Suwon District Court 2008Guhap8636 (No. 22, 2009)

Early High Court Decision 2008J 0908 (2008.04)

Imposition of corporate tax and collection of earned income tax even if the same corporation is a separate disposition

Disposition of imposition of corporate tax based on the same corporation income and notice of collection of earned income tax shall not extend to the fixed-amount disposition for the portion of withholding income tax, which is a separate disposition independent of each period, and only the object of disposition of corporate tax is subject to the imposition

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

2. The plaintiff's lawsuit seeking extension in the appellate court shall be dismissed.

3. The costs of appeal (including the costs arising from the extension of the claim) shall be borne by the plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant's imposition of KRW 11,307,360 against the plaintiff as of August 13, 2007, KRW 11,307,360 as of August 16, 2007, KRW 10,244,190 as of August 16, 2007, and KRW 8,888,480 as of February 1, 2003 as of February 1, 2008 shall be revoked (the plaintiff extended the purport of the above paragraph in this Act).

1. Details of the disposition;

A. The Plaintiff, a company established for the purpose of engaging in the construction and civil engineering business, etc. (the trade name of November 11, 2005 was changed from AAC to BB group at the present “Co., Ltd.”), and received two copies of purchase tax invoices of KRW 60,800,000 (hereinafter “instant tax invoice”) as shown in the table below, on the basis of which the Plaintiff reported input tax deduction for the second period of two years in 2003, and reported corporate tax for the inclusion of KRW 60,800,000 in deductible expenses.

B. On August 13, 2007, the Defendant: (a) notified the head of Sungdong District Tax Office that the instant tax invoice was in material form; (b) deemed the processed tax invoice received without real transaction; and (c) notified the Plaintiff of the amount of KRW 11,307,360 for corporate tax for the year 2003; and (d) notified the Plaintiff of the rectification and disposition of KRW 10,24,190 for the second period of August 16, 2007, after deducting the input tax pursuant to the instant tax invoice from input tax amount for the same reason; and (b) notified the Plaintiff of the rectification and disposition of KRW 10,24,190 for the second year of August 2007. In addition, the Defendant issued the Plaintiff’s representative director this disposition to thisA as to KRW 66,880,00 for the amount of KRW 8,880,00 for the monthly income tax withheld for January 203.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1, 2, and 4-5-1, 2, Eul evidence 1-1, 2, Eul evidence 2, 3, Eul evidence 4-1 and Eul evidence 4-2, and the purport of the whole pleadings

2. Relevant statutes;

It shall be as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff was awarded a contract for interior construction from DBS, etc., and the instant tax invoice asserts that the instant disposition, which was made on the premise that the instant tax invoice was false, is unlawful, since ① the Plaintiff purchased materials from KE, a subcontractor, or ② Korea EE received materials from CC secondary industry, and thus legitimate receipt of the tax invoice pursuant to the actual transaction.

(b) Value-added tax;

Even based on the Plaintiff’s assertion itself, the Plaintiff awarded a blanket subcontract to HanE, and the instant tax invoice was provided by HanE with goods from the CCTV industry. Since the details indicated are the same as that of the Plaintiff, it is a tax invoice that is written differently from the fact itself, and thus, it cannot be subject to input tax deduction pursuant to Article 17(2)1 of the Value-Added Tax Act. Accordingly, the instant tax invoice that deducts the input tax amount is justifiable.

(c) Part of corporate tax;

The burden of proof on the legality of taxation is against the tax authority, so in principle, the tax authority bears the burden of proof on necessary expenses which are the basis of the determination of taxable income, but the tax authority bears the burden of proof on the taxpayer. However, the deduction of necessary expenses is not only favorable to the taxpayer, but most of the facts that are the basis of necessary expenses are located in the controlled area of the taxpayer. Thus, the tax authority has difficulty in proving it. Thus, if it is reasonable to have the taxpayer prove it by taking into account the difficulty in proving it or equity between the parties, it should be returned to the taxpayer (see, e.g., Supreme Court Decision 91Nu109

In the case of this case, it is reasonable to view the Plaintiff to have the burden of proof, as it is difficult to investigate the Defendant, who is the tax authority, while it is difficult to prove the Plaintiff, on the other hand, the basic data for calculating the necessary expenses of the Plaintiff, are not only found to have been revealed by the so-called data that prepares and sells a false processing tax invoice without supplying real goods (Evidence 2 and 3).

Therefore, we examine whether the Plaintiff actually purchased materials equivalent to KRW 60,80,000,000, which is the supply value of the tax invoice of this case from Han E during the 2003 business year period, and paid the price or paid the construction cost equivalent to the above amount to Han E., the evidence submitted by the Plaintiff during the argument of this case is insufficient to acknowledge it, and there is no objective evidence to acknowledge it otherwise.

Therefore, the corporate tax disposition of this case, which excluded the above amount from deductible expenses, is legitimate.

D. Wage and salary income tax portion

According to the reasoning of the judgment below, Gap evidence No. 4 and the purport of the whole pleadings, the plaintiff filed an appeal seeking revocation only for the imposition of value-added tax and corporate tax during the disposition of this case, and it is recognized that the disposition of collection of earned income tax was not subject to separate review or appeal.

However, Article 56(2) of the Framework Act on National Taxes provides that administrative litigation against a disposition under tax-related Acts may not be filed without going through a request for examination or adjudgment under the Framework Act on National Taxes and without going through a decision thereon. Thus, a disposition imposing corporate tax on the same corporate income and a disposition notifying collection of earned income tax shall be taken independently from each other, and the effect of a request for judgment only subject to a disposition imposing corporate tax does not extend to a disposition imposing corporate tax on the amount of withholding income tax (see Supreme Court Decision 99Du8930, Jun. 12, 2001). Thus, the Plaintiff’s lawsuit on the disposition collecting earned income tax in this case

4. Conclusion

Therefore, the plaintiff's claim seeking revocation of the disposition imposing corporate tax and value-added tax of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided, and the plaintiff's appeal is dismissed as it is. Meanwhile, the plaintiff's claim concerning the collection disposition of earned income tax of this case extended in the appellate court is unlawful, and it is so decided