Cho-2016-China3813 (2017.02.07)

The determination of tax appeals on persons to be polled shall not bind the disposition determined by the data derived from the data derived from the transaction partner after the investigation concerned.

The judgment of the court of the tax judgment against the person to be polled and the reasons are different from those asserted by the plaintiff, so the decision of the tax appeal does not bind the disposition against the plaintiff determined based on the data derived from the investigation.

Article 65 of the Framework Act on National Taxes

Incheon District Court-2017-Gu Partnership-51710 (Law No. 26, 2018)

김☆민

○ Head of tax office

July 12, 2018

July 26, 2018

1. Of the instant lawsuit, the part regarding the imposition of value-added tax for the first period of January 201 as indicated in the attached disposition sheet shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The imposition of each value-added tax (including additional tax, hereinafter the same shall apply) on the Plaintiff as stated in the attached disposition sheet shall be revoked.

1. Details of the disposition;

As a result of conducting a tax investigation on Bright Sheet Korea Co., Ltd. (hereinafter referred to as "Bright”), the Defendant deposited the following facts: (a) from 2011 to 2014, the Plaintiff, who engages in wholesale and trade business, such as food, with the name of △△△ Korea, with January 121, 201 to 201; (b) 135,57,273 won in February 1, 201; (c) 85,481,81,818 won in January 8, 2012; (d) 3,756,64 won in February 3, 2012; (e) 3,504,091 won in January 5, 2013; and (e) 609,091 won in February 5, 2013; (e) 135,139,481, etc. in the instant case.

The Defendant estimated the omitted purchase amount by applying the total profit ratio of wholesale business in the comprehensive wholesale business to the purchase amount of the goods and estimated the omitted purchase amount by calculating the gross profit ratio of wholesale business in the comprehensive wholesale business of the goods as shown in the attached Form of Disposition No. 1, and imposed each value-added tax on the Plaintiff as stated in the attached Form of Disposition No. 1, 201 (hereinafter referred to as “Imposition Disposition of Value-Added Tax” in the attached Form of Disposition No. 201, 2011.

part of this case is referred to as "each disposition of this case."

[Ground of recognition] Evidence Nos. 2, 3, Eul No. 1, and the purport of the whole pleadings

2. Determination on this safety defense

The Defendant asserts that the part of the instant lawsuit pertaining to the imposition of value-added tax on January 201, 201, is unlawful as it did not go through legitimate pre-trial procedures after the period for filing a petition for trial expires.

According to Articles 56(2), 61(1), and 68(1) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same), an administrative litigation against a disposition under tax-related Acts shall not be filed without going through a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon; a request for evaluation or adjudgment shall be filed within 90 days from the date (where a notice of disposition is received, the date of receipt) on which the relevant disposition is known; and where a request for evaluation or adjudgment is unlawful due to the lapse of the period, administrative litigation shall also be deemed unlawful (see, e.g., Supreme Court Decision 90Nu8091, Jun. 25, 1991).

According to the purport of Gap evidence No. 2 and all pleadings, the plaintiff was served with a notice of tax payment of the value-added tax on June 22, 2016 and requested the Tax Tribunal to cancel the imposition of value-added tax on October 12, 2016, which was 90 days after the lapse of 90 days from that time, and the Tax Tribunal dismissed the appeal on February 7, 2017 on the ground that the appeal was filed after the expiration of the period, and thus, it can be acknowledged that the appeal was dismissed on the ground of its illegality. Thus, the part on the disposition of imposition of value-added tax on January 201, 201 among the lawsuit in this case is unlawful since it did not go through a legitimate procedure of pre-trial.

3. Determination on the legitimacy of each of the dispositions of this case

A. The plaintiff's assertion

1) 조세심판원은 ●●맥스가 제기한 심판청구 사건에서 원고가 ●●맥스의 차명계좌에 입금한 이 사건 입금액이 ●●맥스로부터 세금계산서 수수 없이 물품을 매입하면서 지급한 대금이 아니라 ●●맥스가 미국 업체 ◆◆TCO로부터 지급받을 수출대금을 원고가 대신 지급받아 입금한 것으로 보아 이 사건 입금액을 ●●맥스의 매출누락액에서 차감하여 ●●맥스에 대한 부가가치세 과세표준 등을 경정한다고 결정하였으므로, 그 결정의 내용과 달리 이 사건 입금액이 원고가 ●●맥스로부터 세금계산서 수수 없이 물품을 매입하면서 지급한 대금인 것으로 보아 이루어진 이 사건 각 처분은 위 경정결정의 기속력에 저촉되는 것이어서 위법하다. 설령 조세심판원의 위 결정이 경정결정이 아닌 재조사결정에 해당한다고 하더라도, 그 결정에서 이 사건 입금액이 ●●맥스가 ◆◆TCO로부터 지급받을 수출대금을 원고가 대신 지급받아 입금한 것이라고 판단한 이상, 이와 달리 보아 이루어진 이 사건 각 처분은 그 재조사결정의 기속력에 저촉되는 것이어서 위법하다.

2) 이 사건 입금액은 ●●맥스가 ◆◆TCO로부터 지급받을 수출대금을 원고가 대신 지급받아 ●●맥스의 차명계좌에 입금한 것일 뿐, 원고가 ●●맥스로부터 세금계산서 수수 없이 물품을 매입하면서 그 대금을 ●●맥스의 차명계좌에 입금한 것이 아니므로, 원고가 ●●맥스로부터 세금계산서 수수 없이 물품을 매입하고 그 매입액을 신고 누락하였다고 보아 이루어진 이 사건 각 처분은 위법하다.

3) Even if the Plaintiff purchased goods from BBusus and paid the instant input price with the purchase price, the Defendant, while making a decision on the omitted sales amount corresponding to the Plaintiff’s omitted purchase price, was immediately estimated without any on-site investigation. In conducting the estimation investigation, the Plaintiff estimated the Plaintiff’s omitted sales by applying the same type of business without considering extremely low domestic sales transaction as it mainly engaged in a foreign product brokerage business subject to zero tax, without considering the circumstances in which domestic sales transactions were extremely low. Thus, such estimation investigation did not meet the requirements, and its contents and methods do not reflect the Plaintiff’s actual sales price reasonably and reasonably. Thus, each of the dispositions of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The Defendant: (a) conducted a tax investigation on BBusus; and (b) conducted a tax investigation on Bitusus, 201 to 1, 2014.

goods from the Plaintiff, etc. in the taxable period of the value-added tax to the following account in the name of the citizen.

On December 3, 2014, in view of the omission of reporting the sales amount of KRW 3,113,658,048 by receiving payment, etc., imposition of KRW 561,921,370 on the aggregate of value-added tax from January 201 to January 2014 and imposition of KRW 410,795,770 on the aggregate of corporate tax from 2011 to 2013, and notification of changes in the amount of income to the representative director in the business year from 2011 to 2013.

2) Between BBS filed a request for a trial with the Tax Tribunal on May 2, 2017, and the Tax Tribunal rendered a decision on the following summary (hereinafter “instant decision”). On May 22, 2017, the Defendant requested the Director of the Tax Tribunal to clarify whether the instant decision is the acceptance decision or the re-examination decision. On August 9, 2017, the Director of the Tax Tribunal sent a reply to the purport that re-audit should be conducted pursuant to Article 65(1)3 of the Framework Act on National Taxes, since the instant decision was a re-audit decision to the Defendant.

[Disposition]

The Defendant imposed value-added tax of KRW 561,921,370, the aggregate of value-added tax from January 1, 201 to January 2014, 201, the imposition of KRW 410,795,770, and the imposition of KRW 2,976,964,852, which is the notice of change in the amount of income for the period from the year 2011 to the period from the year 2013, shall be imposed on Bright beer, 2014, and the imposition of KRW 410,79,770, and the disposition of KRW 2,976,964,852, which is the notice of change in the amount of income for the period from the date 2011 to the date 2013, shall be corrected, and the remainder

【Reasoning】

Bright Maus had not been confirmed to have used the borrowed account until the bank account was suspended on the part of the bill after the opening of the business, and it appears that the bank account was unable to conduct business due to default. The Defendant did not recognize the amount of the tax invoice as the amount of the previously reported sales, but there was no reason to issue the tax invoice increase, and the issue amount is not settled at once in a continuous transaction with the opposite contractual party. In light of the fact that the representative director of B right Maus was deemed to have used the deposited amount as the deposit account (the deposit amount, etc. of the representative director and specially related parties) and the amount verified as the overlapping payment in order to operate the corporation, it is reasonable to deduct the amount of the loan other than the reported amount (the face value, the tax invoice), the representative director, the duplicate payment, the deposit amount, and the deposit amount in family, etc., which are verified by objective evidence.

3) The Defendant, by re-auditing the omitted sales of Bale Bright, corrected the amount of KRW 3,113,658,048, which was initially found to have been omitted sales, by subtracting the total of KRW 162,040,80 from the amount of KRW 111,742,175, and the amount of KRW 35,320,983, such as the refund of deposit in the court, and the amount of KRW 309,120,983, including the amount of KRW 162,040,00,000, such amount of KRW 162,740,80,000,

[Ground of recognition] Evidence Nos. 5, Eul Nos. 2 through 6, the purport of the whole pleadings

D. Determination

1) Whether each of the instant dispositions conflicts with the binding force of the instant decision

조세심판원의 이 사건 결정은 '●●맥스의 수출면장과 세금계산서 발행금액, 중복입금액, 매출취소금액, 대표이사 및 가족 등의 입금액으로 확인되는 금액을 매출누락액에 서 차감하는 것이 타당하다고 판단되므로 이를 매출누락액에서 차감하여 ●●맥스에 대한 부가가치세, 법인세의 과세표준, 세액 및 소득금액 변동통지금액을 경정하고 나머지 청구를 기각한다'는 내용일 뿐, 원고의 이 사건 입금액이 ●●맥스가 ◆◆TCO로부터 지급받을 수출대금의 일부를 원고가 대신 지급받아 ●●맥스의 차명계좌에 입금한 것이라는 등으로 원고가 신고누락한 매입액에 해당하지 않는 것이라고 인정ㆍ판단한 것은 아니므로(설령 이 사건 결정에 따라 ●●맥스의 ◆◆TCO에 대한 수출거래와 관련한 수출면장 발행금액 등이 ●●맥스의 매출누락액에서 차감되어야 한다고 하더라도 이 사건 결정에는 원고의 이 사건 입금액이 ●●맥스가 ◆◆TCO로부터 지급받을 수출대금의 일부를 원고가 대신 지급받아 입금한 것으로 인정되어야 한다는 취지가 포함되어 있는 것으로 볼 수 없다), 이 사건 결정이 경정결정인지 아니면 재조사결정인지와 관계 없이 이 사건 각 처분이 이 사건 결정의 기속력에 저촉되는 것으로 볼 수는 없다.

2) Whether the amount of the instant admission constitutes the Plaintiff’s omission of report or purchase

원고는 이 사건 입금액이 ●●맥스가 ◆◆TCO로부터 지급받을 수출대금의 일부를 원고가 대신 지급받아 ●●맥스의 차명계좌에 입금한 것이라고 주장하나, 원고가 ◆◆TCO로부터 이 사건 입금액 상당액을 지급받았음을 인정할 만한 객관적인 자료가 없는 점, ●●맥스는 조세심판원의 심판 과정에서 2011년 1기 ~ 2014년 1기 부가가치세 과세기간에 ◆◆TCO와의 수출거래와 관련한 수출신고가격 금액이 2,514,082,294원이고 ◆◆TCO로부터 그 대금으로 직접 지급받은 외화금액이 2,265,823,569원이어서 그 차액 248,258,725원은 ●●맥스가 ◆◆TCO로부터 직접 지급받지 않고 원고가 대신 지급받았다는 취지로 주장하면서도, 다른 한편으로는 원고가 ◆◆TCO로부터 ●●맥스의 수출대금의 일부를 대신 지급받아 ●●맥스의 차명계좌에 입금한 금액이 위 차액보다 많은 288,228,500원이라는 취지로 주장하는 등 그 주장 자체로도 내용이 서로 부합하지 않는 점(갑 제5, 8호증의 기재), 원고는 ●●맥스로부터 세금계산서를 수수하면서 물품을 매입하는 거래를 하여 오다가 ●●맥스의 차명계좌에 이 사건 입금액을 입금하기 시작한 2011년경부터 ●●맥스와 사이에 세금계산서 수수가 중단된 점(을 제2호증의 기재) 등을 종합하면, 원고의 이 사건 입금액은 ●●맥스로부터 세금계산서 등 증명 자료를 수수하지 않은 채 물품을 매입하면서 지급한 대금으로 보이므로, 이 사건 입금액은 원고가 신고누락한 매입액에 해당한다.

3) Whether the estimated survey was conducted unlawfully

Article 21(2) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) and Article 57(2) of the Value-Added Tax Act provide that where a tax base and amount of tax payable for a taxable period are determined or corrected, it shall be based on tax invoices, import tax invoices, account books, or other evidentiary documents, and where there is no necessary tax invoices, import tax invoices, account books, or other supporting documents or any material part is incomplete when the tax base is calculated, it shall be estimated. In order for estimation of income to be justified, it shall be insufficient to satisfy the requirements for estimation of income amount, and the contents and methods of estimation shall be reasonable and reasonable to reflect the actual amount of income close to the truth in a specific case. Where the issue of legitimacy or validity of such estimation method is asserted, the burden of proving such reasonableness and validity shall be proved once it is determined by the tax authority, and it shall be determined that it is inappropriate for a taxpayer to prove the amount of tax payable to him/her through a manifestly unreasonable method and procedure prescribed by the relevant provisions (see, 200.

The Plaintiff purchased the goods without giving and receiving supporting documents, such as the tax invoice, etc. from BBS, and failed to report the purchase of the instant input amount to the name account of BBS, and failed to submit all supporting documents, such as tax invoices and account books to verify the sales amount corresponding to the omitted purchase amount. Thus, even if the Defendant did on-site investigation, it seems impossible to confirm the Plaintiff’s sales amount. Since the Plaintiff’s type of business is wholesale and trade business such as food, etc., it would be impossible to confirm the Plaintiff’s sales amount. Therefore, applying the total sales profit ratio of the comprehensive wholesale business to estimate the Plaintiff’s sales revenue amount in order to estimate the Plaintiff’s omitted sales amount (the Plaintiff calculated the omitted sales amount by applying the total sales profit ratio on the premise of domestic sales transactions without considering the Plaintiff’s special circumstances, which are subject to value-added tax, is an estimate method and feasibility in terms of the method and content of estimation, but it cannot be deemed that the Plaintiff’s total sales revenue ratio cannot be deemed unlawful by applying the Plaintiff’s estimate sales revenue ratio to the Plaintiff’s businessman.

4. Conclusion

Among the instant lawsuits, the part concerning the imposition of value-added tax for the first period of January 201 in the attached Form 201 is unlawful, and the remainder of the Plaintiff’s claim is dismissed as it is without merit. It is so decided as per Disposition

Related Acts and subordinate statutes

former Framework Act on National Taxes (Amended by Act No. 14382, Dec. 20, 2016)

Article 56 (Relation with Other Acts)

(2) Notwithstanding the main sentence of Article 18 (1), (2) and (3) of the Administrative Litigation Act, any administrative litigation against any illegal disposition prescribed in Article 55 shall not be instituted without going through a request for evaluation or adjudgment and a decision thereon under this Act.

Basic Act

Article 61 (Period of Request)

(1) A request for evaluation shall be filed within 90 days from the date on which the relevant disposition is known (when a disposition notice is received, the date of its receipt).

Article 65 (Decisions)

(1) Decisions on a request for examination shall be made pursuant to the following subparagraphs:

1. Where a request for examination falls under any of the following items, a decision to dismiss such request shall be made:

(a) Where a request for examination is filed after filing a request for adjudication (including where such request is filed on the same day);

(b) Where the request is made after the lapse of the request period provided in Article 61;

(c) Where necessary supplement and correction are not made after making a request for examination within the supplement and correction period under Article 63 (1);

(d) Where the request for examination is unlawful;

(e) Cases similar to those under items (a) through (d), as prescribed by Presidential Decree;

2. When the request for examination is deemed groundless, a decision to dismiss such request shall be made;

3. When a request for review is deemed reasonable, a decision shall be made to revoke or correct the disposition that is the object of the request, or a decision on necessary disposition: Provided, That where additional investigation is necessary, such as the verification of facts, to revoke, correct, or take necessary measures, a decision on re-investigation may be made to have the disposition agency conduct re-investigation to cancel, correct, or take necessary measures according

(5) Where a decision to conduct a reinvestigation is made pursuant to the proviso to paragraph (1) 3, the relevant disposition agency shall investigate within 60 days from the date the reinvestigation is determined, and cancel, correct or take necessary measures according to the result thereof. In such cases, the disposition agency may postpone the investigation, extend or suspend the investigation period pursuant to Articles 81-7 and 81-8.

Article 68 (Period of Request)

(1) Any request for adjudgment shall be filed within 90 days after the relevant disposition is known (when a notice of disposition is received, the date of its receipt).

Article 80 (Effect of Decision)

(1) The decision under Article 65 as applied mutatis mutandis in Article 81 shall bind the administrative agencies concerned.

(2) When a decision is made on a request for adjudgment, the relevant administrative agency shall take necessary measures without delay according to the purport of the decision.

Article 81 (Mutatis Mutandis Application of Provisions Governing Requests for Examination)

Articles 61 (3) and (4), 63, 65 (excluding cases where a request for examination and request for adjudgment are filed on the same date under paragraph (1) 1 (a)), and 65-2 shall apply mutatis mutandis to any request for adjudgment. In such cases, the period not exceeding 20 days under Article 63 (1) shall be deemed a reasonable period.

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

(2) Tax officials may not conduct reinvestigation for the same items of taxation and for the same taxable period, except in any of the following cases:

4. Where an investigation is conducted in accordance with a decision on re-investigation under the proviso to Article 65 (1) 3 (including cases applied mutatis mutandis in Articles 66 (6) and 81) or under the proviso to Article 81-15 (4) 2 (limited to an investigation within the scope as stated in the text of the decision);

Value-Added Tax Act

Article 57 (Determination and Correction)

(2) Where the head of a tax office, etc. having jurisdiction over the place for tax payment examines, determines or revises the tax base for each preliminary return period and the amount of tax payable or refundable for each taxable period under paragraph (1), he/she shall do so on the basis of tax invoices, import tax invoices, account books, and other evidential data: Provided, That in

1. Where no tax invoices, import tax invoices, account books, or other evidential data necessary for calculating the tax base are available or important parts thereof are incomplete;

2. Where details of tax invoices, import tax invoices, account books, or other evidential data are obviously false in light of the scale of facilities, the number of employees, and the market prices of raw materials, commodities, products, or various charges;

3. Where details of tax invoices, import tax invoices, account books, or other evidential data are obviously false in light of the quantity of raw materials used, the quantity of power used, or other operating conditions.

former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013)

Article 21 (Settlement and Correction)

(2) Where the head of a tax office, etc. determines or corrects the tax base and amount of tax payable or the amount of tax refundable for each taxable period pursuant to paragraph (1), he/she shall do so on the basis of tax invoices, books, and other evidential data: Provided, That he/she may estimate, as prescribed by

1. Where no tax invoices, account books, or other evidential data necessary for calculating the tax base are available or important parts are incomplete;

2. Where the details of tax invoices, books, or other evidential data are obviously false in light of the scale of facilities, the number of employees, and the market prices of raw materials, commodities, products, or various charges;

3. Where the details of tax invoices, ledgers, and other evidential data are obviously false in light of the quantity of raw materials used, the quantity of power used, and other operating conditions.

Enforcement Decree of the Value-Added Tax Act

§ 104. Method of determination and revision by estimation

(1) Estimations under the proviso to Article 57 (2) of the Act shall be made by the following methods:

1. Calculation according to the type and type of authority with another business operator in the same current status as the same type of business, the recording of which is deemed reasonable and the report of which is not made pursuant to Article 57 (1) of the Act in good faith;

2. When there exists a production receipt rate examined by the Commissioner of the National Tax Service with respect to input raw materials by industry, the method of calculating the market price of the quantity supplied during the relevant taxable period by applying the production receipt rate;

3. Where the Commissioner of the National Tax Service has business efficiency which determines the relationship between the quantity and value of human and material facilities, such as employees, guest rooms, places of business, vehicles, waterworks and electricity, taking into account the type, area, etc. of business, a method of calculating by applying business efficiency.

4. Calculation according to any of the following standards determined by the Commissioner of the National Tax Service by type of business and by region:

(a) Input quantity per unit of won, which determines the relation between the partial or whole quantity, from among the raw materials and secondary materials input for production, and the quantity of production;

(b) A cost-related ratio which determines the relationship between all or some of the costs and sales among personnel expenses, rent, material expenses, water, mineral, heat, and other operating expenses;

(c) A commodities turnover rate which determines the relationship between the average stored amount during a given period and the sales amount or the sales cost;

(d) A sales profit ratio which determines the ratio of the sales to the gross sales profits for a specified period.

(e) The value-added ratio which determines the sales amount and value-added amount during the period.

5. Where the rates referred to in subparagraphs 2 through 4 can be calculated for a business operator subject to correction and determination of estimation, the method of calculation by applying such rates;

6. With respect to food, accommodation business and service business mainly traded mainly for end-consumers, the method of calculating according to the membership inspection standards determined by the Commissioner of the National Tax Service.

The former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 26, 2013)

Article 69 (Methods of Estimation, Determination and Revision)

(1) The estimation under the proviso of Article 21 (2) of the Act shall be made by the methods as provided in the following subparagraphs:

1. The method of calculating by way of a type of sphere with other partners in the same trade who have not been corrected under the provisions of Article 21 (1) of the Act because the account books are deemed to be correct and the report is bona fide;

2. The method of calculating by applying the market price of the quantity supplied during the relevant taxable period to the output amount calculated by applying such ratio, where the Commissioner of the National Tax Service has investigated the input raw materials by business type;

3. Where the Commissioner of the National Tax Service has business efficiency to determine the quantity and value of human and material facilities (employee, guest rooms, places of business, vehicles, water supply and electricity) related to the business in consideration of the type, area, etc. of business and the relationship of sales, the method of calculating

4. Calculation by any of the following criteria determined by the Commissioner of the National Tax Service for each type of business and each region:

(a) Input quantity per unit of won, which determines the relationship between the partial or whole quantity, from among the raw or secondary materials input for production, and the quantity of production;

(b) A cost-related ratio which determines the relationship between all or part of the expenses and sales among personnel expenses, rent, material expenses, water supply, electricity heat, and other operating expenses;

(c) A commodities turnover rate which determines the relationship between the average stored amount during a fixed period and the sales amount or the sales price;

(d) A sales profit rate which determines the ratio of the sales to the gross sales profit during a fixed period;

(e) The value-added rate determined by the sales amount and value-added amount during a fixed period.

5. Where the ratio referred to in subparagraphs 2 through 4 may be computed on a businessman subject to the estimation, determination and revision, the method of calculation by applying it thereto;

6. For food, accommodation and service business, which are mainly traded for end-consumers, the method of calculating according to the membership inspection criteria determined by the Commissioner of the National Tax Service.