(영문) 서울행정법원 2016.7.15. 선고 2016구합55360 판결

On June 2, 2015, the defendant revoked the disposition of suspension of tax accountant's office for one year and 5 million won of fine for negligence imposed on the plaintiff on June 2, 2015

Reasons

1. Details of the disposition;

On June 30, 2012, the Plaintiff, acting for the captain of B (mutual C) in 2011 and the global income tax return, appropriated some of the expenses that did not meet the requirements for evidence as necessary expenses, and prepared and submitted a certificate of bona fide return.

On June 2, 2015, the Defendant imposed a fine for negligence of one year and five million won on the Plaintiff for a violation of Article 12 of the Certified Tax Accountant Act (hereinafter referred to as “instant disposition”) on the ground of a breach of the duty of good faith (hereinafter referred to as Article 12 of the Certified Tax Accountant Act).

2. Whether the instant disposition is lawful

A. Whether Article 12 of the Certified Tax Accountant Act was violated

1) The plaintiff's assertion

Although the Plaintiff’s captain agent is 126 companies, he/she himself/herself is not able to have a device physically impossible, to verify the actual quantity of pharmaceutical products and medical expendable products, or to interfere with the internal control system of the hospital on a daily basis. Since C’s income comparison rate was higher than the previous year and the average return rate was higher than that of other children, there is no room for omission of income, and thus, the Plaintiff did not violate the duty of good faith.

2) Determination

According to the Certified Tax Accountant Act, a certified tax accountant’s mission is to contribute to protecting the rights and interests of taxpayers and faithfully performing his/her tax liability as a tax specialist with public nature (Article 1-2), and shall maintain dignity by faithfully performing his/her duties (Article 12(1)), and shall not intentionally conceal the truth or make false statements (Article 12(2)).

On the other hand, when an entrepreneur whose amount of income by type of business exceeds a certain size files a final return on the tax base of global income, he/she shall submit a written confirmation to confirm and prepare the appropriateness of the amount of business income calculated on the account books kept and recorded in accordance with the Income Tax Act and the evidentiary documents (hereinafter “written confirmation of bona fide return”). The purport of requiring a certified tax accountant to submit a written confirmation of bona fide return is to induce a taxpayer to bona fide return and to improve the efficiency of tax administration by obtaining prior verification of the appropriateness of accounting and tax processing through an expert such as a certified tax accountant.

In addition to the whole purport of the argument in the statement No. 7 of the evidence No. 7, the following facts are as follows: ① The confirmation of bona fide return submitted by the plaintiff on June 30, 2012 is written in the certificate of bona fide return: The statement that "the amount of income calculated according to the books and documentary evidence kept by the business operator subject to verification of bona fide return and the appropriation of necessary expenses, etc., was faithfully verified pursuant to Article 70-2 (1) of the Income Tax Act; ② The plaintiff may recognize the fact that the plaintiff filed a report by appropriating the processed expenses, such as pharmaceutical products and card entertainment expenses,

B Of the global income tax base for 2011, the Plaintiff submitted a certificate of bona fide return to the effect that the Plaintiff faithfully verified the amount of income according to the account books and documentary evidence kept by the business entity without verification of evidentiary data regarding KRW 692,375,096, among the global income tax base for 2011. It is also true in the Income Tax Act to contribute not only to protecting taxpayers’ rights and interests, but also to have taxpayers faithfully fulfill their duty to pay taxes. In this sense, the Plaintiff submitted a certificate of bona fide return to the effect that a certified tax accountant prepares and submits a certificate of bona fide return. The Plaintiff’s submission of a certificate of bona fide return to the effect that he/she faithfully verified necessary expenses is insufficient to deem that the Plaintiff’s failure to faithfully perform his/her duty and faithfully fulfilled his/her duty to pay taxes falls under the case of failure to verify necessary expenses, even though he/she did not perform his/her duty as a certified tax accountant, and thus, it is difficult to deem that the Plaintiff’s failure to faithfully perform his/her duty to submit documentary evidence.

Therefore, the plaintiff's assertion on this part is rejected.

(b) Whether a disciplinary decision is appropriate.

1) The plaintiff's assertion

The Regulations on the Punishment of Certified Tax Accountants, which is merely a discretionary rule, are merely a single disposition standard, and not necessarily comply with it, and the failure to publish a disciplinary decision constitutes a violation of Article 20 (1) of the Administrative Procedures Act as an infringement on the plaintiff's right to know.

Although there is a real transaction, if only a tax invoice is received from another business operator, it should be excluded from the amount of false violation. In addition, in the light of other disciplinary cases, the instant disposition is contrary to the principle of equity.

In December 26, 2011, it would result in infringing the plaintiff's trust interest and retroactively applying the amended provisions to the extent that a disciplinary measure can be mitigated only when a certified tax accountant's disciplinary award was given within ten years from the date of the disciplinary decision.

2) Determination

Where the Certified Tax Accountant Disciplinary Committee makes a resolution on a disciplinary action against a certified tax accountant pursuant to Article 17 of the Certified Tax Accountant Act, the provisions on disciplinary action against a certified tax accountant, which set the standards for disciplinary action, are established on the basis of the exercise of discretionary authority in light of the form and content thereof, are stipulated as follows: (a) under Article 20 of the Administrative Procedures Act, allowing an administrative agency to specifically determine and publicly announce necessary disposition standards to the extent that such a disposition may be deemed in light of the nature of the pertinent disposition; and (b) where the publication of disposition standards is considerably difficult in light of the nature of the pertinent disposition or where there are reasonable grounds that such a determination may undermine the public safety and welfare. Considering the nature of the disposition, where it is more appropriate to grant an administrative agency a discretionary authority to ensure that a flexible disposition is made by taking into account the individual

The Regulations on the Punishment of Certified Tax Accountants provide that a disciplinary measure may be taken flexibly in consideration of individual circumstances in a specific case by granting discretion to a disciplinary measure within a certain scope as a discretionary standard without any external binding force, and thus, it does not constitute an infringement on the plaintiff's right to know or a violation of Article 20 (1) of the Administrative Procedures Act merely because the Regulations on the Punishment of Certified Tax Accountants are not disclosed.

Since setting the criteria for the determination of disciplinary action against a certified tax accountant belongs to the discretion of an administrative agency, it is difficult to regard the disposition in accordance with the discretionary rules as unlawful, unless it is deemed that the discretionary rules, which are the criteria, objectively unreasonable and unreasonable, abuse of discretionary power.With respect to violations such as improper bookkeeping, it is difficult to view that the regulations on the disciplinary action against a certified tax accountant stipulate the suspension period of duties and the amount of a fine for negligence based on the amount of false confirmation, and that it is reasonable to maintain the propriety of disciplinary action.

Article 2(1)3 of the Disciplinary Punishment Act provides that the standard for determining the amount of tax evasion caused by false bookkeeping shall be at least 50 million won, but not exceeding 10 million won, for two months from the date of suspension of duty or for five million won from the date of report (Article 2(1)3); the standard for determining the amount of tax evasion caused by false bookkeeping shall be two years from the date of suspension of duty (Article 2(1)5); and the standard for determining the amount of a fine for negligence shall be two years from the date of suspension of duty if the amount of tax evasion caused by false bookkeeping is at least 50 million won (Article 2(1)5); the amount of a fine for negligence determined as the standard for disciplinary action shall be applied concurrently with the suspension of duty if the amount of tax evasion caused by false bookkeeping becomes the object of disciplinary action; the amount determined as the standard for determining the amount of a fine for negligence determined as the standard for 50 years from the date of report; and the amount determined as the standard for calculating the amount of a fine for negligence to be additionally determined as at least 1300 years from the date of report.

Based on the amount stated in the certificate of bona fide return prepared by the Plaintiff, the standards for disciplinary action should be determined based on the amount stated in the certificate of bona fide return prepared by the Plaintiff, and the amount of expenses recognized by the tax authority after the tax investigation cannot be deducted. Therefore, the amount of false verification, which becomes the basis for disciplinary action, is KRW 692,375,096. Although the Plaintiff failed to prove the existence or absence of the amount stated in the certificate of bona fide return, the Plaintiff is also a certified tax accountant who prepared a certificate of bona fide return, and the duty to verify whether the amount of documentary evidence submitted by the Plaintiff constitutes a qualified documentary evidence, and thus, the amount of false verification cannot be determined separately as alleged by the Plaintiff. The Defendant determined the minimum amount of a fine for negligence of KRW 5 million and one year, which is the one-year period for disciplinary action applied based on the amount of tax evasion and false verification. In light of the Plaintiff’s intent to submit a certificate of bona fide return, it is difficult to deem the instant disposition to be excessively infringed upon the Plaintiff’s interest and thus violated the principle of proportionality (In light of the fact inquiry to the Association.

As seen earlier, since the Regulations on the Punishment of Certified Tax Accountants stipulate discretionary rules, the period during which disciplinary mitigation, etc. can be given through commendation, etc. may also be determined as the discretion of an administrative agency. However, it is not deemed reasonable to set a ten-year period. In light of this, it is difficult to deem that applying the Regulations on the Punishment of Certified Tax Accountants that reduces disciplinary punishment only when a person receives an official commendation within 10 years from the date of resolution on disciplinary action to be disadvantageous to

C. Whether the instant disposition goes against the good faith principle

The Plaintiff asserts that the disposition of this case is contrary to the good faith principle, since the Central and Medium Regional Tax Office reviewed the Plaintiff’s disciplinary action at the time of audit by the Board of Audit and Inspection in May 2014, and did not request disciplinary action, and trust that the Plaintiff’s disciplinary case was terminated due to the failure to request disciplinary action even in January 2015.

However, in addition to the purport of the entire argument in the statement in Eul evidence No. 8, the Central Tax Office received evidence related to the disciplinary action from the plaintiff around May 2014, and around January 2015, it may recognize the fact that the Central Tax Office sent the written answer to the plaintiff for the purpose of factual verification, and without any difference from the fact, signed the written answer to the plaintiff for the purpose of factual verification. Such fact alone does not lead to the lack of internal recognition of the plaintiff's intentional nature, and it is difficult to see that the Central District Tax Office decided not to punish the plaintiff, or that the plaintiff knew the plaintiff externally, as it does not fall under the grounds for disciplinary action, and it is difficult to see that the plaintiff has justifiable grounds to believe that the disciplinary case is terminated.

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

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.