Suwon District Court 201Guhap2670 ( October 17, 2012)

early 201J 2204 ( December 14, 201)

The mere fact that a false entry is made as much as the processed transaction amount cannot be deemed to meet the requirements for the decision on the additional investigation.

Where only the amount equivalent to a false tax invoice is excessively counted and can calculate the tax base and tax amount by excluding the processed transaction portion, the mere fact that the processed transaction portion is false shall not be deemed to meet the requirements for the decision of the estimation.

2012Nu14349. Revocation of disposition of imposition, including corporate tax

AA Industry Development Co., Ltd. and two others

Head of the Office of Government

District Court Decision 2011Guhap2670 Decided April 17, 2012

March 19, 2013

April 5, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked.

The Defendant’s imposition of KRW 000 and corporate tax of KRW 000 for the business year of 2007, which reverts to Plaintiff AAB on March 9, 201, shall be revoked. The Defendant’s imposition of KRW 200 for the business year of 2007 against Plaintiff AB on March 9, 201 is revoked. The Defendant’s imposition of KRW 00 for the corporate tax of KRW 200 for the business year of 2007 against Plaintiff AB on June 8, 201 is revoked. The imposition of KRW 00 for the earned income of KRW 200 for the business year of 2007 and for the earned income of KRW 00 for the business year of 207, and for the earned income of KRW 000 for the business year of 2008 is revoked.

[Plaintiff AA Industry Development Co., Ltd and Plaintiff Kim Jong-sung, were at the appellate court, and on March 10, 201, the Defendant withdrawn each of the above plaintiffs' claims for revocation of the disposition of notice of KRW 000 against each of the above plaintiffs]

1. Details of the disposition;

In full view of the arguments in Gap evidence 1-2, Eul evidence 2-1 to 7, Eul evidence 8-1 to 3, Eul evidence 1-6, and Eul evidence 2, the following facts are acknowledged:

[1]

○○ Plaintiff AA Industry Development Co., Ltd. (hereinafter referred to as “Plaintiff AA Industry Development”) and Plaintiff AAA Housing Industry Co., Ltd. (hereinafter referred to as “Plaintiff AA Housing Industry”) are corporations engaged in each construction business, and Plaintiff KimB is the representative director of Plaintiff AA Industry Development and Plaintiff AA Housing Industry Development.

The Plaintiff AA industry development received tax invoices of KRW 000 in total supply value of KRW 000 in the business year 2007 fromCC Steel Co., Ltd. (hereinafter referred to as “CC Steel”), and filed a corporate tax return by including the above supply value in deductible expenses for each business year.

○ The Plaintiff AA Housing Industry received a tax invoice of KRW 000,000 in total supply value fromCC Steel for the business year 2007, and filed a corporate tax return by including the above supply value in deductible expenses for the business year.

[2]

O) The Defendant, as a result of the tax investigation, on the ground that both the tax invoices received from the Plaintiff AA Industry Development and the Plaintiff AA Housing Industry were made up by falsity without actual transactions, and that the Plaintiff DD Industry Development and AA Housing Industry included the amount equivalent to the supply price of the said tax invoice in the deductible expenses for the pertinent business year, and on the other hand, disposed of the amount equivalent to the above supply price as a bonus for the Plaintiff AB, the representative personnel.

O) Accordingly, on March 9, 201, the Defendant imposed corporate tax belonging to the business year 2007 and corporate tax belonging to the business year 2008 for the development of the Plaintiff AA industry on March 9, 201, imposed corporate tax belonging to the Plaintiff AA Housing Industry for the business year 2007, and imposed corporate tax belonging to the business year 2007 for the Plaintiff KimB on June 8, 201, and imposed corporate tax on the Plaintiff KimB for the year 2007 and for the year 2008 (hereinafter collectively referred to as the “instant disposition”).

2. The plaintiffs' assertion

(1) 원고 AA산업개발과 원고 AA주택산업이 CC철강으로부터 실물거래 없이 세금계산서를 수취한 것은 사실이지만，▲ 원고 AA산업개발은 2007사업연도와 2008 사업연도에 화성시 소재 EE코아유통단지 공사， 군산시 소재 수송월드타워 공사， 같은 시 소재 GG월드타워 공사를 시행하면서 유한회사 한길의 영업부장 여FF으로부터 철근을 공급받아 그 대금을 지급하였고， 또한 김HH에게 위 수송월드타워의 분양을 대행시키면서 그 수수료를 지급하였으며，▲ 원고 AA주택산업은 2007사업연도에 구미시 소재 구미국가산업 제4단지 내 II식당 공사를 시행하면서 위 여FF으로부터 철근을 공급받아 그 대금을 지급하였으므로， 이러한 철근대금과 분양대행수수료는 위 원고들의 해당 사업연도 손금에 산입되어야 한다. 따라서 이러한 손금산입을 인정하지 아니한 이 사건 처분은 위법하다.

(2) If the tax invoice received by the Plaintiff A industry development and the Plaintiff AA Housing Industry received fromCC Steel without a real transaction, and it is difficult to calculate actual expenses, the tax base and tax amount of corporate tax for the said Plaintiffs should be determined by means of an estimate investigation. Therefore, the instant disposition that did not determine the tax base and tax amount of corporate tax for the said Plaintiffs is unlawful, even if the supply value equivalent to the above tax invoice was not included in deductible expenses for the pertinent business year of the said Plaintiffs.

3. Determination

(a) The deductible expenses industry;

(1) The taxpayer's assertion that some of the expenses reported by the taxpayer are not actual expenses, and that the tax authority has proved that the other party to the tax payment was false for the purpose of the expenses claimed by the taxpayer and the other party to the tax payment, and that the taxpayer did not incur any other expense than the same amount, and that there is a need to prove it in the taxpayer's position that it is easy for the taxpayer to present all the data, such as the account books and documentary evidence concerning the specific expenses, regarding the existence and amount of the reported expenses and other expenses (see Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 91Nu12912, Mar. 27, 1992).

(2) Examining the aforementioned evidence and the evidence set forth in subparagraphs 2 through 7 together with the overall purport of the pleadings, as follows.

• The plaintiffs have presented only the data that have withdrawn money from the passbook of the plaintiff KimB and asserted that the withdrawn money was used as the iron supply, and do not clearly present the details of the iron supply payment and the financial transaction details related to the sales agency fee.

• Although the testimony at the court of first instance, and the supply of steel bars related to the construction as claimed by the plaintiffs, the FF failed to present specific quantity of the steel bars, as well as to clarify where and where the steel bars were purchased.

• According to the computerized data of the National Tax Service, FF only appeared from around 1998 to around 2002, and it does not appear that there is no earned income data between 2007 and 2008.

• According to the computerized data of the National Tax Service, and Kim H has no business registration for the purpose of the sales agency, and the details of the original source after receiving the sales agency fee from the development of the Plaintiff AA industry have not been shown. In addition, Kim H appears to have been working as an employee of the Plaintiff AA industry development at the time of the death of the public official by the transportation chidrid in the military city located in the military, as alleged above by the Plaintiffs.

• The Plaintiff KimB’s pocket book, a document verifying the fact that Plaintiff AA industry development and Plaintiff AA’s housing industry have been actually traded with FF, and a document proving that Plaintiff AA industry development was actually traded with Kim H, and a document certifying the fact that Plaintiff AA industry development was actually traded with Kim H, etc. appears to be a document that can be prepared after the fact-finding.

(3) In light of the above circumstances, evidence Nos. 3-1 and 2, evidence Nos. 4-1 through 3, evidence Nos. 5-1 through 11, and evidence Nos. 5-1 and 7-2, and evidence Nos. 15-1 through 10, and evidence Nos. 15-1 and 15 are difficult to receive them, and other evidence submitted by the plaintiffs alone submitted by the plaintiff A Industry Development and the plaintiff A-Housing Industry Development and the plaintiff A-Housing Industry have actually been supplied with steel from FF, or it is insufficient to find that the plaintiff A-A Industry Development has paid the fee by proxy for shipping monthly sales to Professor, and there is no other evidence to support this. This part of the plaintiffs' assertion is without merit.

(b) Estimated survey;

(1) In principle, the tax base and tax amount should be determined by the actual amount revealed by the on-site investigation method, and in order to determine it by the estimation investigation method, it shall be exceptionally permitted only when there is no taxpayer’s account book or documentary evidence, or when there is no other method to disclose the actual amount of income, and there is no other method by which the tax authorities can identify the actual amount of income. Thus, even if the portion of the account books or documentary evidence kept and kept by the taxpayer includes some false items, if it is clear that all other parts are consistent with the facts, and it is possible to calculate the tax base based on the estimation investigation method, the tax base and tax amount should not be determined by the on-site investigation method (see Supreme Court Decision 95Nu6809, Jan. 26, 196). Therefore, the tax base and tax amount can not be determined by the estimation investigation method solely on the basis that only the amount corresponding to the false tax invoice amount among necessary expenses in the account book is counted falsely, and the standard amount of taxation and tax amount can be determined by the method not be included in necessary expenses for the above processing.

(2) Examining the above evidence and evidence in light of the contents of No. 1-6 and No. 2-2, the whole purport of the pleadings are as follows.

• Upon filing a corporate tax return for 2007, Plaintiff A industry development reported the amount of revenue to KRW 000, tax base to KRW 000, and when filing a corporate tax return for 2008 business year, the amount of revenue to KRW 000, and the tax base was reported to KRW 000,000. However, the tax base and tax amount should be determined by adding the total supply value of the tax invoice received by the said Plaintiff in 2007 business year and 2008 business year, among the total supply value of the tax invoice received by the said Plaintiff in 2007 business year and 2008 business year, to the total supply value of the tax invoice received by theCC Steel in 2007, and the ratio of these processing transaction was 14.7%. Thus, the above processing transaction can be determined by means of on-site investigation by excluding the above processing transaction from deductible expenses, and it cannot be possible, and it cannot be determined by the Plaintiff’s corporate tax and corporate tax for 2007 business year.

• The Plaintiff AA Housing Industry reported the amount of revenue to KRW 000, and the tax base to KRW -00 upon filing a corporate tax return for the business year 2007. However, the total value of tax invoices received fromCC Steel out of the total value of supply of tax invoices for the business year 2007, which the Plaintiff received in 2007, was processed. As seen earlier, it is difficult to deem that the Plaintiff carried out a second restaurant in the fourth complex of the U.S. industry in the business year 2007, as it is difficult to deem that the above processed portion was carried out in the business year 2007, and it can be calculated by the method of on-site investigation, and it cannot be said that it is impossible, and that the above Plaintiff’s tax base and tax amount for the business year 2007 corporate

• The Defendant recognized the amount of the above revenue reported by the field survey method, and by the Plaintiff AA Project Development and the Plaintiff AA Housing Industry, and the supply of the tax invoice revealed by the processing as above was excluded from the amount of loss and taken the instant disposition.

(3) If so, the plaintiffs' assertion that the disposition of this case is unlawful since it did not determine the corporate tax base and tax amount for the plaintiff AA industry development and the plaintiff AA housing industry by the estimation method is without merit.

4. Conclusion

Therefore, the plaintiffs' claim seeking the cancellation of the disposition of this case should be dismissed due to the lack of reason, and the judgment of the court of first instance is just, and the appeal of the plaintiffs is dismissed. It is so decided as per Disposition.