Incheon District Court 2016Guu51317 (Law No. 15, 2017)

Whether taxation can be made on nautical nautical nautical nautical nautical nautical nautical nautical nautical nautical nautical nautical Purpose

With respect to the nautical miless included in gold received from the place of sale, the tax authorities are able to separate the nautical miless from the place of sale and impose the nautical miless sufficiently, or the tax base is not appropriate in calculating the tax base.

Article 16 of the Framework Act on National Taxes

Seoul High Court 2017Nu59781 Disposition revoking Value-Added Tax, etc.

Li○ Co., Ltd.

○ Head of tax office

Incheon District Court Decision 2016Guhap51317 Decided 15, 2017

May 16, 2018

June 20, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

3. Paragraph 1(a) of the order of the first instance judgment was modified as follows in accordance with the reduction of claims by this court:

Section 1 of the Schedule of Disposition No. 1 to the Plaintiff is the same date as the date on which the Defendant entered.

subsection (1) and (2) of this section shall be subject to the payment of the value-added tax (the principal tax and the additional tax) and the corporate tax (the

The imposition of taxes and additional taxes shall be revoked.

1. Purport of claim

The Defendant’s imposition of value-added tax (the main tax and additional tax) and corporate tax (the main tax and additional tax) equivalent to each amount stated in the column of “value-added tax” as stated in paragraph (1) of the attached Schedule of Disposition No. 1 as of the date stated in the corresponding Schedule of Disposition No. 1 as well as the imposition of each amount of income listed in paragraph (2) of the same Table as of October 7, 2013 shall be revoked (the Plaintiff reduced its claim for imposition of value-added tax listed in paragraph (1) of the attached Schedule of Disposition in this Court).

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as follows: (a) the part of the judgment of the first instance is dismissed or added as provided in paragraph (2); and (b) the defendant added the judgment of the first instance court to another or a new argument that the defendant needs to make another or a new argument in the trial as provided in paragraph (3). Therefore, the meaning of the terms used in this case is identical to the judgment of the first instance, and thus, they are quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. Parts used or added;

The list of attached Form 12 of the third side shall be used as the "attached Disposition List", and the third side to 20 to 4 side shall be as follows:

[F. The defendant, upon the decision of the Tax Tribunal, issued a decision of reduction in accordance with Paragraph (1) of the attached Table 1 of Disposition No. 4 in relation to the disposition of value-added tax and corporate tax stated in Paragraph (d) above to the plaintiff, and issued a decision of reduction in accordance with the corresponding Schedule No. 1 of Disposition No. 1 in relation to the disposition of imposition of value-added tax and corporate tax stated in Paragraph (d) above. In relation to the disposition of imposition of value-added tax remaining after reduction in court proceedings, the defendant again issued a decision of reduction in accordance with the corresponding Table No. 2 of Disposition No. 1 in relation to the disposition of imposition of value-added tax and corporate tax stated in Paragraph (1) of the same paragraph (hereinafter referred to as "the disposition in this case" in all as stated in the corresponding Schedule No. 1 of Disposition No. 1 in relation to the disposition of imposition of value

The fourth 10th 7th 10th 7th 7th 7th 28th 7th 200, and the first 1th 1th 1st 1st 1st 1st 200.

The 5th and 6th and 17th, "this Court" shall be amended to "court of the first instance".

Part VII "(628,048.53g - 628,048.53g)/628,048.53g" (637,148.82g - 628,048.53g)/628,048.53g)/628,048.53g.

Part 8 "(not intended)" in Part 8 is deleted.

Part 9 of the first part of the Act on the Protection, Maintenance, and Improvement, etc. of Personal Information and Communications Technology (hereinafter referred to as the "Act") shall be written as follows.

Comprehensively taking account of the overall purport of the arguments in evidence Nos. 6 and 7, the facts charged that the Plaintiff was guilty of evading value-added tax of KRW 34,205,580 from 2009 to 2012 by omitting the supply of goods subject to taxation, although it constitutes the supply of goods subject to taxation.

3. Additional determination

A. Summary of the defendant's assertion

1) The nautical miles within the original meaning is excluded from sales in calculating the Plaintiff’s turnover in the discretionary processing sector, which is not only favorable to taxpayers, but also has the same nature as necessary expenses or deductible expenses. Therefore, the nautical miles within the nautical miles received by the Plaintiff need to be proved by the Plaintiff.

2) Even if the Defendant is obliged to prove the ratio of nautical miles within its original meaning, it is justifiable to apply 1.45%, which is the ratio calculated based on the specification of receipts and disbursements of inventory assets available for the Plaintiff’s acquisition of a significant portion of relevant data. In particular, the Plaintiff’s sales of semi-finished goods on ○○ ○○ World, used 24 km net money, which was provided as raw materials in advance, and used 24 km net money purchased by the Plaintiff on the ground that the Plaintiff did not separately receive raw materials even in the case of semi-finished goods sold in the special sales division, and thus, this part is justifiable even if it is applied

B. Determination

1) As to the first argument

A) Generally, in a lawsuit seeking revocation of a tax imposition disposition, the burden of proof of the taxation requirement must be imposed on the tax authority. However, if the facts alleged in light of the empirical rule are revealed in the specific litigation process, 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 pertinent facts were not eligible for the application of the empirical rule (see, e.g., Supreme Court Decisions 2003Du14284, Apr. 27, 2004; 2012Du11577, Jun. 13, 2013). In a lawsuit seeking revocation of a tax imposition disposition, the burden of proof of the tax base is also imposed on the tax authority. Since the tax base deducts necessary expenses from the revenue, the burden of proof of revenue and necessary expenses is favorable to the taxpayer, and most of the facts that generated necessary expenses are within the territory controlled by the taxpayer, and thus, it is readily acceptable to recognize the need for fair 2013.284, supra.

B) According to the Plaintiff’s 1 nautical miles, its officers and employees, including the Plaintiff, stated that the 3 nautical miles of gold-processed products were 10% of those finished products, and the Plaintiff’s 3 nautical miles of those products were 5 nautical miles of those products, and the Plaintiff’s 1 nautical miles of those products were 10% of those products were 3 nautical miles of those products. Under the Plaintiff’s 3 nautical miles of those products were 5 nautical miles of those products, the Plaintiff’s 10% of those products were 10% of those products were 3 nautical miles of those products. The Plaintiff’s 3 nautical miles of those products were 10% of those products were 10% of those products were 3 nautical miles of those products, and the Plaintiff’s 10% of those products were 10% of those finished products and 7% of those products were 7% of those products were 7% of those products products.

C) However, in full view of the following circumstances, the nautical miless received by the Plaintiff cannot be deemed as cases where it is necessary for the Plaintiff to prove the percentage of the nautical miles within the main meaning of the Plaintiff’s nautical miles, as it is presumed that all of the nautical miless received by the Plaintiff is nautical miles equivalent to the Plaintiff’s sales of discretionary processing services.

① Even though the nautical miless are included in the nautical miless for partial preservation of low cash and expenditure in addition to the raw materials as seen earlier, the most fundamental reason why precious metal manufacturers, including the Plaintiff, receive nautical miless is to supplement the amount inevitably incurred in the course of refining, mixing, processing, etc. (in addition to the losses in the process of the above processing, it is recognized that there is a substantial fact that products less than the content standard among the existing gold products that are supplied as raw materials by clinical processing companies do not meet the nautical miless).

② Even if the proportion of the nautical miles within the original meaning is lower than that of the previous companies, certain parts of the nautical miles still fall under the nautical miles within the original meaning lost during the process of processing, etc., and there is no research result suggesting that there is no basis to refer to what degree of the nautical miles among the nautical miless that have been delivered by precious metal processing companies in accordance with the conventionally formed standards (in light of the results of the fact-finding, the above Federation receives the nautical miles within the limit of 10% for domestic companies and products, while it receives the nautical miles within the limit of 10% for each company and product, while the above Federation does not separately report value-added tax or corporate tax by deeming the portion of the nautical miles received from the orderer as sales, and there is no reporting company).

③ In full view of the purport of the arguments in Gap evidence Nos. 17, 21, Gap evidence No. 22-1 through 3, Gap evidence No. 34, and Eul evidence No. 4, the plaintiff's agency confirmed that the weight of the raw materials to be provided in consideration of nautical miles at the time when the plaintiff requested the processing of the gold products and the amount of the official fees to be paid in cash is determined [if the plaintiff's website product processing machine new technology for the main purpose of the order is charactered on the plaintiff's website product inspection screen, the head of the order may confirm the weight and the amount of gold for each product, which is the raw materials, and give consent to the provision of cash for the purpose of carrying out the order, and the head of the order shall give consent to the provision of gold for the processing of the products. The plaintiff's product laps contain a concrete set of cash for each product type], and even if the plaintiff received the gold after the commission of the processing of the raw materials, it can be recognized that it was not paid in cash as above.

④ 을 제4, 11, 18호증의 각 기재에 변론 전체의 취지를 종합하면, 원고는 작업의 난이도와 생산효율 등을 고려하여 개별 임가공의뢰자별로 원재료의 정련과 합금을 하지 아니하고, 임가공의 원재료 중 18k, 14k의 경우에는 일정량씩 모았다가 성분분석을 한 후 코리아메탈에 의뢰하여 순금으로 정련을 하고(생산부 차장 손○○는 소량을 큐펠분석하면 손해이므로 가급적 1,200g 단위로 한다고 진술하였다), 또 일정한 중량의 순금을 한꺼번에 합금작업을 한 후 의뢰받은 금제품을 가공하는 데에 사용하는 사실이 인정되는데, 이러한 사정에 비추어 보면, 위 나)항에서 본 바와 같이 원고가 거래상대방이나 제품의 공정 등에 따라 구체적인 해리금의 비율을 인식하고 이를 관리하였다 하더라도 이는 '본래적 의미의 해리금'과 '수공비로서의 해리금'이 모두 포함된 전체로서의 해리금을 기준으로 한 것이지 더 나아가 그 해리금 내에서 '본래적 의미의 해리금'과 '수공비로서의 해리금'이 각각 어느 정도의 비율을 차지하는지까지 구체적으로 구별하여 인식하고 관리한 것으로 보기는 어렵다.

⑤ In addition, considering the above work process used for discretionary processing operations after collecting and refining a certain quantity, it seems practically difficult for the Plaintiff to separately calculate the nautical miles within the main meaning of nautical miles by transaction partners (in particular, in the case of value-added tax, it is possible to collect the transaction by classifying the nautical miles between both parties at the time of the supply of discretionary processing services by classifying the nautical miles as the nautical miles as the nautical miles for water supply).

D) Therefore, the defendant's above assertion cannot be accepted.

2) As to the second argument

As seen earlier, 1.45% calculated by the Defendant at the same rate of 1.45% is based on the materials of the manufacture and sale sector, which differs from raw materials and processing processes, not on the permanent processing sector, and it is difficult to view the reliable rate applicable to the clinical processing sector. In addition, according to the evidence Nos. 5-1 and 2, the above 1.45% ratio calculated by the Defendant is calculated by summing up all of the years from 2009 to 2012. The ratio calculated by each year is 3.1% in 2009, 2010, 1% in 2011, 2012, 13% in 2012, 2012, and 4% in the annual sales sector, and there is no doubt about the credibility of the above half-finished products by the Defendant’s ○○○ 2 and 26% in consideration of the purport of each of the above statements made by the Defendant to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.