Suwon District Court 2013Guhap15212 (2014.04.01)

early 2013 Middle 2904 ( November 29, 2013)

There is no evidence to prove that the disposition of income on account of an omission in sales has been unjust;

Even if the non-party corporation did not submit a list of total invoices by seller of the revenue invoice, the non-party corporation is exempted from the obligation to submit a list of total invoices by seller of the revenue invoice, and there is no evidence to prove that it omitted sales.

Article 66 of the Corporate Tax Act: Decision and Correction

Seoul High Court 2014Nu48100

○ ○

Head of Namyang District Tax Office

Suwon District Court 2013Guhap15212 (2014.04.01)

November 07, 2014

15.02.06

1.The judgment of the first instance shall be modified as follows:

A. Of the instant lawsuit, the Defendant’s motion to revoke the disposition imposing global income tax of KRW 7,569,353 on the Plaintiff on February 12, 2012 shall be dismissed.

B. On April 1, 2013, the Defendant revoked the part exceeding KRW 2,569,067 of the disposition imposing global income tax of KRW 15,09,893 on the Plaintiff for the year 2007.

C. The plaintiff's remaining claims are dismissed.

2. 25% of the total litigation costs shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

The judgment of the first instance court is revoked. The Defendant’s imposition of global income tax of KRW 7,569,353 on February 12, 2012 as of February 12, 2012 and the imposition of KRW 15,09,893 on global income tax of KRW 207 on April 1, 2013 as of April 1, 2013 (the imposition disposition of KRW 15,09,893 was revoked (the imposition disposition of April 1, 2013 was a revised disposition on February 12, 2012 based on the same disposal of income. The Plaintiff further specified the scope of revocation of the imposition disposition of KRW 7,530,540 on April 1, 2013 as of KRW 7,530,540 on which the Plaintiff seeks revocation of the imposition disposition of KRW 15,569,3539,539,539,97.39,205.

1. Details of the disposition;

A. From December 7, 2006 to July 6, 2007, the Plaintiff served as the representative director of the ○○○○○○ (the trade name at the time of the establishment of May 31, 2000 was referred to as “△△△△△△△△△”, the registration of change was made on October 16, 2007 as “○○○○○○○” corporation, the registration was made on April 1, 2009, and the registration was made on April 1, 2009 as “○○○○○○○”; hereinafter referred to as “foreign corporation”) and thereafter, from July 6, 2007 to May 21, 2008, the ○○○ was serving as the representative director of the non-party corporation.

B. The director of the tax office conducted a tax investigation on the non-party corporation. The non-party corporation received the revenue statement of KRW 53,097,163 from the Busan Customs office in the year 2007 and the revenue statement of KRW 18,774,650 from the Busan Customs office and did not enter them in the list of total purchase by seller, and received the processed tax invoice of KRW 10,000 (including value-added tax of KRW 1,00,000) without real transaction from the ○○ Design Co., Ltd. (hereinafter referred to as the "○○ Design"). The non-party corporation received the processed tax invoice of KRW 48,40,000 without real transaction from △△ Engineering, and confirmed that the sales amount corresponding to the purchase amount omitted from the list of total purchase by seller was omitted, and then the amount of income from the non-party corporation was increased to 200,000 won for the reason that it was not included in the sales amount of KRW 30,500,29.

Table Omission of the Table

C. Accordingly, on February 12, 2012, the Defendant issued a notice to the Plaintiff by adding a total of KRW 43,762,726 to the Plaintiff’s income amount. On February 29, 2012, the Defendant issued a notice to the Plaintiff by adding a total of KRW 18,038,60,000 to the Plaintiff. On February 29, 2012, the Defendant issued a notice to the effect that the tax invoice related to △△△ Engineering was cancelled from the Deputy Director of the District Tax Office to the Plaintiff on the ground that this ○○ was transacted at the time when ○○○ was working as the representative director, and that the said amount was revoked KRW 25,459,726 and KRW 18,300 from the global income tax for 207, which was reverted to the Plaintiff by subtracting the said amount from the amount of global income tax for 2007,369,247,207.

D. On July 6, 2012, the Plaintiff filed an objection against the disposition of imposition on February 12, 2012, and filed an appeal with the Tax Tribunal, but was dismissed on December 21, 2012.

E. After that, the time when the non-party corporation received the import invoice from the Busan Customs and Busan Customs and the Busan Customs and the Busan Customs (the revenue invoice of April 20, 2007; July 25, 2007) and the time when the processing tax invoice received from the ○○ Design (the date of July 1, 2007) has been revealed specifically, and on May 15, 2012, where the non-party corporation separates the representative of the non-party corporation from the amount of bonus disposal on 93,730,341 [the original amount of bonus disposal 11,983,00,00,000 won [the amount of bonus disposal 11,983,00,000 won related to the tax invoice of ○ Design + KRW 30,730,730,730,000,000 in Busan Customs and the amount of bonus disposal ±30,730,730,000,0000 won in Busan Customs and other amount of revenue disposal 】

F. Accordingly, on April 1, 2013, the Defendant added the Plaintiff’s income amount to KRW 75,427,341, which was additionally disposed of as bonus to the Plaintiff, and notified the Plaintiff of additional increase or decrease of KRW 28,777,210 in global income tax for the year 2007. The Plaintiff dissatisfied with the request and filed a request with the Tax Tribunal on June 5, 2013. The Tax Tribunal decided on November 29, 2013 that the amount obtained by subtracting the purchase amount of KRW 53,097,163 from the conversion sales amount received from the Busan Customs Office should be deemed as the bonus disposal amount for the Plaintiff. The Defendant corrected the amount of bonus disposal for the Plaintiff on April 1, 2013, which was finally determined to be the amount of bonus disposal for the Plaintiff based on the amount of bonus disposal for the Plaintiff’s total income for the year 207,097,163, and 210.

G. According to the aforementioned decision of the Tax Tribunal on December 12, 2013, the Defendant reduced KRW 21,246,675 of the global income tax for the year 2007 as of April 1, 2013 [This result is that the amount of tax additionally increased due to the Defendant’s imposition of global income tax for the year 2007, April 1, 2013, is KRW 7,530,540 ( KRW 28,77,210 - KRW 21,246,675, and KRW 21,675, and KRW 207, the amount of tax imposed by the Defendant on the Plaintiff as global income for the year 207 pursuant to the instant disposition of disposition of this case is the total amount of KRW 7,530,540 and KRW 7,569,3539,939, Feb. 12, 2012).

Facts having no dispute over recognition, Gap evidence 1, 2, 3, Eul evidence 1, 2, Eul evidence 3-1 through 6, Eul evidence 6, 7, and 8, and the purport of the whole pleadings.

2. Whether the part of the claim for revocation of the disposition on February 12, 2012, among the instant lawsuit, is lawful

We examine ex officio the legitimacy of this part of the lawsuit.

A. Relevant legal principles

In a case where an increase or decrease is made after a tax disposition has already been imposed, the said increase or decrease disposition is not an original disposition but an additional determination is not made on only the tax base and amount exceeding the original tax base and amount in the original disposition, but a single tax base and amount as a whole are again determined by including the tax base and amount in the original disposition. As such, the initial disposition is naturally extinguished due to absorption of the increase or decrease disposition, and only that disposition is subject to dispute (see, e.g., Supreme Court Decision 98Du16149, Sept

B. Determination

According to the aforementioned disposition, the Defendant: (a) added the Plaintiff’s income amount to KRW 75,427,341, which was additionally disposed of as bonus after the disposition was issued as of February 12, 2012; and (b) increased the global income tax of KRW 28,777,210 for the year 207; and (c) issued the instant disposition for correction and notification. As such, in accordance with the foregoing legal doctrine, the disposition for imposition as of February 12, 2012, which was issued as of February 12, 2012, was absorbed into the instant disposition, which is the corrective disposition, and thus, the Plaintiff’s lawsuit disputing the disposition as of February 12, 201

3. Whether the instant disposition is lawful

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Determination as to the assertion that the plaintiff is only the representative in the name of the non-party corporation

(1) The plaintiff's assertion

The plaintiff is formally the representative director of the non-party corporation, and in fact, this ○○ operated the non-party corporation. The plaintiff resigned from the representative director of the non-party corporation and agreed with the non-party corporation that the plaintiff will assume all civil and criminal responsibilities related to the non-party corporation without bearing any debt to the non-party corporation. Therefore, in calculating corporate tax in 2007, even if there is any omission in the sales and purchase amount in calculating corporate tax in the non-party corporation, the liability related thereto is all applicable to the non-party corporation ○○, and it is unreasonable to take each disposition

(2) Determination

According to Gap evidence Nos. 4-1 through 6, it is recognized that the plaintiff transferred the shares of the non-party corporation owned by the plaintiff to ○○ on October 10, 2007, and the plaintiff confirmed that no debt exists with respect to the non-party corporation and that ○○ shall take over all responsibility with respect to the non-party corporation. However, such fact alone is insufficient to recognize that the plaintiff was not the representative in the name of the non-party corporation at the time when the plaintiff was in office as the representative of the non-party corporation, and there is no other evidence to acknowledge that it was not a representative in the name of the non-party corporation, and the defendant cannot be deemed bound by the contents of the above agreement. Thus, the plaintiff'

C. Determination on the assertion regarding the disposition of income on the grounds of omission in sales

(1) The plaintiff's assertion

The Defendant: (a) deemed the corporation’s income at the time of filing a corporate tax return in 2007 on the imported goods from the Busan Customs office and the Busan Customs office; (b) deemed it as the corporation’s income and disposed of the income to the Plaintiff as its representative; (c) however, at the time of filing a corporate tax return in 2007, the non-party corporation reported the sales of the imported goods properly; and (d) the non-party corporation was exempted from the obligation to submit a list of total sum of individual suppliers in the business year 2007 because it was exempt from the obligation to submit a list of total sum of individual suppliers under the Corporate Tax Act, which was in force at the time of the filing of the report. Nevertheless, the Defendant issued the instant disposition

(2) Relevant legal principles

In determining the amount of a corporation’s income, in principle, the burden of proof as to whether there was profits to be included in the gross income or the amount of such profits is determined by the tax authority, and, in general, in correcting the reported amount of a taxpayer’s tax due to an error or omission, it would be based on the account books or evidence. However, if it is recognized that there was an error or omission in the reported amount based on other data whose authenticity and content are recognized as reasonable and that on-site investigation is possible, it may be corrected by other data. However, if it is not recognized as credibility to the extent that the value of evidence can not be readily denied because there is no specific content of sales in the confirmation document submitted by the taxpayer, even if the taxpayer’s certificate is a tax payer, it does not constitute account books or other data substituting the documentary evidence (see, e.g., Supreme Court Decision 2001Du7770, Jun. 24, 2003).

(3) Determination

In full view of the statements in the evidence Nos. 2, 4, and 7 and the purport of the whole pleadings, the non-party corporation shall be 207

The year from Busan Customs office to Busan Customs office an import account statement of KRW 53,097,163

Even after receiving each revenue invoice of KRW 18,774,650, the list of individual suppliers was not submitted accordingly. The defendant demanded the plaintiff to submit explanatory materials, such as corporate tax reports on the sales amount of the imported goods on February 2010, but the plaintiff failed to submit explanatory materials, and thus the disposition of this case is recognized.

However, each of the above revenue statements can only prove that the non-party corporation purchased the imported goods in the business year 2007, and it is difficult to deem that the non-party corporation sold the relevant imported goods. In particular, it cannot be concluded that all of the relevant imported goods were linked to the sales in the business year 2007.

Furthermore, Article 121 (5) (proviso) of the former Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007; hereinafter the same) provides that a corporation which received an import invoice from the head of the tax office for the goods imported may choose not to submit a list of total tax invoices by seller to the head of the tax office having jurisdiction over the place of tax payment. Thus, even if the non-party corporation did not submit a list of total tax invoices by seller to the head of the tax office having jurisdiction over the place of tax payment, it is difficult to deem that the non-party corporation intentionally failed to submit a list to conceal sales related to the imported goods. Furthermore, according to the evidence No. 2 of the above, it is difficult to prove that the income amount at the time of filing a corporate tax return for the business year of March 31, 2008 has reached KRW 15,356,514,000, and the time when the Defendant demanded the Plaintiff to submit explanatory data, considering that the amount of income amount at the time of the Plaintiff’s report was included in the sales amount for each business year 27.

In addition, there is no other evidence to prove that the non-party corporation omitted sales corresponding to the goods on the import account statement in 2007 (the defendant was subject to the disposition of this case based on Article 105 of the Enforcement Decree of the Corporate Tax Act at the time of the disposition, but this is only a provision for calculating sales and business revenue if the omission in sales occurred, and it cannot be deemed a provision for estimating the omission in sales itself or estimating the omission in sales based on the amount of the omission in the report of purchase).

(4) Ultimately, the part of the instant disposition based on the disposition of income, which was rendered on the grounds of omitting sales, is unlawful.

D. Determination on the Plaintiff’s assertion regarding the disposition of income based on the processing purchase

(1) The plaintiff's assertion

The plaintiff does not dispute that the non-party corporation received a processed tax invoice from the ○ Design. However, the plaintiff resigned from the office of representative director of the non-party corporation during the taxable year 2007.

Since a trade name has taken office as the representative director of the non-party corporation, the amount of income disposition related thereto shall be distributed proportionally to the plaintiff and the ○○ representative director.

(2) Relevant legal principles

Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008) provides that where it is clear that the amount included in gross income has been leaked out of the company, it shall be divided into dividends, bonuses from the disposition of profits, other income, and other outflow from the company according to the person to whom it reverts, but where it is unclear, it shall be deemed that it has been reverted to the representative. Article 54 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance No. 10 of Mar. 31, 2008) provides that in applying the proviso of Article 106 (1) 1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008), where it is unclear that it has been reverted to the representative, it shall be divided into the representative and disposed of as a bonus to each representative. Comprehensively taking into account the above provisions, if the representative's amount included in gross income is unclear.

(3) Determination

The fact that the above processing tax invoice was issued at the time when the plaintiff served as the representative director of the non-party corporation as the transaction time of the processed tax invoice received from the ○ Design, ○○, as the first half of 2007. However, the above processing tax invoice cannot be deemed to have been directly reverted to the plaintiff, and there is no other evidence to support that the above amount was directly reverted to the plaintiff. Therefore, since the above amount in the gross income is unclear, it constitutes a case where it is deemed to have become unclear, it should be calculated separately according to the number of days of the representative’s service

Therefore, the part that exceeds the tax amount calculated according to the proportionally distributed amount according to the number of the representative director's service period of the plaintiff's representative director among the disposition of this case premised on the disposal of bonus to the plaintiff without dividing the total amount of gross income.

(e) Calculation of a legitimate tax amount;

(1) Calculation of principal tax

As seen earlier, the portion of the tax amount related to the disposal of income on the ground of the omission in sales among the dispositions in this case should be revoked in its entirety. The amount of tax related to the disposal of income on the ground of the processing purchase should be calculated by dividing the amount of tax by the number of days in the office of the Plaintiff and the representative director of this○○○○○. Accordingly, the income to be reverted to the Plaintiff is 5,605,479 [=11,00,000 (processed Tax Invoice) X 186 (2)/365 (total number of days in the taxable year 2007), and less than KRW 365 (2) of the former Income Tax Act (wholly amended by Act No. 8825, Dec. 31, 2007). Article 20(2) of the former Income Tax Act provides that the amount of tax related to the disposal of income is 50,000 won, which exceeds the above amount of tax on global income 50,500 won,7500 won.

(2) Calculation of penalty tax

According to Article 47-3(1) of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007; hereinafter the same shall apply), where a taxpayer files a tax base return within the statutory due date of return and the tax base reported falls short of the tax base to be reported under the tax-related Acts, the amount equivalent to 10/100 of the amount calculated by multiplying the calculated tax amount. Accordingly, the under-reported penalty tax related to disposal of income refers to 143,862 [5,325,205 (reported amount)] 146,532,033 (tax base) / 100) / 10 of the amount of income for which the taxpayer files a tax return within the statutory due date of return / 20 of the former Enforcement Decree of the Framework Act on National Taxes / 30 of the amount of income for which the taxpayer files a tax return within the statutory due date of return / 20 of the following month /30 of the tax payment due date.

Therefore, additional tax is a total of 705,245 (=143,862 + 561,383) won.

(3) Sub-determination

Therefore, the amount of political party tax added by the disposition of this case is KRW 2,569,067 (=1,863,822 + 705,245). Since the amount exceeding KRW 2,569,067 of the disposition of this case is revoked (the amount of tax imposed by the Defendant on the Plaintiff as global income for the year 2007 according to the disposition of this case is KRW 7,530,540 and the amount of tax imposed additionally on the Plaintiff is KRW 15,09,893,000, the sum of the amount of tax imposed as of February 12, 2012, which is KRW 7,569,89,893, the total amount of tax is KRW 15,09,893, the amount of tax payable by the Plaintiff to the Defendant as global income for the year 2007 according to the disposition of this case.)

4. Conclusion

Therefore, the part concerning the disposition of imposition as of February 12, 2012 among the lawsuit in this case is unlawful, and thus, the part which exceeds KRW 2,569,067 among the plaintiff's claim for revocation of the disposition in this case shall be cited for the reasons, and the remainder shall be dismissed for the reason that there is no reason. The judgment of the court of first instance is unfair with some different conclusions, and the judgment of the court of first instance shall be partially accepted, and it is so decided as per Disposition.