Busan District Court Decision 2008Guhap649 (No. 24, 2008)

National High Court Decision 2007Da2905 ( November 06, 2007)

Whether a tax invoice received from data is the actual transaction, and whether it falls under the reasons for estimation.

It is judged that there was no actual transaction because there was no evidence to prove that it was currently purchased, but there was no evidence to prove that it was received, or that there was no objection in the case of the plaintiff's wife operating the same type of business.

The contents of the decision shall be the same as attached.

Article 16 of the Value-Added Tax Act

Article 17 (Payable Tax Amount)

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The defendant's imposition of the value-added tax of 1,564,390 won in 2001 against the plaintiff on January 2, 2007, 4,95,570 won in 201, value-added tax of 5,067,310 won in 202, value-added tax of 1,346,340 won in 2,302, value-added tax of 2,346,340 won in 203, value-added tax of 6,214,640 won in 203, and the imposition disposition of 34,708,580 won in 201 against the plaintiff on May 9, 2007, of global income tax of 34,708,580 won in 202, global income tax of 5,600 won in 202, global income tax of 203

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except for the modification or addition of the corresponding part of the judgment of the court of first instance, and therefore, the reasoning for this Court’s explanation is as stated in the part of the judgment of the court of first instance. Thus, it is acceptable to accept this as it is in accordance with Article 8(2) of the Administrative

2. The modified or added portion

(1) On face 3, the following instructions shall be added between the second and the first:

(4) Since five years have elapsed since the imposition period of value-added tax for the first term portion of 2001 expired, this part of the disposition is unlawful.

(5) Even if the Defendant, prior to the instant disposition, concluded an investigation with the Plaintiff that there was no problem after conducting the tax investigation, it was unlawful to impose each of the instant dispositions by conducting a tax investigation again, as it violates the principle of prohibition of duplicate tax investigation under Article 81-4 of the Framework Act on National Taxes and Article 63-2 of the Enforcement Decree of

② On the 6th page 8, the fact that there is no evidence supporting ...... It is changed to the fact that there is no objective evidence supporting .... (No evidence No. 12, which corresponds to the plaintiff's assertion, and the testimony of Kim Il-young, which corresponds to the plaintiff's argument, is not reliable).

3. The following changes are made: "No health class, ---- impossible" between the 7th and 13th :

"Public health account for this case, in this case, where the plaintiff did not make specific arguments or prove that the necessary expenses for the amount equivalent to the purchase amount under the tax account statement of this case denied as above are actually disbursed, only the amount equivalent to the purchase amount under the tax account statement of this case among the necessary expenses on the account books kept by the plaintiff shall be deemed to have been excessively appropriated. As such, it cannot be said that it is impossible to calculate the tax base and tax amount by the method of on-site investigation because the purchase amount under the tax account statement of this case is not included in the necessary expenses, and even if the plaintiff's income ratio or added value ratio exceeds the standard income ratio or added value ratio of the same type of business, as argued by the

(4) In addition to the following instructions between conduct 8, 1 and 2:

(4) As to the plaintiff's fourth argument

Article 26-2 (1) 1 of the Framework Act on National Taxes provides that "where a taxpayer evades a national tax or obtains a refund or deduction by fraudulent or other unlawful means, it shall be ten years from the date on which the national tax can be levied." As seen earlier, the fact that the Plaintiff received a tax invoice in this case in a false transaction and reported the stated amount to the necessary expenses and reduced the value-added tax for the first period of January 2001 is as follows. Thus, the Plaintiff's act constitutes "where the taxpayer evades a national tax by fraudulent or other unlawful means."

Therefore, the Defendant’s imposition of value-added tax for the first period of January 2001 against the Plaintiff shall apply to the exclusion period of ten years from the date on which the imposition of value-added tax is possible. Since it is apparent that the date of the said imposition is within ten years from the date on which the value-added tax for the first period of January 2, 2007 can be imposed, the Plaintiff’s assertion is without merit.

(5) As to the plaintiff's fifth argument

Article 81-4 of the Framework Act on National Taxes provides that a reinvestigation cannot be conducted on the same tax item and the same taxable period, except in cases where it is obvious to acknowledge the suspicion of tax evasion. According to the facts acknowledged earlier, the director of the tax office of Seodaemun-gu continuously conducted a tax investigation to clarify whether ○○○ △△△△ is a material of tax evasion, and then confirmed that it is a material of tax evasion, he/she filed an accusation against the Defendant as a violation of the Punishment of Tax Evaders Act on March 2006, and notified the Defendant of the taxation data on the Plaintiff. Accordingly, a reinvestigation for the instant disposition was conducted based on the obvious material to prove the suspicion of tax evasion, and thus, it cannot be said that the Plaintiff violated the principle of prohibition of duplicate tax investigation. Accordingly, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Busan District Court 2008Guhap649 (Law No. 24, 2008)

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax for the first term of January 2, 2006 against the Plaintiff on January 2, 2007, of KRW 7,564,390, value-added tax for the second term of February 2001, value-added tax for the second term of February 2, 2001, of KRW 5,067,310, value-added tax for the second term of February 2, 2002, of KRW 2,346,340, value-added tax for the second term of February 2, 2003, and of KRW 6,214,640, value-added tax for the first term of May 9, 207 against the Plaintiff on May 34, 201, of global income tax for the year 201, KRW 15,283,600, global income tax for the second term of year 203, global income tax for 12642,960 each.

1. Details of the disposition;

The following facts are not disputed between us, or can be acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1-1 through Gap evidence 3-9, Eul evidence 1-1, Eul evidence 2-1 through Eul evidence 3-2:

A. From March 13, 2001, the Plaintiff engaged in precious metal retail business with the trade name of "○○○○-dong 849-○○○○○○-dong," respectively.

B. During the taxable period from January 2001 to January 2003, the Plaintiff received 135,786,000 won in total from the purchase tax invoice 9 (hereinafter “instant tax invoice”) during the taxable period, and filed a value-added tax return by deducting the input tax amount on the supply value.

C. Accordingly, the Defendant notified the director of the tax office of South Seodaemun-gu of the taxation data that ○○○ju issued a tax invoice without real transaction. The Defendant considered the instant tax invoice as the fact that it was issued without real transaction and deducted the relevant input tax amount from the tax invoice. On January 2, 2007, the Defendant notified the Plaintiff of the increase in the value-added tax for the first term portion of 1, 2001, KRW 7,564,390, value-added tax for the second term of 2, 2001, KRW 4,955,570, value-added tax for the second term of 2,002, KRW 5,067,310, KRW 2,346,340, KRW 6,214,640 for the second term portion of value-added tax for 1,203, KRW 200 for the global income tax to be imposed on the Plaintiff for 205, KRW 3608,2005,284.

D. As to the first imposition disposition of this case on April 10, 2007, the Plaintiff filed an appeal with the National Tax Tribunal on August 1, 2007 as to the second imposition disposition of this case, but dismissed on November 6, 2007.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) First, even though the Plaintiff purchased the present tax invoice corresponding to the tax invoice of this case from ○○○△△△, and made a normal transaction by paying the price in full, the Defendant’s each disposition of this case, which is based on the premise that the Plaintiff received the tax invoice of this case without a real transaction, solely on the ground that the Plaintiff was an enterprise accused of ○○△△△△ data, was unlawful

(2) Next, if the purchase amount on the instant tax invoice for household affairs cannot be acknowledged, it constitutes a case where a substantial portion of the purchase amount is not proven or false, and thus, the Plaintiff’s global income tax base for year 2001 and year 2002 should be assessed by estimation in accordance with Article 80 of the Income Tax Act and Article 143 of the Enforcement Decree of the same Act.

(3) Lastly, each of the instant dispositions violates the substance over form principle, the principle of trust and good faith, and the principle of evidence taxation under the Framework Act on National Taxes, and goes beyond the limit of the tax official’s discretion.

(b) Related statutes;

(Omission)

(c) Fact of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry of evidence Nos. 4-1 through 8, and evidence Nos. 4-1 through 6-2:

(1) From September 20, 1986 to September 30, 2002, the Plaintiff’s wife operated precious metal retail business with the name of “○○○○○-dong 74-○○○○○○○○”.

(2) 한편, 원고는 지금매입대금으로 2001.5.24. 12,906,300원, 2001.7.2. 37,920,300원, 2001.7.5. 12,386,300원, 2001.10.5. 13,731,000원, 2002.4.18. 28,159,000원, 2002.6.24. 13,836,000원, 2002.7.22. 13,548,000원, 2003.3.20. 29,660,000원, 2003.5.13. 14,519,250원을 폰뱅킹 또는 무통장입금 방식으로 ○○○쥬얼리의 은행계좌로 입금하였고, ○○○쥬얼리로부터 그에 상응한 이 사건 세금꼐산서를 교부받았다(원고는 위 2001.7.2.자 2002.4.18자, 2003.3.20.자 각 송금액에는 위 ○○금방에서 ○○○쥬얼리로부터 매입한 지금대금이 포함되어 있다고 주장한다).

(3) On March 20, 2003, the Plaintiff transferred KRW 28,000,000 to the Plaintiff’s bank account before remitting the above 29,60,000,000 to ○○○○○○○○○○, and on May 13, 2003, the Plaintiff transferred KRW 14,519,250 to the Plaintiff’s bank account immediately before remitting the above 14,519,250 to ○○○○○.

(4) As ○○ Forest did not deduct the input tax amount on the tax invoice received from ○○○△△△, the competent tax office filed an administrative litigation (this court 2007 Guhap4927) against the competent tax office, but the judgment became final and conclusive by failing to file an appeal against the ○○ Forest.

(5) ○○○쥬얼리는 조○호가 자본금 5,000만 원으로 설립한 회사로 2003년 1기에 주식회사 ○○무역, ○트레이딩 주식회사, 주식회사 ○○퀸, ○○골드 주식회사 등으로부터 총 214,036,000,000원 상당의 지금 등을 매입하여 주식회사 ○○○○골드 외 21개 업체에 판매하였다고 신고하였는데 이러한 매입처 회사들은 관할 세무서의 조사결과 자료상으로 인정되었으며, ○○○쥬얼리가 2003년 1기 매입액 중 위 업체들로부터 매입하였다는 금액은 99.9%(214,018,000,000원)에 달하는 한편, 남대문세무서에서 ○○○쥬얼리를 자료상 혐의로 조사하면서 매출처를 조사한 결과 매출액의 81.3.%에 해당하는 매출세금계산서가 주식회사 ○○○○골드 외 21개 업체에서 발행된 것으로 나타났고, 그 매출처들의 대부분은 자료상 등의 범죄이력이 있는 업체로 밝혀지자 남대문세무서장은 2006.3.2. ○○○쥬얼리가 2001.3.5.부터 2003.12.31.까지 매입세금계산서의 대부분을 자료상으로 고발된 업체로부터 수취하였고, ○○○쥬얼리가 발행한 매출세금계산서 대부분을 자료상으로 고발된 업체로부터 수취하였고, ○○○쥬얼리가 발행한 매출세금계산서도 가공의 매출세금계산서라는 이유로 ○○○쥬얼리와 그 대표자 조○호를 조세법처벌법위반 등 혐의로 고발하였으나 조○호의 소재불명의 기소중지 상태에 있으며, 위 회사의 2001년부터 2003년 사이의 당기순이익은 1억 6,000만 원에 불과하였다.

D. Determination

(1) As to the Plaintiff’s first argument

The burden of proving that a tax invoice is false, in principle, to the defendant who is the tax authority, the defendant must prove that the tax invoice is not accompanied by a real transaction, based on direct evidence or circumstances. If the defendant proves to the extent that he reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy for the plaintiff who is the taxpayer to dispute the illegality of the defendant's disposition to present relevant evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

Therefore, as to this case, the following circumstances are revealed by the purport of the argument as to the above facts and evidence Nos. 12, i.e., the purchaser and seller of the ○○○○ ju ice were proved to have been engaged in processing transaction rather than real transaction, and there is no evidence to prove that the Plaintiff purchased the above amount exceeding KRW 100 million from the ○○ ju ice, and there is no evidence to prove that the Plaintiff received the above amount. In full view of the fact that the ○ ○○ ○ ”○ LLC, which purchased the processed tax invoice from the ○○ ju ice and did not deduct the input tax amount after the Plaintiff’s purchase of the processed tax invoice from the ○ ○ △○ ju ice and did not receive the input tax amount, the Plaintiff received the money equivalent to the remittance amount from the Plaintiff immediately before transferring the input tax invoice to the ○○ ○○ △ △○ △△, and the Plaintiff’s remaining ○ ○ ○ ” 10,00 among the supply amount of the tax invoice 10.

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

(2) As to the second argument of the Plaintiff

In principle, the tax base and tax amount of global income tax shall be determined by the actual amount revealed by the method of the on-site investigation. In order to determine it by the method of the on-site investigation, it is exceptionally permitted only when there is no taxpayer’s account book or documentary evidence, or the important part is insufficient or false and the tax authorities do not have any other method to disclose the actual amount of income. Thus, even if some of the account books or documentary evidence kept and kept by the taxpayer is included in the books or documentary evidence, if the tax base can be calculated based on the clear fact that the remainder except the relevant part is the data corresponding to all facts, it shall not be determined by the method of the on-site investigation, and the taxpayer’s own needs to investigate and determine it by the method of the on-site investigation, it shall not be deemed that the tax base and

(See Supreme Court Decision 96Nu8192 delivered on September 26, 1997, etc.)

As the above amount equivalent to the transaction portion of the tax invoice of this case, among necessary expenses on the account books kept by the Plaintiff, was calculated falsely and excessively. As such, the tax base and tax amount can be calculated by means of on-site investigation by excluding necessary expenses for the processing transaction portion, and it cannot be deemed impossible to do so. Thus, in calculating the tax base under Article 1423(1)1 of the Enforcement Decree of the Income Tax Act, it cannot be deemed that there is no necessary account books and documentary evidence in the calculation of the tax base under Article 1

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

(3) As to the third argument by the Plaintiff

On the other hand, it is difficult to recognize that each disposition of this case goes against the substance over form principle, the principle of good faith, the principle of evidence taxation under the Framework Act on National Taxes, and it goes beyond the limit of the tax official's discretion, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion on this part

3. Conclusion

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