early 209west2604 ( December 10, 2010)

The original disposition is legitimate because it fails to present evidentiary documents proving that there has been a real service transaction.

It is difficult to view that there was a service transaction only by the tax invoice, and the plaintiff is legitimate in the initial disposition of taxation and bonus disposition on the ground that it is not clear whether there was a service transaction, and there was no objective data to prove it, even though the plaintiff did not submit at all the service contract or service report that proves that the service was actually provided.

2011Guhap757 global income and revocation of disposition

Won XX

Head of Mapo Tax Office

May 1, 2012

May 17, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 000 on April 3, 2009 against the Plaintiff on April 3, 2009 shall be revoked.

1. Details of the disposition;

A. Nonparty XX Co., Ltd. (hereinafter referred to as "non-party Co., Ltd.") was established on July 16, 2003 and run management consulting business, etc. on December 31, 2003, and the non-party Co., Ltd. (hereinafter referred to as "OO") is a corporation established on April 25, 200 and is engaged in management consulting business, real estate development business, etc. as a representative director.

B. The Defendant confirmed that the Plaintiff omitted sales of KRW 00 in total of the supply value of KRW 100 in the year 2004 and the supply value of KRW 000 in the year 2004 in return for the return of the corporate tax for the business year 2004, and notified the director of the regional tax office having jurisdiction over the non-party company, of the above taxation data. The Defendant confirmed that the non-party company supplied the O with consulting services related to the cargo terminal site development project in Seocho-gu Seoul, Seoul, the supply value of KRW 00 in Jan. 13, 2004 and the sales tax invoice of KRW 00 in the same month.

C. Accordingly, the head of the regional tax office imposed value-added tax on the omitted portion of the sales, on the other hand, on the grounds that the income amount of the non-party company cannot be calculated by books or documentary evidence, and calculated the estimated income amount of KRW 00 by applying the standard expense rate under Article 145 of the Enforcement Decree of the Income Tax Act to the non-party company pursuant to the proviso of Article 66 (3) of the former Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008; hereinafter the same shall apply) and Article 104 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21302 of Feb. 4, 2009; hereinafter the same shall apply). On September 10, 2007, the head of the regional tax office corrected and notified the non-party company of KRW 200 as corporate tax for the business year 204, which is the representative director of the non-party company, and notified the non-party company of the amount of bonus income accrued.

C. On December 14, 2007, the non-party company appealed and filed a request for review with the Commissioner of the National Tax Service on March 28, 2008. On August 26, 2008, the Commissioner of the National Tax Service rendered a decision to dismiss the remainder of the request for review by deeming the Plaintiff as the de facto representative of the non-party company. Pursuant to Article 106(2) of the former Enforcement Decree of the Corporate Tax Act, pursuant to Article 106(2) of the former Enforcement Decree of the Corporate Tax Act, the director of the regional tax office disposed of the above KRW 00 as the bonus belonging to the plaintiff who is de facto representative of the non-party company and notified the non-party company of the change

D. Accordingly, on April 3, 2009, the Defendant imposed and notified the Plaintiff of KRW 000 of the global income tax for the year 2004 (hereinafter “instant disposition”).

E. On June 26, 2009, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but was dismissed on December 10, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 2-1, Eul evidence 1, 11, and 12-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The non-party company awarded a subcontract to the △△ Construction Co., Ltd. (hereinafter referred to as the “△△ Construction”), and received a purchase tax invoice after paying KRW 000 out of the service price received from the O on January 13, 2004 as the subcontract price to the △△△ on the same day. Thus, the above 000 won should be recognized as the purchase cost deducted at the time of the above estimate determination of the non-party company, and the above 00 won should be considered as the purchase cost, and the above subcontract transaction between the non-party company and the △△△ Construction (hereinafter referred to as the “instant subcontract transaction”) should be deemed as the processing transaction, and the disposition of this case was made without recognizing it.

2) Even if not, it is evident that 00 won out of the amount omitted from sales was deposited into a bank account for △△ Construction and reverted to △△ Construction. Thus, the disposition of this case is unlawful against Article 106 of the former Enforcement Decree of the Corporate Tax Act, deeming that the said amount belongs to the above amount is unclear.

3) In addition, the non-party company paid KRW 000 to the non-party, who is an executive officer or employee of the company in 2004, KRW 000 to ED, and KRW 000 to EE, so the above total amount paid as benefits shall be deemed as the personnel expenses to be deducted at the time of the determination of the above estimation for the non-party company, and the corporate tax base should be calculated.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) At the time of incorporation, the non-party company was established with management consulting business on July 16, 2003, and real estate development and consulting business for its business purposes, and the SongCC was registered as representative director, the plaintiff and Edddiaries, and ParkF as auditor respectively. However, the plaintiff actually managed the non-party company. Of the total issued shares of the non-party company, the SongCC owned 10%, Eddia 80%, Eddi, and ParkF respectively, and 5% of the total shares of the non-party company.

(1) On July 30, 2003, 203, 2004, 2004, 2000, 2000, 2000, 2000, 300,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,0000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000,00.

4) On January 13, 2004, the non-party company received KRW 000 from O to the Industrial Bank of Korea account of the non-party company, and remitted KRW 000 to one bank account of △△ Construction on the same day (hereinafter “the bank account of this case”). Thereafter, the non-party company collected KRW 000 on the same day from the bank account of this case, KRW 000 on the same day, KRW 00 on the 15th day of the same month, KRW 000 on the 28th day of the same month, and KRW 000 on March 29, 2004.

(1) The balance of the bank account of this case was 0 won on January 13, 2004 and the other money was deposited on March 29, 2004 after deposit of 000 won on the same day.

5) Meanwhile, on January 13, 2004, the non-party company issued to theO a tax invoice of KRW 000,000, and on January 26, 2004, a tax invoice of KRW 000,000, respectively.

6) The non-party company did not report the above 00 won, which was remitted to the bank account of △△ Construction when reporting the value-added tax on the first quarter of 2004, as input tax amount, and the △△ Construction also did not declare the above 000 won as output tax amount and income amount when declaring the first quarter value-added tax in 2004 and the corporate tax in 2004.

7) Meanwhile, △△ Construction was established on July 18, 2003 and engaged in sales agency and real estate consulting business, and closed on December 9, 2005. The sales amount in 2004 is KRW 000 and the purchase amount is equivalent to KRW 000.

[Ground of recognition] Facts without dispute, Gap 2 and 3 evidence 1, 2, Eul 3, 5, 6, 8, 9, 10 evidence , Eul 4-1 and 2, each fact fact finding, Gap 2 and 3 evidence, and the purport of the whole pleadings.

D. Determination

1) The tax authority has the burden of proving the legality of taxation, so the burden of proving the amount of expenses to be included in deductible expenses, which are the basis for determining the amount of corporate tax, is also imposed on the tax authority in principle. However, if it is reasonable to have the taxpayer prove the amount of expenses in consideration of the parties' equity, etc., the burden of proving the amount of expenses should be returned to the taxpayer (see, e.g., Supreme Court Decisions 91Nu10909, Jul. 28, 1992; 2002Du1588, Sept. 23, 2004). In this case, there are no books or evidentiary documents, and it is reasonable to deem that the purchase cost to be deducted from the revenue pride in the calculation method of corporate tax base and the amount of tax (the cost equivalent to the fee paid through the service transaction in this case) and the labor cost for the executives and employees of each of the above facts favorable to the plaintiff, who is the taxpayer, and that most of the above expenses are within the control of the plaintiff.

2) Determination on the first argument

In light of the above legal principles, as to the Plaintiff’s assertion on this part, the instant disposition that was made without deducting the above KRW 00 in the cost of calculating the corporate tax estimate for the business year 2004 against the non-party company is lawful, and the Plaintiff’s above assertion is without merit. The Plaintiff’s assertion is without merit. The Plaintiff’s assertion is without merit.

① In light of the fact that the non-party company did not report 00 won, which was sent to the bank account of △△ Construction in the first quarter of 2004, as input tax amount related to the service transaction of this case, and that the non-party company did not report 100 won as output tax amount and revenue amount at the time of filing a tax return for the first quarter of 2004 history of △△ Construction and the business year of 2004, and that the Plaintiff did not present reasonable grounds to consent to the omission of each tax return, it is difficult to view that the tax invoice (Evidence A No. 4) issued by the non-party company with the supplier as △△ Construction and the supply value of △△△ Construction as KRW 00,000,000, which was issued by the non-party company (the above tax invoice seems to have been prepared in preparation for tax to be imposed in relation to the service sales provided by the non-party company to O).

② The Plaintiff is able to prove that the Nonparty Company was actually provided with the instant service transaction from △△ Construction, or the service report, etc. submitted by △△△△ Construction, and there is no clear and objective data to prove that △△ Construction provided any service to the Nonparty Company.

③ In light of the fact that the non-party company opened the bank account in this case of △△ Construction, including the withdrawal of KRW 000 on the deposit day of △△△ Construction, the withdrawal of almost 15 days (00 won), and there was no pride in the transaction between the two months and the withdrawal of the last 00 won, and that there was no clear difference in the usage of the transaction, the deposit of the above money is likely to be a financial transaction to appear to have actually existed. Accordingly, the Plaintiff asserted to the effect that the bank account in this case was managed by △△△△ Construction and the non-party company, one of which was related to the △△△△△ Construction and the commercial construction project in Seoul, Yangcheon-gu, △△△△ Construction and the non-party company, and it is difficult to recognize the above assertion by itself and there is no other evidence to acknowledge it. Rather, the Plaintiff’s assertion that the above bank account in this case was related to the management of the commercial loan and the loan account in this case cannot be accepted as the result of the fact inquiry.

3) Determination on the second argument

In light of the above legal principles, although it is acknowledged that the non-party company was deposited in the bank account in the name of the non-party company as the representative director and that it was deposited in the account under the name of the plaintiff in 2004 with 00 won and 000 won and 000 won were deposited in the account transfer (Evidence A5), it is difficult for the non-party company to report the income tax for the business year 2004 regarding the above payment of 204 funds to the non-party company, and each of the above funds was deposited in the account under the non-party company's name of the non-party company as the non-party company's title, and it is hard to view that the non-party company was not aware of the fact that the non-party company was not the bank account under the non-party company's name, but the non-party company was not the non-party company's employee who was operating the non-party company and the non-party company's OO was the non-party company's payment of wages under the non-party company's title 2.

Therefore, the disposition of this case is legitimate unless the plaintiff's assertion that 200 won of the salary for officers and employees in 2004 is recognized as personnel expenses to be deducted when the estimation is determined. This part of the plaintiff's assertion is without merit.

4) Judgment on the third argument

2) As seen earlier, insofar as the instant service transaction was actually conducted between the non-party company and the △△ Construction, and the service fee of KRW 000 cannot be deemed to have been paid to the △△ Construction, this part of the Plaintiff’s assertion, which is premised on the fact that the said money belongs to the △△ Construction, is without merit, and the bonus disposition against the Plaintiff is not reasonable as a bonus for the representative, considering that it is unclear that the amount reverted to the inclusion in the calculation of the amount of income as a result of an omission in sales pursuant to Article 106(1) of the former Enforcement Decree of the Corporate Tax Act, and it is not disposed of as a bonus for the representative, not as a bonus for the representative, since the amount of income determined by the estimate pursuant to

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.