In the case of income deduction that is the basis of the determination of taxable income as necessary expenses, the tax authorities have the burden of proof.

In the administrative litigation seeking revocation on the grounds of illegality of taxation disposition, the tax authority bears the burden of proving the legality of taxation disposition and the existence of taxation requirement fact. Therefore, the tax authority should bear the burden of proving necessary expenses which are the basis of the determination of taxable income. This principle also applies to income deduction.

Article 34 (Non-Inclusion of Contribution in Necessary Expenses)

2016Guhap1968 Disposition to revoke the imposition of value-added tax

○ ○

○ Head of tax office

November 25, 2016

December 23, 2016

1. Of the instant lawsuit, the part concerning the claim for cancellation of additional dues shall be dismissed.

2. The Defendant’s disposition of imposition of KRW 1,92,240 of global income tax for the year 2009 against the Plaintiff on October 8, 2015 shall be revoked.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 2,052,00,00 for global income tax for the year 2009, which belongs to the Plaintiff on October 8, 2015, is revoked (the “written claim” and “value-added tax on May 12, 2016” appears to be a clerical error).

1. Details of the disposition;

가. 원고는 2009년에는 ◇◇◇◇◇◇◇ 주식회사에서 근무하면서 ○○ ○○구 ○○동 ○○번지에 있는 대한불교○○종 소속 종교단체인 △△△(대표자 안AA, 이하 '이 사건 사찰'이라 한다)으로부터 발급받은 550만 원의 기부금영수증(이하 '이 사건 기부금영수증'이라 한다)을 피고에게 제출하여 피고로부터 2009년 귀속 근로소득세에 관하여 기부금 소득공제를 받았다.

B. As a result of the investigation into a tax offense against the instant temple from March 24, 2014 to July 31, 2014, the head of the ▽▽▽△△△△ rendered the instant inspection on the grounds that the instant inspection was deemed to have falsely issued a receipt of KRW 10.9 billion from March 24, 2014 to July 31, 2014, and filed a complaint with the Defendant as a tax offense and notified the Defendant of the taxation data.

C. Accordingly, on October 8, 2015, the Defendant corrected and notified the Plaintiff of KRW 1,992,240 of the global income tax for the year 2009 (hereinafter “instant disposition”).

D. On December 27, 2015, the Plaintiff appealed to the Tax Tribunal, but was dismissed on March 15, 2016.

E. On May 12, 2016, the Defendant sent a demand notice to the Plaintiff to pay “1,92,240 won of global income tax, additional 59,760 won” to the Plaintiff.

Facts without any dispute, Gap's 1, 10 evidence, Eul's 1 through 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings.

2. Whether the part concerning the claim for revocation of the disposition imposing additional dues in the instant lawsuit is legitimate

The Plaintiff also sought revocation of the disposition of imposition of additional dues of KRW 59,760, in addition to the disposition of imposition of global income tax in this case against the Defendant. However, since additional dues under Article 21 of the National Tax Collection Act are naturally generated under the law without the final procedure of the taxation authority unless the national tax is paid by the payment deadline, the notification of additional dues cannot be deemed a disposition subject to appeal litigation (see Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, the part seeking revocation of the disposition of imposition of additional dues in this case is unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff donated cash to the instant temple and received a normal issuance of the instant donation receipt, but the Defendant did not recognize it as a donation by concluding it as a false donation receipt and imposed a comprehensive income tax. The instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In the administrative litigation seeking the revocation of taxation on the ground of illegality of taxation, the tax authority has the burden of proving the legality of taxation and the existence of the taxation requirement. The burden of proving necessary expenses, which are the basis of the determination of taxable income, is also the principle that the tax authority bears the burden of proving necessary expenses. However, insofar as there are special circumstances such as where the tax invoice on some of the expenses reported by the taxpayer was proved to be false without real transaction and it is disputed whether it is real expenses and the taxpayer's assertion and where it is proved to the extent that the other party to the payment was false, it is necessary to prove that it is easy for the taxpayer to present data such as books and evidence regarding the fact that such expenses were actually paid (see, e.g., Supreme Court Decisions 9Nu3407, Jul. 14, 1995; 96Nu8192, Sept. 26, 197). Such a legal principle applies to income deduction that is the basis of the determination of taxable income like necessary expenses.

2) As to the instant case, the following facts can be acknowledged in full view of the purport of the entire pleadings in the descriptions of evidence Nos. 2, 3, and 9.

A) The total amount of the donation receipts issued by the instant temple for five years from 2009 to 2013 reaches 10.5 billion won per annum (average 2.0 billion won per annum) and the details on which the Plaintiff received the donation receipts from the instant temple in 2009 are as follows.

B) On June 11, 2015, AAA was sentenced to a suspended sentence of one year for six months, on the grounds of the crime that "the head of the instant temple issued a false donation receipt between 2009 and 2013 in the instant case of violation of the Punishment of Tax Evaders Act." On June 23, 2016, AAA appealed with this court ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and the said judgment became final and conclusive as it became final and conclusive on June 23, 2016.

3) However, in full view of the evidence mentioned above and the purport of Gap evidence Nos. 11 through 19, the following circumstances can be acknowledged.

A) The appellate court (○○ District Court ○○○○○○○○○○○○○○○) rendered a false donation receipt issued in collusion with the Plaintiff and rendered a final judgment of innocence on the ground that there was no proof of criminal facts, and became final and conclusive as is, on the grounds that there was no proof of criminal facts.

B) Although the Plaintiff failed to submit to the Defendant the financial transaction data corresponding to the details of donations, since donations to religious organizations are usually made in cash, the details of donations and the withdrawals from financial transaction data may not coincide.

다) 원고는 이 사건 기부금을 기부한 2009년 당시 ◇◇◇◇◇◇◇ 주식회사에 근무하면서 1년간 83,421,540원의 급여를 받았고, ○○금융투자에서 27,396,425원, ○○증권에서 4,680,000원의 증권투자수익을 얻었는데, 이와 같은 원고의 소득수준에 비추어 볼 때 연간 550만 원 정도의 기부 규모가 과도하다고는 보이지 않는다.

D) The Plaintiff’s spouse’s ParkB, around 2007, was aware of the instant inspection upon being introduced around ○○○○○○○○-dong, while running the cosmetics door-to-door sales business. The Plaintiff’s wife continued to conduct the instant inspection at a ten-minute distance from the instant inspection and the instant inspection. As such, there seems to be no natural factor in the process of the Plaintiff’s contribution to the instant inspection.

4) Ultimately, in light of the circumstances described in the above paragraph 3, it is difficult to view that the fact that the donation receipt of this case submitted by the Plaintiff to the Defendant was false merely based on the facts described in the above paragraph 2, and there is no other evidence to acknowledge it. Therefore, in principle, the burden of proving that the donation receipt of this case was issued falsely is not sufficient to recognize it solely based on the facts described in the above paragraph 2, and there is no other evidence to acknowledge it. Thus, the disposition of this case was unlawful on the premise that the donation receipt of this case was issued falsely.

3. Conclusion

Therefore, the part of the claim for revocation of the disposition imposing additional dues is unlawful, and it is so decided as per Disposition by the assent of all participating Justices on the ground of the plaintiff's remaining claims.