Chon court 2019 Mine0182 ( October 22, 2019)
In light of the fact that the investigating authority requested a claimant corporation and ○○○○ to file a criminal charge of violating the Punishment of Tax Evaders Act in relation to the transaction at issue, and the court of first instance found the defendant guilty in the case that △△△ District Prosecutors' Office filed a criminal charge, it is determined that there was no other error in the disposition determined differently from
Article 19 of the Corporate Tax Act / Article 76 of the Corporate Tax Act / Article 121 of the Corporate Tax Act / Article 19 of the Enforcement Decree of the Corporate Tax Act
The appeal is dismissed.
1. Summary of disposition;
A. On December 24, 2015, the applicant corporation registered its business with an intention to engage in wholesale and retail business (i.e., rice and meat) at OO.
B. On February 8, 2018, the commissioner of the regional tax office (hereinafter referred to as the “director”) issued an OO’s statement of false sales without the supply of goods or services, and the director of the regional tax office (hereinafter referred to as the “director”) deemed that the applicant received the “false purchase account” of OO in the sum of OO (hereinafter referred to as “market transaction”) more than the price paid by OOO without paying the price for goods or services, and filed a complaint with the OO’s District Public Prosecutor’s Office on February 8, 2018 and the O’s representative O(hereinafter referred to as “OO”) of the applicant corporation and the representative O(s) of the applicant corporation were notified to the disposition office of the correction resolution for the key transaction.
C. On March 21, 2018, the disposition authority issued a notice of correction (draft) to the applicant corporation on March 21, 2018 (hereinafter “instant disposition”) for the business year of 2016.
D. The applicant filed an appeal on November 16, 2018 after filing an objection on June 14, 2018.
2. Opinion of the requesting corporation and the disposition agency;
A. The claimant corporation's assertion
(1) The major issue transaction is unfair as a real transaction.
(A) A claimant corporation was established on December 24, 2015, and purchased OO bonds and days from August 30, 2016 to September 30, 2016 from one company other than OO (hereinafter “OO”) and supplied OO (hereinafter “OO”) to four other companies.
1) In fact, due to lack of experience in trading OO accounting and accounting, most of the trading was entrusted to OO by OO (hereinafter “OO”) and OO staff.
2) It is the practice of merchants of the same kind of industry in which daily sales are traded due to the characteristics of small and medium businesses and daily sales, and the issuance and receipt of relevant invoices are combined monthly due to a large number of sales on credit and credit sales.
3) At the time of the investigation by the investigating authorities, the investigating authorities failed to fully explain that the specific details of transactions by each company or the payment does not coincide with the payment, and the investigating authorities determined that the key transaction was suspected of being based on the data, but did not make the actual transaction as identified in the transaction specification.
(B) The investigating authority dealt with rice sales for OO (OO) as a processed sale, but the sales at issue are actual sales.
1) The transaction of rice in rice was ordinarily purchased by a farmer and stored in a warehouse of a farmer while selling it to the purchaser or transferring it to a rice processing plant, and purchasing and selling rice dried at a rice processing plant.
2) Rice-related transactions together with OOO(hereinafter referred to as “OO”) and the fact that the transaction is actual transaction is proved by a measurement certificate related to grain transport and a data collection table by period.
(2) (Preliminary Claim) The notice of corporate tax for the business year 2016 from August 30, 2016 to September 30, 2016 for the collection and collection portion from September 30, 2016 shall be imposed on the OO which is the actual trader of the transaction in question and the OO which is the representative director thereof (hereinafter referred to as the "OO").
(b) Opinions of disposition agencies;
(1) (Case No. 1) The claimant corporation is equipped with a livestock breeding facility at OO and raises 500 to 600 heads of black salt, and it is an enterprise that sells extremely some rice produced from a rice processing complex, and the key transaction constitutes a case where a false invoice is issued and received, and the issue disposition is justified.
(가) OOO의 거짓매출계산서의 발급과 관련하여, 실제거래를 입증할 만한 증빙서류 및 대금결제내역 등이 없고, 2016.9.12.부터 2016.10.12.까지 OOO청구법인에게 OOO입금한 것은 실지거래를 위장하기 위한 금융조작거래로 입금 즉시 자료상으로 확정된 OOO으로 계좌 이체한 일명 “뺑뺑이거래”이다.
(나) OOO거짓매입계산서 수취 관련하여, 실지거래를 입증할 만한 증빙서류 및 대금결제내역 등이 없고, 2016.9.12.부터 2016.10.12.까지 청구법인이 OOO에게 OOO천원을 입금한 것은 실지거래를 위장하기 위한 금융조작거래로, OOO로부터 입금 즉시 자료상으로 확정된 OOO으로 계좌 이체한 “뺑뺑이거래”이다.
(C) In relation to the receipt of a false OO purchase statement, it constitutes an OO false transaction that has received an excessive amount than the actual transaction amount confirmed by payment, etc.
(D) The above (A), (b), and (c) stated that there were no details of expenditure for the business expenses, such as personnel expenses to be incurred as a matter of course if the transaction was conducted in normal transactions, vehicle transportation expenses, and storage expenses, and that there was no fact that the expenses were paid as OO.
(2) (For preliminary claims), if an OO dispute transaction is confirmed to be a different invoice from the fact, the actual trader must impose an OO and OO, but it is not reasonable for the following reasons.
(A) For the receipt of electronic statements, the applicant corporation’s authorized certificate and password are required. As such, it is not possible forOO to issue and receive the invoice at will without recognition of the applicant corporation, and OOOO’s representative director stated that it did not issue and receive the invoice of the applicant corporation.
(B) On July 13, 2018, a person in charge of the hearing by the Investigative Agency requested the submission of objective evidentiary materials on the assertion that the actual trader of the over-day and small debt transaction is an OOO on July 13, 2018, but the applicant corporation did not submit such materials.
3. Hearing and determination
A. Key issue
(1) Whether a disposition imposing the corporate tax is proper, deeming an invoice received or issued without supplying goods.
② 쟁점거래가 사실과 다른 계산서로 확정되었다면, 채소과일 거래부분은 실거래자에게 부과처분하여야 한다는 청구주장의 당부
B. Relevant statutes
(1) Corporate Tax Act (wholly amended by Act No. 16008, Dec. 24, 2018)
Article 19 (Scope of Expenses) (1) Deductible expenses shall be the amount of losses incurred by transactions which reduce the net assets of the relevant corporation, excluding refund of capital or financing, disposition of surplus funds, and what is provided for in this Act.
(2) Losses referred to in paragraph (1) shall be losses or expenses incurred in connection with the business of a corporation which are generally accepted as ordinary or directly related to profit, except as otherwise expressly prescribed by this Act and other Acts.
(4) Matters necessary for the scope and types of losses under the provisions of paragraphs (1) through (3) shall be prescribed by Presidential Decree.
제76조【가산세】⑨ 납세지 관할 세무서장은 법인(대통령령으로 정하는 법인은 제외한다)이 다음 각 호의 어느 하나에 해당하는 경우에는 다음 각 호의 구분에 따른 금액을 가산한 금액을 법인세로서 징수하여야 한다. 이 경우 산출세액이 없는 경우에도 가산세는 징수하되, 제5항 또는 「부가가치세법」 제60조 제2항·제3항·제5항부터 제7항까지의 규정에 따라 가산세가 부과되는 부분은 제외한다.
1. Where all or part of the matters prescribed by Presidential Decree are not entered in an invoice, etc. issued under Article 121 (1) or (2) or are entered differently from the fact (excluding the portion to which subparagraph 2 applies): 1/100 of the value of supply;
2. Where a person fails to submit, or submits, a list of total invoices by seller under Article 121 (5) by the deadline set forth in the same Article, all or part of the matters to be entered in such list, as prescribed by Presidential Decree, or enters them differently from the fact (excluding the sales or purchase price applicable by subparagraph 4): 1/100 of the value of supply;
4. Any of the following cases: 2/100 of the value of supply: Provided, That in the case of item (a), it shall be 1/100 in cases where an invoice, other than the electronic account statement, has not been issued but has been issued for an electronic account statement under the latter part of Article 121 (1):
(b) Where an invoice, etc. is issued without supplying goods or services;
(c) Where an invoice, etc. is issued without being supplied with goods or services;
Article 121. (1) When a corporation supplies goods or services, it shall prepare an account statement or receipt (hereinafter referred to as "Account statement, etc.") as prescribed by Presidential Decree and issue it to the person receiving the goods or services. In such cases, the account statement shall be issued by electronic means prescribed by Presidential Decree (hereinafter referred to as "electronic account statement").
(2) In cases of consignment sale of agricultural, livestock, or fishery products and forest products exempt from the value-added tax pursuant to Article 26 (1) 1 of the Value-Added Tax Act or sale by an agent, an invoice, etc. shall be prepared, considering that the consignee or his/her agent supplied the goods, and issued it to the person supplied the goods: Provided, That this shall not apply where an invoice, etc. is issued as prescribed by
(2) Enforcement Decree of the Corporate Tax Act (wholly amended by Presidential Decree No. 27828, Feb. 3, 2017)
Except as otherwise expressly provided for in the Act and this Decree, the amount of losses under Article 19 (1) of the Act shall be as follows:
1. The purchase value of raw materials of commodities or manufactured goods sold (excluding purchase overcharge amounts and purchase discount amounts under corporate accounting standards) and incidental expenses;
1-2. Incidental expenses related to sale, such as storage, packing expenses, transportation expenses, sales incentives, sales allowances, etc. (in cases of sales incentives and sales allowances, including cases of payment without prior agreement);
Article 164 (Preparation, Delivery, etc. of Account Statement) (1) Articles 211 through 212-2 of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the preparation and delivery of Account Statement, etc. under Article 121 of the Act.
(2) "Electronic method prescribed by Presidential Decree" in the latter part of Article 121 (1) of the Act means issuing invoices, etc. by the method under Article 68 (4) of the Enforcement Decree of the Value-Added Tax Act, and "in cases of issuing invoices, etc. as prescribed by Presidential Decree" in the proviso to Article 121 (2) of the Act means cases of delivering invoices, etc. under the name of the truster or his/her own name
C. Facts and determination
(1) The following facts are revealed in the materials submitted by the agency:
(A) The details of the report of corporate tax in the business year 2016 and the results of the investigation of tax offenses are as follows 1.
【Report and Correction of 1.0%
(B) On February 8, 2018, the investigating authorities confirmed the following investigation of the transaction at issue, and filed a complaint with the requesting corporation and the OO ore District Prosecutors' Office in accordance with the Punishment of Tax Evaders Act and the Procedure for the Punishment of Tax Evaders Act.
1) Of the amount of sales invoice issued for the business year 2016, the details of the OO determined by the KOO as a false sales invoice without any supply of goods are as shown in the table 2 of the following table. The reasons determined by the KOO as a processing transaction are as follows: (i) there is no evidentiary document proving actual transactions; (ii) there is no evidentiary document evidencing actual transactions; and (iii) OOOO is entirely aware of the details of transactions; (iv) there was a financial manipulation in order to disguise actual transactions; (iv) OO was stated that there was no OO transaction that is an agent of the requesting corporation; and (v) the transaction with OO and OO was received by the relevant customer.
【2. The publication of false sales statements
2) Of the amount received in the calculation statement for the business year 2016, the amount determined by the investigating authority as a false account statement shall be an OO. The “the details of receipt of false account statement” of OOO which does not provide goods or services is as listed below 3-1. The “the details of receipt of false account statement” of OO that received more than the actual transaction price confirmed by payment, etc. is as listed below. The “the details of receipt of false account statement” of OO that received more than the actual transaction price confirmed by OO is as listed below 3-2. The reason for determining the transaction as a processing transaction is not significantly different from the reasons for determining the false account statement of 1).
【3-1. Details of receipt of false purchase account statement 1
【3-2. The receipt details of false purchase statements 2
(C) On December 24, 2015, the applicant corporation registered its business with the purpose of engaging in wholesale, retail, and meat, and the history of the registration of the OO business is as shown below 19.
【OOO business registration record of § 4
(D) Details of the OO-O questioning protocol and the written answer and statement of the person involved are as follows.
1) On November 9, 2017, the main contents of the first written examination of the suspected charge of OO's primary violation are as follows: Reference Table 5 as follows; and the head of OO stated that the head of OO, and the part of the materials related to OO's primary violation is that the head of OO, and that the part of the materials related to OO's primary violation was possessed by OO.
【The First Inquiry Protocol 5.0
2) On November 22, 2017, the main contents of the second examination report on the suspicion of OO-O-related second offense are as shown below 3 bit 6 P.O., and the farmers who purchased grain are not well aware of the transportation items of OO-O rice, and the storage expenses of grain were not immediately sold, and they were not aware of the status of the purchase site and payment details.
【Pap 6. Supplementary Protocol
3) On December 19, 2017, the main contents of the third examination report of the OOD 2017 are as follows 19.
【Pap 7. 3. Main content of the third examination
4) When preparing an OO1 examination report, data such as details of transactions related to the rice business, acceptance certificates, shipment certificates, and transport details were promised to be submitted to the OO of the intermediary, the data on remaining business, and the data on small and medium enterprises, through the OO of the next time. Even when preparing the second examination report, even if the details of real transactions, such as the statement of transactions related to rice and debentures (transaction details, transport details, and financial evidence) were promised to submit the original document by November 24, 2016, the submission date of the third examination report by the requesting corporation is not confirmed.
5) On November 27, 2017, the main text of the questionnaire to OOO by OOO is as follows, and the content of the Schedule 8-1 is as follows.
8-1 POO answer note
8-2 SUO’s statement
6) On January 3, 2018, the main contents of the OO’s representative director’s OO are as follows OE 9.
【A statement of OO that is 9 U.S.