National High Court 1995Do2944 ( July 16, 1996)
It is reasonable to convert the omitted amount of sales and include it in total income by applying the value added ratio by type of business from the actual inventory inspection.
Article 31 of the Income Tax Act (Calculation of Necessary Expenses)
1) 93 years in which the chief of the Yongsan Tax Office decided and notified the claimant of April 16, 95
disposition of global income tax of KRW 62,477,870 is 3,536,850 on telecommunications;
Insurance premium 824,380 won, vehicle maintenance expenses 7,355,200 won and office supplies expenses
80,780 won is included in necessary expenses and the tax base and tax amount are corrected.
2) The remaining claims are dismissed.
1. Summary of disposition;
The disposition agency decided the comprehensive income tax for 93 years from the claimant who has engaged in the trade business under the trade name of real estate leasing business and listed company, and decided the business income amount from the trade business by converting the difference between the end stock amount and the actual stock amount at the time of the investigation into sales and adding the total income amount. In relation to the real estate income, the agency decided and notified the claimant of April 16, 95 that the difference between the end stock amount and the actual stock amount at the time of the investigation should be added to the total income amount.
On June 12, 95, the claimant appealed and filed an appeal on September 22, 95.
2. Opinion of the petitioner and the Commissioner of the National Tax Service;
A. The claimant's assertion
(i)in respect of business income:
The claimant imported children's kinds of goods and sold them at seven department stores, such as OO department stores, but sold them at all department stores up to 22.214.171.124,00,000,000,000,000,000 for OOOO sports 93.3 O-dong O sports 7,909,091, and the disposition agency made a report on sale at the competent tax office to dispose of the amount included in the estimated sales amount of KRW 219,403,347, the amount of income included in the estimated sales is unfair, and the cost of developing overseas markets shall be appropriated as necessary expenses because it is an overseas exit equipment for the trade-related employees to engage in the export and import business of other O as a package of clothing business, and the amount of inventory should be counted as necessary expenses for the domestic production of imported children (36,971,050,000,000 won).
2) As to real estate income:
Telecommunications expenses, insurance premiums, maintenance expenses for vehicles, office supplies expenses, etc. are expenses to be proved by evidence, and the applicant has been engaged in trade and real estate rental business in the same office, so even if the vehicles, etc. are not stated in the balance sheet of real estate income sector, they shall be deemed common expenses or included in the necessary expenses for the trade sector, and the entertainment expenses shall not be the amount within the limit of the amount processed, but shall be recognized as necessary expenses.
(b) Opinions of the Commissioner of National Tax Service;
1) Since the actual inventory amount is confirmed by a confirmation of OO other than a claim by the agency’s investigation, such inventory difference shall be deemed to have been sold and shall be included in the total income by type of business and converted by value-added ratio by type of business, and the disposition in which the response cost is included in the necessary expenses is reasonable
2) In the case of the real estate rental business sector’s communication cost, insurance premium, vehicle maintenance cost, office supplies cost, etc., the inclusion of expenses on assets not stated in the balance sheet was otherwise erroneous, and the exclusion of entertainment expenses from necessary expenses is justified.
3) As for the non-Inclusion of overseas market development reserve funds in the trade sector, it was investigated that such expenses were not overseas expenses for business purposes, the non-Inclusion of such expenses was otherwise erroneous.
4) No opinion is presented by the Commissioner of the National Tax Service with respect to the claimant’s assertion that the depreciation of deferred assets should be made.
3. Hearing and determination
A. Key issue
(1) Whether it is reasonable to include the difference between the inventory on the account book and the actual inventory in the total amount of income after converting them into sales;
(2) Whether communications expenses, etc. should be included in necessary expenses
(3) The issue is whether the test and research expenses appropriated as the deferred assets on the account book should be recognized as the necessary expenses.
B. As to the issue (1)
(1) Relevant statutes
Article 28 of the Income Tax Act provides that "The calculation of the total income amount of each resident's income shall be based on the total amount received or received in the corresponding year."
The claimant reported that the amount of inventory on the current book as of December 31, 93 was 182,693,753 won and that there was no sales amount in 94 years. At the time of investigating the claimant on December 1, 94 of the disposition agency's 94, it confirmed that the amount of inventory at the time of the investigation was 4,09,428 won by OO other than the claimant's employee, the claimant's employee was 182,69,753 won and 4,099,425 won and the difference between 178,594,325 won and 178,59,59,325 won was not reported. If there was a difference between the amount of inventory on the actual book and the amount of inventory on the account book reported by the claimant, it should be included in the total amount of income for the taxable period. If there was a difference between the amount of inventory on the account book reported by the claimant and the amount of inventory on the account book, it should be included in the inventory.
The claimant asserts that seven stores, such as OO department stores, etc., which were initially located at the end of 92 years, all stores were collected by the end of 92.12.20,000,000 won and inventory goods were stored at OOOOOO, 93.3.09,091 won and reported the previous sales. However, the claimant's disposal of inventory assets worth KRW 182,693,753 as of December 31, 93 at the low price is not highly reliable considering the practice of ordinary commercial transactions.
Moreover, there is no evidence to prove that the claimant has sold (ju) the inventory assets kept as inventory assets as of December 31, 93, to OOOO and OO sports 92.20 and 126.96.36.199.
If so, in calculating the sales amount of the inventory and the actual inventory difference on the account books, the disposition agency did not make any error of converting the inventory difference into sales pursuant to Article 21(2) of the Value-Added Tax Act and Article 69(1)4 of the Enforcement Decree of the same Act, and the disposition included in the total income is different.
C. As to the issue (2)
(1) Relevant statutes
Article 31 of the Income Tax Act provides, "The amount to be included in necessary expenses in the calculation of real estate income, business income, other income, transferred income, or forest income shall be the total amount of expenses corresponding to the total amount of income in the business year concerned."
In addition, Article 50 (3) of the Income Tax Act provides that "entertainment expenses" means entertainment expenses, social expenses, secret expenses, honorariums, and other expenses of a similar nature regardless of the organization's name, which are disbursed by a business operator in connection with his/her business."
The claimant is engaged in real estate leasing business and trade business in the same place of business as OO company, and whether the claimant can actually recognize the amount appropriated as expenses for the real estate leasing business or trade sector on the account books by considering all the factual relations which can be confirmed as necessary expenses, and whether the amount appropriated by the claimant is related to the business of the real estate leasing or the trade sector shall be determined whether the actual expenses are recognized. Therefore, the claimant's purpose is to examine whether the disposition agency denies necessary expenses individually and to examine whether it is legitimate.
(A) Of the communications costs appropriated by the claimant as costs on the account books for the real estate leasing sector, it is reasonable to view that the right to telephone subscription on the balance sheet in the leased sector is appropriated for only one minute and that many representative telephones are not required in the course of engaging in real estate leasing business. Therefore, it seems that the disposition agency did not err by excluding the amount of 3,536,850 won, excluding the amount of 1,100,140 won used for telephone OOOOOOOOOO used for the real estate leasing business, and by excluding the amount of 3,536,850 won from the necessary expenses for the real estate leasing portion.
In light of the fact that the claimant did not report the above amount as necessary expenses for the trade sector at the time of the initial report, and it is difficult to recognize it as necessary expenses for the trade sector. However, the claimant did not report the fact that the same place of business located in the Jung-gu Seoul Metropolitan Government OOOOO located in the same place of business outside of the above two businesses and that the claimant did not research and recover from the disposition agency that conducted the same business other than the above two businesses, and there is no relevant documentary evidence such as receipts, etc. regarding the payment of postal charges among the above communications charges, and the telephone charges are equipped with six telephone numbers registered as the location of the place of business of the OO company through the certificate of registration of the telephone subscription ledger. In light of the fact that the telephone charges are confirmed as actual expenses, and the disposition agency recognizes it as necessary expenses for the trade sector, it seems reasonable to recognize it as necessary expenses by the disposition agency of the leased sector, 3536,580 won, among the telecommunications charges appropriated by the claimant.
(B) With respect to the disposition that the claimant excludeds KRW 824,830 and the cost of maintaining the insurance premium, KRW 7,355,200, which is calculated as the cost for the leased sector on the account book, from the necessary cost, the vehicle transport vehicle is not included in the balance sheet in the leased sector, and it is reasonable under social norms to view that the vehicle for business to conduct the rental business is unnecessary. Therefore, the disposition authority is deemed to have no other error in not
On the other hand, with regard to whether the above costs can be recognized as the necessary expenses of the trade sector, the vehicle transport equipment (OO,OO, andOO) is appropriated on the balance sheet of the trade sector, and the insurance premium payment certificate submitted by the claimant is a comprehensive insurance premium payment certificate of the above OO (29,050 won) and OO (525,780 won) and the vehicle maintenance expenses submitted by the claimant, and the agency also submitted relevant documents of payment, and it is recognized that the payment of the expenses is confirmed by the agency, and there is no special circumstance to deny the flexibility with the trade sector affairs, it seems that the above insurance premium and vehicle maintenance expenses should be recognized as the necessary expenses of the trade sector. Furthermore, it is reasonable that the claimant's exclusion of the office supplies expenses appropriated as the expenses on the account book of the leased sector from the necessary expenses on the same ground, but it is determined that the rental sector's expense should be recognized as the necessary expenses for the trade sector.
(C) Next, examining the disposition that the claimant excluded the amount of 6,051,687 won appropriated as entertainment expenses in the leased sector from necessary expenses, it is not deemed that the above entertainment expenses that the disposition agency spent for the maintenance of the leased sector are deemed to have no business-related nature and did not recognize it as necessary expenses, and it does not seem to have any error otherwise by social norms. As to the 11,381,050 won of the port of entry into overseas markets appropriated as the expenses in the trade sector, the claimant only did not have reported the sales since 93, and at the time of the disposition agency's investigation on December 1, 94, the trade sector of the above OO company was actually in the business-related condition, and the claimant fails to prove the business-relatedness of the expenses, it is not erroneous to deem otherwise that the disposition agency did not recognize the overseas market development expenses appropriated as necessary expenses in the trade sector in the above account book.
D. As to the issue (3)
(1) Relevant statutes
According to Article 44 of the Income Tax Act and Article 93 of the Enforcement Decree of the same Act, the term "testing and research expenses" means expenses specially disbursed for the commencement and legislation of products, the development of new technology, etc., and this test and research expenses shall be paid equally for each business year within five years from the business year in which the funds are appropriated as the test and research expenses.
First of all, when the claimant's 34,691,781 won deposited in deferred assets in the year of 91 is viewed as a type of business and the type of business of the above OO company in the disposition agency, the above OO company's business operation type and the type of business. Therefore, the above amount should be viewed as a type of other assets. Thus, it seems not reasonable to view it as a type of other assets if it is viewed as a type of test and research expenses submitted by the claimant through evidence such as tax invoice, etc. for the director of the test and research institute submitted by the claimant and the tax invoice for the expenses.
However, examining whether the expenditure amount falls under the deferred assets as expenses specially paid for the research and development of new technology in the beginning and method of the product, the above OO company was registered as the type of trade business. Although it is difficult for the claimant to recognize the fact that the expenses, etc. were purchased from OO fiber, etc. outside the claim, it is unclear whether the expenses, etc. were paid in mind for the development of the new product, but it is not clear whether the expenses, etc. were actually manufactured or sold as a result of the above expenditure, and it is difficult to see that the expenses are in the nature of deferred assets corresponding to the above legislation, and therefore it is difficult to recognize the claimant's assertion that the expenses should be recognized as necessary expenses.
Therefore, if it is deemed that the expenditure corresponding to the total amount of income in the calculation of the income amount of 91 year in which the expenditure is made, if it is deemed that there is a business relationship, the total amount or a certain amount recognized as business relationship is included in the necessary expenses in the calculation of the income amount of 91 year in which it is difficult to recognize the amount of deferred assets on the account book as deferred assets and to recognize it as the necessary expenses when calculating the income amount of 93 year in which
This case's request for adjudication has been examined, and it is recognized that part of the claimant's assertion is well-grounded, so it is decided as per Disposition under Articles 81 and 65(1)2 and 65(1)3 of the Framework Act on National Taxes.