Plaintiff (Attorney Park Jae-ju, Counsel for the plaintiff-appellant)

Head of Eastern Tax Office

August 30, 2016

Seoul Administrative Court Decision 2015Gudan56383 decided May 20, 2016

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 161,81,470 (including additional tax of KRW 67,040,485) for the Plaintiff on October 1, 2014 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Reasons for the disposition and the plaintiff's assertion

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

(a) Related Acts and subordinate statutes;

It is as shown in the attached Table related statutes.

B. Determination

1) As to the first argument

A) Whether the instant investigation is duplicate tax investigation

(1) A tax investigation refers to an act of a tax official to ask questions to taxpayers, etc. as necessary for performing his/her duties by exercising his/her right of questioning and questioning as prescribed by each tax-related Act and investigating related documents, books, and other things or issuing orders to submit them [Article 81-2 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter “former Framework Act on National Taxes”); Article 3 subparag. 1 of the Regulations on the Management of Investigations (amended by National Tax Directive No. 2105, Jun. 30, 2015; hereinafter “former Regulations on the Management of Investigations”)]. A tax investigation should be conducted to the minimum extent necessary to realize appropriate and fair taxation. A re-investigation of the same tax item and taxable period should be conducted within the same scope, such as the taxpayer’s freedom of business operation, and should be considerably prohibited, except in exceptional cases where arbitrary risk of tax investigations by the tax authority is extremely contrary to the principle of fair taxation (see Supreme Court Decision 20136Du1361364, etc.

In light of the above legislative intent and relevant provisions, double tax investigations shall not be permitted unless they fall under exceptional grounds prescribed in each subparagraph of Article 81-4(2) of the former Framework Act on National Taxes and each subparagraph of Article 63-2 of the former Enforcement Decree of the Framework Act on National Taxes, and even after commencement of a tax investigation, the tax authority shall immediately withdraw the investigation and take necessary measures, such as collecting the investigation team (Article 12(1) of the former Regulations on the Management of Investigation Affairs), and shall not re-examine the part of the investigation (Article 12(3) of the former Regulations on the Management of Investigation Affairs) under the pretext of the whole investigation (Article 12(1) proviso and Article 3 subparag. 2 of the former Regulations on the Management of Investigation Affairs). However, the former part of Article 12(1) and Article 3 subparag. 2 of the former Regulations on the Management of Investigation Affairs provide that the fact-finding of taxpayer's business partners or other parties conducting a tax investigation, handling of civil petitions, etc., or on-site confirmation of whether there is a tax investigation.

(2) With respect to whether the instant investigation is a tax investigation or on-site verification, the following circumstances can be acknowledged by comprehensively considering the overall purport of pleadings as to whether it is a tax investigation or on-site verification, i.e., the public official in charge of the investigation visit the instant real estate to Nonparty 1, the representative of the acquiring corporation of the instant real estate at the time of the investigation, in addition to the verification of the authenticity of the confirmation document written in the name of Nonparty 1, Nonparty 1 and the employees of the acquiring corporation of the instant real estate, asked questions and answers about whether the instant construction work was completed, and received the specifications of tangible Assets Depreciation Costs regarding whether the instant construction work was installed. This simply does not confirm whether it was a single verification for the processing of taxation data, such as confirmation document written in the name of Nonparty 1, which the existing tax authority has secured, but rather, it appears that it constitutes an exception for the investigation to verify whether the instant transaction of transaction to the transaction partner or transaction partner, such as the transaction of the instant real estate, etc., was conducted in the same taxable period.

B) Whether the instant disposition was based on the instant investigation

(1) In a case where a disposition of taxation on a taxpayer is conducted based on an illegal tax investigation conducted in duplicate with regard to the same tax item and the same taxable period as the previous tax item (see Supreme Court Decision 2004Du12070, Jun. 2, 2006). However, in a case where a disposition of taxation is conducted without any basis for determining the taxation data obtained through an unlawful tax investigation conducted in duplicate by the tax authority, or where it is possible to impose taxation identical to a disposition of taxation on a taxpayer while excluding taxation data obtained through an illegal tax investigation, the disposition of taxation on a taxpayer shall not be granted on the basis

(2) Comprehensively taking account of the purport of each statement in Gap 1 through 4, Eul 6, Eul 8, Eul 1 through 3, 5, 10 through 12 (including a serial number if any) as to the construction cost of this case at the time of the first tax investigation, the plaintiff submitted the construction contract and construction specifications concerning the construction cost of this case, the confirmation document and financial transaction details under the name of the non-party 1 who was the remodeling construction work of this case, and the National Tax Service did not issue tax invoices because the contractor of the construction contract of this case is unclear and it was suspected that the construction cost of this case was paid in cash, and the other party's request to re-examine the construction cost of this case to verify whether the construction cost of this case would have been falsely appropriated. The other party's request to verify the construction cost of this case was confirmed to have not been issued with respect to the construction cost of this case, and the other party's request to re-examine the construction cost of this case to the extent that it would not have been 100 million won.

In light of the above legal principles and the facts of recognition, the defendant did not decide that the plaintiff did not perform the construction of this case based on the non-party 1, the representative of the transferee company of this case, the statement of his employees, and the records that the plaintiff submitted, but did not confirm the construction work of this case at the site of the fact-finding which has already been verified as the taxation data of this case. Since the construction cost of this case was denied and the taxation data acquired as a result of the investigation of this case were used as the basis for determining the taxation data of this case, it does not seem to have been used as the basis for determining the taxation data of this case. Even if the defendant excluded the non-party 1, the taxation data acquired as a result of the investigation of this case, and the statement (Evidence No. 6), and the statement of tangible Assets Depreciation (Evidence No. 7) from the judgment of the second

2) As to the second argument

In an administrative litigation seeking revocation of a taxation disposition on the grounds of illegality, in principle, the tax authority bears the burden of proving the legality of the taxation disposition and the existence of the taxation requirement fact. As such, in principle, the tax authority bears the burden of proving necessary expenses or deductible expenses which are the basis of the determination of taxable income. However, since matters concerning necessary expenses or deductible expenses are generally favorable to the taxpayer, and the tax authority has difficulty in proving the facts that are the basis of the determination of taxable income, most of the taxpayer’s control areas are difficult. Thus, if it is reasonable to have the taxpayer prove the burden by taking into account the difficulty of proof or equity between the parties, the need for proof can be attributed to the taxpayer (see Supreme Court Decision 2010Du4599, Oct. 31

The following circumstances revealed in the facts of recognition as seen earlier, i.e., the data submitted by the Plaintiff when paying the construction cost of this case did not exist any objective data corresponding thereto, and the details of financial transactions were deleted and submitted by the tax authority to ensure that it is not possible to verify whether the details of the transaction are cash or not. The signature of Nonparty 1’s confirmation letter that the construction work of this case was actually carried out is different from that of Nonparty 1’s signature and form of land in the sales contract. In light of the above, it is reasonable to have the Plaintiff prove that the construction cost of this case was actually carried out and the construction cost of this case was paid accordingly. However, it is reasonable to have the Plaintiff prove that the construction cost of this case was paid. However, there is no evidence to prove that the construction cost of this case is difficult to believe or that there was a construction work of this case

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed.

[Attachment]

Judge highest order (Presiding Judge)