Cho Jae-chul2014Gu3352 ( December 17, 2014)

Income from transfer does not constitute business income generated by operating real estate sales business, but constitutes capital gains;

Since the transfer of the instant real estate cannot be deemed as part of real estate sales business with continuity and repetition to the extent that it can be seen as business activities under social norms, income from the transfer of the instant real estate constitutes capital gains.

Article 14 of the Framework Act on National Taxes

2015Guhap2187

〇〇〇

〇〇세무서장

August 25, 2015

September 15, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 159,966,720 (including additional taxes) corporate tax for the year 2008, March 26, 2014, and each imposition of KRW 112,391,830 (including additional taxes) corporate tax for the year 2009, June 13, 2014, and KRW 9,60,000 (additional Tax), and KRW 1,387,960 (additional Tax) for the year 2009, shall be revoked.

1. Details of the disposition;

가. 원고는 19〇〇. 〇〇. 〇〇. 사료판매업 등을 목적으로 설립된 법인으로, 20〇〇. 〇〇. 〇〇.상법 제520조의2 제1항에 의하여 해산간주되었다.

B. The Defendant conducted a tax investigation on the Plaintiff from March 3, 2014 to March 21, 2014, and the Plaintiff

가 2008년 및 2009년 사업연도에 〇〇시 〇〇면에서 돼지를 사육하는 AAA에 공급한 2008년 425,343,000원, 2009년 366,265,000원 상당액의 사료판매대금(이하 '이 사건 각 대금'이라 한다)에 대한 매출신고를 누락하였다는 이유로 이 사건 각 대금을 익금으로 산입하여, 원고에게 2014. 3. 26. 2008년도 법인세 159,966,720원의 부과처분(가산세 77,307,797원 포함), 2014. 6. 13. 2009년 귀속 법인세 112,391,830원(가산세 51,782,421원 포함), 2009년 제1기 부가가치세 가산세 9,600,000원, 2009년 제2기 부가가치세 가산세 1,387,960원(원고는 부가가치세 영세율을 적용받는 업체로, 본세는 부과되지 않고 가산세만 부과된 것이다)의 각 부과처분(이하 '이 사건 각 처분'이라 한다)을 하였다.

C. On June 24, 2014 and September 5, 2014, the Plaintiff filed an appeal with the Tax Tribunal on each of the instant dispositions, but the Tax Tribunal dismissed all of them on December 17, 2014.

Facts that there is no dispute for recognition, Gap Nos. 1, 2, Eul No. 1, 2, 4 through 9 (each number is available)

(2) Each entry and the purport of the whole pleading;

2. Determination

A. The plaintiff's assertion

이 사건 각 대금은, 원고가 사료제조회사인 BBB와 체결한 대납직거래방식에 따라 원고가 〇〇와 AAA 간의 직거래에 따른 AAA의 사료매입대금을 BBB에 선납하고 이후 AAA으로부터 원고 대표이사 CCC 계좌로 대납금액을 변제받은 것이고, 원고가 AAA에 판매한 사료 대금이 아니다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the facts of taxation requirement have been presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the other party is an unlawful disposition that fails to meet the taxation requirement, unless the other party proves that the facts in question were not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 2002Du6392, Nov. 13, 2002)

In full view of the following facts and circumstances acknowledged in light of the evidence and witness DD and EE as mentioned above, each part of the testimony made by the plaintiff in this court, Gap 3 through 9, 11 through 14 (including each number), and the overall purport of the arguments, the plaintiff can be sufficiently presumed to have sold BB historical materials directly to AA in light of the empirical rule. However, it is not deemed that the plaintiff sufficiently proven the circumstances in which such empirical rule cannot be applied, and thus, the disposition of this case based on the premise that each of the prices of this case is the plaintiff's sales is legitimate.

① There are two forms of the Plaintiff’s sales that sell feed produced by the Plaintiff, a feed manufacturing company, in the form of wholesale and retail to the livestock farmers (hereinafter referred to as “sale arising from a special contract for sale”), and that the livestock farmers engaged in direct trade with the BB receive profits from the commission of direct trade (hereinafter referred to as “direct trade brokerage commission”).

② In the tax investigation conducted by the Defendant against the Plaintiff from January 3, 2014 to December 21, 201 of the same month, the representative EE of the Plaintiff’s transaction partner is found to have been deposited from January 2008 to December 2009 as the following table. From January 3, 2008 to the Plaintiff’s representative director CCC’s account, the amount of KRW 10,000,000, excluding KRW 425,343,000,000, 2000, excluding KRW 114,657,000 and KRW 63,600,000,000, which was issued by the tax invoice for KRW 263,734,606,600,000, excluding KRW 6366,500,000, which was issued by the Plaintiff.

③ The witness DD and the representative EE of AAE, who is a director of the Karo feed management department in the border region of BB, testified that there is no entry into a direct trade contract between BB and AA in this Court, and there is no direct trade sales contract between BB and AA.

④ According to the sales status of BB in 2008 and 2009 (Evidence No. 6), BB allocated customer numbers to each feed seller, and accordingly adjusted feed sales weight, feed sales amount, input amount, and attempted balance on a monthly basis. The transaction partner of BB includes only Plaintiff, FF, GG, HH, III, JJ, JJ, KJ, and K. However, customer numbers and sales of AA are not indicated.

⑤ From July 2009 to June 2010, AA was supplied with feed by direct trade via the Plaintiff from LL to the Plaintiff. LL was issued a tax invoice for the amount of feed sales to AA. On the other hand, AA was not issued a tax invoice from October 2008 to June 2009 for the use of BB’s feed.

6) The Plaintiff asserts that, among the counter party to the direct trade contract of BB, GG, HH et al. except the amount of KRW KRW 10,000, the direct trade contract with BB was not prepared. Thus, even if the direct trade contract between AA and BB was not submitted, the Plaintiff should not deny the direct trade contract between AA and BB on the ground that it was not submitted. However, other farms such as GG and HH et al. are given a customer number from BB, and there were sales details accordingly, the AA cannot be deemed as being the same as GG and HH et al.

7) The Plaintiff asserts that direct trade between BB and AA is arranged and fees are collected. However, any part of the fees received from BB is not entirely specified as a part of AA's good offices and management.

8. Although the Plaintiff alleged that the BB issued an excessive tax invoice by mistake on the feed supplied to AA to another customer, the Plaintiff did not raise an objection that the BB issued an excessive tax invoice by the other transaction party.

3. Conclusion

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