Suwon District Court 2008Guhap1240 ( December 09, 2008)

National Tax Service Review Income 2007-0110 ( December 13, 2007)

Value-added tax assessment is legitimate because it is not presented evidence to verify the actual transaction of gold bullion.

Value-added tax assessment is legitimate because it is difficult to recognize that a tax invoice is based on a real transaction because the Plaintiff failed to present objective evidence to verify the real flow of gold bullion that the Plaintiff purchased.

2011Nu39532 Disposition of revocation of Disposition of Imposition of Value-Added Tax

XX Kim

Head of the High Tax Office

Suwon District Court Decision 2008Guhap1240 Decided December 9, 2008

Seoul High Court Decision 2009Nu1756 Decided September 8, 2009

Supreme Court Decision 2009Du17599 Decided November 10, 2011

May 24, 2012

June 21, 2012

1. The plaintiff's claim that was changed in the trial prior to remand with respect to global income tax for the year 2002 is dismissed.

2. The Plaintiff’s appeal regarding the imposition of value-added tax for the second period of February 1, 2007 and the first period of 2002 and L/C and the imposition of global income tax for the second period of October 1, 2007 is dismissed.

3. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The judgment of the first instance court is revoked. The defendant's revocation of each imposition disposition on the plaintiff (the plaintiff sought revocation of the imposition disposition of KRW 000 as of February 1, 2007 and the imposition disposition of KRW 000 as of October 1, 2007 in relation to global income tax belonging to the year 2002, and the lawsuit was modified to seek revocation of the imposition disposition of KRW 00 as of October 1, 2007 in the first instance court before returning).

1. Details of the disposition;

A. The Plaintiff, as indicated below, operated precious metal sales store at the department store, etc.: ② The Plaintiff received gold bullion purchase tax invoice of KRW 00 (200, 2000, 1000, 2003, 200, 2000, 2000, 2000, 2000, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 20, 200, 200, 20, 300, 200, 20, 200, 20, 200, 20, 300, 200, 200, 200.

"The plaintiff filed a request for examination on April 23, 2007 with the Commissioner of the National Tax Service on June 28, 2007. The Commissioner of the National Tax Service, on February 13, 2007, issued a decision to include 000 won of value-added tax, 000 won of global income tax paid in 2002, 000 won of global income tax paid in 2003, and 00 won of global income tax paid in 2007, and dismissed the remaining claims." Meanwhile, on October 1, 2007, the defendant added 30 won of global income tax for the plaintiff, 4.00 won of global income for 2002, and 00 won of global income for 2003, 2000 won of global income tax for 200.1.207, 2007.

E. In addition, according to the above review and determination, the Defendant issued a reduction, correction, and notification of 00 won of global income tax for the year 2002 and 000 won of global income tax for the year 2003 (hereinafter referred to as “the disposition imposing global income tax for October 1, 2007”) and the remaining 00 won of global income after the reduction as above (=the disposition imposing global income tax for the year 2002 - the amount of 00 won on October 1, 2007 - the amount of 00 won on January 4, 2008) and the disposition imposing global income tax for the year 203 - the amount of 29,808,113 won remaining after the reduction as above among the disposition imposing global income tax for the year 2003 as of October 1, 207 - the disposition imposing global income tax for each of the instant case’s "the disposition imposing global income tax for each of the instant case’s 00.4.

F. The Plaintiff appealed and filed the instant lawsuit on March 5, 2008.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1-4, Gap evidence 2, Eul evidence 1-1-4, Eul evidence 2-1-2, Eul evidence 2-1-6, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) Since the Plaintiff traded gold bullion between Oju and received the instant tax invoice, each of the instant dispositions issued on the ground that the instant tax invoice is different from the fact is unlawful.

2) The Plaintiff’s balance sheet should be calculated by including KRW 000 paid interest which was reflected in the Plaintiff’s balance sheet but failed to be appropriated as the cost, and KRW 000 paid by the Plaintiff under the pretext of food expenses, vehicle maintenance expenses, etc.

B. Defendant’s assertion

Among the lawsuit of this case, the part concerning the defendant's imposition of global income tax of 000 won for the plaintiff on October 1, 2007 and the claim for revocation of the imposition of global income tax of 2000 won for the year 2003 was filed without going through the pre-trial procedure under Article 56 (2) of the Framework Act on National Taxes, and thus, the tax invoice of this case was prepared based on a false transaction, and thus, each of the dispositions of this case is justified.

C. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

D. Determination

1) As to the imposition of value-added tax of this case

A) The burden of proving that the tax invoice is false, in principle, on the ground that the defendant bears the burden of proving that the tax invoice is false, the defendant must prove that the tax invoice is not accompanied by real transactions, based on direct evidence or all the circumstances. However, if the defendant proves that the tax invoice is not false and that it is sufficient to reasonably accept it, it is necessary to prove that it conforms to the self-help's assertion considering that the plaintiff, who is the taxpayer disputing the illegality of the defendant's disposition, is in a position to easily present relevant evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

나) 갑 제4호증의 l 내지 28, 갑 제18호증의 1, 5, 을 제3, 4, 6, 10, 11호증의 각 기재에 변론 전체의 취지를 종합하면, 남대문세무서의 세무조사 결과 OO쥬얼리가 2002년 2기부터 2003년 1기 사이에 거래한 금지금 매입처들은 대부분 자료상이거나 매입을 다른 자료상으로부터 한 것으로 밝혀진 업체인 사실, OO쥬얼리는 2001년 1기부터 2003년 2기 사이에 주식회사 YY골드, 주식회사 △△금은(이하 '△△ 금은'이라 한다) 등에게 금지금을 매출하였다는 내용의 세금계산서를 교부하였으나, 위 매출처들은 대부분(매출액의 81.3%) 자료상 등의 범칙이력이 있는 업체로 밝혀졌고, 나머지 거래처들에 대해서도 가공의 거래임을 이유로 관련 세액이 경정된 사실, 원고가 작성한 매입장(갑 제18호증의 1, 5)에는 원고가 2002년 1기에 OO쥬얼리의 매출처 중 △△금은으로부터 000원의 금지금을 매입한 것으로 기재되어 있는데, 원고가 OO쥬얼리로부터 금지금을 매입하기 시작하였다고 주장하는 2002년 2기부터는 △△금은으로부터 금지금을 매입하였다는 기재가 없는 사실, OO쥬얼리는 2002년 매출액 000원에 매출마진이 000원, 2003년 1기 매출액 000원에 매출마진 000원이었다가, 2003년 2기에는 허위세금계산서에 대한 세무조사가 시작되자 매출액이 000원으로 급감한 사실, 원고가 OO쥬얼리의 계좌에 입금한 돈은 곧바로 자료상으로 밝혀진 SS시스템 주식회사, EE유통 주식회사, 주식회사 GG 등의 계좌로 재차 입금된 사실, OO쥬얼리는 2001년 1기부터 2003년 2기까지 사이에 실물의 금지금 거래가 없는 100% 자료상으로 밝혀져 대표이사인 조AA가 수사기관에 고발되었으나, 그 고발사건은 현재 주소불명으로 기소중지 상태인 사실, 원고가 자신의 사업장과는 무관한 우리은행 을지로 지점, 한빛은행 종로3가 지점, 국민은행 종로3가 지점(오히려 OO쥬얼리의 사업장과 가깝다) 등에서 OO쥬얼리에게 금지금 대금 을 입금한 사실을 각 인정할 수 있는바, 위 인정사실에다가 원고가 OO쥬얼리로부 터 매입하였다는 금지금의 실물흐름을 확인할 수 있는 수불대장(입 • 출고 일자, 입 • 출고 수량 등이 표시된 장부), 물품인수증, 기별재고현황 등 객관적인 증빙자료를 제출하지 못하고 있는 점 등의 사정을 보태어 보면, 이 사건 세금계산서는 OO쥬얼리와의 실물 거래 없이 발행된 것으로 봄이 상당하고, 원고가 실물거래임을 증빙하기 위한 자료로 제출한 갑 제3호증의 1 내지 27, 갑 제4호증의 1 내지 28, 갑 제5호증의 1 내지 3, 갑 제16호증, 갑 제17호증의 1 내지 5, 갑 제18호증의 1 내지 8, 갑 19호증의 1 내지 9의 각 기재만으로는 이 사건 세금계산서가 실물거래에 근거한 것이라고 인정하기 어려우며 달리 이를 인정할 증거가 없다(갑 제18호증의 1 내지 8에 의하면, 이 사건 ①, ② 사업장에서 원고의 금지금 매입액은 2002년 1기 000원, 2002년 2기 000원, 2003년 1기 000원, 2003년 2기 000원이고, 원고의 상품 매출액은 2002년 1기 000원, 2002년 2기 000원, 2003년 1기 000원, 2003년 2기 000원이며, 상품 매출액 대비 금지금 매입액의 비율은 2002년 1기 70%, 2002년 2기 90%, 2003년 1기 70%, 2003년 2기 47%인 사실을 인정할 수 있고, 이에 따르면 원고가 OO쥬얼리로부터 이 사건 세금계산서를 수취 하기 시작한 2002년 2기의 금지금 매입액이 2002년 1기와 비교하여 큰 차이가 없고, 2002년 1기부터 2003년 1기까지 상품 매출액 대비 금지금 매입액의 비율이 70~90%를 유지하고 있으나, 한편 2002년 1기 금지금 매입액 중에는 앞서 본 바와 같이 자료상으로 보이는 △△금은으로부터의 매입액 000원이 포함되어 있고, 원고와 OO 쥬얼리의 거래가 중단된 후인 2003년 2기의 금지금 매입액 및 상품 매출액 대비 금지금 매입액의 비율이 2003년 1기에 비하여 현저하게 감소하였으며, 원고가 OO쥬얼리로부터 매입하였다는 금지금의 실물흐름을 확인할 수 있는 객관적인 증빙자료가 없는 등의 앞서 본 제반사정에 비추어 보면, 위 증거 및 인정사실만으로는 이 사건 세금 계산서가 실물거래에 근거한 것이라고 인정하기 어렵다). 따라서 이와 다른 취지의 원고의 주장은 이유 없다.

2) As to the instant disposition imposing global income tax

A) Whether a lawsuit is lawful

According to Article 56 (2) of the Framework Act on National Taxes, an administrative litigation against an illegal taxation may not be filed without going through a request for review or adjudgment and a decision thereon as prescribed in the same Act. However, if two or more administrative dispositions are conducted in the course of each phase and development, and are related to each other, in the course of a tax litigation, the tax authority has changed the taxation disposition which is the object of the tax litigation and the grounds for illegality are common, in the case where several persons are liable for the same obligation through the same administrative disposition, or when one of the persons liable for tax payment has made the Commissioner of the National Tax Service and the National Tax Tribunal again an opportunity to determine the basic facts and legal issues, and in addition, if there are justifiable grounds such as where it seems that the failure of the taxpayer to file an administrative litigation against the revocation of the taxation disposition without going through the previous trial procedure (see Supreme Court Decision 2005Du10170, Apr. 14, 206).

In this case, the imposition disposition of global income tax on February 1, 2007 (hereinafter referred to as "the first disposition") was added to and terminated as a result of correction of global income tax on October 1, 2007, and the plaintiff was under legitimate pre-trial procedure on the part of the first disposition that may be deemed part of the original disposition on October 1, 2007. Since the illegality of the first disposition is in common with the grounds for illegality of the disposition on October 1, 2007, the tax authority under the preceding procedure is deemed to have already been given an opportunity for self-resolution as to the first disposition on October 1, 2007. In full view of the facts that the first disposition was filed within the lawful period for the first disposition after the review and determination, the plaintiff's assertion that the first disposition was within the period of 0th of the first disposition on October 1, 207 can not be deemed to have been justified, and therefore, the plaintiff may not be deemed to have filed a lawsuit on the first disposition within the period of 10th of the first disposition.7th of the trial.

B) Whether the purchase amount under the instant tax invoice should be included in necessary expenses

On the other hand, the Plaintiff asserted that the instant tax invoice is a tax invoice based on the real transaction with Ojuice, and on the other hand, did not assert or prove that it actually purchased gold bullion equivalent to the purchase amount under the instant tax invoice from an entity other than Ojuice. Thus, the purchase amount under the instant tax invoice cannot be included in the necessary expenses. Accordingly, the Plaintiff’s assertion to this effect is without merit.

(c) whether the interest paid in KRW 00 and KRW 000, such as food expenses and vehicle maintenance expenses, are included in necessary expenses;

In a lawsuit seeking revocation of global income tax assessment, the burden of proof on the tax base, which is the basis of taxation, shall be the tax authority, and the tax base shall be the tax authority as a matter of principle, since the revenue and necessary expenses are deducted from necessary expenses. However, since all necessary expenses are favorable to the taxpayer, and most of the facts generating necessary expenses are located within the area under the control of the taxpayer and the tax authority is difficult to prove, it is reasonable for the taxpayer to prove the burden of proof in consideration of difficulty in proof or equity between the parties concerned, it is reasonable to recognize the necessity of proof to the taxpayer (Supreme Court Decision 2006Du16137, Oct. 26, 2007), interest paid, vehicle maintenance expenses, etc., are of such nature that the tax authority cannot prove it, and thus, the plaintiff must prove it when considering equity between the parties concerned. Meanwhile, according to Article 27 (1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009).

In this case, the plaintiff presented Gap evidence 7 through 15 (including each number) to prove the expenditure of interest paid in accordance with necessary expenses. However, the following circumstances, i.e., the plaintiff's balance sheet (Evidence A 7) and 6 period (Evidence A), which are 00 won for short-term loans as of December 31, 200, are stated as 00 won for 5 years interest paid in the above 20-year loan and 20-year interest paid in the above 20-year loan account, and the amount of interest paid in the above 20-year loan is 00,000 won and 6-year interest paid in the above 20-year loan account statement (Evidence A8). However, the above short-term loan account statement contains 30-year interest paid in the above 20-year loan account statement as of 200-year interest paid in the above 200-year loan account statement and 200-year interest paid in the above 200-year loan account statement.

In addition, the Plaintiff submitted the evidence to prove the disbursement of meal expenses, automobile maintenance expenses, etc. to be included in necessary expenses. However, the following circumstances acknowledged by the overall purport of each of the evidence and arguments, namely, Gap evidence No. 11, which are merely arranged items such as food expenses and automobile fuel expenses, etc. that the Plaintiff spent for expenses related to the instant business, among the contents of evidence No. 12 through No. 15, Gap evidence No. 12 and No. 15, and evidence No. 12 and No. 15, are each of the credit card use statements in the Plaintiff’s name. Among the golf courses, it seems evident that it was individually used regardless of the instant business, such as green fee, golf driving range use expenses, golf equipment purchase expenses, hospital expenses, and family clothes purchase expenses, and in light of these, it is difficult to recognize that each of the above credit card statements included food expenses, vehicle fuel expenses, etc. related to the instant business, and it is difficult to recognize that the Plaintiff had been included in necessary expenses for the instant business, automobile maintenance expenses, etc., as alleged by the Plaintiff 2020 years and tax base and tax books.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, each of the dispositions of this case is legitimate, and all of the plaintiff's claims of this case seeking its revocation shall be dismissed as it is without merit. As to global income tax belonging to 2002, the changed plaintiff's claims are dismissed in the trial court (the judgment of the court of first instance as to the claim prior to the alteration of this part was invalidated due to a claim modification in the trial court), and as to the disposition imposing global income tax belonging to 2003 years, the judgment of the court of first instance is unfair, and the judgment of the court of first instance cannot be modified to the judgment of the court of first instance disadvantageous to the plaintiff in this case where only the plaintiff appealed. Thus, the plaintiff's appeal without merit is dismissed, and the judgment of the court of first instance as to the disposition imposing the value-added tax of this case is legitimate as it