Seoul Administrative Court-2012-Gu Partnership-42021 ( October 22, 2013)

The shopping mall construction cost is the acquisition fund of assets, so it cannot be viewed as entertainment expenses.

The cost of the shopping mall in this case shall be deemed the cost paid by the Plaintiff to acquire assets necessary for leasing the shopping mall in this case, and it shall not be deemed entertainment expenses to promote smooth progress of transactional relations by boosting friendship among transaction partners in existing transactional relations.

2013Nu2622 Revocation of disposition of imposing corporate tax, etc.

AAA, Inc.

Head of Seocho Tax Office

Seoul Administrative Court Decision 2012Guhap42021 decided August 22, 2013

October 8, 2014

November 12, 2014

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The disposition taken by the defendant against the plaintiff on July 8, 2011 is revoked as stated in the separate sheet of disposition, and the No.459, respectively.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. cite the judgment of the first instance;

The reasoning of the judgment of this court is as follows, except for the part that is determined additionally by the following and determined in the following paragraphs, and thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

O 3rd below the second judgment of the first instance court, "in the first and second taxable periods of 2008," shall be deleted.

O The second to fourth shall be the following second to fourth, below the third in the first instance court:

1) Accordingly, on July 8, 2011, the Defendant imposed corporate tax for the business year 2008 and the business year 2009 and the value-added tax for the taxable period from 2007 to 2009, as indicated in the attached disposition Schedule B.

2) On October 6, 2011, the Plaintiff appealed with the Tax Tribunal, and the Tax Tribunal rendered a partial decision on September 12, 201 to the effect that the purchase of the Plaintiff’s own shares does not constitute a low price acquisition. Accordingly, the Defendant issued a correction and notice of reduction of the KRW OO in the business year of 2008, as stated in the separate sheet No. 3, the Defendant issued a disposition of imposition of corporate tax and value-added tax as stated in the separate sheet No. 427, “the disposition of imposition of corporate tax and value-added tax” (hereinafter “the disposition of this case”).

O up to 8th to 5th to 8th to 'construction cost' as follows: 36 shop occupants including 18 shop occupants listed in the following table, and in the case of a lease agreement, the plaintiff will take part of the construction cost for interior or waterproof and telecommunication.

O The 6th 11st thm of the judgment of the first instance court is "Article 25, Section 1".

O The second below below the 9th judgment of the first instance court is the "corporation passbook and seal imprint" as the "corporation passbook".

2. The addition;

A. Whether it is a false tax invoice

1) The Defendant asserts that the instant tax invoice constituted a false tax invoice on the ground that, following the first instance trial, the Plaintiff only lent only the name of the Plaintiff, and cannot be deemed to have actually supplied services and goods, in view of the fact that the Plaintiff directly selected sewage suppliers and paid the subcontract price.

2) We examine the following circumstances in light of the overall purport of Gap's evidence Nos. 7, 8, 12, 13, 14, 26, 36 through 54, Eul evidence Nos. 6, 7, and 9 through 12 (including paper numbers), and evidence Nos. 7, 8, 12, 13, 26, 36 through 54, Eul evidence Nos. 6, 7, and 9 through 12, it is difficult to see that BB General Construction lent only the name to the plaintiff, and there is no other evidence to support that the tax invoice of this case is false. Thus, the defendant's above

① The Plaintiff originally attempted to commission the entire hotel construction project in question to EE Construction. However, there was a mutual dispute regarding the facility construction cost of the said new construction project (hereinafter “instant facility construction”). While considering the method of directly ordering construction to an individual company through FF, the Plaintiff waived the method of ordering construction to manage the site, such as shortage of human resources to manage the site and industrial accidents, and ordered the instant facility construction to BB comprehensive construction, which is the birth of the representative director, separately by adjusting the actual cost of the instant facility construction project. In this process, prior to the actual progress of the instant facility construction, considerable number of sewage companies were actually selected through the FF’s market research before the instant facility construction was conducted. In other words, it was anticipated that FF, which is the Plaintiff’s construction manager, will primarily participate in the instant facility construction project, and that the BB comprehensive construction project, instead of EE construction, which entered the status of the construction project, could not be deemed to have any specific interest in the construction of the instant new construction project (excluding construction of finished products).

② At the time of the construction of the instant facilities, BB comprehensive construction performed the construction of 2-O-ray units in the vicinity of the hotel, while using 3-4 containers in the vicinity for the construction of the instant facilities as site office. From May 2008, 2008, it was difficult for BB comprehensive construction to use 3-4 containers in the vicinity for the construction of the instant facilities as site office, and from around 2008, one of the above containers was left behind for the construction of the instant facilities, to support sewage companies, to check the status and quantity of goods being supplied, to check the location and defects of the installation at the time of the construction of the instant facilities, to check whether the installation of the instant facilities was installed at the time of the construction of the instant facilities, and to find out some of the aforementioned materials to the effect that the construction of the instant facilities was installed at the time of the construction of the instant facilities. On the other hand, it was difficult for the said construction to directly calculate the amount of the said materials to the effect that the construction of the instant facilities was established.

③ The Plaintiff had a passbook in the name of BB General Construction, and paid the construction price to sewage suppliers, and the Plaintiff was confirmed by BB General Construction in the manner that BB General Construction sent to the Plaintiff by affixing an official seal stamp on an withdrawal money sheet by affixing an official seal on the withdrawal money sheet (it is difficult to believe that not only the passbook of BB General Construction but also the seal stamp was left to the Plaintiff, while it is in conflict with the Plaintiff’s statement and the remainder of the HGG’s statement and the remaining statement by the director of the HaJ in charge of the Plaintiff’s management support center. Since the calculation method between the Plaintiff and B General Construction was settled in the actual cost, it is difficult to believe that the Plaintiff managed the construction cost in the same way as the Plaintiff managed the construction cost to reduce construction cost.

④ 일부 하수급업체 대표들은 세무조사 과정에서 FFF 또는 원고와 계약하는 줄 알았는데 계약 당시 FFF 측의 요구에 따라 BB종합건설과 계약을 하였고 BB종합건설 대표이사나 직원을 전혀 모르며 만난 적도 없다는 취지의 확인서를 제출하였다. 그러나, 위 확인서를 작성한 자 중 1인인 주식회사 KKK 대표이사 김LL은 하GG에 대한 형사사건(창원지방법원 전주지원 2011고합66사건)에서 확인서는 국세청 직원들이 불러주는 대로 써준 것이고 일부 사실과 다른 부분이 있다고 증언한 점, 확인서 작성자인 MMM 주식회사의 대표이사 강NN은 세무조사 당시 당초 자신의 조카를 통해 하GG을 소개받아 입찰에 참가하였다고 진술하였고, 위 형사사건에서는 이 사건 시설공사 현장에서 하GG을 자주 만났으며 BB종합건설 직원이 몇 명 있었고 그들이 나무 검수와 흙 넣어 주는 일 등을 하였다고 증언한 점, 확인서 작성자인 주식회사 PPP의 대표이사 송QQ은 위 형사사건에서 현장 객토를 BB종합건설에서 했다는 이야기를 직원으로부터 들었다고 증언한 점, 확인서 작성자인 주식회사 RRR의 대표이사 이SS은 위 형사사건에서 위 RRR의 담당 직원이 현장에서 일을 하면서 BB종합건설 직원들과 업무협의를 한 것으로 보고받았으며, 납품 이후 BB종합건설 경리부에 전화해서 기성청구를 하였다고 증언한 점, 확인서 작성자인 주식회사 TTT휘트니스 대표이사 이UU도 위 형사사건에서 BB종합건설에 공사대금을 직접 청구하였다고 증언한 점, 위 각 확인서의 기재에 의하더라도 해당 하수급업체 대표자들은 적어도 BB종합건설이 계약상대방임을 알고서 계약서를 작성하였다고 볼 수 있는 점, 원고 주장 역시 하수급업체 선정은 원고 및 FFF가 주도하였다는 것이므로 하도급 계약서가 BB종합건설의 대표이사 또는 직원이 참여하지 않은 상태에서 작성된 것이 이례적이라고 보이지 않는 점,이 사건 시설공사는 위에서 본 바와 같이 완제품을 납품하거나 설치만을 하는 경우가 많아 그 경우 하수급업체들이 현장에 오랜 시간 머물지 않았을 것으로 추측되고 대규모 공사현장에서 BB종합건설의 대표이사나 직원을 알아보기도 쉽지 않았을 것인 점 등을 종합하면, 위 각 확인서의 기재는 그대로 믿기 어렵거나 그것만으로는 피고의 주장사실을 입증하기에 부족하다.

⑤ During the tax investigation process, HG stated that “only approximately KRW 10 OOOGs, among total construction cost, subcontracted to 10 enterprises, such as MM, are directly invested in BB comprehensive construction cost, and the remaining 33 enterprises except this, have affixed the contract upon the Plaintiff’s selection of sewage suppliers, and they did not actually receive delivery from the above 33 enterprises.” However, the considerable portion of such statement is more legal assessment or opinion than that of specific facts, and it can be explained that the Plaintiff and FF sewage suppliers were selected and paid the construction cost to sewage suppliers. The statement made in the tax investigation process is contradictory to the Plaintiff’s seal imprint, whether the seal imprint affixed to the Plaintiff, the process of reducing the contract amount, etc., and there is considerable doubt that the Plaintiff’s assertion was not properly reflected in the claim, and it is not acceptable to accept 3GG statements or statements as mentioned above.

④ VV Co., Ltd., a sewage-oriented company, shall be a debtor for the construction of BB and the claim for the construction price against BB comprehensive construction with the claim for the construction price, shall obtain a decision of acceptance by filing an application for provisional attachment of claims with the Seoul Central District Court (2009Kadan94526). WW, a other sewage-oriented company, filed a lawsuit against BB comprehensive construction and filed a decision of reconciliation recommendation (2009Gahap11335 case) on the premise that WWW would have a claim for the construction price against BB comprehensive construction (209Gahap1135 case). However, the BB comprehensive construction merely lent the name of the Plaintiff to the said company, but it does not seem to be a party to the contract.

7) In addition, there is no circumstance to deem that the Plaintiff took the form of borrowing from BB comprehensive construction only in the name of the instant facility construction for the purpose of unlawful purposes, such as raising funds through over-appropriating the construction cost. As seen in the motive and progress that the Plaintiff entered into a contract with BB comprehensive construction rather than direct order form for the instant facility construction, the Plaintiff bears risk of BB comprehensive construction as a trading entity, such as industrial accident management or default liability. If EE construction, including the instant facility construction, performed the entire hotel construction project, the tax invoice incurred from the instant facility construction was not deemed to be a false tax invoice. However, even if EE construction performed the entire hotel construction project, it is difficult to view that the Plaintiff did not play a substantial role in performing the instant construction project independently from the time of construction of EE construction and BB comprehensive construction. However, it is difficult for BB comprehensive representative director to view that the Plaintiff and BB comprehensive manager did not play a role in performing the instant construction project independently from the time of construction of other construction works or construction works.

B. Whether entertainment expenses constitute entertainment expenses

1) Following the first instance trial, the Defendant asserts that the Plaintiff’s burden of the interior cost and the cost of waterproof and communication for a specific lessee is for friendship and friendship, which constitutes entertainment expenses.

2) We examine the circumstances in the judgment of the first instance court. The burden of the interior cost and the cost of waterproof and communication construction is stipulated in the lease agreement as determined in the process of concluding the lease agreement. This is not deemed to have been provided free of charge because it is included in the contents of the lease agreement, and it is difficult to deem that it was provided free of charge since it constitutes a part of the consideration relationship. The Plaintiff’s concession of transaction terms and conditions for the establishment of the lease agreement cannot be deemed to have been disbursed for the purpose of enhancing friendship, since it cannot be said that the Plaintiff bears the cost of interior and waterproof and communication construction for some lessees. Thus, the Defendant’s assertion is without merit.

3. Conclusion

The judgment of the first instance is justifiable. The defendant's appeal is dismissed.