the Plaintiff borrowed the name of D company and BB, sells alcoholic beverages by borrowing alcoholic beverages from D company and BB, and sells alcoholic beverages to EF, etc., an independent liquor seller, so it is difficult to deem that there is a justifiable reason not to pay additional tax, and this part of the Plaintiff’s assertion is without merit.

4) As to the plaintiff's fourth argument

In relation to whether the Defendant imposed additional tax on the Plaintiff due to the processing, disguised, and non-issuance of the tax invoice, and double imposition of additional tax on the Plaintiff due to the failure to submit the list of the total tax invoices, the Plaintiff, while selling alcoholic beverages under the name of DD companies and BB, did not issue the tax invoice under the Plaintiff’s name (unissued) while selling alcoholic beverages to the Plaintiff, as if the Plaintiff sold alcoholic beverages directly to the transaction partner, the fact that the Plaintiff issued the tax invoice under the Plaintiff’s name as if he sold the alcoholic beverages directly to the transaction partner is as seen earlier, the Defendant should impose additional tax by 2% on the Plaintiff due to the processing, disguised, or non-issuance of the tax invoice, and no additional tax is imposed on the Plaintiff due to 1% due to the failure to submit the list of the total tax invoices. However, according to each of the aforementioned evidence, the Defendant recognized the amount of the Plaintiff’s additional tax on the submitted tax invoice as the basis that the Plaintiff did not impose the processing, disguised, and non-issuance of the tax invoice and the remainder of the supply price.

3. Conclusion

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