Cho High-2014-Seoul Government-1841 ( November 17, 2014)

Whether the amount deposited in the account of the financial institution of the taxpayer constitutes sales or revenue

The fact that the amount deposited in the account of the financial institution of the taxpayer constitutes sales or revenue can be proved by either disclosing or revealing indirect facts that can be inferred in light of the empirical rule in the specific litigation process.

2015Guhap54728 Disposition of Disposition of Imposing Value-Added Tax

AA

BB Director of the Tax Office

September 20, 2016

October 13, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of value-added tax for the second period portion of 2007 against the Plaintiff on December 16, 2013 exceeds KRW 00,000,000 in excess of KRW 00,000 in the imposition disposition of value-added tax for the second period of 2007, the first period portion of value-added tax for 2008 in excess of KRW 00,000 in the imposition disposition of KRW 00,000 in the imposition disposition of KRW 00,000 in the second period of value-added tax for 208, and the part exceeding KRW 00,000 in the imposition disposition of KRW 0,00 in the second period of value-added tax for

1. Details of the disposition;

A. The Defendant: (a) on December 16, 2013, determined and notified the Plaintiff of KRW 0,000,000, value-added tax for the second period of the year 2007, value-added tax for the first period of the year 2007, value-added tax 00,000,000, value-added tax for the first period of the year 2008, and value-added tax 00,000,000, value-added tax for the second period of the year 2008, for the second period of the year 2008, and for the second period of the second year of the year 2008, value-added tax for the second period of the year 2008.

B. The Plaintiff dissatisfied with the above disposition and filed an objection against the Defendant on February 4, 2014. On February 14, 2014, the Defendant excluded the duplicate calculated amount of the above remittance (0,000,000,000 won) from the amount of the second quarter value-added tax for the year 2007 against the Plaintiff, the first quarter value-added tax for the year 2008 was reduced to 00,000,000,000 won, and the second quarter value-added tax for the year 2008 was reduced to 00,000,000 won, and the Plaintiff withdrawn the above objection on February 13, 2014 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 14, 2014, but was dismissed on November 17, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1-1 to 6, Eul evidence 2 and 3, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's assertion

The Defendant asserts that a request for disclosure of information on the instant disposition was made by the Plaintiff on December 4, 2013, and that the said disposition was known at that time. Thus, the Defendant asserts that a request for adjudication, which was made on March 14, 2014 past 90 days from that, did not comply with the request period under the Framework Act on National Taxes, is unlawful.

B. Determination

Article 68(1) of the Framework Act on National Taxes provides that "A request for a trial shall be filed within 90 days from the date when the relevant disposition is known (if a notice of disposition is received, the date of its receipt)." "the date when the relevant disposition is known" applies to a person other than the party to the disposition or the person who is provided to receive notice of disposition by statutes, and the other party to the disposition shall calculate the period for a request for trial on the basis of the date when the notice of disposition is received (see, e.g., Supreme Court Decision 200Du1164, Jul.

Comprehensively taking account of the purport of the entire argument in the statement No. 15, the instant disposition was deemed to have been served on the Plaintiff by public notice on December 2, 2013. As such, the instant disposition is deemed to have been served on the Plaintiff on December 16, 2013, past 14 days from that date, pursuant to Article 11(1) of the Framework Act on National Taxes, and thus, the Plaintiff’s lawful appeal on March 14, 2014, which is within 90 days from that date, is filed. Accordingly, the Defendant’s main defense is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff received all the sales from the Plaintiff, a seller, IIN Entertainment Co., Ltd., JCCcom, KK Entertainment, and re-transfers the sales from the account under the name of EE and GG to the account under the name of HG. As such, the amount deposited into the account under the name of HH to the account under the name of HH does not have any reason to be included in the value-added tax base again. Nevertheless, the Defendant should have revoked the instant disposition on the grounds that the amount deposited into the account under the name of HH was not included in the value-added tax base. Nevertheless, the Defendant withdrawn the total amount deposited from the account under the name of HH to the account under the name of HH to KRW 00,00,000,000, and the amount re-paid to the account under the Plaintiff’s employee’s cash, etc., and was deposited into the account under the name of GG, and all of which was paid by the Plaintiff for the Plaintiff’s business expenses, including KRW 00,000,000.

B. Determination

1) Relevant legal principles

Inasmuch as the tax authority bears the burden of proving the fact of taxation requirement in a lawsuit seeking revocation of a tax imposition disposition, the taxpayer’s account constitutes sales or revenues, and the taxpayer’s taxation requirement fact that the amount of money deposited in the account of the financial institution falls under the category of sales or revenues omitted from the return is a principle. However, the taxpayer’s account may prove that the amount of money deposited in the account of the financial institution constitutes sales or revenues in light of the empirical rule in the specific lawsuit process or indirect facts that can be inferred. In such cases, whether such presumption can be made can be determined by comprehensively taking account of whether the account of the financial institution was used as the principal deposit or management account for the sales or revenues, the amount of sales or revenues equivalent to those of the financial institution, on the contrary of the deposit date, the share of sales or revenue-related transactions in the account, possibility and degree of mixing sales or revenues, etc., and the amount of money deposited in the account of the financial institution’s account should be determined by the tax authority based on various circumstances as seen above. If the account of the taxpayer’s financial institution is deemed as the principal deposit or revenue deposit account or revenues, etc.

(ii) the facts of recognition

① In order to avoid administrative regulation, etc. while running a business in an illegal manner, the Plaintiff’s mother, MM, Plaintiff’s leakage, and NN’s mother, repeated 13 or more accounts, and made it difficult for a third party to easily grasp the flow of funds.

② The Defendant rendered the instant disposition by deeming the amount deposited in a bank account such as an O bank account (hereinafter “O 407 account”) in the name of HH (hereinafter “O 878 account”) as the Plaintiff’s amount of sales omitted from reporting. The Defendant recognized that the amount of tax exceeded KRW 0,000,000,000, out of the aggregate amount deposited in the two accounts, and accordingly corrected ex officio, by reducing the amount of tax ex officio.

③ HHH는 2007년 제2기부터 2008년 제2기까지의 부가가치세 과세기간 동안 PPP라는 택시회사에서 근무하면서 별도의 소득활동을 하였는데, 그 수입은 HHH명의의 QQ은행계좌에서 주로 관리하였다.

④ The Plaintiff asserted that KRW 00,000, which was deposited into an O878 account on October 6, 2007, was the amount re-deposited from an O407 account as follows, and that it was repeatedly calculated as the instant tax base (hereinafter “O 061 account”). In the case of an O 061 account, the amount was first deposited from an O 407 account on October 6, 2007 to a KRW 00,000 from an O 878 account, and there was a number of entries prior to the said gold transaction.

⑤ The Plaintiff asserts that the amount of KRW 00,000,000, which was deposited into an O878 account on January 3, 2008, was returned from an O407 account as follows, but it was overlapped into the instant tax base (hereinafter “R866 account”) and that there was a number of entries and withdrawals from the account on December 4, 2007 before being deposited into the R866 account as KRW 00,00,000.

⑥ 원고는 OO 878 계좌로 입금된 2007. 10. 5.자 000,000,000원, 2007. 10. 9.자 00,000,000원, 2007. 10. 22.자 00,000,000원, 2008. 1. 3.자 00,000,000원은 아래 그림과 같이 OO 878 계좌에서 재입금된 금액임에도 이 사건 과세표준으로 중복 계산되었다고 주장하는데(이하 HHH 명의의 BB CMA 00000000-00 계좌를 'BB 659 계좌', HHH 명의의 QQ은행 계좌를 'QQ 1014 계좌', HHH 명의의 RR CMA 계좌를 'RR 599 계좌'라 한다), BB 659 계좌에는 000,000,000원이 입금된 2007. 9. 7.부터 원고 주장의 각 금원이 OO 878 계좌 등으로 입금된 2007. 10. 22.까지 사이에 다수의 입출금 내역이 존재한다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 4 through 15, 17 through 29, Eul evidence Nos. 1, 2, 7 through 10, and the purport of the whole pleadings

3) Determination

According to the circumstances and facts of the above disposition, the following facts are revealed: (a) the Defendant’s O407 account and OO8 account as the object of the disposition in this case appears to be one of the borrowed account used by the Plaintiff in manipulating the flow of funds; (b) the Plaintiff repeated the entry and withdrawal by using more than 13 borrowed accounts; and (c) a third party, other than the Plaintiff, is very difficult to ascertain the actual flow of funds; (d) the Defendant appears to have done his best to avoid overlapping calculation of tax base within the scope verifiable by the Defendant; (b) the Defendant appears to have proved that there exists any overlapping part that the Defendant did not reflect its address. In this case, the Plaintiff asserted that the deposit details in the three places as described in the above 2) through (6) were included in the tax base, but all of them were found, and thus, the Plaintiff could not specify the flow of funds. In full view of these circumstances, the evidence submitted by the Plaintiff is insufficient to recognize that all of the parts of the instant tax base are identical.

In addition, according to the evidence No. 4, the fact that the amount of KRW 00,00,000 on July 18, 2008 in the name of LLL, and KRW 00,000,00 on July 19, 2008 in the name of O 407 accounts is recognized as having been deposited respectively, but this also cannot be deemed as having been overlapped because there is no evidence as to the source of the fund. Thus, even if part of the amount deposited in the account in the name of GG was disbursed for the cost as alleged by the plaintiff, it cannot be asserted as having been deducted as the amount of output tax, which is the tax amount of the disposition of this case, for this reason, regardless of the fact that it can be deducted as the input tax amount upon receipt of legitimate purchase tax invoice as to the part. Thus

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.