(영문) 서울행정법원 2018.11.8.선고 2018구합61802 판결

A. The Plaintiff, as a certified tax accountant, was in charge of tax bookkeeping and corporate tax return of a stock company B (hereinafter “B”) from 2012 to 2016.

B. After conducting a tax investigation on corporate tax and value-added tax (hereinafter “tax investigation of this case”) from January 1, 2012 to June 18, 2017 by B from March 23, 2017 to June 18, 2017, the director of the Central Regional Tax Office verified that B omitted corporate tax, etc. by including the processed purchase amount of KRW 6895 million, etc., and the main contents of the report on the completion of the investigation of corporate business entities related thereto are as follows.

1. 인적사항 법인명: B 대표자: C. 조사연도: 2012. 1. 1. ~ 2016. 12. 31. 조사기간:2017.3.23. ~ 2017.6.18. 조사유형: 법인통합조사 1. 업황 차량 시트 및 실내 부착 원단을 가공하여 현대자동차 1차 협력사인 주식회사 D 및 주식회사 E에 전 량 납품하고 있음 ||, 조사성과 (단위: 백만 원, %) IV. 부과예상세액 V. 조사적 내용

A person shall be appointed.

C. On January 31, 2018, the director of the Seoul Regional Tax Office demanded disciplinary action against the Plaintiff pursuant to Article 17 of the Certified Tax Accountant Act, on the ground that “the Plaintiff, except for the portion of corporate tax evasion for the period from 2012 to 2013, for which disciplinary action was imposed against the Plaintiff, was against the Certified Tax Accountant Disciplinary Committee pursuant to Article 12 of the Certified Tax Accountant Act, on the ground that “the Plaintiff, at the time of filing corporate tax return for the pro rata portion from 2014 to 2016, 1.523 billion won, appropriated the non-Evidence expenses, and made the Plaintiff evade corporate tax evasion equivalent to KRW 3.4 million (hereinafter “instant disciplinary action”).

D. On March 23, 2018, the Certified Tax Accountant Disciplinary Committee decided to suspend one-year suspension of practice against the Plaintiff, and the Defendant issued a disposition of suspension of practice against the Plaintiff for one year (from May 1, 2018 to April 30, 2019) pursuant to Article 17(1) of the Certified Tax Accountant Act, etc. on March 28, 2018 (hereinafter referred to as “instant disposition”). [Grounds for Recognition] In the absence of dispute, the Plaintiff’s statements in subparagraphs 1 and 2, and in subparagraphs 1 through 4, and the purport of the entire pleadings, as a whole.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

1) The Plaintiff’s clerk F filed a tax return, receipt, etc. related to B, and F did not inform the Plaintiff of the fact while filing a tax return, etc. B, and thus, it is difficult to deem that the Plaintiff breached its duty of good faith. The Plaintiff is only responsible for guidance and supervision with respect to F, who is an clerk.

applicable to this section.

2) The Plaintiff was only responsible for guidance and supervision over F, and did not perform tax affairs in good faith. The Plaintiff did not commit any misconduct before engaging in tax affairs for 17 years. The instant disposition is a disposition that deviates from and abused discretionary authority, since it is apprehended that the Plaintiff would lose its customers secured by the instant disposition.

B. Relevant statutes

It is as shown in the attached Form.

1) With respect to the instant tax investigation, the Plaintiff stated in the Central Regional Tax Office on June 9, 2017 as follows.

문 : 귀하는 2012 사업연도부터 2016 사업연도까지 B의 기장대행 및 신고대리 업무를 수행한 사실이있는지요.답 : 네문 : B에 대한 법인사업자 통합조사 결과 2012 사업연도 1,083백만 원, 2013 사업연도 1,663백만원, 2014 사업연도 1,843백만 원, 2015 사업연도 2,038 백만 원, 2016 사업연도 1,081백만 원 등 5개사업연도 동안 총 7,708백만 원의 가공비용을 계상하여 법인세 등 관련 세금을 탈루한 것으로 확인되었습니다. 귀하는 B의 장부를 기장하면서 가공비용을 계상한 사실을 알고 있었는지요.답 : 가공이라는 사실을 알면서 경비를 계상하지는 않았습니다.문 : B의 2012 사업연도 법인세 신고시 G 외 12인으로부터 463백만 원의 소모품을 매입한 것으로 하여 소모품비(제조원가) 463백만 원, 소모품비 (판매비와 관리비) 20백만 원을 계상하였고, H 외 9인에게 외주가공비 530백만 원을 지급한 것으로 하여 외주가공비(제조원가) 530백만 원을 계상하였고,주식회사 동화 |으로부터 원재료 75백만 원을 매입한 것으로 하여 당기재료 입액 (제조원가) 75백만원을 계상하였고, 소득조정항목으로 하여 접대비 (판매비와 관리비) 15백만 원을 계상하였습니다. 귀하는 어떤 자료에 근거하여 소모품비 등 1,083백만 원을 계상하였는지요.답 : 잘 기억은 나지 않지만 C사장님이 제출한 근거자료에 의하여 기장을 하였습니다.문 : 소모품비 (제조원가) 계상 액 중 거래처 F 7백만 원이 계상되어 있는데, F은 귀하가 운영하는 세

무사사무실의 직원으로 알고 있습니다. F이 거래처로 계상된 이유는 무엇인가요.답 : 잘 기억이 나지 않습니다.문 : B의 2013 사업연도 법인세 신고시 J 외 14인으로부터 1,663백만 원의 외주가공비를 지급한 것으로 하여 외주가공비 (제조원가) 1,663백만 원을 계상하였습니다. 귀하는 어떤 자료에 근거하여 외주가공비 1,663백만 원을 계상하였는지요.현금으로 지급하였다는 C 사장님의 현금출금 자료제시에 근거하여 기장하게 되었습니다.B는 2013년 귀속분 J 외 1인에 대한 사업소득 지급명세서 48백만 원, K 외 1인에 대한 기타소득 지급명세서 185 백만 원을 제출하였습니다. 지급명세서 제출과 관련하여 실제 이들예게 소득이 지급되었는지 확인해 보셨나요.답 : 실제 지급되었는지는 확인하지 못하였습니다,문 : 사업소득 및 기타소득지급명세서는 C 사장님이 요청해서 하신건가요,C 사장님이 제출하신 근거자료에 의해 신고하였습니다.문 : B의 2014 사업연도 법인세 신고시 L 외 12인으로부터 1,642백만 원의 외주가공비를 지급한 것으로 하여 외주가공비 (제조원가) 1,642백만 원을 계상하고, 비로부터 131백만 원의 원재료를 매입한것으로 하여 당기재료 매입액 (제조원가) 131백만 원을 계상하고, F에게 수수료 70백만 원을 지급한것으로 하여 지급수수료 (판매비와 관리비) 70백만 원을 계상하였습니다. 귀하는 어떤 자료에 근거하여 외주가공비 등 1,843백만 원을 계상하였는지요.답 : 현금으로 지급하였다는 C 사장님의 현금출금 자료제시에 근거하여 기장하게 되었습니다.문 : B는 2014년 귀속분 J 외 12인에 대한 사업소득 지급명세서 315백만 원, F에 대한 기타소득 지급명세서 70백만 원을 제출하였습니다. 지급명세서 제출과 관련하여 실제 이들에게 소득이 지급되었는지 확인해 보셨나요.답 : 실제 지급되었는지는 확인하지 못하였습니다.문 : 지급수수료 (판매비와 관리비) 계상액 중 거래처 F 70백만 원이 계상되어 있는데, F은 귀하가운영하는 세무사 사무실의 직원으로 알고 있습니다. F이 거래처로 계상된 이유는 무엇인가요.답 : 잘 모르겠습니다.문 : 2014년 거래처 M로부터 수취한 매입세금계산서 683 백만 원은 실제 재화 또는 용역의 공급 없이수취한 거짓 세금계산서로 확인되었습니다. M로부터 수취한 매입세금계산서가 거짓 세금계산서라는 사실을 알고 있었는지요.답 : 아니오, 몰랐습니다.문 : B의 2015 사업연도 법인세 신고시 L 외 10인으로부터 750백만 원의 사업소득수당을 지급한 것으로 하여 일용급여 (제조원가) 750백만 원을 계상하고, M 외 1개 업체로부터 1,253 백만 원의 외주가공비를 지급한 것으로 하여 외주가공비 (제조원가) 1,253백만 원을 계상하고, N 외 1인에게 수수료35백만 원을 지급한 것으로 하여 지급수수료 (판매비와 관리비) 35백만 원을 계상하였습니다. 귀하는어떤 자료에 근거하여 일용급여 등 2,038백만 원을 계상하였는지요.

I have received 1 million won in cash: B. 80 million won in the actual tax invoice for the business income belonging to 14 other than 2015, and 35 million won in the statement of other income. It was not confirmed that the actual income has been paid to them in connection with the submission of the statement of payment: 00 won in the actual tax invoice. 00 won in the real tax invoice of 60 won in the real tax invoice of 400 won in the real tax invoice of 6: 40 million won in the real tax invoice of 100 won in the real tax invoice of 60,000 won in the real tax invoice of 60,000 won in the real tax invoice of 6: 4,000 won in the real tax invoice of 60,000 won in the real tax invoice of 60: 4,000 won in the real tax invoice of 10,000 won in the real tax invoice of 60,000 won in the real tax invoice of 200.

2) The main contents of the investigation into disciplinary requirements for certified tax accountants prepared around December 2017 in the course of disciplinary investigation against the Plaintiff are as follows.

A corporation subject to investigation on standardized terms and conditions (B) confirms that 2,35 million won through the receipt of a false tax invoice and 1,474 million won through the submission of a false statement of payment, and 3,296 million won for processing expenses appropriated without evidence, and 7,125 million won for processing expenses (unit: KRW 2,000,000) through false tax invoice receipt is included in the cost based on the tax accounting book, which is the legal document received by the corporation subject to investigation, and the tax agent has no choice but to trust and keep the data submitted by the corporation subject to investigation. Thus, the act of 00 won through false statement of payment is not attributable to 1,35 million won for the taxpayer, 2,000 won for processing expenses, 3,000 won for processing expenses, 2,000 won for processing expenses for each tax agent and 3,000 won for processing expenses, 2,000 won for processing expenses for each tax agent and 3,000 won for processing expenses for each tax agent.

○ A corporation subject to investigation shall include processing fees of KRW 1,523 million in the corporate tax return for the business year from 2014 to 2016 to omission of corporate tax 30,400,000 won - The ground for the determination of processing costs, such as the cost of outsourcing processing, and the submission of false statement of payment: 6.8 million won by the corporation subject to investigation to receive the records of accounting such as the head of the account and the opening of the account book from the corporation subject to investigation; 8.5 million won in the absence of evidentiary documents; 6.6.5 million won in the absence of evidentiary documents from the corporation subject to investigation to verify whether it has been appropriated as the income and other income as the income of the corporation; - The Plaintiff may request the representative director of the corporation subject to investigation to submit evidentiary documents, such as cost of processing, which is related to the cost of processing, which is not verified by the corporation subject to investigation to the extent that it does not know that it has already been presented to the corporation’s account subject to investigation.

3) The main contents of a review of the requirements for disciplinary action against a certified tax accountant prepared around January 2018 in the course of disciplinary investigation against the Plaintiff are as follows.

2. Non-compliant bookkeeping (Article 12 [Duty of Good Faith] 4. Investigation (unit: 8 million won) * The omission amount of x 20 million won + 20% x 20 million won + 20% x 20 million won x 20 million won x 205 million won for business year 2012, 2013, and 281 million won for 205 million won as a result of the review of the 2014-2016-16-2000 won of the 60-2016-2000 won of the 306-1,000 won of the 306-1,000 won of the 60-1,000 won of the 360-2,000 won of the 31,000 won of the 360-1,000 won of the 31,000 won of the 200-1,000 won of the 31.

A person shall be appointed.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 2, 6 and 7, purport of the whole pleadings

D. Determination

1) Determination on the first argument

A) Article 17(1)1 of the Certified Tax Accountant Act provides that "Where a certified tax accountant violates this Act, the Minister of Strategy and Finance may order disciplinary action according to a resolution of the Certified Tax Accountant Disciplinary Committee," and Article 12(1) provides that "a certified tax accountant shall perform his/her duties in good faith and maintain dignity."

On the other hand, the duty of good faith is the most fundamental and important duty imposed on a certified tax accountant, and the duty of good faith shall be performed in good faith by performing the duty of conscience and conscience.

(2) The lower court determined that the Plaintiff was aware of the facts alleged in the ground of appeal on the ground that the Plaintiff was aware of the facts charged.

B) In light of the following circumstances, the above fact of recognition added to the purport of the entire pleadings, it is difficult to view that the Plaintiff’s calculation of the specific details of the expenditure for processing costs or processing costs without verification of eligibility evidence related to the representative director B or the clerical staff employed by the Plaintiff constitutes a violation of good faith, since it cannot be deemed that the Plaintiff faithfully performed his duties with good faith and conscience in performing his duties. Accordingly, this part of the Plaintiff’s assertion is without merit.

(1) A certified tax accountant is obligated to verify matters concerning representation for a return on taxes, preparation of books on behalf of others for a return on taxes, preparation of books on taxes, etc. (Article 2 of the Certified Tax Accountant Act); a certified tax accountant shall employ clerks to assist the proper performance of his/her duties (Article 12-5 (1) of the Certified Tax Accountant Act); and where a certified tax accountant acts as an agent for a return on taxes, matters concerning expenses, etc. In particular, as in this case,

The plaintiff, a tax specialist of public nature, who is a tax accountant required to protect the rights and interests of taxpayers and to faithfully fulfill his tax liability, has a duty not to include the expenses, even if the representative director's request for appropriation of expenses, but the plaintiff has a duty not to include the expenses, but has inevitably appropriated such expenses at the request of the representative director C of B.

② The Plaintiff asserted that F did not inform the Plaintiff of F when filing a tax return, etc., that it is difficult to deem that the Plaintiff breached its duty of care in good faith, and that F is only responsible for guidance and supervision with respect to F, who is an office worker. However, as seen earlier, the office worker is obligated to verify expenses appropriated as assisting the Plaintiff in the appropriate performance of duties of a tax accountant. Even if the Plaintiff did not participate in the return of the corporate tax, etc., the Plaintiff is at least obligated to verify expenses incurred in appropriate supervision with respect to the office worker’s business, and if the Plaintiff is only responsible for guidance and supervision as alleged by the Plaintiff, the purport of the tax accountant system aimed at facilitating smooth performance of tax administration and appropriate performance of duties is likely to be eliminated.

2) Judgment on the second argument

A) The main text of Article 2(1) of the Regulations on Disciplinary Action on Certified Tax Accountants (hereinafter referred to as the "Regulations on Disciplinary Action") provides that "a person who violates the duties of a certified tax accountant under Article 2 of the Act and the duty of good faith under Article 12 of the Act shall be determined according to the following subparagraphs," and where "in the case of "weapon 300 million or more of evaded tax amount" under subparagraph 3(a), "in the case of "weapon 300 million or more of evaded tax amount", "one year of suspension of duties"

On the other hand, when a disciplinary measure is taken against a disciplinary measure against a person subject to the disciplinary measure who is a certified tax accountant, the disciplinary measure is placed at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is illegal only when it is recognized that the person having authority to take the disciplinary measure has abused the discretion assigned to the person having authority to take the disciplinary measure because the disciplinary measure as the exercise of the discretionary

In order for a disciplinary measure against a certified tax accountant to have remarkably lost validity under the social norms, the disciplinary measure should be determined based on the following: (a) the content and nature of the misconduct causing the disciplinary measure; (b) the administrative purpose that the person intends to achieve through the disciplinary measure; and (c) the criteria for the determination of the disciplinary measure (see, e.g., Supreme Court Decisions 97Nu14637, Nov. 25, 1997; 2012Du10895, Oct. 11, 2012). In addition, barring any special circumstance, where the person having an authority to take an internal disciplinary measure determines the criteria for a disciplinary measure and takes a disciplinary measure accordingly, the relevant disciplinary measure has remarkably lost validity under the social norms, barring any special circumstance, such as where the criteria for a disciplinary measure determined is unreasonable (see, e.g., Supreme Court Decision 201Du13767, Oct. 11, 2011).

B) In full view of the following circumstances, the above fact-finding, which is recognized by adding together the purpose of the entire pleadings, cannot be deemed to have been abused or abused discretionary power because the defendant's disposition of this case significantly lacks validity compared to the degree of the misconduct, or is objectively unreasonable. Thus, the disposition of this case is lawful, and the plaintiff's assertion in this part is without merit.

① The Plaintiff did not verify whether the amount of corporate tax, etc. was actually disbursed and appropriated as proxy from 2012 to 2016, and accordingly, included processing costs or processing costs without verification of eligibility related to the representative director B or the clerical staff employed by the Plaintiff. From 2014 to 2016, the costs of which were KRW 1.523 billion and the tax evasion amount exceeded KRW 3.4 billion, and thus, it is difficult to deem that there is little possibility of criticism against the Plaintiff.

② In the process of disciplinary investigation against the Plaintiff, the amount appropriated B as processing expenses from 2012 to 2016 was KRW 7.125 million, but the period of prescription for the processing expenses from 2012 to 2013 was imposed, and the portion on which payment records exist among the portion for which tax invoices were issued or the representative director of B or the processing expenses not related to the Plaintiff’s employees were not included in the grounds for disciplinary action. The aforementioned details are as follows: (a) even though the expenses are included in the expenses for the representative director or the Plaintiff’s office employees and there are no evidentiary materials, it is difficult to view that the Plaintiff’s violation of its duty was included in the expenses at the request of the representative director B and filed the report, and the degree of violation of its duty is insignificant. In light of the determination of disciplinary action against other tax accountants, it is difficult to deem the instant disposition as a disposition contrary to equity.

③ According to the provision on a disciplinary decision, a disciplinary decision shall be determined from one year of suspension of duties to two years of suspension of duties, in a case where the amount of tax evasion is at least 300 million won due to defective bookkeeping (Article 2(1)3 (a) of the main sentence of Article 2(1)). Therefore, it cannot be deemed that the pertinent disposition violates the

④ Even if the Plaintiff did not have been subject to disciplinary action while engaging in tax affairs for 17 years, the public interest, such as the establishment of a tax accountant system, in order to promote a smooth tax administration and a proper implementation of tax liability, to be achieved through the instant disposition, cannot be said to be small compared to the disadvantage that the Plaintiff would suffer due to the instant disposition.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.