Whether additional tax on the failure to receive evidence is subject to where documents different from the processing transaction of gold bullion and the actual transaction are received.

The additional tax on the receipt of evidence shall be applied to the case where the disbursement document is not received in the actual transaction, and it shall not be applied to the case where the processing is made without the actual transaction, or where the document is received differently from the contents of the actual transaction.

Seoul Administrative Court Decision 2007Guhap10433 Decided 09, 2008

Article 116(2) of the Corporate Tax Act

1. The part of the judgment of the first instance against the plaintiff falling under the subsequent part of the order of revocation shall be revoked.

2. The Defendant’s imposition of KRW 3,008,00 of corporate tax for the business year 2003 against the Plaintiff on August 1, 2005 and KRW 300,151,620 of corporate tax for the business year 2004 shall be revoked.

3. The plaintiff's remaining appeal is dismissed.

4. 8 minutes of the total costs of the lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant, respectively.

The decision of the first instance is revoked. The defendant revoked each disposition of imposition of KRW 22,051,640 on August 1, 2005, value-added tax of KRW 1,216,353,120 on January 1, 2004, and value-added tax of KRW 134,24,70 on February 2004, and KRW 572,760,30 on February 2004, and imposition of KRW 300,151,620 on corporate tax of KRW 203 and corporate tax of KRW 300,151,620 on corporate tax of KRW 204 on August 1, 2004.

1. Quotation of judgments of the first instance;

The reasons for this case are as follows: "The 2nd executive officer of the first instance court's 6th trial's 17th executive officer's 'the 50 million won capital'; "the 78th executive officer' under 10th 'the 10th 'the 10th 'the 2nd 'the 2nd 'the 17th 'the 10th 'the 2nd 'the 5th 'the 2nd 'the 2nd 'the 5th 'the 2nd 'the 2nd 'the 5th 'the 2nd 'the 2nd 'the 5th 'the 2nd 'the 2nd 'the 5th 'the 2nd 'the 2nd 'the 5th 'the 2nd 'the 5th 'the 2nd 'the 5th 'the 2nd 'the 5th 'the 2nd ' the 1000th ' the ' sales amount.

2. Whether the instant disposition is lawful

D. Determination

(2) Imposition of corporate tax

On August 1, 2005, the Defendant applied Article 76(5) of the Corporate Tax Act to the amount of KRW 150,400,000, and the amount of KRW 15,007,581,480, which was not received in the year 2004, on the ground that each of the tax invoices of this case is different from the actual ones of the supplier, imposed the amount of KRW 3,008,000, which is equivalent to 2/100 of the above amount as the additional tax for the year 2003, as the additional tax for the corporate tax of KRW 300,151,620, respectively, as the additional tax for the year 2004.

However, in light of the principle of no taxation without the law, or the requirements for tax exemption or tax exemption, and the interpretation of the tax law shall not be extensively interpreted or analogically interpreted without any justifiable reason, barring any special circumstance. Article 76(5) of the Corporate Tax Act provides that where an entrepreneur is provided with goods or services and fails to receive the evidential documents as provided in any of subparagraphs of Article 116(2) of the Corporate Tax Act, an amount equivalent to 2/100 of the unpaid amount may be additionally collected, and the same does not apply to cases where the entrepreneur receives the evidentiary documents different from the actual amount (a comparison is made with cases where a corporation provides goods or services, etc.).

The purpose of Article 76(5) of the Corporate Tax Act is to enhance transparency in the expenditure content of a corporation and induce a counterpart business operator to foster the tax base, and thus, it is difficult to achieve such legislative purpose merely by imposing a duty of faithful reporting on a business operator subject to the training of tax base. Thus, in light of the fact that a corporation being supplied with goods or services has to receive documents on regular spending and impose a sanction to additionally pay an amount equivalent to a certain percentage of the amount not received for the breach of such duty (see Constitutional Court Order 2004Hun-Ga7, Nov. 24, 2005; Order 2006Hun-Ba88, May 31, 2007). The penalty tax pursuant to the above provision shall apply to cases where, even if there is an actual transaction, it is not received evidentiary documents, and it is not applicable to cases where a processed work is made without actual transaction or where evidentiary documents are received differently from the contents of the actual transaction.

Therefore, the defendant's imposition of the above corporate tax by applying the above provision to the transaction of this case is illegal.

3. Conclusion