National High Court Decision 2007west 5230 ( October 23, 2009)

There are some deficiencies in the content of the certificate itself which indicates the omission of sale, and it is difficult to deny the whole content of the certificate.

It is reasonable to view that a borrowed account is established to use money, such as sales price, for corporate funds, without any particular explanation that it is unrelated to the sales of the Plaintiff corporation or that it is already reported as sales, among the amount of the borrowed account opened. It is difficult to deny the whole content of the written confirmation because there are some deficiencies in the written confirmation that expresses the omission of sales.

209Guhap23549 Revocation of Disposition of Imposing corporate tax, etc.

SP et al.

Head of Eastern Tax Office

June 14, 2012

July 19, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Each disposition listed in the separate sheet No. 1. that the defendant against the plaintiffs shall be revoked.

1. Details of the disposition;

"가. 주식회사 XX(이하XX'라 한다), 주식회사 OO(이하 'OO'라 한다), 원고 주식회사 △△(이하원고 △△'라 한다), YY 주식회사(이하 '원고 YY'이라 하고, 위 각 법인을 통틀어원고 법인 등' 이라 한다)는 'AA, BB, CC, DD, EE, FF, GG, HH 등' 의 브랜드로 의류를 제조 • 판매하는 회사들로서, XX는 2008. 12. 31. 원고 △△에, OO는 2008. 8. 19. 원고 주식회사 ◇◇(이하원고 ◇◇'라 한다)에 각 흡수합병되었다.", "나. 서울지방국세청장은 2006. 8. 16.부터 2006. 12. 22.까지 원고 법인 등에 대한 세무조사를 실시하여 위 각 법인이 2001. 1. 2.부터 2004. 1. 16.까지의 기간 동안 경리 부장 전성일 등 임직원 및 대표이사 박AA의 친인척 명의로 총 9개의 예금계좌(이하 '이 사건 차명계좌'라 한다)를 별도로 관리한 사실을 발견하고, 2006. 12. 22.경 위 각 법인들에 대하여 이 사건 차명계좌에 입금된 합계 000원(XX : 000원, OO : 000원, 원고 YY 000원, 원고 △△ : 000원 등) 중 위 각 법인간 자금을 이체한 대체입금 000원, 입금취소 금액 000원, 이자수입 금액 000원, 대리점상품보증금 000원 등 합계 000원을 위 각 법인의 매출금액에서 제외하고, 나머지 000원을 위 각 법인의 매출 누락금으로 보아 별지 2-1 내지 2-4.의세무조사결과통지'란의 기재와 같이 2001---2005 사업 연도 법인세 합계 000원, 2001년 1기 ---2005년 2기 부가가치세 합계 000원을 과세하고, 대표이사 등에 대한 2001---2005년 귀속 인정상여 합계 000원을 소득금액변동통지하겠다는 내용으로 세무조사결과를 통지 하였다.", "다. 한편 서울지방국세청장으로부터 부과제척기간이 임박한 과세항목에 대한 통보를 받은 피고는 XX 및 원고 YY에 대하여 2007. 1. 15. 각 2001년 2기 부가가치세의, 2007. 3. 2. 각 2001사업연도 법인세의 부과처분을 하는 한편, 2007. 3. 2. 박AA, 오BB에 대하여 각 소득금액변동통지를 하였는데, 그 처분내역은 별지 2-1, 2-2의조기결정'란의 기재와 같다.", "라. OO를 제외한 XX, 원고 YY, △△는 2007. 1. 20. 경 서울지방국세청장의 위 세무조사결과통지에 불복하여 서울지방국세청장에게 과세전적부심사를 청구하였다. 서울지방국세청장은 OO가 과세전적부심사를 청구하지 아니하자 피고에게 별지 2-4의당초결정'란의 기재와 같이 법인세 부과고지 등의 조치를 취하라는 통보를 하였고, 이에 피고는 2007. 2. 2. OO에 대하여 2002~2005사업연도 법인세 합계 000원, 2002년 1기~2005년 2기 부가가치세 합계 000원을 부과하고, 대표이사의 2002년~2005년 귀속 인정상여 합계 000원을 소득금액변통통지하였다. 한편, 원고 법인 등은 2007. 4. 3. 서울지방국세청장에게 XX, 원고 YY의 각 2001년도분, OO의 2002~2005년도분 법인세, 부가가치세 및 소득금액변동통지에 관하여 이의신청을 하였다.",마. 서울지방국세청장은 원고 법인 등의 과세전적부심사청구 및 이의신청에 대하여 2007. 5. 16.(과세전적부심사청구) 및 2007. 6. 27.(이의신청) '위 각 법인에게 통지한 매출누락 혐의금액은 장부 또는 관련 증빙서류에 의해 매출누락 사실을 확인하였다고 보기 어렵고, 위 각 법인의 의류판매에 대한 귀속시기도 위 각 법인이 대리점에 의류를 판매한 때임에도 임직원 명의의 계좌에 외상매출금 대금이 입금된 날을 기준으로 하였는바, 이 건 매출누락 금액은 정확히 산출되었다고 보기 어려워 위 각 법인의 매출누락 금액을 재조사함이 타당하다l고 판단하여 XX, 원고 YY, △△의 과세전적부심사청구 내지 이의신청을 받아들여 아래에서 보는 바와 같이 재조사를 실시하였으나, OO의 이의신청에 대하여는 2007. 7. 20. 그 신청을 기각 하였다.

f. According to the above request for pre-assessment review and the decision of 20 years on the above objection, the Director of Seoul Regional Tax Office listed the omission amount of sales from 00 won to 00 won, and notified the Defendant of the omission amount of sales from 200 won, as stated in [Attachment 2-1 and 2-2] 201 business years, and notified the Defendant of the change in the amount of income for 200 years from 20 years from 00 to 20 years from 30 years from 20 years from 20 years from 20, as stated in [Attachment 2-1] , and notified the Defendant of the change in the amount of income for 20 years from 20 years from 20 years from 200 to 20 years from 20 years from 20 years from 3 years from 20, as stated in [Attachment 2-3] , the Defendant made a request for the reduction of corporate tax and value-added tax for 2 years from 2007.

H. Meanwhile, the summary of the amount of deposit on the instant borrowed name account and the disposition of imposition and decision of correction are as shown in attached Form 3.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 7, Eul evidence 1 to 114 (including paper numbers), the purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) The instant taxation disposition was conducted solely on the basis of the details of the instant borrowed account’s deposit and each written confirmation [Article 246 through 249 (including serial number; hereinafter “written confirmation”)] prepared by Park Jong-A, the representative of the Plaintiff’s corporation, etc. The instant borrowed account was inevitably established to achieve the purpose of convenient settlement of prices for goods and continuous brand performance management, etc. under the circumstances where the Plaintiff et al. go to an independent entity, and it is difficult to recognize that the amount of the instant borrowed account was not a confidential account to conceal sales prices. However, the amount equivalent to 71% of the amount of notice of tax omission based on the original borrowed account (excluding 00 won) [this case’s total amount of payment) - 00 won (excluding this case’s borrowed tax audit process) - 000 won (excluding the portion of the Plaintiff’s borrowed tax audit account) was not duly established or notified to the Plaintiff’s agent during the instant tax audit process], and thus, it cannot be seen that the remaining amount of the instant account was not deposited in the Plaintiff’s account.

(2) In most of the corporations engaged in wholesale business, most of the sales are composed of credit sales, and each of the above corporations cannot be deemed to have been identical to the date on which payment was made by the agency. However, the Defendant committed each of the instant dispositions on the premise that the deposit amount by the period of the instant borrowed account falls under the omission of sales in each taxable period. The Defendant’s disposition on the instant corporate tax against the Plaintiff corporation, etc. was erroneous in the grounds for disposition itself.

(3) The Defendant: (a) deemed that the person to whom the omission in sales was attributed is unclear and notified of the change in the amount of income by disposing of the relevant amount as bonus to the representative director, etc. of the Plaintiffs; and (b) it is unreasonable to

(b) Related statutes;

Article 16 (Grounds for Taxation) (1) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010) (1) where a person liable for tax payment keeps and enters a book under tax-related Acts, the investigation and decision of the tax base of the national tax concerned shall be based on the books kept and kept and recorded and related documentary evidence.

(2) In examining and determining national taxes under the provisions of paragraph (1), if the contents of the bookkeeping are different from facts or any omission exists in the bookkeeping, it shall be limited to such part and may be determined based on the facts examined by the Government.

(c) Fact of recognition;

(1) For the purpose of receiving sales payments, the Plaintiff Corporation, etc. borrowed the name of his relative, officer, and employee from the name of the representative Park Jong-A as indicated below, and opened each of the instant borrowed accounts. From 2001 to 2004, the Plaintiff Corporation, etc. received and managed part of the sales amount of the Plaintiff Corporation, etc. and deposited goods deposits, etc. separately from the financial account under the name of the Plaintiff Corporation, etc.

(2) From August 16, 2006 to December 22, 2006, the director of the Seoul Regional Tax Office conducted a tax investigation on the Plaintiff corporation, etc. with respect to the 11,939 deposits and withdrawals transaction on the instant borrowed account, and notified the Plaintiff corporation, etc. of the results of the tax investigation by investigating that 000 won, which was confirmed not to be reported even in connection with the sales of the Plaintiff corporation, etc., was omitted, as stated in the “the details of the omission of sales in the instant borrowed account” column, as stated in the “the details of the omission of sales in the instant borrowed account” column, as stated in the “the details of the omission of sales in the instant borrowed account” column. Based on the results of the tax investigation, the Defendant notified the Plaintiff corporation, etc. of the results, etc. of the tax investigation.

(3) In the review conducted in accordance with the notice of the results of the tax investigation and the decision of re-audit by the plaintiff corporation, etc. in accordance with the request for pre-assessment review or the decision of re-assessment filed by the plaintiff corporation, etc. in the course of taxation, the "re-survey of the details of the omission of sales of the borrowed account" as shown in the annexed Form 3, which was confirmed to have been collected by the plaintiff corporation, etc. among the borrowed account deposit transactions in this case, 00 won (x 000 won - Plaintiff Y00 won - Plaintiff △△△△△ 000 won) that was additionally omitted sales and notified the defendant of the fact that the defendant corrected the reduction.

On the other hand, the plaintiff corporation, other than the OO, argued that the contents of the investigation are improper with respect to other matters than the omission of sales in the name account of this case in the above request for pre-assessment review, but only the matters related to omission of sales in the name account of this case were presented and the re-audit decision was made, and all other matters were not presented and the non-adopted decision was made.

"(4) 이후 원고 법인 등은 2007. 9. 13. '원고 법인 등의 매출누락으로 조사된 금액 중 별지 3. 차명계좌 매출누락 조사내역의Ⓞ'항과 관련한 26건의 금융거래금액 합계 000원에 대하여 이는 임직원 명의 계좌 사이에서의 대체거래에 해당하거나 원고 법인 등의 대주주 오BB의 대출금액이 위 각 법인의 생산자금을 결제하기 위하여 이체된 대체거래에 해당하므로 원고 법인 등의 매출금액이 아니다'라는 취지로 주장하면서 조세심판원에 심판청구를 제기하였고, 조세심판원은 2009. 3. 23. 'XX의 2001. 9. 8.자 입금액 000원, 원고 YY의 2002. 3. 22.자 입금액 000원, 원고 △△의 2003. 3. 5.자 입금액 000원은 위 각 법인의 매출금액으로 보이나, 원고 법인 등의 나머지 금융거래금액 합계 000원은 매출 금액으로 보이지 아니하므로, 피고는 이를 반영하여 부가가치세 및 법인세(대표자 상여 처분에 대한 종합소득세 포함) 과세표준 및 세액을 경정함이 타당하다고 판단하였다.",(5) 위 심판결정에 따라 피고는 별지 3. '차명계좌 매출누락 조사내역' 중 'ⓖ 심판결정'란의 기재와 같이 원고 법인 등의 매출누락이 아닌 것으로 확인된 000원 (XX 000원, 원고 YY 000원, 원고 △△ 000원, OO 000원)을 추가로 매출누락금액에서 제외하여 감액경정 등을 하였다.

(6) Meanwhile, in addition to the omission of sales using the instant borrowed account, the Plaintiff corporation, etc. also confirmed that the Plaintiff’s direct management store was omitted and omitted sales of KRW 000,00,000 + △△△△ 000 + O00. In addition to the omission of sales, it was confirmed that the processing purchase, corporate tax, and under-reported value-added tax was also verified (see the evidence No. 114-1 through 4 of this Act). Furthermore, the Plaintiff’s representative of the Plaintiff corporation, etc. prepared and submitted a written confirmation to the effect that the omission of sales related to the instant borrowed name account at the time of the tax investigation and the omission of sales, processing purchase, other corporate tax, and under-reported matters identified in accordance with other investigated matters, etc.

[Reasons for Recognition: Facts without dispute, each of the evidence before the dispute, Eul evidence No. 206, each of the evidence No. 246 through 249 (including provisional number), the purport of the whole pleadings]

D. Determination

(1) As to the first argument

(A) If a tax authority received a written confirmation from a taxpayer that there was an omission of sales in a certain part of a transaction in the course of conducting a tax investigation, the evidence of the written confirmation cannot be readily denied unless there are special circumstances, such as that the written confirmation was made compulsorily against the intent of the person who prepared the document, or that it is difficult to regard the specific fact as supporting material due to lack of the content thereof, etc. (see, e.g., Supreme Court Decision 2001Du2560, Dec. 6, 2002). Generally, in a lawsuit seeking revocation of tax imposition, the burden of proof as to the facts requiring taxation should be borne by the person who has the burden of proof in light of the empirical rule. However, if the facts alleged in light of the empirical rule in the course of a specific lawsuit are revealed, unless the other party proves that the pertinent facts in question are not eligible for the application of the empirical rule, it cannot be readily concluded that the pertinent taxation disposition was illegal disposition that failed to meet the requirements for taxation (see, e.g., Supreme Court Decision 2002Du

(B) On the other hand, even though the Plaintiff corporation opened a trading account in the name of each of the above corporations and conducted financial transactions using such account, if it did not provide reasonable explanation as to the reasons for financial transactions, such as the Plaintiff corporation’s representative’s relative, officer, and employee’s lending the name of the Plaintiff corporation and the Plaintiff’s payment of the Plaintiff’s sales amount through the account, it is necessary for the Plaintiffs, who managed the sales amount by such abnormal method, to provide adequate explanation as to the sales amount of the Plaintiff corporation, etc., which was deposited in the instant borrowed name account. In light of the following circumstances revealed in the facts established by considering the overall purport of each of the statements and arguments in Article 188-2 and 189-8, it cannot be deemed that the Defendant violated the principle of base taxation on each of the instant dispositions against the Plaintiff corporation based on the details of deposits in the instant borrowed name account and confirmation certificate, etc. The Plaintiffs’ assertion in this part is without merit.

O) The account holder of the instant borrowed name account was the principal of the punishment of Park Jong, the relative of the representative of the Plaintiff corporation, and the head of the accounting division of the Plaintiff corporation, etc., or the executive officer or employee of the Plaintiff corporation, etc., who is the representative of the Plaintiff corporation. However, there is no reasonable ground for the Plaintiffs to open the instant borrowed name account for continuous brand performance management, etc., i.e., the purpose of opening the instant borrowed name account, i., the Plaintiff corporation’s executive officer of the Plaintiff corporation, etc., rather than the name of the Plaintiff corporation, etc., i.e., continuous brand performance management. The Plaintiff corporation, etc., divided the period of time (one week and two weeks, three weeks, and four weeks), or divided the amount into the instant borrowed name account. Considering the fact that some part of the amount was collected from the Plaintiff corporation’s agent account at the time of investigation into the Plaintiff corporation, etc. to manage the sales price into the instant borrowed name account, the purpose of which was not verified by the Plaintiff corporation’s representative director, etc.

In the course of the tax investigation with respect to the Plaintiff, etc., the Defendant found the instant borrowed account and found the Plaintiff, etc. to have omitted sales amount of KRW 000 equivalent to about 40% of the total amount deposited by the Plaintiff, etc. through the instant borrowed account through the explanation of the Plaintiff, etc., and confirmed that the amount was unrelated to the sales, such as substitute payment, cancellation of deposit, interest income, deposit, etc., and provided a notice of prior notice of taxation only for KRW 51 billion except for the remainder of 5.1 billion. Following the vindication through the presentation of materials by the Plaintiff, etc., excluding KRW 00 in the process of filing an application for prior notice of taxation and KRW 00 in the tax proceeding, and KRW 00 in the aggregate of the amount deposited by the instant borrowed account was either omitted sales or omitted sales without any specific explanation of each of the Plaintiff, etc., and thus, the Plaintiff’s first account and omitted sales were found to have been found to have been part of each of the instant disposition and omitted sales without any specific explanation of each of the Plaintiff, etc.

O. There is no evidence to deem that the instant confirmation document was prepared against the will of the originator. Furthermore, as long as the confirmation document is based on the fact that the representative of the Plaintiff corporation, etc. has prepared a confirmation document that approves the omission of sales, etc., the Defendant may take measures, such as accusation, in the event that the representative of the Plaintiff corporation, etc. denies the omission of sales, etc., even if such confirmation document was prepared, the Defendant may use the said confirmation document as data for each disposition of this case (see Supreme Court Decision 86Nu314, 86Nu315, 86Nu316, Sept. 23, 1986). Furthermore, although the said confirmation document does not contain any specific content other than the total amount of omission of sales by taxable period, the date, amount, etc. of transactions subject to the confirmation may be clearly specified according to the details of the instant borrowed account. In light of the fact that the details of each individual transaction are insufficient, it is difficult to readily deny the overall content of the confirmation document.

In the instant case where there is no specific explanation by the Plaintiffs as to the omission of purchase on the part of the Plaintiff corporation, etc., which was the basis of the disposition in the instant case, the omission of purchase on the part of the Plaintiff corporation, etc. and the agent may not be subject to a separate taxation on the agent if there is no omission of sale in the account book, and the omission of purchase on the part of the Plaintiff corporation, etc., which was the basis of the disposition in the instant case, may not be deemed to correspond to the omission of sale on the part of the Plaintiff corporation, etc., and the omission of purchase on the part of the amount imposed on the Plaintiff corporation, etc., which was not related to the sales of the Plaintiff corporation, etc., or was already reported as the sales.

O also in light of the following: (a) the process of determining the amount omitted from sales and disposition of the instant case; (b) the nature of the instant borrowed account; and (c) the details of the written confirmation, etc., there is no ground to deem that the amount deposited in the instant borrowed account by a third party, not an agent, constitutes a general alternative transaction, not an omission of sales by the Plaintiff

(2) As to the second argument

In addition to each disposition of this case and the process of determining the omitted amount of sales, the nature of the borrowed name account of this case, and the contents of the confirmation document, etc., in consideration of the following facts: (a) a reinvestigation of the omitted amount of sales by the Plaintiff corporation, etc. was deducted in the taxation feasibility review and objection procedure that the Plaintiffs asserted to the above purport; and (b) in this case, as seen above, the tax authorities are responsible to explain the omitted amount of sales by the Plaintiff corporation, etc. in an appropriate manner; (c) it is reasonable to presume that the amount deposited in the borrowed name account is included in gross income for the business year when the payment was made by proving the existence of the omitted amount of sales through the borrowed name account; and (d) the presumption that the amount deposited in the borrowed name account constitutes gross income for the business year when the deposited amount was made ( there is no material to deem that the relevant transaction or transaction amount was included in the Plaintiff corporation, etc.’s account); (c) it is difficult to deem that there was a defect in the corporate tax portion of each disposition of this case in relation to the accrual period

(3) As to the third argument

Where a corporation fails to record its sales in its account book despite the fact of sales, unless there are special circumstances, it shall be deemed that the total amount omitted from sales, including the cost of raw material purchase, was leaked to other than the company. In such cases, the special circumstance that the omission in sales is not leaked to other than the company should be proved by the legal entity that asserts it (see, e.g., Supreme Court Decision 2001Du2560, Dec. 6, 2002). While the plaintiffs asserted that there was any error of mistake in the misconception of facts as to the omission in sales in the notice of change in the amount of income among the dispositions of this case by the defendant, they did not prove and prove any specific contents. Therefore, the above argument by the plaintiffs is without merit without further review.

3. Conclusion

Therefore, each of the plaintiffs' claims in this case is dismissed as it is without merit, and it is so decided as per Disposition.