Whether a real entrepreneur is the actual entrepreneur, and an act of issuing a tax invoice to the closed deficit is fraudulent or other unlawful means.

The act of intentionally concealing the revenue of the transaction in this case by issuing a tax invoice in the name of the person who has been disposed of as deficit, although it was the employee, there is no evidence that the employee had worked as the employee.

Article 14 of the Framework Act on National Taxes

Article 19 of the Value-Added Tax Act shall be confirmed and paid.

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's imposition of value-added tax against the plaintiff on December 1, 2005 of the second term of 1998, the second term of 4,537,500 won, the first term of 1999, and the first term of 9,675,180 won shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the court's explanation on this case is as stated in the part of the first instance court's judgment, except for the case's '1 to 19-1 of No. 4 of No. 5 of the first instance court', '1 to 19-1 of No. 5 of the evidence No. 4, '5-1 to 6-2 of the evidence No. '5 of No. 5', '5 of No. 18', '5 of the first instance court', '1 to 6-2 of the evidence No. 4 of the first instance court', and '5-2 of the first instance court'. Thus, it is accepted as it is in accordance with Article 8 (

2. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed without any justifiable reasons, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without any justifiable reason, and it is so decided as per Disposition.

[Seoul Administrative Court 2006Guhap46954 (2007.05)]

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax against the Plaintiff on December 1, 2005 of KRW 4,537,500 for the second term of 1998, and KRW 9,675,180 for the first term of 1999 shall be revoked.

1. Details of the imposition;

A. The ○○○○ Co., Ltd. (hereinafter referred to as “○○○○”) had ○○○○-dong ○○-dong ○○○○ as the principal office and had ○○○○○○○○-dong ○○○○○, a wholesale business, such as a bank from July 1, 1995, closed ex officio on May 29, 1998. The Plaintiff is a dependent on the ○○○○○○ (○○○○-○○○○○○○) who was the representative director of ○○○○○○.

B. Around March 2005, the director of the regional tax office of ○○○○○○○○○ (hereinafter referred to as “○○○○○○○○○”) filed a corporate tax investigation for the business year of 2002, and notified the Plaintiff, not the Plaintiff, of the supply value of 41,250,000 won as of December 29, 1998, which was received by ○○○○○○○○○○○ from ○○○○○○○ upon being supplied with a shelter for the use of cosmetics, etc. from ○○○○○○○○○, and the supply value of 11,250,000 won as of January 26, 199, and the supply value of 30,000,500,000 won as of February 28, 199.

C. On December 1, 2005, the Defendant, upon the above notice, determined and notified the Plaintiff of KRW 4,537,500 for the second period of 198, value-added tax not reported and paid by the Plaintiff, and KRW 9,675,180 for the first period of 1999 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-3, Eul evidence 2-1, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-1-6, Eul evidence 3-1, 2, Eul evidence 4-1, 7, 14-1, 7, and 14-2, and the purport of the whole pleadings

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

(1) The supplier of the instant transaction is not the Plaintiff but ○○○. The Plaintiff issued the instant tax invoice under the name of ○○ employee, and paid to the sub-contractor by discounting promissory notes received as the price for the goods. Therefore, the instant disposition imposing the instant disposition premised on the premise that the supplier of the instant transaction is the Plaintiff is illegal.

(2) Even if the Plaintiff omitted the return of value-added tax, it cannot be deemed as a case of evading, evading, or getting a refund or deduction of national taxes through fraudulent or other unlawful acts, not by intention, but by merely omitting the return, and thus, it cannot be deemed as a case where the exclusion period for the imposition of national taxes is extended to 10 years. Therefore, the instant disposition of imposing national taxes is illegal as it exceeds the exclusion period for the imposition of national taxes.

B. Relevant statutes

Article 14 of the Framework Act on National Taxes

(1) If the title to the income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such title belongs exists, the tax-related Acts shall apply to such person to whom such title belongs as a taxpayer.

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of income, profit, property, act or transaction.

○ The exclusion period of the imposition of national taxes under Article 26-2 (amended by Act No. 8139 of December 30, 2006)

(1) No national tax may be levied after the period as provided in the following subparagraphs expires: Provided, That if the mutual agreement procedures are in progress under the provisions of a treaty concluded to prevent double taxation (hereinafter referred to as "tax treaty"), Article 25 of the Adjustment of International Taxes Act shall apply:

1. Where a taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means, for ten years from the date on which the national tax is assessable;

2. If the taxpayer fails to file a written tax base return within the legal return term, for seven years from the date of assessment on the national tax;

3. If it does not fall under subparagraphs 1 and 2 above, for five years from the day on which the national tax is assessable; and

(4) The day when national taxes may be levied pursuant to each subparagraph of paragraph (1) shall be prescribed by Presidential Decree.

Article 12-3 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893 of Feb. 28, 2007), the starting date of the exclusion period for national taxes

(1) The date when the national taxes may be assessed under the provisions of Article 26-2 (4) of the Act shall be as follows:

1. In filing a return on the tax base and amount of a national tax, the following day of the deadline for filing a return or a deadline for filing a return on the tax base and amount of the relevant national tax (hereinafter referred to as "house for one's relocation, etc."). In such cases,

○ Final Return and Payment of Article 19 of the Value-Added Tax Act

(1) A businessman shall report to the head of the competent district tax office having jurisdiction over the place of business within 25 days (50 days in cases of a foreign corporation) after the end of each taxable period the tax base, payable or refundable amount for

○ Disposition on Deficits under Article 86 of the National Tax Collection Act

(1) Where a taxpayer falls under any of the following subparagraphs, the director of the tax office may write off the loss:

4. Where it is deemed that there is no possibility of collection as prescribed by the Presidential Decree.

Article 83 of the Enforcement Decree of the National Tax Collection Act (amended by Presidential Decree No. 19422 of March 29, 2006) and the disposal of deficits

(1) The disposal of deficit under Article 86 (1) 4 of the Act shall be limited to cases falling under any of the following subparagraphs:

1. In case it is turned out that the defaulter is missing or he does not have any property;

(2) Where the head of a tax office intends to make disposition on deficits under paragraph (1) 1, he/she shall investigate and confirm the whereabouts or existence of assets in a local administrative agency or financial institution: Provided, That the same shall not apply where the delinquent national taxes are less than 10,000 won.

(c) Fact of recognition;

(1) ○○ did not report the second value-added tax in 1997, and did not report the second value-added tax in 1998, which was after the closure of the ex officio business. Although the first value-added tax in 1999 was reported, it did not pay it, and thus, it was written off as non-property.

(2) The details of transactions of the first value-added tax reported by ○○ in 1999 are as follows.

Sales Office

Sales (cost)

Payment

(m)○○

120,696,500

None of data

○ Limited Liability Company

37,080,000

○○ Deposit into an corporate account (○ bank ○○-○○-○○○-○○-○○-○○○)

○○○○○○

14,000,000

‶

○○○○○

41,250,000

Payment with a Bill as follows:

Total

213,026,500

(3) On January 15, 1999, ○○○○○ issued two promissory notes with a face value of KRW 30,000,000 in total and face value of KRW 15,375,00 in total and KRW 45,375,00 in total, and delivered to the Plaintiff each of them. On January 15, 1999, one promissory note with a face value of KRW 12,375,000 in total and KRW 12,375,00 in total and one promissory note with a face value of KRW 15,00 in total and KRW 33,00 in total with a face value of KRW 15,375,00 in the payment for the transaction portion, and one promissory note with a face value of KRW 12,375,00 in the payment for the transaction portion on February 15, 199.

The Plaintiff received each promissory note as above and endorsed each promissory note as a second endorsement, and then received discount from the ○○ Mutual Savings and Finance Company (each promissory note is written by ○○ as a first endorsement).

(4) The Plaintiff was paid to ○○ employee by December 31, 1997, but thereafter there was no evidence that ○○ employee worked as ○○○ employee. On August 3, 1998, the Plaintiff opened a video lending store under the trade name of ○○○○-dong ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, but closed the business on December 31, 199. The Plaintiff gave birth to her on November 26, 1998.

(5) On the other hand, on January 3, 1999, the Plaintiff operated a business with the trade name "○○○○ (○○○○○○○)", and operated a business with the business place "○○○-dong, ○○-○○○, and a type of business as a wholesale business, and supplied a household with the business registration. On February 17, 2000, the Plaintiff moved the place of business to ○○○-dong, ○○-dong, ○○-○○○○ Building.

On June 21, 2000, the Plaintiff reported the closure of the business of the above "○○○", which is an individual business place, and on June 22, 2000, registered the business of the ○○○-dong, ○○-dong, ○○ on June 22, 200, as its business place, and its representative director.

[Ground of recognition] Facts without dispute, Gap evidence 4, 5, Gap evidence 6-1, 2, Gap evidence 7, Eul evidence 2-1 through 6, Eul evidence 3-1, 2, Eul evidence 4-1 through 19, and the purport of the whole pleadings

D. Determination

(1) A transaction party;

The following circumstances revealed in the above facts, namely, ① ○○ did not report the second value-added tax in 197; ② ○○ did not report the second value-added tax in 198 after the ex officio closure; ② the first value-added tax was reported in 199; ② the Plaintiff was an employee of ○○ at the time of the instant transaction; ② there was no evidence to prove that ○○○○ was an employee after January 3, 1998; ③ the Plaintiff was a business of delivering the bags with the trade name “○○○○”. The Plaintiff actually operated the same type of business as ○○○○; ④ the Plaintiff’s transaction was conducted after the Plaintiff’s business registration; ④ the Plaintiff’s direct endorsement and discount of the supplier; ⑤ the Plaintiff’s deposit of the Plaintiff’s account with ○○○○○○ Limited Company and ○○○○○ Limited Company, etc., without any justifiable reason, was based on the Plaintiff’s assertion that the Plaintiff’s payment was made under the instant transaction name.

(2) National tax exclusion period

According to Article 26-2 (1) 1 of the Framework Act on National Taxes, in cases where a taxpayer evades a national tax, obtains a refund or deduction by fraudulent or other unlawful act, it shall be extended to 10 years from the date when the exclusion period of imposition of national tax can be imposed. "Fraud or other unlawful act" in this case refers to a deceptive scheme or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes (see, e.g., Supreme Court Decision 2004Do5818, Nov. 12, 2004). According to the above facts of recognition, it is reasonable to view that the Plaintiff did not intentionally issue a tax invoice under the name of ○○, which was already closed and disposed of as deficit without property before and after the issuance of the tax invoice under the name of ○○, which was disposed of as deficit without property, and thus, the Plaintiff’s act constitutes a fraudulent or other unlawful act under Article 26-2 (1) 1 of the Framework Act on National Taxes.

(3) Sub-determination

However, the deadline for filing the second-year value-added tax return on the instant transaction is January 25, 1999, and the deadline for filing the first-year value-added tax return on July 25, 1999. Thus, it is apparent that the instant disposition was taken before the lapse of 10 years from the said date. Accordingly, the Defendant’s disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition by the assent of all participating Justices.