Cho Jae-2016- Daejeon-1290 ( August 10, 2016)

The plaintiff's operations or lectures cannot be deemed as religious activities, and there is no necessary account book or lack of important parts, so it is also legitimate to impose estimated tax.

The Plaintiff’s receipt of the commission for the filling of the instant temple and the lecture fuel among the expenses for the filling of the relevant temple constitutes a supply of services subject to taxation under the Value-Added Tax Act, and the instant disposition based on the premise that it constitutes business income subject to taxation under the Income Tax Act is lawful.

The scope of tax-exempt goods or services provided by organizations for public interest such as religion, charity, science, relief, etc. under Article 45 of the Enforcement Decree of the Value-Added Tax Act;

Daejeon District Court-2016-Gu Partnership-105380 (2017.05)

정@@

o Head of the tax office

2017.06.07

2017.07.05

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

1. The Defendant’s imposition of value-added tax of 208 to the Plaintiff (including additional tax), value-added tax of 5,804,320 (including additional tax), value-added tax of 1 year 2009 to 5,75,150 (including additional tax), value-added tax of 2 year 2009 to 6,113,630 (including additional tax), value-added tax of 11,710,740 (including additional tax), value-added tax of 23,37,020 (including additional tax) for 2 year 2010 to 31,756, 650 (including additional tax), value-added tax of 207, 209 to 207, 207, 209 to 207, 209 to 207, 207, 209 to 207, 209 to 201 (including additional tax for 2 year 20120 to 207);

2. On August 18, 2015, the Defendant revoked each disposition of imposition of global income tax of KRW 78,939,970 (including additional taxes), global income tax of KRW 167,447,80 (including additional taxes), global income tax of KRW 155,948,198 (including additional taxes), global income tax of KRW 15,998,240 (including additional taxes), global income tax of KRW 65,998,240 (including additional taxes), global income tax of KRW 4,971,290 (including additional taxes) for the year 2010, which reverts to the Plaintiff.

1. Details of the disposition;

가. 원고는 2008. 1. 1.부터 대전 소재 사무실에서 '정oo'이라는 상호로 화장품 소매업을 영위하면서 부가가치세와 종합소득세를 일부 신고하였으나, 2008년부터 2014년까지 포교원을 운영하면서 합천 **사 및 청주 ##사(이하 '이 사건 사찰'이라 한다)로부터 사전 구두약정하여 지급받은 위패봉안 수수료와 강연료에 관하여는 부가가치세와 종합소득세를 신고하지 않았다.

B. From May 6, 2015 to May 25, 2015, the Defendant conducted a tax investigation with the Plaintiff, and conducted a tax investigation with respect to the Plaintiff, and confirmed that the Plaintiff did not report the sales amount despite having received deposits for the cosmetics sales proceeds, and that the Plaintiff did not receive and report the commission for the relevant package voting and the lecture fuel during the period from February 2, 2008 to February 2, 2014. On August 18, 2015, the Defendant imposed value-added tax of KRW 13, 202,51,470 on the Plaintiff from February 2, 2008 to February 2014, and imposed a disposition of imposition with respect to each global income tax of KRW 5,473,305,490 from February 2010 to 2014 (hereinafter referred to as “instant disposition”).

C. On November 16, 2015, the Plaintiff filed an objection with the Director of the Daejeon Regional Tax Office, but dismissed on December 7, 2015. On March 15, 2016, the Plaintiff filed an appeal with the Director of the Tax Tribunal. However, on March 15, 2016, the Director of the Tax Tribunal rendered a decision to re-examine the details of the use of necessary expenses with respect to the disposition imposing global income tax attributed to year 2012, to rectify the tax base and the amount according to the results of re-audit, and dismissed the remainder of the request.

D. The Defendant conducted a reinvestigation on the imposition disposition of global income tax for the year 2012 against the Plaintiff in accordance with the determination of the re-investigation. However, since the Plaintiff failed to submit the actual income amount and necessary expenses for calculating the income rate, the re-audit was concluded by deeming the details of the initial investigation as justifiable, and notified the Plaintiff of the fact on December 19, 2016.

(In fact that there is no dispute, Gap 1 through 3, 11 through 14, 22 through 24, 26, and Eul

1. Each description (including branch numbers, if any; hereinafter the same shall apply) of evidence 1, 2, and 6, the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s money received as a commission for the Mean’s decoration and lecture fuel in relation to the Plaintiff’s Mean activities is services incidental to the services provided by religious organizations, subject to value-added tax exemption, and is exempt from income tax, not business income, and thus, the instant disposition must be revoked in all unlawful manner.

2) Even if services are not incidental to the services provided by domestic religious organizations, the fees and lectures paid by the Plaintiff after March 2013, which were entered into the name of his/her family members upon his/her transfer, cannot be deemed as services provided for the inherent purpose of religion, and business income. Therefore, the imposition of value-added tax and income tax exemption for each of the tax years from January 2013 to February 2014 and the imposition of global income tax for each of the years from 2013 and 2014 must be revoked in an unlawful manner.

3) When the Defendant imposed global income tax for the imposition of global income tax for the year 2008 through 2014, it is unlawful to determine the estimated amount of income by applying only standard expense rate as well as the purchase cost, rent, employee’s wage, and so, the comprehensive income tax should be determined by deducting necessary expenses incurred by the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

In light of the above evidence, evidence Nos. 7 through 10, and evidence Nos. 6 and 12, the following facts are acknowledged.

1) From January 1, 2008, the Plaintiff operated the cosmetic retail business with the trade name called 'Mao' in the office located in Daejeon, while directly operating Poo, recruited the Plaintiff to seal the Mao's plaque in the instant temple, or urged the Plaintiff to recommend him as an instructor from the Poo operated by another person. There is no fact that the Plaintiff’s operation or lectures were registered with the competent authority as a religious organization.

2) 위패봉안자가 위패봉안비를 지급하면, 원고는 사전 배분약정에 따라 포교원을 직접 운영하며 위패봉안비를 지급받은 경우에는 포교원 운영비, 강연료 명목의 돈을 지급받고, 다른 사람이 운영하는 포교원에서 강연만 한 경우 강연료 명목의 돈만 지급받았다. **사에 대한 위패 1기당 80만 원 내지 120만 원의 위패봉안비는 **사에 30만 원 내지 50만 원, 포교원 운영자에게 45만 원 내지 65만 원, 강사에게 5만 원이 각 분배되었고, ##사에 대한 위패 1기당 110만 원 내지 150만 원의 위패봉안비는 ##사에 30만 원, 포교원 운영자에게 70만 원 내지 110만 원, 강사에게 5만 원, 공사비 5만 원이 각 분배되었다.

3) 원고는 2013. 2. 25. 대전 동구 용운동 126 종교용지 813㎡와 위 토지 상에 건립된 사찰을 매수하여 2013. 3. 8. 소유권이전등기를 마친 뒤, 2013. 6. 11. 재단법인 한국근본불교조계종에 위 사찰을 @@사로 등록하였고, 2013. 6. 14. 위 법인으로부터@@사의 주지로 임명되었다. 원고는 2014. 4. 7. @@사건물에 관하여 소유권보존등기를 마쳤다.

4) 원고는 @@사의 주지로 임명된 이후에도 종전과 동일하게 단기로 여러 곳의 포교원을 운영하거나 다른 사람이 운영하는 포교원에서 위패봉안을 권유하는 강연을 하여 이 사건 사찰에 위패봉안을 희망하는 사람들을 알선하고, 위패봉안 수수료와강연료를 배분받았다.

5) 피고는 이 사건 사찰이나 @@사에서 직접 운영하는 포교원에서 위패봉안희망자를 모집하고 지급받은 위패봉안 수수료, 강연료, 봉안비용은 종교단체가 공급하는 용역으로 보아 과세하지 않았다. 그러나 피고는 원고가 2008년부터 2014년까지 기간 중 직접 포교원을 운영하거나 타 포교원에 출장하여 강연하는 등의 방법으로 이 사건 사찰에 위패를 봉안할 희망자를 모집하고 수령한 알선수수료는 용역의 공급에 해당하고, 계속‧반복적으로 발생된 수입금액으로서 사업소득에 해당한다고 판단하고 이 사건 처분을 하였다.

6) On June 22, 2015, the Plaintiff stated in the Daejeon District Tax Office’s investigation as follows:

▪ **사가교차로신문에포교사를모집한다는광고를하였고 자신과 같은 강사일을 하는 이*기가2008년 **사의 황실장 을소개하여 **사위패봉안사업을 하게 되었다. 2009년 말경 친구후배의 소개로 ##사 주지인 !강스님을 만났으며 유성 신*동포교원 점안식에 !강스님을 초빙하면서인연이 닿아 위패봉안사업을 하게 되었다

▪ 포교원 운영자가 계란 밀가루등 생필품 선물을 무료로 주면서 신도를 모으고 강사가 위패봉안에 대한 강연을 하여 위패를 봉안하게 되면 위패를 봉안한 **사나 ##사는 제사를 지낸다. 자신이 강연한 포교원은 **사나 ##사가 직접 운영한 것이 아니며 포교원 운영자와 강사는**사나 ##사 소속이 아니다

▪ 대부분 포교원은 수개월씩 장소를 옮겨가며 운영되는데 포교원운영자는 포교원을 잘운영하면 많은 돈을 벌기도 하지만 잘못 운영하면 손해를 볼 때도 있다.

▪ **사나 ##사가 포교원 운영자 신원도 알지 못하므로 자신이 **사 포교원과 ##사 포교원운영자로부터 강연료와 위패봉안비를 받아서 **사나 ##사에 위패봉안을 의뢰하면 위패봉안비를 책임지고 입금하였다. **사포교원과 ##사포교원을 자신이 직접 운영한 경우에는 위패봉안하기로 한 신도로부터 직접 수금하여 **사나 ##사에 위패봉안비를 주었다.

▪ ##사보다 **사에게 위패봉안비가 더 많이 지급되는 이유는 **사 인지도브랜드가 더높기때문이고 근거리라는 이점과 영업상 전략으로 신도가 지불하는 위패봉안비는 ##사가 **사보다 더 많지만 포교원 운영이 어려운 것을 알고 운영비 명목으로 더 받았다.

▪ **사포교원과 ##사포교원에서는 납골당과 천도재강연은 하지않고 오로지 위패강연만 한다.

▪ 포교원을 2~3개월마다 옮기기 때문에 임대계약기간이 만료되면 폐기하여 임대차계약서가 없으며 현재 운영 중인 포교원 2곳 등 판암동에 위치한 포교원임대차계약서를 제출하겠다.

▪ @@사에는 주지로 *법스님과 총무로 *교스님이 있고 자신이 *법스님에게 매월300만원을 * 교스님에게는 매월250만원을 드리다가 지금은 재정악화로 150만원을 급여로 드리고 있다.

D. Determination

1) Whether the Plaintiff’s fee and lecture fee are subject to taxation under the Value-Added Tax Act and the Income Tax Act

In full view of the following circumstances, the Plaintiff’s receipt of the commission for a plaquement and the lecture fuel, out of the expenses for a plaquementment to the instant temple, constitutes a supply of service subject to the Value-Added Tax Act, and the instant disposition based on such premise is lawful, as it constitutes business income subject to the Income Tax Act. The Plaintiff’s assertion on this part is without merit.

A) In order to provide services, the Plaintiff, a religious organization, recruited applicants for the garmentment bill through teaching activities and lectures, and received an application from applicants for the garmentment bill and received an application from them, and received the garmentment bill expenses. This asserts that there is no essential difference whether the inspection is performed by the garment teacher who directly operates the garment, not by the inspection registration, according to the pre-agreement. However, in light of the following: (a) although the garment teacher was in charge of widely spreading the garmentment, the Plaintiff started the business of inviting the garmentmentist; (b) the Plaintiff opened the garmentment by taking advantage of the garment’s garmentment without any other religious consciousness; and (c) then, (d) received an application from the applicants for the garmentment bill; and (d) received the fees from the garmentment teacher who directly operates the garmentment; and (e) received the fees from the garmentist to the above religious organization as a part of the garment’s activities.

B) The Plaintiff stated ** in the process of literature investigation at the tax office, that the recruitment of the person who was a member of the relevant faculty constitutes a project for consolationing a person who was unable to pay money or may incur damage to the member of the relevant faculty. The Plaintiff appears to have made a statement on the premise that the act of receiving fees by inviting the member of the relevant faculty to recruit the person who was in violation of his/her duty was an act of obtaining business income through continuous and repeated activities under his/her own account and responsibility for profit-making rather than a mere act of religious spacing activities.

C) The end group to which the Plaintiff belongs and the end group to which the instant temple belongs are different, and the end group to which the instant temple belongs is not inspected by the end group or administrative guidance is not given to the employees of the end group. As such, either the Plaintiff’s operation or the lecture teacher cannot be deemed to be related to the instant temple. Moreover, the operator and the lecture teacher are those engaged in the business of moving the place to the short term by his own account without registering the office of competent authorities and recruiting the persons who received fees according to their roles. This act itself cannot be deemed to constitute the services that are supplied by an organization for public interest, such as religion under Article 26 of the Value-Added Tax Act, or those that are temporarily supplied for its own proper business purposes or are supplied for actual expenses or free of charge, and furthermore, it cannot be deemed to be the services ordinarily incidental to the services provided by a religious organization under Article 26(2) of the Value-Added Tax Act.

라) 원고는 적어도 원고가 승려로 입적한 2013년경부터 지급받은 위패봉안수수료와 강연료는 종교라는 고유목적사업을 위하여 공급한 용역이라고 주장한다. 그러나 @@사가 2013년경부터 재단법인 대한근본불교조계종에 사찰로 등록되어 원고가 위 재단으로부터 위 사찰의 주지로 임명되었고, 피고가 @@사에서 자체적으로 위패봉안자를 모집하고 지급받은 위패봉안비에 대하여는 과세하지 않았다고 하더라도, 원고는 @@사 대지와 건물을 원고 개인 명의로 소유하면서 @@사의 수입과 지출을 관리하면서 주지승려와 총무승려에게 급여를 지급하는 한편, 여전히 이 사건 사찰과의 위패봉안 사전약정에 의하여 종전과 동일한 방식으로 포교원을 단기로 임차하고 타 포교원에 출장하여 위패봉안자를 모집한 뒤 위패봉안 수수료와 강연료를 지급받아 온 점에비추어 보면, 원고가 @@사의 주지로 임명되기 전후로 이 사건 사찰의 위패봉안자 모집행위의 본질이 달라진다고 보기 어렵다.

2) Whether the calculation of necessary expenses by estimation is lawful

A) In the administrative litigation seeking revocation on the ground that the taxation disposition is unlawful, and the tax authority bears the burden of proving the existence of the taxation requirements. As such, the tax authority bears the burden of proof as a matter of principle, necessary expenses that constitute the basis for the determination of taxable income. However, not only necessary expenses are favorable to the taxpayer, but most of the facts that form the basis for the determination of necessary expenses are difficult for the tax authority to prove. Therefore, if it is reasonable to allow the taxpayer to prove by taking account of difficulty and equity between the parties, the burden of proof must be returned to the taxpayer (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2005Du647, Apr. 14, 2005). Furthermore, the burden of proof as to the fact that the Defendant’s determination of necessary expenses based on standard expense rate is in excess of necessary expenses (see, e.g., Supreme Court Decisions 96Nu1418, Nov. 28, 1997>

According to Article 80 (3) of the Income Tax Act, when the head of a district tax office having jurisdiction over the place of tax payment or the head of a regional tax office determines or revises the tax base and the amount of tax in the relevant taxable period pursuant to paragraphs (1) and (2), it shall be based on the account books and other evidentiary documents: Provided, That where it is impossible to calculate the amount of income by the account books or other evidentiary documents on the grounds prescribed by Presidential Decree, he/she may make an estimated investigation and determination of the amount of income as prescribed by Presidential Decree. Article 143 (1) 1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26982, Feb. 17, 2016; hereinafter the same shall apply) stipulates "where necessary account books and evidential documents are nonexistent or important parts are incomplete

B) Comprehensively taking account of the following circumstances in which evidence Nos. 9 and 10 are deemed to show the overall purport of the pleadings, it is insufficient to recognize that the Plaintiff paid purchase costs, rent, and salary for the project to be filled in, as alleged by the Plaintiff, even based on the evidence submitted by the Plaintiff, and there is no other evidence to acknowledge it. Thus, this falls under “where there is no necessary account books and documentary evidence or any important part is incomplete or false in calculating the tax base” under the proviso of Article 80 (3) of the Income Tax Act and Article 143 (1) 1 of the Enforcement Decree of the Income Tax Act, and it is legitimate for the Plaintiff to estimate the amount of income by applying standard expense rate pursuant to Article 143 (3) 1 of the Enforcement Decree of the Income Tax Act, and there is no error in the misapprehension of the necessary expense of the Plaintiff’s assertion regarding the calculation of business income. This part of the Plaintiff’s assertion is

(1) The Plaintiff did not keep a book on the expenses, etc. incurred in relation to the above-mentioned project, and did not submit objective documents, such as tax invoices, credit card sales slip, etc. as evidence on each taxable year that each taxable year paid purchase expenses, rent, and personnel expenses. However, the Plaintiff did not submit a receipt, such as bank account transaction details, certificate of work fact, and partial transaction slips. However, at the same time, the Plaintiff formed a number of financial transaction relations with the above-mentioned bank account transaction relations. The above money transaction relations are likely to be mixed with the details of the above bank account transaction submitted by the Plaintiff. Therefore, it is difficult to verify whether the withdrawal details are business entities, and whether the Plaintiff purchased, rent, and payment was made in relation to the above-listed project, such as the withdrawal details, it is difficult to ascertain whether the Plaintiff was a business entity or not. The certificate of work confirmation submitted by the Plaintiff is prepared after the completion of the tax investigation with respect to the Plaintiff, and it is difficult for the Plaintiff to deem that the payment was correct, and it is difficult for those who submitted a certificate of work performance related to the above business.

(2) 원고가 생필품 매입비용 일부에 대한 증빙자료로서 출고전표나 거래명세표(갑 제27호증)를 제출하였으나, 원고의 은행계좌거래내역과 위 각 출고전표, 거래명세표에 기재된 거래일시 및 거래금액이 일치하지 않거나, 공급받는 자가 @@사로 되어 있지 않거나, 거래일시가 2015년경으로 기재된 거래전표가 제출된 것으로서 위자료에 의하더라도 원고가 위패봉안사업과 관련하여 지출한 생필품 매입비용이 증빙되었다고 보기 어렵다.

(3) On November 3, 2016, the Defendant re-requested the Plaintiff to submit necessary expenses for the year 2012 pursuant to the Review Decision by the Director of the Tax Tribunal. However, on December 16, 2016, the Plaintiff submitted to the Defendant a written confirmation to the effect that any further additional data, other than the bank account transaction details, receipts, part of the receipt, and the certificate of work fact, cannot be submitted.

3. Conclusion

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

shall be ruled.

July 5, 2017