Seocho 2014west 4865 (2015.06)

There is no violation of the principle of taxation based on evidence, such as a written confirmation, because it is reasonable and correct.

In addition to the confirmation document, the delegation contract is prepared in the course of investigation or investigation, and the authenticity is recognized, and all taxation data are recognized to be reasonable and correct, so there is no violation of the principle of taxation based on evidence.

Article 39 of the Income Tax Act, year to which the total amount of income and necessary expenses are reverted.

Article 80 of the Income Tax Act shall be decided and corrected.

2015Guhap7746

○ ○

○ Head of tax office

May 17, 2016

June 9, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of global income tax on 2008 against the Plaintiff on ○○○ on 2014. ○○ on 2008 is revoked.

1. Details of the disposition;

A. The delegation contract of this case

1) From October 2006 to October 2007, the ○○ regional tax office: (a) conducted a special tax investigation with respect to Kim○ and Tae-○ Co., Ltd. operated by Kim○ as the representative director; (b) deemed Kim○ to have omitted gift tax; and (c) sent the gift tax assessment data to the head of the ○○ Tax Office. Accordingly, the head of the ○○ Tax Office: (a) imposed a gift tax on Kim○ on Kim○; (b) imposed a gift tax on the ○○○○ on the ○○○ on the ○○ on the ○○ on the ○○on on the 2007.

2) The Plaintiff was a certified tax accountant operating ○○ Tax Accounting Office in ○○○○ Dong, ○○○○○, from October 2000 to ○○○○○, and was delegated with the duty of objection to the imposition of the gift tax in this case from the agent A of ○○ on April 2007 (hereinafter referred to as the “instant delegation contract”), and drafted a contract with the following contents (hereinafter referred to as the “instant delegation contract”).

3) After the delegation contract of this case, the "date of appeal" set forth below in the Tax Tribunal is stated.

A request for a trial was received in the name of Kim○○○ with respect to the pertinent disposition stated in the “object of Appeal”, and the Tax Tribunal made a decision to refund the money recorded in the “amount of refund” among the disposition imposing the gift tax of this case on the corresponding date stated in the “Date of Decision” (hereinafter referred to as the “instant request for a trial and decision”).

4) Of the letter of delegation form of the second tax appeal, each of the letter "Mag-○" was printed in the letter of delegation form, and the name of each of them was affixed on the right side.

5) Meanwhile, Kim○-○ paid to the Plaintiff the starting amount of KRW 200 million under Article 6(1) of the Agreement through the wife B on the date of the formation of the instant delegation contract (hereinafter referred to as “the starting amount”), KRW 400 million (hereinafter referred to as “the intermediate payment of this case”), and KRW 400 million (hereinafter referred to as “the balance of this case”) directly paid to the Plaintiff on October 2009 by the principal on the part of the Plaintiff (hereinafter referred to as “each of the above amounts”) (hereinafter referred to as “the balance of this case”).

B. Disposition of this case

1) The ○○ Central District Prosecutors’ Office from March 201 to March 201, i.e., the suspicion of good offices by the Plaintiff and ○○○○.

In relation to the case of the first and second tax appeal from Kim○-○, the Tax Tribunal investigated whether the intermediate payment and the balance of the public officials belonging to the Tax Tribunal have been received (hereinafter referred to as the "investigation of this case") with respect to the referral of the matters belonging to the duties of the public officials belonging to the Tax Tribunal, but decided not to prosecute on October 2013.

2) After that, on April 2013, 201, ○○○○ submitted the following confirmations from ○○ in the course of investigating tax accounting corporations A, and around that time, the instant delegation contract and the instant investigation data were also secured.

3) In light of the terms and conditions of the instant delegation contract, written confirmations, and the investigation data of this case, the head of ○○○○○ notified the Plaintiff to the head of ○○○ Tax Office on or around October 2013. The head of ○○○○ Tax Office notified the Plaintiff of the data for taxation regarding the intermediate payment and the balance. As to the intermediate payment of this case, the head of ○○ Tax Office received KRW 400 million from the Plaintiff in 2008, deeming that the Plaintiff received KRW 400 million from the intermediate payment of this case, and notified the Defendant of the data for taxation by taking the amount of KRW 00 million after deducting KRW 00 million from the amount of revenue already reported by the Plaintiff as the omitted data.

4) On April 2014, the Defendant issued a correction and notification of the global income tax amounting to ○○○○○ in relation to the intermediate payment of this case to the Plaintiff (hereinafter “instant disposition”).

(c) Procedures of the previous trial;

The Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal on October 2014, but was dismissed on October 2015.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① After entering into the delegation contract of this case, the Plaintiff received KRW 400 million in the intermediate payment of this case through Kim○○, the south of Kim○○, through Kim○○, but thereafter, returned KRW 00 million to Kim○○, upon the demand of A, to the effect that he received money from Kim○○. In addition, the Plaintiff agreed upon and rescinded the part of objection to the imposition of gift tax in the delegation contract of this case with Kim○○, and entrusted Kim○, to the ○○○○, the part of objection to the imposition of gift tax in relation to the imposition of gift tax in the instant delegation contract of this case, and the Defendant issued the instant disposition on the sole basis of the confirmation document of this case prepared by O○○○, which was unlawful.

② Even if the income equivalent to the intermediate payment of this case reverts to the Plaintiff, 2007

Since payment was received as remuneration for the agent for the tax investigation conducted by Kim ○, which was terminated in B, the period of attribution ought to be deemed 2007 years from the completion of the above tax investigation rather than the date of receiving the intermediate payment of this case. Therefore, the Plaintiff was deemed to have accrued income equivalent to the intermediate payment of this case on October 2008, and the disposition of this case that was conducted by setting the year 2008 as income reversion year was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the assertion that the underlying taxation principle is violated

In general, when correcting any error or omission in the details of a taxpayer’s tax base and amount of tax, etc. due to an error or omission, it is recognized that the details of a taxpayer’s return are erroneous or incomplete by other data, and where it is possible to conduct an on-site investigation, such other data can also be corrected (see, e.g., Supreme Court Decisions 94Nu149, Jun. 30, 1995; 96Nu1427, Jul. 10, 1998; 2005Du81, May 12, 2005); on the other hand, data prepared in the course of an investigation or tax investigation may not be considered as one of the other data, on the ground that the grounds for taxation can be the basis for taxation; however, it is not prepared against the free will of the parties or related persons; and where it is recognized that the contents of a tax data are reasonable and correct, such other data can be deemed as one of the grounds for the on-site investigation (see, e.g., Supreme Court Decisions 2002Du164, 1607.

However, the defendant issued the disposition of this case based on the delegation contract of this case and the statement of the interested parties at the time of investigation of this case as well as the confirmation document of this case. The delegation contract of this case does not have been prepared in the process of investigation or investigation, and the plaintiff also recognized the authenticity of this confirmation, and in light of the following circumstances that can be known based on the above taxation data, it is recognized that all taxation data of this case based on the disposition of this case are reasonable and correct. Thus, the plaintiff's assertion that the defendant violated the principle of taxation based on the disposition of this case is without merit.

(1) The Plaintiff itself acknowledges the fact that the intermediate payment of this case was received, and the Plaintiff consistently stated that the Plaintiff was paid KRW 400 million of the intermediate payment of this case from the investigative agency to the testimony from this court.

(2) The Plaintiff’s assertion that the part of the delegation contract of this case regarding objection to the imposition of gift tax was rescinded by agreement, and that a new contract was concluded between ○○○○○ and ○○○○○○○○○. (1) does not necessarily require reinstatement agreement at the time of termination of the contract. However, in the event of termination of the contract, only cancellation of the contract without any agreement on the return of the price already paid constitutes an empirical rule-based intermediate payment (see, e.g., Supreme Court Decisions 94Da17093, Sept. 13, 1994; 2006Da2490, Nov. 29, 2007). Such legal principles are the same as in the delegation contract. If the Plaintiff and ○○○○○○○○○○○○○○ was dissatisfied with the delegation contract of gift tax immediately after the conclusion of the delegation contract of this case, it is difficult to accept the Plaintiff’s assertion that the Plaintiff did not have any objection to the imposition of gift tax in the form of an intermediate payment.

(3) In this court, the Plaintiff was aware of the Plaintiff’s receipt of down payment KRW 00 billion under the instant delegation contract and the intermediate payment KRW 000 million from Kim○○○. However, around December 2007, at the time of receiving KRW 00,000 from the Plaintiff, it is merely that the Plaintiff was not paid as part of the down payment under the instant delegation contract at the time of receiving KRW 00,000,000 from the Plaintiff, but later, it is apparent that it was part of the down payment received by the Plaintiff during the check tracking process, and the content of the instant written confirmation is a fact.

(4) The Plaintiff asserts that the intermediate payment KRW 400 million was returned to A several times after receiving the intermediate payment KRW 400 million. However, in light of the fact that Kim○○ stated to the effect that the said money was not known to A during the investigation process of the instant case, the witness A’s testimony partially consistent with the said assertion is difficult to believe, and there is no evidence to deem that the said KRW 00 million was returned to Kim○○.

2) Determination as to the assertion that the period of income attribution was erroneous

Article 39 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) and Article 48 subparag. 8 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008) provide that the date of receipt of the total amount of the business income from the provision of personal services shall be the earlier of the date when the service is paid, the date when the service is paid, or the date when the service is completed

The following circumstances, i.e., the Plaintiff asserted that he received KRW 400 million of intermediate payment of this case under the pretext of remuneration for acting as an agent in the tax investigation of Kim○, which was terminated in the year 2007, although there is some witness A’s testimony in support of the above testimony, in light of A’s statement in the investigation process of this case, it is difficult to believe that the Plaintiff did not submit a contract for acting as an agent in the tax investigation, and the basis thereof is not revealed. In addition, Kim○ was stated in the investigation process of this case that the Plaintiff did not delegate tax agent in addition to the delegation contract of this case (Evidence 5), and ② in the investigation process of this case, the Plaintiff did not assert that the intermediate payment of KRW 400 million was remuneration for acting as an agent in the tax investigation of this case, and the intermediate payment of this case was paid to the Plaintiff around 208, in light of the circumstances that the Plaintiff made a statement about the part payment of intermediate payment of this case to the Plaintiff.

Therefore, the plaintiff's above assertion cannot be accepted.

3. Conclusion

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