(영문) 대전지방법원 2019.11.20. 선고 2018구합102477 판결

On June 19, 2017, the defendant revoked the suspension of duty of a certified tax accountant for the plaintiff on June 19, 2017 and the disposition of a fine of KRW 3 million.

Reasons

1. Details of the instant disposition

A. From 2006 to 2016, the Plaintiff, as a certified tax accountant, was in charge of C’s tax keeping and reporting agent, etc., who operates a personal business under B’s trade name.

B. From September 15, 2015 to October 24, 2015, the Gwangju Regional Tax Office conducted a consolidated investigation into a personal entrepreneur of C (hereinafter “instant consolidated investigation”), and as a result, confirmed that the total purchase amount of KRW 484,505,00 for C and four other (hereinafter “D, etc.”) as follows at the time of filing a global income tax return for the global income tax for 2013 was 484,50,000, and notified C of the total amount of KRW 273,252,595, including penalty tax, to C on November 6, 2015, and C paid the said comprehensive income tax in full.

A person shall be appointed.

C. After conducting an audit on the status of tax investigation operations from June 13, 2016 to July 13, 2016, the Board of Audit and Inspection notified the director of the Gwangju Regional Tax Office of the fact that the Plaintiff was suspected of violating the duty of good faith under Article 12 of the Certified Tax Accountant Act, the Board of Audit and Inspection notified the director of the Gwangju Regional Tax Office of the requirement of disciplinary action to prepare a

D. Around December 2016, the director of the Gwangju Regional Tax Office requested disciplinary action against the Plaintiff on the grounds that the Plaintiff appropriated the processing expenses at the time of filing global income tax return for the year 2013 by C, thereby making C defective entry of the global income tax evasion and false verification as to the bona fide return under the Income Tax Act.

E. On June 9, 2017, the Certified Tax Accountants Disciplinary Committee decided on the Plaintiff’s suspension of duty for the Plaintiff’s false verification of bona fide return for six months, and a fine for negligence for negligence for false bookkeeping for three million won as follows. On June 19, 2017, the Defendant issued the Plaintiff a disposition of suspension of duty for the Plaintiff for six months and imposition of fines for negligence (hereinafter “instant disposition”).

In accordance with Article 17 of the Certified Tax Accountant Act, a taxpayer shall be punished by the suspension of duties and an administrative fine of KRW 3 million (the period of suspension of duties: the period of time from August 1, 2017 to January 31, 2018). (The reason for suspension of duties) (A) ○ Tax Accountants shall include a temporary park which has no evidence of eligibility when filing a global income tax return for the year 2013 belonging to C (B) in excess of KRW 485 million, and require C to omit the tax amount of KRW 184 million and falsely confirm the tax amount of KRW 184 million, and such act violates the provisions of Article 12 of the Certified Tax Accountant Act in relation to the bona fide return under the Income Tax Act.

F. On July 10, 2017, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission, but was rendered a dismissal ruling on January 1, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 10 evidence, Eul evidence 1 to 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) Non-existence of grounds for disposition

Inasmuch as the Plaintiff only entered the Plaintiff’s certificate of measurement in an unlawful manner, the Plaintiff fulfilled the general duty of care required for the tax accountant. Moreover, by interpreting Article 61(5) of the Value-Added Tax Act, the Plaintiff entered part of the certificate of bona fide return in a false manner, but it is merely an act without intention.

2) A deviation from or abuse of discretionary power

If a taxpayer in a superior position is not a processing transaction in the absence of the right to ask questions to a certified tax accountant, there is no way for a tax agent to verify it, and considering the characteristics of C’s business (a business exporting to a foreign country after purchasing paper) that is a large amount of cash transaction and the counterpart to a transaction, the Plaintiff was bound to trust in the Plaintiff’s measurement certificate submitted by C; the tax authorities and the majority of tax accountants did not properly understand Article 61(5) of the Value-Added Tax Act; the Plaintiff’s act was merely negligent; and when compared to a number of cases imposed only on the Plaintiff when it violates the duty of good faith, the instant disposition was abused and abused.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Existence of grounds for disciplinary action

1) According to the Certified Tax Accountant Act, if the mission of a certified tax accountant is to contribute to protecting taxpayers’ rights and interests as a tax expert in public nature and having taxpayers faithfully fulfill his/her tax liability (Article 1-2); “Acting as an agent for filing returns on taxes;” “verification of bona fide return under the Income-Related Acts and subordinate statutes” shall be performed with the authority of taxpayers, etc. (Article 2 Subparag. 3 and 8); and no person shall intentionally conceal the truth or make false statements (Article 12). According to the Income Tax Act, an entrepreneur shall prepare and manage books by double entry into a tax ledger so that all transactions related to his/her business can be grasped objectively (Article 160(1)); if a person with business income is supplied goods or services with a business operator in connection with his/her business, and such person requires the head of a tax office to verify the propriety of his/her tax return and to submit documents evidencing the propriety of his/her tax base, as prescribed by Presidential Decree, with the exception of the maximum amount of income amount prescribed by Presidential Decree.

It is reasonable to see that it is “.”

2) In light of the above legal principles, comprehensively taking account of the following facts and circumstances revealed by adding the overall purport of pleadings to each of the evidence mentioned above and the evidence set forth in Gap evidence Nos. 7 through 9, it is reasonable to view that the Plaintiff: (a) neglected to perform the duty of care required of a tax accountant to prepare a book for reporting global income tax; and (b) drafted a certificate of bona fide return based on this, by appropriating expenses irrelevant to business as necessary expenses by neglecting the duty of care required of a tax accountant; and (c) it is reasonable to deem that the Plaintiff’s act constitutes a violation of the duty of care stipulated in

A) At the time of filing a global income tax return for the year 2013, the Plaintiff appropriated C’s total purchase amount of KRW 484,505,00 as necessary expenses, and drafted a certificate of faithful reporting as follows.

In accordance with Article 70-2 (1) of the Income Tax Act, I have faithfully verified income amount, such as income amount calculated by recorded books and documentary evidence and appropriation of necessary expenses. The standard income statement for review, such as receipt of qualified evidence for necessary expenses, shall be included in the items of standard income statement (unit: KRW 201,00) of the income statement for faithful reporting in 2013.

A person shall be appointed.

B) However, as a result of the instant integrated investigation, it was confirmed that the said purchase amount was the purchase cost for processing that was not actually paid, and accordingly C additionally paid global income tax of KRW 273,252,595, including penalty tax.

C) The certificate of measurement of D, etc. submitted to the Plaintiff by C, written only the name of D, etc. in the “Transaction” column, so it is difficult to understand the exact trading counterpart, and there is no financial transaction details about D, and some of the revised tapes seems to be mixed. Nevertheless, without taking appropriate measures such as investigating it as a tax specialist, the Plaintiff annually appropriated it as necessary expenses, and the Plaintiff prepared a certificate of faithful reporting like the above paragraph (a).

D) According to Article 61(5) of the Value-Added Tax Act, an individual entrepreneur who is not registered and whose total sum of the proceeds from supply for the year in which the date of commencing the business falls short of KRW 48,00,000 per annum, shall be deemed a simplified taxable person in the first taxable period. Even if the Plaintiff trusted in the Plaintiff’s measurement certificate submitted by C, such as the Plaintiff’s assertion, D, etc. on the said measurement certificate is deemed to have received KRW 107,80,000, whichever is less than 84,049,000, whichever is less than 200,000, which is less than 84,000 won, and thus, D, etc.

E) In regard to this, the Plaintiff alleged that the Plaintiff did not know the fact that the certificate of measurement was made in an unlawful manner, or that the first taxable period of Article 61(5) of the Value-Added Tax Act was erroneously interpreted as a simplified taxable person, and that it did not violate good faith. However, Article 20 subparag. 7 of the Regulations on the Management of Tax Affairs (amended by the National Tax Service Directive No. 2307, Jul. 1, 2019; the National Tax Service Directive No. 2307) of the Income Tax Act provides that a certified tax accountant violates good faith or makes a false verification with respect to the bona fide return under Article 70-2 of the Income Tax Act, the sanctions imposed on a violation of administrative laws may be imposed even if the Plaintiff did not commit an intentional or negligent act to the violator, barring any special circumstance, such as the failure to cause the breach of good faith (see, e.g., Supreme Court Decision 2003Du5176, Sept. 2, 2003).

(d) whether it is a deviation or abuse of discretionary power;

1) In a case where a disciplinary measure is taken against a person subject to a disciplinary measure who is a certified tax accountant at the discretion of the person having the authority to take the disciplinary measure, the disciplinary measure is unlawful only when the person having the authority to take the disciplinary measure, as a matter of social norms, has considerably lost validity. Whether a disciplinary measure against a certified tax accountant has manifestly lost validity under social norms, depending on a specific case, the contents and nature of his/her duties, the purpose of achieving the disciplinary measure through the disciplinary measure, the criteria for a disciplinary measure, etc. In addition, the disciplinary measure may be deemed objectively unreasonable, barring special circumstances, such as where the person having the authority to take the disciplinary measure determines the criteria for internal disciplinary measure and accordingly the criteria for a disciplinary measure are unreasonable under social norms (see, e.g., Supreme Court Decisions 2011Du13767, Nov. 10, 201; 201Du727, Apr. 27, 2017).

2) In light of the above legal principles, considering the following facts and circumstances revealed in addition to the purport of the entire arguments, the instant disposition cannot be deemed as a deviation from and abuse of discretionary power, even when considering all favorable circumstances alleged by the Plaintiff. Therefore, the Plaintiff’s assertion on this part is without merit.

A) The mission of a certified tax accountant is to contribute to protecting the rights and interests of taxpayers as a tax specialist of public nature and having them faithfully fulfill his/her duty to pay taxes. In order to achieve this public interest, a higher level of duty sincerity is required for the Plaintiff.

B) The main sentence of Article 2(1) of the Certified Tax Accountant Disciplinary Punishment Regulation provides that "if the amount of false confirmation is more than 100 million won, it shall be determined by the following subparagraphs shall be the person who has violated the duties of certified tax accountants under Article 2 of the Act and the duty of good faith under Article 12 of the Act, "in the case of 3(b)", "in the case of 50 million won or more (in the case of 300 million won or more)," "in the case of 50 million won or more, from February of suspension of duties to 1 year, or 50 million won or less," "in the case of 5(a)", "in the case of 50 million won or more, from March of duties, 1 or 5 million won to 100 million won," and Article 6 subparag. 4 of the same Act provides that "in the case of suspension of duties and disciplinary action against a fine for negligence, it shall not be applied concurrently within the scope of each of the above provisions.

C) The Plaintiff also has a number of cases where only a fine for negligence is imposed on a certified tax accountant who has violated the duty of good faith without being suspended from office, and thus, it is difficult to readily conclude that the instant disposition is identical to the instant case by violating the duty of good faith, but in comparison with the case of disciplinary action similar thereto, it does not seem that the instant disposition is particularly excessive to the extent that it goes against the equity.

D) Also, the Plaintiff’s assertion that a taxpayer was in a superior position than a certified tax accountant, and that there was no right of inquiry or verification to ascertain the authenticity of documents provided by a taxpayer to a certified tax accountant, and thus did not have any choice to believe a taxpayer’s assertion. However, this does not conform to the mission of a certified tax accountant who is a tax specialist and the purport of a bona fide return verification system, which shall perform

E) The instant disposition is aimed at facilitating the smooth performance of tax administration and promoting the appropriate implementation of tax liability, and such public interest is larger than the disadvantage that the Plaintiff may suffer.

3. Conclusion

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