Cho Jae-2016-west-3833 (2017.05.02)

It is reasonable to view that the transaction was made in cash in light of the opposite contractual party's statement and all other circumstances.

In light of the consistent statement, evidentiary materials, and overall circumstances of the purchaser, the tax authority with the burden of proof of the taxation requirement is deemed to have clarified the alleged fact in light of the empirical rule, but the Plaintiff cannot be deemed to be an illegal disposition since it failed to prove the fact not eligible for the application of the empirical rule.

Article 57 of the Value-Added Tax Act

Seoul Administrative Court-2018-Gu 5074 Disposition of revocation of Disposition of Imposition of Value-Added Tax

AACCC

s. Head of the tax office

on October 12, 2019

1. All of the plaintiff's claims are dismissed.

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

Each corporate tax (including additional taxes) of KRW 147,317,695 for the business year of August 1, 2011, and KRW 65,431,949 for the business year of 2012, and each disposition of imposition of KRW 86,962,061 for January 2, 2016, and KRW 33,684,436 for February 201, and KRW 29,684,44,446 for January 201, 201, shall be revoked.

1. Details of the disposition;

A. On September 4, 2006, the Plaintiff was a juristic person established for the purpose of wholesale and retail business of computer peripheral devices, etc., and was engaged in the wholesale and retail business of computer peripheral devices in O, OOdong O, OO-dong O(O, OO-A-A-A-A-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-A-O-O-O-O-O-O-O

B. Co., Ltd. (hereinafter referred to as “cphone”) was a corporation established for the purpose of wholesale and retail business of computer peripheral devices on September 27, 2003. From October 2010, Guro-gu Seoul OO-ro OO, OO-ho (Guro, O2) operated the wholesale and retail business of computer peripheral devices, and the cphone representative was Gangnam from October 2010.

C. From May 29, 2013 to October 9, 2010 of the same year, the director of the Seoul Regional Tax Office confirmed that the cphone purchased products, such as computer peripheral devices, of approximately KRW 1.2 billion from 2011 to 2012 from the purchase ledger (hereinafter referred to as the e only referred to as the e), prepared by the cphone through the ERP system (hereinafter referred to as the cphone 5-1, 2, hereinafter referred to as the cphone). The director of the Seoul Regional Tax Office confirmed that the e recorded in the purchase ledger of this case means the Plaintiff, and then notified the Defendant of the above taxation data.

D. Based on the purchase ledger, etc. of this case secured in the above tax investigation, the Defendant conducted an investigation into the Plaintiff and persons related to the cphones from May 15, 2016 to August 3 of the same year (hereinafter “the first investigation of this case”). Thereafter, based on the result of the first investigation of this case, the Defendant determined that based on the result of the first investigation of this case, the Plaintiff omitted sales of KRW 1,198,926,910 (total sum of supply amounts entered in the cash settlement in the purchase ledger of this case) from 2011 to 2012, and that the Plaintiff issued a correction and notification of corporate tax and value-added tax as stated in the original disposition column (hereinafter “the first disposition”).

E. On October 25, 2016, the Plaintiff was dissatisfied with the initial disposition and filed an appeal with the Tax Tribunal. On May 2, 2017, the Tax Tribunal rendered a decision that “the Plaintiff would correct the tax base and tax amount according to the results of re-examination as to whether the Plaintiff had transacted with cphones.”

F. Accordingly, the Defendant, on June 21, 2017 to July 28, 2017, corrected the amount of KRW 348,378,273, which was confirmed as transaction portion from March 31, 2012 after the closure of the Plaintiff among KRW 1,198,926,910, based on the results of the reexamination conducted from June 21, 2017 to the same year (hereinafter referred to as “the second investigation,” and the combination of the first investigation in this case and the second investigation in this case, “instant investigation”). On August 17, 2017, the Defendant corrected the amount of KRW 348,378,273, which was confirmed as transaction portion from March 31, 2012 after the closure of the Plaintiff (hereinafter referred to as “the disposition in this case remains after adding the amount remaining after the result of the initial disposition and the second investigation”).

G. The Plaintiff dissatisfied with the instant disposition and brought an appeal with the Tax Tribunal on September 19, 2017.

B. The Tax Tribunal dismissed it on December 11, 2017.

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 5 (including branch numbers, hereinafter the same shall apply), Eul evidence 1 to 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) First, the Defendant determined that Cphones purchased products equivalent to KRW 1,198,926,910 in total supply value from E to 2012 on the basis of the transaction statement by which Cphones prepared through the ERP system and some parts of them are unknown, and issued the instant disposition on the same premise. However, the purchase director of the instant case, however, merely because Cphones can be arbitrarily corrected, it cannot be deemed that there existed transaction relations based only on the above documents (hereinafter referred to as “instant Chapter 1”).

2) Even if there exists a transaction relationship between e and cphone as indicated in the purchase ledger of this case, the Plaintiff and e recorded in the purchase ledger of this case cannot be deemed the same company. Although the Defendant determined that e and the Plaintiff were the same company solely on the basis of the statement by the representative Gangnam of cphone and his employee Kim LL, the said statement by the representative of cphone was entirely reliable and there is no other objective evidence, and there is no other objective evidence. Accordingly, the instant disposition taken on the premise that e and the Plaintiff are the same company (hereinafter “instant Chapter 2”).

B. Determination

1) Relevant legal principles

In general, the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of tax imposition should be imposed on the tax authority. However, if the facts alleged in light of the empirical rule in the specific litigation process are revealed, it cannot be readily concluded that the other party is an unlawful disposition that failed to meet the taxation requirements, unless it proves that the pertinent facts in question are eligible for application of the empirical rule (see, e.g., Supreme Court Decisions 2003Du14284, Apr. 27, 2004; 2012Du1577, Jun. 13, 2013).

Meanwhile, a statement made by a person who is not a taxpayer in the course of investigation by an investigative agency or a tax authority is merely a unilateral statement made by the person who is not a taxpayer, unless there is evidence that conforms to the details of the statement or there is no complementary investigation such as confirmation of facts about the taxpayer, etc. (see, e.g., Supreme Court Decision 2009Du5022, Jul. 9, 2009). However, barring any special circumstance, such statement may not be deemed taxation data on the taxpayer unless there are other special circumstances (see, e.g., Supreme Court Decision 2009Du5022, Jul. 9, 2009). However, a statement made by a person who is not a taxpayer is not made against the free will

26. See Supreme Court Decision 2006Du16137 Decided 26.

2) Determination on the Claim No. 1 of this case

In light of the above legal principles, it is reasonable to view that e has supplied cphones with cphones from 201 to 2012, as recorded in the ledger of purchase of this case, in light of the following facts or circumstances, which can be acknowledged by comprehensively taking into account each of the above evidence and evidence Nos. 7 as well as the overall purport of arguments and arguments. Accordingly, the Chapter 1 of this case to the effect that cphones and e did not have the same transaction as indicated in the ledger of purchase of this case is groundless.

(A) First of all, the purchase date, the purchasing place, the purchase number, the item, the purchase volume, and the price are specified in each purchase case. In particular, KK, the representative of the cphone, stated the meaning of the e-N in the investigation process of this case as "e-N" and "N is a person with no value added tax". The purchase ledger of this case also states the cash settlement amount of the cphone for each date. However, the purchase ledger of this case has different items, the purchase price, the price volume, the cash settlement amount, etc. of each of the above cphones are different, and it is not clear that the cphones are inconsistent with the cphones' specifications and contents, and the cphones' statement of the cphones' representative and the cphones' statement of the cphones' representative and the cphones' statement of the cphones' 2.2.0 c.m. of this case.

C) In relation to this, Gangnam made a statement to the effect that it received transaction specifications and entered and managed them in the ERP system, as correspond to those in the secondary investigation process of this case. In light of the above contents of the statement, the head of the purchase of this case can be deemed to have entered cphones into the ERP system based on the same data as the transaction specifications under the e and cphones in the transaction process between e and cphones, which correspond to cphones in the transaction process between e and cphones.

D) The Plaintiff asserted to the effect that the cphones can be arbitrarily modified and thus cannot be trusted on the content indicated in the purchase ledger of the instant case. However, even in accordance with the materials submitted by the Plaintiff (Evidence No. 7), only can it be confirmed to the extent that the cphones can be modified ex post facto, and the Plaintiff does not specify the part that appears to have been modified at will by the purchase ledger of the instant case. However, the Plaintiff’s assertion that there is a possibility to modify the purchase ledger of the instant case, which is specifically described in the series of transaction processes, is nothing more than the materials created at will on the sole basis of the Plaintiff’s assertion that there is a possibility to modify the purchase ledger of the instant case.

E) Furthermore, the director of the Seoul Regional Tax Office found not only the purchase ledger of the instant case but also the president of the purchase headquarters related to the 111 company (the Plaintiff and gg Korea shall be deemed to be one company) in the course of conducting the consolidated investigation of corporate tax on cphones from May 29, 2013 to October 9 of the same year. The Defendant issued a disposition of imposition of value-added tax, etc. on each purchaser based on the above purchase ledger. However, except the Plaintiff and g Korea Co., Ltd., except for the Plaintiff and g Korea, the said disposition was without objection by the relevant purchaser, and the legality of the disposition of imposition was confirmed through the relevant litigation. Accordingly, the content of the entry in the purchase ledger of the instant case cannot be deemed to be fraudulent in itself on the basis of the possibility of correction of the Plaintiff’s assertion without any reasonable grounds.

3) Determination as to the second proposal of this case

A) Facts of recognition

The following facts are recognized by comprehensively taking account of the evidence mentioned above, Gap evidence Nos. 6, Eul evidence Nos. 11 and 12, and the purport of the whole pleadings.

(1) On November 27, 2002, AB, the representative of the Plaintiff, run the wholesale and retail business of computer peripheral devices in OO, OOdong O(O2, OO2) as an OO in Seoul, and closed on October 31, 2003, and operated the wholesale and retail business of computer peripheral devices as the representative of the Plaintiff from the time when the Plaintiff was established.

(2) The business operator who is searched in the name of "e" in the National Tax Service’s computer network is confirmed to be two persons. One of them is as described in the above (1) from November 27, 2002 to October 31 of the following year, 200. The remaining one is a HH who runs a wholesale and retail business of computer peripherals from June 20 to November 25, 2002 at the same place of business operated by ABB.

(3) The Plaintiff’s corporate register is registered as an auditor on March 31, 2009 by Korea-II, and the above II became a member of the Plaintiff’s corporation in around 2007 and has been in charge of business, delivery, and settlement.

(4) On January 2012, gg Korea Co., Ltd. (hereinafter “Gg Korea”) was a corporation established for the purpose of wholesale and retail business of computer peripheral devices, etc., and the OO, the location of the Plaintiff’s place of business, which is immediately adjacent to the Plaintiff’s place of business, was the place of business of OOdongO. The Defendant confirmed that there was a hostile Korea visiting gg Korea in the process of the instant investigation, and that one II was in office of gg Korea at the time of the visit.

(5) On the other hand, on October 25, 2016, the Seoul Western District Prosecutors' Office rendered a non-prosecution disposition against the Plaintiff and Ansan on the grounds that the Defendant did not have any objective evidence that the Plaintiff corporation run the NAB on the basis of the instant first investigation and filed an accusation against violation of the Punishment of Tax Evaders Act, and that the NAB and Han II did not have any transaction without the knowledge of cphones, and that it is difficult to deny the suspicion of the crime and to conduct an investigation against the KaK, etc. on the grounds that the Plaintiff and the NaB were not suspected (with respect to the facts of partial suspicion, there is no authority to institute a prosecution).

(6) Since then, the Defendant conducted the second investigation of this case, along with an individual investigation of AB and DK in the course of the investigation, additionally conducted an investigation of the substitution between AB and DK, and an investigation of KimL, who was an employee of Scphone, of Scphone.

B) Specific determination

In light of the above facts and circumstances, it is reasonable to see that e, recorded in the ledger of purchase of this case, refers to the Plaintiff (g Korea from the time of closure of business after the closure of business of the Plaintiff) in light of the legal principles as seen earlier, which can be recognized by comprehensively taking account of the above evidence and the purport of the entire pleadings. The instant disposition taken on such premise is also lawful. Accordingly, the Chapter 2 of this case to the effect that e, recorded in the ledger of purchase of this case, is not the Plaintiff is not the Plaintiff.

(1) First, in light of the results of the National Tax Service’s computer network search conducted in the above facts, it is confirmed that there is no business operator who actually engages in the business of gambling and retailing of computer peripheral devices under the name of “e,” which is the premise for the instant disposition from 2011 to 2012. In this regard, AB made a statement to the effect that “e,” which is the premise for the instant disposition, is conducting a funeral business in the name of “e,” during the first investigation process of the instant case, but it did not submit any materials supporting such statement.

(2) As seen earlier, Gangnam consistently made a statement to the effect that “e” from the first investigation process of this case to the second investigation process of this case was changed to the Plaintiff and that “Cphone was engaged in transactions with AB and IB” regardless of the change of the trade name. Furthermore, Gangnam has identified the location of CC in the investigation process of this case as the Plaintiff’s place of business, and the purchased items, etc. were connected to the Plaintiff’s website (htp://OcCnc.co.co.. Ltd.) and issued an order after confirming the prices of products and products. Such statement appears to be specific to the extent that it is difficult for Gangnam to view that the Plaintiff’s aforementioned consistent and specific statements were made by the Plaintiff during the investigation process of this case, as seen earlier, the Defendant appears to have been aware of the credibility of the Plaintiff’s business as described in the Plaintiff’s website during the investigation process of this case.

(3) In particular, according to the Plaintiff’s assertion, Gangnam specified the Plaintiff as the purchaser, who does not have any transaction with cphone despite the transaction like the contents indicated in the purchase ledger of this case with the company or third party using e, in fact, from the Yongsansan. However, even though the Plaintiff actually traded with cphones, there is no reasonable ground to deem that the Plaintiff specified the Plaintiff as the transaction partner in order to put the Plaintiff at a disadvantage, and the Plaintiff did not provide any explanation to it.

(4) In addition, the Plaintiff did not engage in the transaction with cphones at that time, and the Plaintiff’s assertion to the effect that the transaction, such as the entry in the purchase ledger of this case, was not in a situation where the business was difficult at that time. However, if such assertion seems to be reasonable to a certain extent, at least, it is necessary to prove that the Plaintiff could have predicted the actual transaction, etc. of the Plaintiff during the period from 1 January 201, to 1 January 2012, which is the premise for the disposition of this case, including the current status of the Plaintiff’s trading company, and the specific form of the transaction, etc., and to prove the fact that the Plaintiff could have predicted the actual transaction, etc. of the Plaintiff during the said taxable period. However

(5) As seen earlier, the Defendant imposed value-added tax, etc. on each purchaser through the ledger of purchase of cphones for the pertinent period of time, and the Defendant, in the process of such a disposition, specified the actual supplier, not the purchaser entered in the ledger of purchase based on the Gangnam’s statement, and issued a disposition of imposition. However, such disposition of imposition was also final and conclusive as it did not raise any objection by the party to the disposition, or the request for a trial against the Tax Tribunal by the party to the disposition was dismissed.

(6) Meanwhile, the Plaintiff stated in the purchase ledger of this case that the Plaintiff traded e and cphones from March 31, 2012 to December 31, 201 of the same year after the closure of the business. Therefore, in light of such contents, the Plaintiff, who was unable to make a transaction after the closure of the business, cannot be deemed to be the sexual reproduction as indicated in the purchase ledger of this case. However, in light of the following circumstances, it is reasonable to deem that e recorded in the purchase ledger of this case means the Plaintiff. However, the Plaintiff appears to mean cphones Korea which actually engaged in transactions of cphones and computer peripheral devices at the same time as the Plaintiff’s employees after the closure of the business. Accordingly, since it is evident that the transaction relationship between the Plaintiff and cphones exists between March 30, 2012, which is the date of closure of the business, the Plaintiff’s assertion on this premise is without merit.

① As long as H appears to have performed the direct transaction-related business with cphones as the Plaintiff’s employee, H is confirmed to have worked in gg Korea using cphones immediately adjacent to the Plaintiff’s workplace after the closure of the business.

"② 강KK은 이 사건 조사과정에서 'ee와 원고 및 gg코리아가 동일한 회사이며 안BB, 한II와 계속적으로 거래를 하였다'는 취지로 진술하였고, cc폰 직원 김LL 역시 이 사건 2차 조사과정에서 'ee가 "DD 라는 상호를 사용하였고, 이후 gg코리아라는 상호를 사용하였으며, ee와 gg코리아는 동일한 업체로 기억한다'는 취지로 진술을 하였는데, 달리 위와 같은 진술들이 허위라고 볼 수 있는 사정은 전혀 확인되지 않으며, 실제로 피고가 cc폰으로부터 제출받은 거래명세서에는 그 작성자를 정확히 알 수는 없으나 공급자 부분에 'DD'라는 자필 기재 부분이 존재한다.",③ 원고와 gg코리아의 대표자(대표이사 강JJ)가 서로 다르나, 원고와 gg코리아는 동일한 사업장 전화번호(02-2120-XXXX)를 사용한 것으로 확인되며, 안BB가 2011. 1. 1.부터 2011. 12. 31.까지는 gg코리아 사업장인 OO상가 OO동 OO호에 임차인 신고를 한 후 매달 임차료를 임대인에게 지급해왔던 것으로도 확인이 된다.

④ During the second investigation process of the instant case, the investigator appears to have been engaged in the sales tax invoice to AB at the time when the Plaintiff closes its business, and the Plaintiff and Gg Korea have been actually engaged in the comprehensive acquisition of business between the Plaintiff and GgB. In response to the question to the effect that the explanation was made, “AB” had been asked to the effect that the Plaintiff was not actually engaged in business in 2012, and it was exceeded before the closure of business.

Although it is the same, I made a statement to the effect that memory is not accurate for a long time.

(7) In addition, the Plaintiff asserted that the Plaintiff had no trade equivalent to the amount as alleged by the Defendant between the Plaintiff and Cphones. However, the Plaintiff’s assertion and evidence corresponding thereto (Evidence A, 6, 8, and 9) reverses the facts or circumstances described in (i) through (ii) above, and (iii) e indicated in the purchase ledger of this case from the time of the closure of the Plaintiff, if sales were to be raised, then there was no reason for the Plaintiff to discontinue the business. The Seoul Western District Prosecutors’ Office also rendered a non-suspect on suspicion of violating the Punishment of Tax Evaders Act by the Plaintiff and the Ansan District Prosecutors’ Office; and that there was no trade equivalent to the amount as alleged by the Defendant. However, the Plaintiff’s assertion and evidence corresponding thereto (Evidence A, 1, 6, 8, and 9) alone cannot be deemed to have followed the facts or circumstances described in (i) through (vi) above, and it cannot be said that e indicated in the purchase ledger of this case is not the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.