Examination Income 2007-0266 (2008.05.08)

The legitimacy of the assertion that it constitutes a small enterprise closed and closed, and thus must be determined by simple expense rate

It is argued that the disposition of non-Inclusion in necessary expenses due to processing and purchase constitutes a small enterprise that has discontinued less than 10 employees, and thus it is necessary to make an estimation. However, the same estimation cannot be made on the basis of the principle of equity because it is not a small enterprise and there is an illegal example about illegal cases presented by the claimant.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of global income tax of KRW 106,403,620 as of September 1, 2007 and global income tax of KRW 846,744,330 as of September 1, 200 and that of KRW 846,74,330 as of August 203 shall be revoked.

1. Circumstances of imposition;

A. Hystm Co., Ltd. (the trade name of the company before the trade name was changed, 'Pulm trading', 'Pulm trading', 'Pulm trading', and 'Pulm trading' of a stock company; hereinafter the same shall apply) is a company established for the purpose of wholesale trade, export and import business, etc., 'non-party company' was registered as the representative director, from July 10, 2002 to June 15, 2004 in the corporate register of the non-party company, Kim Jin was registered as the representative director, and the plaintiff's wife ○ was respectively registered as the director.

B. From January 13, 2005 to April 21, 2005, the head of the Incheon District Tax Office conducted an investigation of the tax offense against the non-party company's 2002 and 2003 business years. As a result, the non-party company's purchase amount of the non-party company's 297,130,000 won for the business year and the 2,034,465,000 won for the 2002 business year purchase amount of the non-party company's 2,31,595,00 won for the 2,31,595,000 won for the processing purchase (hereinafter "the dispute amount") were determined as the non-party company's corporate tax in deductible expenses and notified the non-party company of the changes in the bonus disposition and income amount.

C. Around January 12, 2007, Kim Jin filed a complaint with the head of Incheon District Tax Office on the grounds that the principal is not the actual representative director of the non-party company. Accordingly, the head of Incheon District Tax Office accepted the above complaint by Kim Jin and revoked the notification of change in the income amount of Kim Jin's recognition, and deemed the plaintiff who was so designated as Kim Jin as the actual representative of the non-party company, made a bonus disposition against the plaintiff, and notified the defendant of the change in income amount on January 25, 2007.

D. On September 1, 2007, the Defendant notified the Plaintiff of the foregoing taxation data from the head of Incheon Tax Office, included the key amount in the deductible expenses and included the amount in the gross income, and then deemed that the key amount was leaked to the outside of the company and its reversion is unclear, and disposed of the amount at issue as bonus. On September 1, 2007, the Defendant issued the instant disposition imposing global income tax of KRW 106,403,620, and KRW 846,744,330, the global income tax of the year 2003, respectively, to the Plaintiff.

E. On December 6, 2007, the Plaintiff dissatisfied with the instant disposition and filed a request for review with the Commissioner of the National Tax Service on December 6, 2007, but was dismissed on May 8, 2008.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 4, Eul evidence 1-2, Eul evidence 2, Eul 2, 3, 8, and 10, the purport of the whole pleadings

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

In the following reasons, the imposition of the defendant's objection case is illegal.

(1) The plaintiff is merely a director of the non-party company who was employed as a director of the non-party company and did not actually operate the non-party company, and the actual representative of the non-party company is Kim ○.

(2) The non-party company constitutes the closure of a small enterprise as prescribed by Article 7 (1) 2 (a) of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008; hereinafter the same), and thus, the non-party company is required to make a correction by estimation by applying standard expense rate pursuant to Article 143 (3) 1-2 of the Enforcement Decree of the Income Tax Act, but the defendant did not apply this and imposed the instant tax disposition by the on-site investigation.

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) On the corporate register of the non-party company, the non-party company was registered as an auditor of the non-party company from July 1, 2001 to July 9, 2002, from July 10, 2002 to June 14, 2004, from June 15, 2004 to November 15, 2004 and from November 16, 2004 to February 28, 2005. Meanwhile, the non-party company was registered as an auditor of the non-party company from July 10, 200 to June 14, 2004, and the non-party company was in charge of the non-party company's accounting affairs from June 30 to June 14, 2003.

(2) Of the 600,000 shares issued by the non-party company, the non-party company was established from the date of incorporation to December 31, 2002, and the 300,000 shares and held 50% shares. The plaintiff's wife held 180,00 shares and held 30% shares. However, on January 1, 2003, the 10,000 shares were transferred to the 00 shares and the 31.67% shares of the 00 shares were changed.

(3) On September 8, 2006, the director of the Incheon District Tax Office notified the non-party company of the fact that the non-party company received an amount equivalent to KRW 1,587,313,00 on the purchase tax invoice from the data, such as the Do○ Passport during the first half of 2003 and the first half of 2004, the reasons why the non-party company received KRW 1,587,313,000 on the purchase tax invoice, the transaction-related account books and related documentary evidence, the corporate passbook, etc., and the attendance by September 1

(4) Accordingly, on September 14, 2006, the Plaintiff prepared and submitted a written confirmation (No. 6) to the director of the Incheon District Tax Office. The main contents were registered as the representative director of the non-party company from July 1, 2002 to June 15, 2004, but only the name was registered as the representative director of the non-party company, and it was not possible for the Plaintiff to operate the business due to the inconvenience in traffic accident," the Kim Jong-jin, the agent agent of the Plaintiff and Kim Jin, the non-party company, and the plaintiff to conduct all the business around July 10, 202, the plaintiff should be registered as the representative director of the non-party company, but the former business could not be registered as the representative director of the non-party company, and the plaintiff did not keep the documents related to the non-party company's business, such as the non-party company's name was recorded as the non-party company's director, and the account books related to the non-party company's business.

(5) Meanwhile, on March 24, 2006, the Plaintiff was the data company that received false purchase tax invoices by the non-party company, and was identified as the actual business owner of the Do○○-malon, which was accused of as the whole data from the Songpa Police Station.

(6) The Plaintiff created and used a name stating the title of the non-party company's "general executive director", and was paid KRW 27,00,000 from the non-party company as the withholding receipt for wage and salary income accrued in 203.

(7) The plaintiff was the representative director and served as a director of the ○○○ Co., Ltd. (former trade name was ○○ Trade Co., Ltd.) that exported the clothing product to Japan, etc., and both the plaintiff and Kim Il-mun were in arrears with a large amount of national taxes, but they were in arrears with a large amount of national taxes, but they were disposed

(8) On January 5, 2007, the director of the Incheon District Tax Office accused the non-party company, Kim Il-jin, and the plaintiff to the Incheon Southern Police Station as suspected of violating the Punishment of Tax Evaders Act. In this case, Kim Jin stated in the investigative agency that "the plaintiff actually operated the non-party company," and stated to the effect that "the plaintiff was operating the non-party company by operating the non-party company in the same line with the Gimmun."

(9) On January 12, 2007, Kim Jin filed a complaint with the director of the Incheon District Tax Office on the grounds that he was not the actual representative director of the non-party company. At that time, Kim Jin was the actual representative of the non-party company.

(10) On September 2006, the investigation officer belonging to the Incheon Tax Office submitted a survey that the corporate tax base should be corrected by simple expense rate and that it is reasonable to dispose of the estimated income amount as bonus to the Plaintiff, the actual representative, through the investigation of the suspect on the material of the first taxable period of the non-party company in 2004.

(11) In light of the details of the tax withholding for the business year 2004 of the non-party company, the non-party company has filed a monthly report on the number of its employees 9-16.

[Reasons for Recognition] Facts without dispute, Gap evidence 4, Eul evidence 9-1, 3, Eul evidence 4-1 to 8, Eul evidence 5-8, Eul evidence 9-1, 2, Eul evidence 10, 11, and 14, and the purport of the whole pleadings.

D. Determination

(1) Determination on the first proposal

(A) According to the above facts, since around July 2002, the plaintiff was aware that he owned shares in the non-party company from around 2002 to carried out business activities of the non-party company, etc., and led the non-party company. Thus, it is reasonable to deem that the plaintiff was in the actual representative who actually controls the management of the non-party company. The plaintiff is in the actual representative's status of Gap evidence 5-1, Eul evidence 9-3, Eul evidence 9-1, part of Eul evidence 6, witness Kim Jong- Month's testimony alone. The transaction and management of the non-party company was entirely attributed to the non-party company's non-party company's non-party company's non-party company's transaction and management, and the plaintiff is not in excess of the director's benefits received from the non-party company. Thus

(B) Therefore, the Plaintiff’s first argument is without merit.

(2) Determination on the second ground

(A) In principle, the tax base and tax amount of global income tax shall be determined based on the actual amount revealed by the method of a field investigation. The estimated taxation is exceptionally accepted in cases where there is no taxpayer’s account books and documentary evidence, etc., which serve as the basis for the determination of tax base and tax amount, or where it is impossible to use the method of base taxation because the details are incomplete or false, so it is impossible to conduct a field investigation, and thus, it can be assessed by estimation only if it is inevitable to use the method of base taxation due to the impossibility of a field investigation. The reasons why the additional disposition based on the field investigation is more unfavorable than the disposition of taxation by estimation or that the taxpayer wants to investigate and determine by the method of estimation cannot be deemed as satisfying the requirements of the estimated investigation (see Supreme Court Decision 9

(B) According to the above facts, the defendant confirmed that the sales reported by the non-party company are normal transactions by confirming the account books and other documentary evidence of the non-party company through the investigation process conducted by the investigation officer, and it is reasonable to view that the part revealed by the processing purchase out of the reported purchase is denied, and the remaining part is recognized as a normal purchase, and the tax base is calculated and imposed accordingly (In addition, according to the above facts, the non-party company is not a small enterprise that discontinued less than 10 employees under Article 7 of the former Restriction of Special Taxation Act with the number of full-time employees of less than 9-16, and therefore, the non-party company is not a small enterprise that discontinued less than 10 employees under Article 7 of the former Restriction of Special Taxation Act, so it erred by the simple expense correction as to the income amount of the non-party company 204 business year, on the ground that there is such unlawful precedents, and the plaintiff cannot

(C) Therefore, the plaintiff's second assertion is without merit.

3. Conclusion

The defendant's disposition of this case is legitimate, and the plaintiff's claim is not accepted as it is without merit.