Cho-2015-west-1427 (Law No. 13, 2015)

It is difficult to see that the civil engineering works were conducted, and it is not deemed necessary as necessary, and it does not constitute duplicate investigations.

The evidence submitted by the Plaintiff alone cannot be deemed necessary expenses because it is difficult to view that the civil engineering work was conducted, and on-site verification conducted as part of the comprehensive audit is distinct from the tax investigation exercising the right to ask questions to taxpayers or relevant persons, so it does not constitute double investigation.

Article 97 of the Income Tax Act shall be calculated as necessary expenses, and prohibition of abuse of the right of tax investigation under Article 81-4.

2015Guhap70737 Revocation of Disposition of Imposing capital gains tax

The United States of America

K Director of the Korean Tax Office

June 16, 2016

August 11, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2012 against the Plaintiff on November 3, 2014 is revoked.

1. Details of the disposition;

A. On April 28, 2003, the Plaintiff acquired ownership by winning a successful bid in the auction process with the same 00 m2,00 m2,00 m2, 37-1 m2,000 m2, 6-4, 000 m2, and 6-7 m200 m2 (hereinafter “instant land”). The instant land was expropriated in the Korea Land and Housing Corporation on May 30, 2012.

B. On June 27, 2012, the Plaintiff filed a report on capital gains tax on the instant land at KRW 000, but filed a request for reduction or exemption of capital gains tax on the ground that he/she underreported necessary expenses on November 21, 2012. The Defendant conducted an investigation of capital gains tax on the Plaintiff from December 17, 2012 to January 5, 2013, and subsequently corrected capital gains tax as follows.

(unit: won)

Classification

Transfer Value

Acquisition Value

Necessary expenses

Transfer Margin

Amount of final tax

Original Report

00

00

00

00

00

Claim for Rectification

00

00

00

00

00

Correction of Investigations

00

00

00

00

00

C. From April 7, 2014 to April 24, 2014, the Commissioner of the National Tax Service: (a) performed a comprehensive audit with respect to the Defendant, and pointed out that it was erroneous that: (b) KRW 000 of the civil construction cost for which the actual construction of the instant land was not verified; and (c) KRW 000 of the interest paid on the amount borrowed from the financial institution from the financial institution was recognized as necessary expenses; and (b) on November 3, 2014, the Defendant excluded the said expenses from necessary expenses and notified the Plaintiff of the transfer income tax for the year 2012 as KRW 00 (including additional tax) (hereinafter “instant disposition”).

D. On February 12, 2015, the Plaintiff dissatisfied with the instant disposition and filed an appeal seeking revocation of the instant disposition with the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s appeal on May 13, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-1, 2-2, Gap evidence 4-1 through 3, Eul evidence 1-3, Eul evidence 6-1, 2-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff paid a total of KRW 000 as the cost of civil engineering works for the alteration or improvement of the use of the instant land, and disbursed KRW 000 as the interest on the loan for the purpose of securing the construction cost. Therefore, it constitutes capital expenditure falling under Article 97(1)2 of the Income Tax Act and Article 163(3)1 through 3 of the Enforcement Decree of the same Act and should be deducted as necessary expenses, but the Defendant did not recognize it as necessary expenses, and thus, the instant disposition was unlawful.

2) Although the Defendant corrected capital gains tax through a field investigation from April 17, 2012 to January 5, 2013, the Defendant issued duplicate tax investigation, such as exercising the right to inquire and inquire of the Plaintiff and SB companies (hereinafter referred to as “SB companies”) from April 7, 2014 to April 24, 2014, and ordering the public officials belonging to the National Tax Service to submit transaction data to the Plaintiff and the Plaintiff and the construction business chain companies (hereinafter referred to as “SB companies”) after the end of the comprehensive audit period and audit period, and issuing a written confirmation. Based on this, the instant disposition was unlawful as it violates the prohibition of duplicate investigation prohibited under Article 81-4 of the Framework Act on National Taxes.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether necessary expenses are recognized

In a lawsuit seeking revocation of taxation, the burden of proof of the tax base, which is the basis of taxation, is on the tax authority, and the tax base is deducted from necessary expenses, so the tax authority is in principle responsible for the burden of proof of income and necessary expenses. However, as necessary expenses are more favorable to the taxpayer, and most of the facts causing necessary expenses are located within the area controlled by the taxpayer, and it is difficult for the tax authority to prove. Thus, in a case where it is reasonable to allow the taxpayer to prove, taking into account the difficulty of proof or equity between the parties, it accords with the concept of fairness (see, e.g., Supreme Court Decision 2002Du1588, Sept. 23, 200

The plaintiff asserts that the expenses paid as the construction cost for the public works of the land of this case and the expenses paid as the interest on the loan for the purpose of securing the construction cost shall be deducted as necessary expenses. The data on the payment of such expenses are within the scope of the plaintiff's control, and it is difficult to prove that the tax authority, the defendant, has the burden of proof.

The plaintiff has submitted the construction contract and the details of financial transactions with the main evidentiary data on necessary expenses.

(4) In full view of the purport of the arguments in the evidence No. 2-2 and No. 4, the plaintiff and SB-based contract was made on October 27, 2003 to newly construct apartment houses on the ground of this case between the plaintiff and SB-based company, and the contract was made on February 24, 2004, stating that the contract amount is KRW 0 billion (value-added tax separate), contract deposit amount is KRW 000,000, and the construction period is from February 24, 2004. At present, the land price of this case, which is Green Zone-based, is now cancelled within the development-restricted zone of 204, the principal and new construction works were conducted on the land of this case; KRW 200,000,000,000,000,000 for 20,000,0000,000,000,000,000,000,000.

However, in light of the above facts, it is difficult for the Plaintiff to find out that the above 8, 11, 12, 14, and 15 were included in the YB evidence, Gap evidence 5-1, Eul evidence 7-1 through 4, and that the land of this case was designated as a development restriction zone as of October 27, 2003, and the development restriction zone was partly cancelled on March 24, 2006, and the public works were not allowed before March 24, 2006. ② The Plaintiff leased the land of this case to KS, which was difficult for the Plaintiff to find that it was difficult for the Plaintiff to use the land as new public works because it was difficult for the Plaintiff to use the land as a new public works site for the purpose of this case. ④ The Plaintiff’s new public works project for the purpose of this case to use the land as evidence for the purpose of this case’s installation of a new public works site for the purpose of this case’s 204.

Therefore, since it cannot be deemed that there was any error in the disposition that denied necessary expenses asserted by the Plaintiff, this part of the Plaintiff’s assertion is rejected.

2) Whether the case constitutes a duplicate tax investigation

A) Article 81-4(2) of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same “former Framework Act on National Taxes”) provides that a tax official may not re-examine the same item of tax and the same taxable period, unless there exist any grounds prescribed in each subparagraph. In violation of such provision, a tax investigation conducted in duplicate for the same item of tax and the same taxable period is unlawful, and a tax disposition based on an illegal tax investigation is also illegal (see, e.g., Supreme Court Decision 2004Du12070, Jun. 2, 2006).

On the other hand, the term "tax investigation" means questioning in order to determine or correct the tax base and amount of national tax or inspecting, investigating, or ordering the submission of the relevant account books, documents or other articles (including the investigation of a tax offence under the Procedure for the Punishment of Tax Evaders Act).

Article 3 subparagraphs 1 and 2 of the former Regulations on the Management of Investigations (amended by National Tax Service Directive No. 2105, Jun. 30, 2015; hereinafter referred to as the "former Regulations on the Management of Investigations") and the proviso of Article 12 (1) of the former Regulations on the Management of Investigations (amended by National Tax Service Directive No. 2105, hereinafter referred to as the "former Regulations on the Management of Investigations") are referred to as "tax investigation in which the violation of the Regulations on the Prohibition of Investigations (Dudual Investigations) is at issue" means that a public official who conducts an investigation in accordance with the Punishment of Tax Evaders Act and the Punishment of Tax Evaders Act and the Procedure for the Punishment of Tax Evaders Act questions a taxpayer or a person who is deemed to have a transaction with the taxpayer, and "an act of inspecting facts on a local business trip, i.e., confirmation on the site" is not defined as "an act of inspecting facts in accordance with the on-site verification plan.

나) 살피건대, 을 제8 내지 16호증의 각 기재에 변론 전체의 취지를 종합하면, 국세청 소속 공무원들이 2014. 4. 29., 2014. 5. 21. 및 2014. 5. 22. 각 출장명령을 받고 한국토지주택공사, QQ시청을 방문하거나 이 사건 토지 인근에서 임차인 김KC, 이 사건 토지 인근 주민들을 상대로 사실관계를 확인한 사실, 위 각 출장명령서에는 출장 목적이 '현지확인'으로 기재되어 있는 사실을 인정할 수 있다. 한편, 국세청 소속 공무원들이 원고나 거래상대방인 SB상사를 상대로 질문조사권을 행사하였다는 원고의 주장을 뒷받침할 만한 증거는 없다.

According to the above facts of recognition, on-site verification conducted by the public officials belonging to the National Tax Service by the National Tax Service appears to be conducted as part of the comprehensive audit conducted by the National Tax Service against the defendant who is the tax authority, and it is distinguishable from the tax investigation conducted by the tax official, which is the exercise of the authority to inquire and investigate the taxpayer or related persons. Thus, it cannot be viewed

Therefore, we cannot accept this part of the plaintiff's assertion.

3. Conclusion

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