Seoul High Court 2007Nu17160 ( December 05, 2007)

The mere fact that the information on tax evasion is specific does not constitute a case where there is clear evidence to acknowledge the suspicion of tax evasion.

Even if there is a report of tax evasion, it is difficult to see that the report of tax evasion is a case where there is a clear material to recognize the suspicion of tax evasion only on the grounds that the report of tax evasion is specific, unless it is based on objective and reasonable material to support the possibility of tax evasion.

The revocation of revocation of imposition, including 208Du1146 Corporate Tax

○○ Co., Ltd.

○ Head of tax office

The Seoul High Court Decision 2007Nu17160 Decided December 5, 2007

May 26, 2011

The part of the judgment below regarding the imposition of corporate tax for the business year 2002 and value-added tax for the second period of 2002 shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

The remaining appeals are dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 16 (1) of the former Framework Act on National Taxes (amended by Act No. 9911 of Jan. 1, 2010) provides that "where a person liable for tax payment keeps and enters a book under the tax-related Acts, the investigation and determination of the tax base of the national tax shall be based on the books kept and recorded and related documentary evidence," and Paragraph (2) of the same Article provides that "if the contents of the book are different from facts or are omitted in the book in investigating and determining national tax under the provisions of paragraph (1), it may be determined based on the facts investigated by the government only for that part."

The court below rejected the plaintiff's assertion that the disposition of this case is in violation of the principle of taxation on the following grounds: (a) the computerized data of this case was prepared in the 87 units units out of 93 units units directly verified the sale price to the buyer by the computerized data of this case, and (b) 54 units units units out of 93 units units units were more higher than the computerized data of this case, and (c) the defendant did not directly verify the sale price to the buyer, on the ground that the remaining 54 units units out of 54 units, for which the defendant did not directly verify the sale price to the buyer, by using the data related to the sale price, which was transferred to the plaintiff's joint representative director at KimA's delegation by Kim-A, a joint representative director at the time of the plaintiff's initial tax investigation for the business year from January 2003 to March 2002.

In light of the relevant provisions and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the basis taxation principle as otherwise alleged in the ground of appeal by the plaintiff.

2. Regarding ground of appeal No. 2

Article 81-3(1) of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter the same) provides that "tax officials shall conduct a tax investigation to the minimum extent necessary for appropriate and fair taxation, and shall not abuse their authority to investigate for any other purpose, etc." Paragraph (2) provides that "where there is clear evidence to acknowledge a suspicion of tax evasion, where it is necessary for tax officials to investigate the other party, or where there are errors in connection with the two or more business years or other similar cases prescribed by Presidential Decree, a reinvestigation of the same item and taxable period shall not be permitted in principle. In light of these regulations and the purport thereof, a reinvestigation of the same item and taxable period shall not be permitted. In light of these regulations, it is difficult to view that there is clear evidence to acknowledge a suspicion of tax evasion as one of the exceptional cases permitted under Article 81-3(2) of the former Framework Act on National Taxes to the extent that it is reasonable and reasonable (see, e.g., Supreme Court Decision 2013Du168168.

Comprehensively taking account of the adopted evidence, the lower court: (a) sold the instant commercial buildings to GuE, etc. from around September 2001 to October 2003; and (b) reported the value-added tax and corporate tax thereon to the Defendant; (c) conducted the first tax investigation on the Plaintiff’s corporate tax for the business year from January 2003 to March 2002; (d) provided the Plaintiff with information on the fact of tax evasion by the seller, etc. of the instant commercial buildings from around March 2004 to around 2000, the lower court determined that the Plaintiff’s tax evasion tax investigation was lawful; (e) on the grounds that the Plaintiff’s tax evasion tax investigation was conducted for the pertinent commercial buildings for the pertinent business year from May 3, 2004 to around 27, 2003; and (e) on the basis of the fact that the Plaintiff reported the sale of the instant commercial buildings for the pertinent business year from around 201 to 2008, 2001, 2008.

However, we cannot accept the above determination by the court below for the following reasons.

In light of the following circumstances acknowledged by the legal principles as seen earlier and the evidence admitted by the court below, namely, the Plaintiff’s first tax investigation for the business year 2002 was deemed to have already been conducted in the Plaintiff’s first tax investigation for the business year; the tax evasion report of this case was not against the Plaintiff, but related to △△△, the Plaintiff’s sales agent, and there is no basis to verify the objectivity and existence of the source of the materials attached to the above tax evasion report; and there is no data to support the authenticity of the above tax evasion report, the mere fact that the sales agent and sales price of the commercial buildings of this case are specified in the above tax evasion report of this case can not be deemed to constitute “where the Plaintiff’s receipt of the tax evasion report of this case is deemed to have a considerable degree of objectivity and rationality of the possibility of the Plaintiff’s tax evasion; therefore, the portion of the tax investigation of this case for the business year 2002 constitutes an illegal re-audit under Article 81-3(2) of the former Framework Act on National Taxes for each business year 200 years.

Nevertheless, the lower court determined that the instant tax investigation and disposition on the business year 2002 were lawful on the ground that the director of the Central District Tax Office, who received the notice of tax evasion in this case, constitutes “where there is clear evidence to prove the suspicion of tax evasion,” which is allowed a reinvestigation. In so doing, the lower court erred by misapprehending the legal doctrine on the prohibition of reinvestigation, thereby adversely affecting the conclusion of the judgment, and the allegation in the grounds of appeal assigning this error

3. As to the third ground for appeal

The gist of the Plaintiff’s ground of appeal in this part is that it was unlawful for the lower court to find that the Defendant obtained computerized data of this case at the time of the initial tax investigation to obtain the computerized data of this case in the tax investigation of this case, which is in violation of the rules of evidence, but is ultimately erroneous for the selection of evidence or the fact-finding, which is a fact-finding court,

4. Conclusion

Therefore, the part of the judgment of the court below regarding the imposition of corporate tax for the business year 2002 and value-added tax for the second period of 202 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.