Cho-2015-former-1502 ( October 14, 2015)

The purchase tax invoice of this case is not the rent of each owned equipment, but the amount of profit distributed;

The plaintiff is deemed to have agreed to distribute profits under the relevant agreement, and the total value of supply of this case does not constitute the deduction from the input tax amount or inclusion in deductible expenses when imposing the value-added tax.

Article 32 of the Value-Added Tax Act

Daejeon District Court 2015Guhap105611 Revocation of Disposition of Imposing Corporate Tax, etc.

○○○○ Corporation

○ Head of tax office

October 13, 2016

December 15, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of value-added tax for the second term of December 4, 2014; value-added tax for the second term of 2009; KRW 11,764,810; value-added tax for the first term of 2010; KRW 33,820,910; value-added tax for the second term of 2010; KRW 2,049,240; value-added tax for the first term of 201; KRW 15,41,60 for the second term of 201; value-added tax for 18,184,970; KRW 15,481,460 for the second term of 205; KRW 1,415,50 for the second term of 2012; and KRW 613,270 for the corporate tax for the business year of 2013; KRW 360,15,297; KRW 2013; KRW 365,2070 for the business year of 20.

1. Details of the disposition;

A. The Plaintiff is a company that runs the navigation business, the mid-term lending business, etc. in Daejeon-gu.

B. From 2010 to 2014, the Plaintiff received 14 copies of the purchase tax invoice in the name of each construction equipment rental fee from ○○ and △△△ (total 28 copies; hereinafter referred to as “instant tax invoice”). The sum of the supply values of the instant tax invoice is KRW 1,003,00,000 as indicated in the following table (unit: unit : KRW 502,00,000 in total of the supply values of the purchase tax invoice received from ○○○○ + KRW 501,00,000 in total of the supply values of the purchase tax invoice received from △○○○ + KRW 501,00,000 in total of the supply values of the purchase tax invoice received from ○○○○ and △○○○; hereinafter referred to as the “total supply value of this case”).

C. The Plaintiff reported the value-added tax by deducting the total value of supply in this case from the Defendant, and reported corporate tax by adding the total value of supply in deductible expenses.

D. As a result of conducting a tax investigation from September 24, 2014 to October 13, 2014, the Defendant determined that the instant tax invoice was not issued at the time of paying the construction equipment rent, but was issued at the time of paying the Plaintiff’s representative director and △△○○, and △△△△△△.

E. Accordingly, on December 4, 2014, the Defendant notified the Plaintiff of the correction of the value-added tax by failing to deduct the total value of supply of the instant supply from the input tax amount, as stated in the Plaintiff. In addition, the Defendant notified the total value of supply of the instant case as non-Inclusion of the total value of supply in deductible expenses and notified the corporate tax correction. (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed an objection with the ○○ Regional Tax Office on December 24, 2014, but received a decision of dismissal on February 5, 2015, and again filed an appeal with the Tax Tribunal on March 3, 2015 (Seoul High Court Decision 201Da1502). However, the Plaintiff was dismissed on October 14, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 3, 7 through 9, Eul evidence 1, 4, and 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, while engaging in the aviation construction business, leased equipment, such as upper, lower, lower, and mixed, from ○○○, and Doz., and received the instant tax invoice at the time of paying rent for that equipment. In other words, the Plaintiff did not make joint investments with ○○, Doz., and did not receive the instant tax invoice at the time of distributing profit to ○○ and Doz. Accordingly, the total value of supply in this case is deducted from the input tax amount and should be included in deductible expenses. As such, the instant disposition on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) For the other works the exclusive flag shall be used at the cost of the claim and the auxiliary equipment shall be used by the upper, lower, congested, congested, surging, etc.

2) On December 6, 2005, the Plaintiff registered the exclusive machine (DH-508-105M) as construction machinery owned by each Plaintiff on April 3, 2007, and the exclusive machine (DH-558-110M) as construction machinery. On the other hand, it is equipment with no obligation to register as upper, lower, lower, mixing, and wrapping.

3) The Plaintiff’s share ratio as the Plaintiff’s shareholder is 20 to 30 percent, respectively, and △△△△ is registered as the Plaintiff’s auditor from December 14, 2006.

4) On April 10, 2009, the Plaintiff, ○○○, and △△△△△ was written with the following agreements hereinafter referred to as “instant agreements”). Around April 10, 2009, the instant agreements are accompanied by each certificate of personal seal impression of △△, ○○, and △△△△.

The plaintiff representative director △△△(A) and the representative director ○○○(hereinafter referred to as the "○○") and △△△△(hereinafter referred to as the "Mail") are as follows by the agreement of the third party.

Terms and Conditions of Agreement

1. A and B purchased common investment (50%) in 193 exclusive-use equipment (DH-508-105M: Daejeon 23da3049-105M on December 6, 2005) and all ancillary equipment (in all other supplementary equipment outside the upper part of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body.

2. Gap and Eul, and Byung shall distribute the remaining profits in accordance with their respective shares (A 50 per cent, B 25 per cent, C 25 per cent), after deducting total input expenses from total navigation expenses for the site where exclusive equipment is input, after deducting 10 per cent from total navigation expenses, provided that Eul and Byung shall issue a tax invoice for the amount of net income received in their names.

3.A shall pay to B and C a certain amount of personnel expenses under the pretext of field management expenses and office management expenses.

4. A, B, and C shall faithfully comply with the above-mentioned agreements.

April 10, 2009

5) On December 30, 2009, the agreement on the lease of equipment between the Plaintiff and ○○○○ (mutually referred to as “○○○○○”).

○ A lessor (Plaintiff) and a lessee (○○○) enter into a equipment lease agreement as follows:

○ The Plaintiff shall rent and use it at the site of file work by inserting it from ○○○○○, by inserting it into the site of upper, lower, mixing, and be paid a sum of KRW 10,700,000 per month to ○○○○.

○○○ may issue a tax invoice for monthly rent to the Plaintiff, and (the Plaintiff may pay a rent in part when there is time for the Plaintiff’s financial situation.

6) On December 30, 2009, in the name of the Plaintiff and ○○○○ (mutually referred to as the “instant lease agreement”), the following contents are written in the equipment lease agreement (hereinafter referred to as the “instant lease agreement”) signed on December 30, 209 between the Plaintiff and ○○○○○.

○ The lessor and the lessee enter into a contract on the lease of equipment as follows:

○ The Plaintiff shall rent and use it at the site of the file construction site by leasing upper, lower, congested, mixed plants, and wurging, from △△△, and in return, 10,600,000 won per month shall be paid to △△△.

○ Dogsung issue a tax invoice for monthly rent to the Plaintiff, and (the Plaintiff may pay a rent in part when there is time for the Plaintiff’s financial situation.

7) At the time of the Defendant’s tax investigation, ○○○ and Magsung submitted a letter of confirmation on the purchase of the possession equipment.

D. Determination

In full view of the above facts, the evidence as mentioned above, and the following circumstances recognized by the purport of the entire pleadings, the Plaintiff deemed that the Plaintiff agreed to jointly purchase construction machinery and ancillary equipment (a auxiliary equipment) and distribute profits derived therefrom, with the content as stated in the instant agreement, and the instant tax invoice is issued in the process of paying the amount equivalent to the total value of the instant supply in profit pursuant to the said agreement. Accordingly, the total value of the instant supply does not constitute a deduction from the input tax amount or inclusion in deductible expenses in the imposition of corporate tax, and thus, the instant disposition is lawful. The Plaintiff’s assertion that differs from the premise is groundless.

1) The purport of the instant agreement is that the Plaintiff agreed to jointly purchase construction machinery and ancillary equipment (a auxiliary equipment) and distribute profits accruing therefrom between the Plaintiff and ○○○ and ○○○○. As long as a disposal document is deemed to have been duly formed, the court shall recognize the existence and content of the expression of intent as stated in the instant agreement, unless there is any proof that the content of the written agreement is clearly clear and acceptable (see, e.g., Supreme Court Decision 2011Da105867, Apr. 26, 2012). In addition, there is no special circumstance to suspect that the content of the acquisition of an exclusive instrument stated in the instant agreement is false, such as that the content of the acquisition of the exclusive instrument consistent with the Plaintiff’s exclusive registration.

2) The Plaintiff asserts that, while leasing assistive equipment owned by ○○○, ○○, and ○○○○, and △△△△△ Group, the Plaintiff prepared the instant written agreement for the purpose of securing the rent or the fee for rent. However, it is difficult to deem that the purpose of securing the rent or the fee is achieved by preparing the instant written agreement. However, even if the Plaintiff’s assertion was made to the effect that the Plaintiff prepared the instant written agreement in order to make the agreement in writing regarding the claim on the rent or the fee for rent, it is difficult to obtain the reasons for preparing the written agreement to the effect that it would otherwise be jointly purchased and distributed profits, without preparing the lease agreement, even though it is the substantial content of the said agreement, in such a case, it is difficult to accept the Plaintiff’

3) The instant written agreement includes the content that the Plaintiff received a tax invoice under the Plaintiff’s name while paying a profit to ○○○ and ○○○○. (See the Plaintiff’s assertion, it is nothing more than the content of the lease agreement, and thus, the need to clearly state is not significant.

4) On the other hand, each of the instant lease agreements is difficult to believe in light of the following: (a) the nominal owner’s certificate of personal seal impression is not attached to the instant written lease agreement; (b) there is no objective evidence to presume the timing of the agreement; (c) there is any part contrary to the lessor and lessee; (iv) the period of lease is not specified; and (v) there is any part contrary to the contents of each of the instant written lease agreements, which is contrary to the contents of each of the instant written lease agreements, but it is difficult to obtain payment without any mentioning reasons for the instant written lease agreement.

5) Even in cases where ○○○○ and Mai Mai Doi expressed at the time when the Defendant’s tax investigation was conducted, the expenses that ○○○○ and Mai Mai Mai Mai Mai Mai Mai Mai Mai Ma (i.e., 85,000,000 + 115,000,000) incurred when purchasing assistive equipment, such as Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai Mai 1,000 won

6) There is no evidence to acknowledge on-site input details, etc. of auxiliary equipment that conform to the details of the instant tax invoice (payment timing and amount, etc.).

7) The Plaintiff received most of the instant tax invoice at the same amount as ○○○ and △△△ on the same day. This also accords with the fact that the total value of supply in the instant case is not a rent for the equipment owned by ○○ and △△△, but a distribution of profit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.