Supreme Court-2014-Du-8360 ( October 16, 2017)

Cho High Court Decision 2009J3552 ( October 11, 2010)

In addition to the data secured by the illegal tax investigation, it is allowed for the defendant to submit other qualified data as evidence to prove the reason for disposition.

‘The facts at the base point of time for determining the legality of a disposition' can be determined based on ‘all the data submitted until the closing of argument in the court of fact-finding', so it is reasonable to see that the defendant submission of other qualified taxation data as evidence to prove the grounds for a disposition is naturally allowed in addition to the taxation data secured by an illegal tax investigation.'

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

(Chuncheon)2017Nu317 value added tax and global income tax and revocation thereof;

AA

BB Director of the Tax Office

Chuncheon District Court Decision 201Guhap905 Decided May 31, 2013

The judgment of the court before remand

Seoul High Court Decision 2013Nu760 decided April 30, 2014

Supreme Court Decision 2014Du8360 Decided March 16, 2017

July 17, 2017

August 21, 2017

1. Of judgment of the first instance, the part concerning imposition of principal tax of value-added tax shall be modified as follows:

A. The plaintiff's lawsuit of this case

1) The part demanding revocation of total amount of value-added tax of KRW 6,038,175 for the principal tax of KRW 1,205;

2) Claim for revocation exceeding 1,062,888 won of the principal tax for the first period of value-added tax in 2006;

3) Claim for revocation exceeding 14,10,856 won for the principal tax of value-added tax for the second period of 2006;

4) Claim for revocation exceeding 14,500,167 won of the principal tax for the first period of value-added tax in 2007;

5) Claim for revocation exceeding KRW 4,868,905 for the principal tax of value-added tax for 2007;

6) Claim for revocation exceeding 12,034,760 won for the principal tax on the first period of value added tax in 2008;

Each rejection shall be dismissed.

B. The plaintiff's remaining claims are dismissed.

2. One-fourth of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Of the judgment of the first instance court, the part of imposition of the principal tax of value-added tax is revoked. The defendant revoked the imposition of value-added tax for the first period of June 1, 2009 6,038,175 won, value-added tax for the second period of 2005 21,941,442 won, value-added tax for the second period of 2006 16,194,307 won, value-added tax for the second period of 2006 26,194,307 won, value-added tax for the second period of 2006 17,781,476 won, value-added tax for the first period of 207 25,353,736 won, value-added tax for the second period of 207 207 , and value-added tax for the first period of 208 23,194,854 won.

1. Details of the disposition;

This Court's explanation is based on Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the reasons for this part are the same as the corresponding part of the judgment of the court of first instance.

2. Scope of the deliberation of the political party;

A. The Plaintiff filed a lawsuit against the Defendant seeking revocation of the instant disposition with the Chuncheon District Court 201Guhap905, and the court of first instance dismissed the Plaintiff’s claim in entirety.

B. On this ground, the Plaintiff appealed as Seoul High Court (Chuncheon) 2013Nu760, and the above appellate court (the first instance court prior to the refund) accepted part of the Plaintiff’s appeal on the ground that “The imposition of the principal tax during the instant disposition is lawful, but the imposition of the additional tax is unlawful as it does not indicate the type of the additional tax and the calculation basis thereof at all,” and revoked the first instance judgment regarding the imposition of the additional tax during the instant disposition and revoked the said imposition

C. After that, only the Plaintiff appealed to the Supreme Court Decision 2014Du8360 regarding the part against the Plaintiff in the above appellate judgment, and the court of final appeal rendered a judgment reversed and remanded to the court below that “The first investigation in this case constitutes a tax investigation not on-site confirmation but on the substance thereof. Therefore, even though the second investigation is prohibited, the court below rendered a judgment lawful of the instant disposition on the ground that “the first investigation in this case constitutes a local confirmation, not on-site investigation, and the second investigation constitutes an initial tax investigation.” Therefore, there was an error in the misapprehension of legal principles. Accordingly, the part against the Plaintiff among the judgment below, which lost the Plaintiff, is reversed and remanded to the court below.

D. If so, the scope of the judgment of the party shall be limited to the imposition of value-added tax that the plaintiff lost in the previous trial before the transfer of the disposition of this case, and it shall be examined as to this.

3. Whether the imposition of principal tax of this case is lawful;

As stated in the above judgment of reversal and return, the first investigation constitutes a tax investigation, and therefore the second investigation constitutes a re-investigation prohibited. If so, the taxation data collected through the second investigation is not qualified, and the tax disposition based on it is illegal against the principle of base taxation.

However, the evidence submitted by the defendant is not only the taxation data secured based on the above second investigation but also the taxation data secured based on the first investigation. If so, even if the taxation data secured based on the second investigation is excluded, it is a question whether the imposition of the principal tax of this case can be justified by the taxation data secured based on the first investigation.

In this regard, the defendant asserts to the effect that "the imposition of the principal tax of this case is legitimate within the scope of the plaintiff's omission amount that can be calculated based on the result of the primary investigation," while the plaintiff asserts to the purport that "the imposition of the principal tax of this case is not based on the result of the primary investigation, and thus, the entire imposition of the principal tax

"However, in determining the legality of a taxation disposition, it can be determined on the basis of "the facts at the point of time of determining the legality of the taxation disposition, such as the general principles on the judgment of legality of the administrative disposition," and therefore, it is reasonable to see that the defendant submitted other qualified taxation data as evidence in addition to the taxation data secured by the illegal tax investigation, to prove the reason for the taxation disposition, as a matter of course, by submitting other qualified taxation data." On the basis of the above, in light of the following circumstances recognized by comprehensively considering the health unit, Gap evidence No. 1, Eul evidence No. 15, witness evidence No. 15, testimony and arguments in the first instance court of the witness DD, the portion of the legitimate tax amount under the disposition of this case is legitimate (Omission).

A. At the time of the first investigation, the Defendant secured details of transaction, JNC’s transaction list, Plaintiff’s agreement file, event file, and original inventory file, etc., and calculated the Plaintiff’s sales through which the Plaintiff’s sales were calculated as follows. The Defendant received a written confirmation from DD, which is the Plaintiff’s employee (Omission)

B. Circumstances do not seem to warrant that the primary investigation is illegal, and the Plaintiff did not assert or prove the illegality of the primary investigation. Accordingly, the said confirmation, which is the result of the primary investigation, is a qualified taxation data.

C. Furthermore, the aforementioned DD appeared as a witness in the court of first instance and testified to the effect that “The sales of cash was omitted when a significant return on tax was filed,” and the Plaintiff also asserted that the tax assessment was granted on the omitted amount of revenue confirmed as a result of the first investigation (before the judgment was reversed and remanded).

D. Accordingly, at least the amount stated in the above written confirmation can be sufficiently confirmed as the actual sales of the plaintiff, and there is no other counter-proof to reverse the above ratification [In this regard, the plaintiff asserts that "DD's certificate (Evidence No. 15) signed by DD was prepared by force of the defendant's staff, and therefore it is not qualified." However, DD did not mention the above purport at the time of its appearance as a witness in the court of first instance, and in light of the contents of the plaintiff's assertion as seen earlier, it seems that the above written confirmation was not made by coercion."

E. The amount of legitimate tax that the defendant should have received disposition of correction based on the above sales amount and accordingly, the amount imposed illegally among the disposition of imposition of principal tax of this case shall be calculated as follows:

4. Determination on the Defendant’s ex officio revocation portion

However, on August 8, 2017, which was after the date of closing of the party hearing, the Defendant revoked ex officio the amount imposed on the principal tax of this case. The specific details are as follows (Omission).

Therefore, since the above amount of reduction that the defendant revoked ex officio is no longer the plaintiff's interest in seeking revocation, the part seeking revocation in excess of the remaining amount of the above remaining amount of tax in the lawsuit of this case must be dismissed as unlawful (as the first imposition of value added tax in 2005 was revoked, the whole amount of the principal tax in 2005 was revoked, and the second imposition of value added tax in 205 was revoked, and there is no part to dismiss it).

5. Conclusion

Therefore, the part of the Plaintiff’s claim for revocation exceeding the remaining principal tax out of the lawsuit of this case shall be dismissed, and the remainder of the Plaintiff’s claim (the part of the claim for revocation of the remaining principal tax amount) shall be dismissed for lack of reason. Since the part concerning the disposition of revocation of principal tax in the judgment of the first instance is unreasonable based on a different conclusion, the part concerning the disposition of imposition of principal tax is partially accepted by the Plaintiff’s