The legitimacy of the assertion that a separate actual purchase was made on behalf of the processing purchase tax invoice

The fact that he/she had deducted necessary expenses by using the processing tax invoice is the person and there was a separate actual transaction, but it cannot be viewed as an actual transaction from the actual trader's business registration status and other occupation.

Article 27 (Necessary Expenses)

Article 55 (Calculation of Necessary Expenses for Real Estate Rental Income, etc.)

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 17,710,120 of global income tax for the year 2003 and KRW 1,772,950 of resident tax for the Plaintiff on April 1, 2005 shall be revoked.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be recognized by the statements in Gap evidence 1-1-2, Gap evidence 2, Eul evidence 4, Eul evidence 1-4:

A. The Plaintiff is operating precious metal retail business with the trade name of ○○○○-dong 000-00, ○○○-dong, 000, ○○○-dong, and △△△.

B. Around 2003, the Plaintiff received a tax invoice stating the supply value of KRW 60,000,000 from △△△△△△△△△△△△△ (hereinafter “instant tax invoice”) and filed a tax invoice for the first period of 2003 return for the input tax deduction, and included the amount equivalent to the said purchase price in necessary expenses at the time of filing the global income tax return for the global income tax for the year 200

C. Upon receipt of the notice from the ○○ Regional Tax Office that △△△△△△△△, a issuer of the instant tax invoice, issued the processed tax invoice without real transactions, the Defendant: (a) deemed the instant tax invoice as a processed tax invoice issued without real transactions; and (b) imposed a disposition imposing global income tax of KRW 17,710,120 and resident tax of KRW 1,72,950 (hereinafter “instant disposition”) on the Plaintiff on April 1, 2005, except for necessary expenses when calculating the global income accrued in the year 2003.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

원고는 일반적으로 귀금속업체에서는 도소매업자들이 세금계산서를 발행하지도 않을 뿐만 아니라 은행 통장을 이용한 대금결재도 잘 받지 않아 현금이나 자기앞수표를 이용하여 결제를 하는 것이 거래의 관행이고, 위와 같이 매입처로부터 세금계산서를 발행받지 못하기 때문에 비용처리를 위하여 부득이 자료상인 주식회사 △△△△△△△로부터 이 사건 세금계산서를 구입하여 필요경비에 산입하였지만, 원고는 실제로 거래처인 '○○○'를 운영하는 박○○로부터 11,089,274원 '●●●'를 운영하는 임●●로부터 21,169,000원, '■■'을 운영하는 조■■으로부터 7,967,400원, '▲▲▲ ▲▲▲'를 운영하는 이▲▲으로부터 19,751,300원 합계 59,976,974원 상당의 지금을 매입하여 위 금원 상당을 필요경비로 지출하였으므로, 위 금원 상당의 금액을 필요경비에 산입하지 아니하고 한 이 사건 처분은 위법하다.

(b) Related statutes;

Income Tax Act

Article 27 (Calculation of Necessary Expenses)

(1) In calculating real estate rental income, business income, or other income, the amount to be included in necessary expenses shall be the sum of expenses corresponding to the total amount of income in the relevant year, which is generally accepted.

(3) Necessary matters for the calculation of necessary expenses shall be prescribed by Presidential Decree.

(2) If a person who has made a final return on the tax base pursuant to Articles 70, 71 and 74 (including the person who has failed to make a final return on tax base pursuant to Article 73, in cases falling under subparagraph 1-2), falls under any of the following subparagraphs, the chief of the district tax office having jurisdiction over the place of tax payment

1. Where an error exists in the contents of return;

Enforcement Decree of the Income Tax

Article 55 (Calculation of Necessary Expenses for Real Estate Rental Income, etc.)

(1) Necessary expenses corresponding to the total amount of income from real estate rental and business income in each year shall be as follows:

1. Purchase price (excluding a purchase reduction or a purchase discount) of the raw materials for the commodities or products sold and the incidental expenses thereto, and in this case, the original purchase price and incidental expenses thereto shall be applicable, if the relevant business operator has consumed such ones for a business use, as have been purchased for other purposes;

C. Determination

(1) In the administrative litigation seeking the revocation of a taxation disposition on the ground of the illegality of taxation, in principle, the tax authority bears the burden of proof regarding the legality of disposition and the existence of the taxation requirement fact. However, since the existence of special circumstances in light of the empirical rule requires the taxpayer to bear the burden or prove the burden of proof with respect to the existence of special circumstances, the tax authority is in principle the burden of proof with respect to the amount of expenses to be included in the deductible expenses which serve as the basis for determining the amount of corporate tax income. However, there are cases where the taxpayer bears the burden of proof with regard to the taxpayer taking into account the equity of the parties. Thus, it is argued that the taxpayer is not a real cost, and that the taxpayer has the burden of proof with regard to the purpose of use of the expenses claimed by the taxpayer and the other party to the payment was proved to the extent that the taxpayer is false. As long as the taxpayer asserts that there was a cost of other authorization than the same amount according to the details of the tax return, it is necessary to prove that all the data such as account books and evidence about the specific cost expenditure (see, etc.).

"(2) 이 사건에 관하여 보건대, 원고가 가공의 이 사건 세금계산서를 이용하여 필요경비를 공제받았던 사실은 자인하고 있고, 을5, 6, 7호증의 각 기재에 변론 전체의 취지를 종합하면 임●●은 2003. 12. 10.경 '●●●'에 대한 사업자등록을 하였고 2003. 1. 1.부터 2003. 6. 30.까지 사업을 하였음을 인정할 만한 자료가 없는 사실, 조■■도 2003. 1. 1.부터 2003. 3. 30.까지 사업을 하였음을 인정할 만한 자료가 없고 다만 2004. 4. 10.☆☆☆'라는 상호로 의류도매업의 사업자등록을 한 사실, 이▲▲은 2003. 1. 1.부터 현재가지 사업자등록을 한 사실이 없는 사실을 인정할 수 있을 뿐이고, 원고 주장에 부합하는 듯한 갑 5호증, 갑6호증의 1 내지 20, 갑7호증의 1 내지 46, 갑8호증의 1 내지 18, 갑9호증의 1 내지 26, 갑10호증의 1, 2, 갑11호증의 각 기재 및 증인 이▲▲의 증언은 믿을 수 없고, 달리 원고 주장과 같은 실제 거래가 있었음을 인정할 만한 증거가 없으므로, 원고의 주장은 이유없다고 할 것이다.",3. 결론

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul High Court Decision 2007Nu17948, Oct. 29, 2008]

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of KRW 17,710,120 on global income tax for the plaintiff on April 1, 2005 and KRW 1,772,950 on global income tax for the year 2003.

This court's reasoning is the same as the statement in the column of the judgment of the court of first instance, and therefore, it refers to Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

[Supreme Court Decision 2008Du3708 (No. 28, 2008)]

1. The appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiff.

Although examining all of the records of this case and the judgment of the court below and the grounds of appeal, it is clear that the appellant’s grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal, and thus, the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by