Review Division 2006-0372 ( December 27, 2006)

Whether the issue amount among the amounts deposited in the account is the collection of the loan, and whether the case is the fee.

Since the deposit account is a case fee management account of a lawyer, it is not presented evidence that can be recognized as a monetary lending transaction, the disposition imposing tax on the account amount by deeming it as a case fee is legitimate.

The contents of the decision shall be the same as attached.

1. Of the instant lawsuit, the part that seeks revocation of the amount stated in the “amount of refunded tax” column in attached Table 1 shall be dismissed.

2. The defendant's portion exceeding 22,16,780 won of value-added tax for the second period of 201 against the plaintiff on September 8, 2006; the part exceeding 21,239,579 won of value-added tax for the second period of 2001; the part exceeding 17,50,454 won of value-added tax for the first period of 2002; the part exceeding 16,864,740 won of value-added tax for the first period of 2003; the part exceeding 16,209,740 won of value-added tax for the second period of 203; and the part exceeding 11,68,730 won of value-added tax for the second period of 203.

3. All remaining claims of the Plaintiff are dismissed.

4. Of the costs of lawsuit, 90% is assessed against the Plaintiff, and the remainder 10% is assessed against the Defendant, respectively.

The Defendant’s disposition of imposition of value-added tax for the second term of 2001 against the Plaintiff on September 8, 2006, of value-added tax for the second term of 2001, of value-added tax for the first term of 22,751,980 won for the second term of 202, of value-added tax for 202, of value-added tax for 24,404,430 won for the second term of 202, of value-added tax for 17,200,740 won for the first term of 203, and of value-added tax for 14,93,940 for the second term of 203.

1. Circumstances of the disposition;

A. The Plaintiff is an entity that runs an attorney-at-law business from May 27, 1994.

B. After conducting a tax investigation for the taxable year from March 18, 2006 to April 14, 2006 with respect to the Plaintiff, the head of the Dobong Tax Office determined that the sum of 614,480,122 won (125,345,012 won in February 2001, 123,016,960 won in January 2002, 2002, 138,858,830 won in February 1, 2003, 119,43,020 won in January 1, 2003, 203, 203, 2003, 203, 2010, 306, 200, 200, 206, 30,000 won in exchange for the Plaintiff’s business-related account (hereinafter referred to as “instant account”) was omitted and reported to the Defendant.

C. Accordingly, on September 8, 2006, the Defendant imposed on the Plaintiff the value-added tax of 24,316,930 won for the second period of 201, value-added tax of 1,202,751,980 won for the first period of 2002, value-added tax of 24,404,430 won for the second period of 2,202, value-added tax of 1,200,740 won for the first period of 203, and value-added tax of 14,93,940 for the second period of 2,203, respectively.

D. The Plaintiff filed a request for examination with the Commissioner of the National Tax Service, claiming that the portion of the fee omitted was taxed by deeming it as revenue, but the claim was dismissed on the ground that the Plaintiff did not prove that it was not an omitted revenue.

E. While the lawsuit of this case is pending, the defendant accepted part of the plaintiff's assertion as shown in the annexed sheet 2; non-influorial column, and revoked part of the omitted import of this case and refunded the relevant tax amount as follows (the remaining part after the reduction is referred to as the "disposition of this case").

[Ground of recognition] Unsatisfy, Gap 1, 2, 6 evidence, Eul 1-8 evidence (including each number), the whole purport of the pleading

2. Whether the portion of "tax amount refunded" in the attached Table 1 is appropriate among the lawsuits of this case;

After the disposition of this case was taken, the defendant accepted part of the plaintiff's assertion and revoked part of the omitted amount of the import of this case and refunded the relevant tax amount as stated in the annexed Table 1.

Therefore, among the lawsuit of this case, there is no tax disposition to revoke the amount of tax stated in the "amount of tax to be refunded". Thus, there is no legal interest to seek revocation.

Therefore, this part of the lawsuit is unlawful.

3. Judgment on the plaintiff's claim

A. The plaintiff's assertion

The disposition of this case imposing value-added tax on the ground that there is no proof by the plaintiff as to the fact that most of the omitted amounts of the revenue of this case is not omitted, but deposited into money transaction between the branch regardless of income, as shown in the separate sheet 2.

B. Determination

(1) The part to which the plaintiff's assertion is recognized

(A) In full view of the respective entries and the overall purport of the arguments and arguments set forth in Gap evidence 7-9 (including each number), the corresponding amount set out in Appendix 2 Nos. 43, 69, 71, 135, 177, and 178 is recognized as not income, as follows.

① 별지 목록2 순번 43 : 이 사건 계좌에 2001. 12. 15. 김★★ 명의로 입금된 500 만 원은 원고가 처이모인 김★★에게 1,500만 원을 대여하고 김★★으로부터 2000. 4. 24.부터 2001. 10. 31.까지 매월 이자 명목으로 15만 원씩을 지급받아 오다가 대여금상 환의 일부로서 입금된 돈으로 보인다.

② Attached No. 29 No. 69: The KRW 150 million deposited into the instant account in the name of ○○○ on March 12, 2002 appears to have been deposited in the Plaintiff’s KRW 1,500,000, which was the husband of ○○○, the husband of her husband, in the damages claim lawsuit requested by ○○○, the husband of her husband.

③ Attached Table 2 No. 71: The amount of KRW 50 million deposited in the account of this case on March 12, 2002 is presumed to be the borrowed money in light of the fact that the Plaintiff repaid it through another bank account on the same day.

④ Attached 2 Nos. 135: 50 million won deposited into the account of this case on February 13, 2003 in the name of Kim Wil, Kim Wil, 203, appears to have returned the said money on the 18th of the same month after the Plaintiff resigned from office while accepting the case from Kim Wil.

⑤ 별지 목록2 순번 177 : 이 사건 계화에 2003. 8. 23. 김◇◇ 명의로 입금된 220 만 원은 양◆◆의 형사사건의 수임료로 받은 돈으로서 위 돈만이 입금된 것으로 보인 다(피고는 김◇◇과의 전화통화를 통하여 1,220만 원이 수임료로 원고에게 지급되었음 을 확인하였다고 주장하나, 이를 인정할 만한 증거가 없다).

④ Attached 2 Nos. 178: The Plaintiff appears to have borrowed money in light of the fact that the Plaintiff paid off the same amount from August 29, 2003 to October 15, 2003, which was deposited in the instant account in the name of △△ on August 23, 2003.

(B) If so, each of the above amounts (the amount shall be KRW 4,545,00 for the second term in 2001, KRW 16,181,300 for the first term in 2002, KRW 4,545,00 for the first term in 2003, KRW 17,990 for the second term in 2003, KRW 17,000 for the second term in 203) shall be as shown in the annexed Table 1.

(2) The part not recognized as the plaintiff's master

In a case where tax base and tax amount determined through a written hearing is denied and on-site investigation is conducted on the grounds that the amount deposited in the account of a financial institution was omitted, and the determination of the taxpayer’s total revenue constitutes a lawful on-site investigation. In general, in a lawsuit seeking revocation of tax imposition, the burden of proving the facts of taxation requirements is deemed to be the imposing authority. However, unless the other party proves that the facts in question were presumed to be eligible for application of the empirical rule in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent taxation disposition was illegal 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 97Nu13894, Jul.

In this case, it is not sufficient to recognize the plaintiff's assertion as stated in the attached Table 2 only with no proof of the plaintiff or with the evidence submitted by the plaintiff as to the remaining part except the part as stated in the above Paragraph 1

4. Conclusion

Therefore, the part in the "amount of refund" column of the attached list l among the lawsuit of this case is unlawful and dismissed. The plaintiff's claim against the disposition of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.