Whether the delay in tax payment is a justifiable ground for exclusion of additional tax due to the embezzlement of a participating company

The Plaintiffs agreed to notify the Plaintiff of all the matters, such as the fact that the Plaintiffs reported the establishment of the company to be a tax manager with free will, and the entrustment contract, etc., the pertinent administrative authority’s administrative instructions, etc., and thus, the Plaintiffs cannot be deemed to have justifiable grounds for excluding additional tax solely on the ground that the Plaintiffs acted

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Purport of Claim

The imposition of each value-added tax and additional tax stated in the disposition imposing the value-added tax imposed by the Defendant against the Plaintiffs shall be revoked.

1. Details of the disposition;

"A. The plaintiffs purchased a truck and entered into ○○○○ (hereinafter "○○") and registered as a general taxable person as a branch owner who is engaged in trucking transport business under the name of the branch company."B. The defendant calculated the value-added tax by deducting the input tax amount on the ground that the plaintiff was unfairly deducted from the credit card sales slip prepared without evidence at the time of reporting the first value-added tax in 2002 to 2004. From March 1, 2006 to the 20th of the same month, the defendant issued a disposition of this case to correct and notify the plaintiffs of the total value-added tax amount of 158,275,30 won (including a report and an erroneous payment) for the first half of 202 to the first half of 204.

Each entry (including paper numbers) of Category A2, 3, B 1 through 25 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiffs paid all the taxes imposed on the plaintiffs to ○○, a company that is a branch company. Since ○○ received the input tax illegally by using a credit card table collected at will while reporting and paying the value-added tax on behalf of the plaintiffs and embezzled it, it is illegal to impose the value-added tax on the plaintiffs even though the plaintiffs cannot be deemed that they are obligated to pay the value-added tax at another time. In particular, in light of the fact that the plaintiffs did not know of embezzlement of ○○○, and that it is impossible for the individual branch company to manage and supervise the entrusted affairs to the company that is a branch company, considering the fact that it is impossible for the individual branch company to do so, the plaintiffs are the victims in good faith and did not have any awareness of avoiding the tax liability, and therefore, the act of embezzlement of ○○, a branch company, thereby delaying tax payment. Therefore, the plaintiffs' failure to report and pay the above value-added tax is illegal and thus, the disposition imposing the penalty tax in this case is also illegal

B. Determination

On the other hand, since the plaintiffs are business operators who completed business registration as general taxable persons, their duty to report and pay the value-added tax should be deemed to be borne by the plaintiffs. Even if ○○○○, which had arbitrarily collected credit card sales slips on behalf of the plaintiffs, received input tax credit cards using the credit card sales slip collected by the plaintiffs, the above value-added tax shall not be deemed to be unlawful on the ground that the above value-added tax was calculated without deduction and imposed

Furthermore, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed pursuant to the provisions of tax law where a taxpayer’s intentional act or negligence is not considered. However, if a taxpayer is not unaware of his/her duty or is unreasonable to expect the party to perform his/her duty, or there is a circumstance that it is unreasonable to expect that the taxpayer to fulfill his/her duty, etc., it shall not be imposed (see, e.g., Supreme Court Decision 2002Du4761, Dec. 11, 2003). In this case, the issue of whether the Plaintiffs’ failure to report and pay value-added tax can be deemed to have a justifiable reason for the failure of the Plaintiffs to report and pay value-added tax, and the Plaintiffs’ failure to recognize the embezzlement of ○○○○○○○○○○○, as alleged by the Plaintiffs, cannot be seen to have established the relevant administrative disposition based on the overall purport of the Plaintiffs’ report and payment of value-added tax, and thus, the Plaintiffs’ assertion that the Plaintiffs made it difficult to report and payment of value-added.

3. Conclusion

Therefore, the plaintiffs' claims seeking revocation on the premise that the disposition of this case is illegal are dismissed in all of the above grounds. It is so decided as per Disposition.