Suwon District Court 2006Guhap8496 ( October 10, 2007)

Examination Income 2006-0099 (Law No. 26, 2006)

Whether it is legitimate to dispose of the processed input amount by deeming it as the outflow from the company.

The amount equivalent to the amount on the processing tax invoice shall be included in the calculation of deductible expenses. Therefore, the corporate income equivalent to the amount equivalent to the amount on the tax invoice of this case shall be deemed leaked out of the company, barring any special circumstance.

The contents of the decision shall be the same as attached.

Article 67 of the Corporate Tax Act

1. The plaintiff's appeal is dismissed.

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

Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of global income tax of KRW 27,694,980 on February 10, 2006 against the plaintiff on February 10, 2006.

1. Details of taxation; and

가. 주식회사 ●●●●●(이하, '이 사건 회사'라고 한다)은 2000. 2. 6.경부터 소매 ・ 전자상거래업을 영위하다가 2004. 9. 30. 폐업한 회사이고, 원고는 이 사건 회사의 대표이사로 재직한 자이다.

나. 이 사건 회사는 2003년 제1기분 부가가치세 과세기간 중 2002. 3. 31. 이미 폐업한 주식회사 ◎◎◎◎(이하, '◎◎◎◎'라고 한다)로부터 공급가액 합계 7천만 원의 매입세금계산서 2매(2003. 4. 21.자 공급가액 41,800,000원의 매입세금계산서 및 2003. 5. 19.자 공급가액 28,200,000원의 매입세금계산서. 이하, '이 사건 세금계산서'라고 한다)를 수취하여 위 매입가액의 합계액을 손금에 산입한 후, 2003년도 법인세를 신고하였다.

다. ◎◎◎◎는 2000. 5.경 전자상거래업을 영위할 목적으로 설립되었다가 2002. 3. 31. 관할세무서장인 송파세무서장에 의하여 직권폐업된 회사인데, 송파세무서장은 2005. 3.경부터 ◎◎◎◎에 대한 조사를 벌여 2005. 12.겨 위 회사를 자료상 혐의로 고발하고, ◎◎◎◎의 매출처 중의 하나인 이 사건 회사의 관할세무서장인 서초세무서장에게 그 사실을 과세자료로 통보하였다.

D. The head of Seocho District Tax Office deemed each of the instant tax invoices as the processed tax invoices received without real transactions, and notified the Defendant of the above fact after disposing of the amount of KRW 77,00,000 (the sum of value-added taxes on each supply value) as the recognition of the Plaintiff, in calculating the amount of income for the business year 2003 of the instant company.

E. Accordingly, on February 10, 2006, the Defendant issued a disposition to the Plaintiff on February 10, 2006, stating the Plaintiff’s claim that the Plaintiff imposed the comprehensive income tax in 2003 (hereinafter “instant taxation disposition”) on the total amount of KRW 77,00,000 that was disposed of as above in the Plaintiff’s earned income in 203 as above.

F. On April 11, 2006, the Plaintiff filed a request for examination against the instant disposition with the Commissioner of the National Tax Service, but received a decision of dismissal on July 10, 2006.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 13 evidence, Eul 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the taxation disposition is legitimate

A. The plaintiff's assertion

이 사건 회사는 2003. 2. 21.경 주식회사 ○○○(이하 '○○○'이라 한다)에게 이메일 프로그램 솔루션 및 서버구축 용역을 제공하기로 하는 내용의 계약을 체결한 후 2003. 3. 3.경 위 용역 중 일부를 ◎◎◎◎에 하도급 하는 내용의 계약을 체결하였고, 위 각 계약에 따라 ○○○에게 교부한 공급가액 70,700,000원의 매출세금계산서와 ◎◎◎◎로부터 수취한 매입가액 합계 70,000,000원의 이 사건 세금계산서의 공급가액과 매입가액을 익금과 손금에 산입하여 2003사업연도 법인세 신고를 하였으나, 실제로는 ◎◎◎◎가 위 하도급계약을 이행하지 아니하는 바람에 ○○○에게 용역을 제공하지 못하여 결국 ○○○에게 교부한 위 매출세금계산서상의 공급가액 70,700,000원에 대한 매출도 발행하지 않았다. 이와 같이 이 사건 세금계산서상의 매입가액에 대응하는 ○○○에 대한 매출이 실제로 발생하지 않은 이상, 이 사건 세금계산서상의 공급대가에 해당하는 77,000,000원(매입가액에 부가가치세를 합한 것이다)이 사외로 유출되었다고 볼 수 없으므로, 이와 다른 전제에 선 이 사건 과세처분은 위법하다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In a case where a corporation fails to record its sales in the account book despite the fact of sales or appropriates the cost of processing in the account book, barring any special circumstance, the revenue of the corporation equivalent to the omitted sales or the cost of processing shall be deemed to have been leaked out, and in this case, the special circumstance that the total amount of the cost of omitting sales or the cost of processing shall not be leaked out, shall be proved by the taxpayer (Supreme Court Decision 98Du16347 delivered on December 24, 199), and the evidence Nos. 6, 7, and 15 as well as the testimony of the first instance witness ○○○○○, which alone did not actually cause sales to the ○○○○○○, corresponding to the purchase price of the tax invoice of this case, are insufficient to recognize that there is no other evidence to support this otherwise. Thus, the Plaintiff’s assertion that the taxation of this case was unlawful is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Insuwon District Court 2006Guhap8496, 2007.05]

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of global income tax of KRW 27,694,980 against the Plaintiff on February 10, 2006 shall be revoked for the taxable year 2003.

1. Details of the disposition;

A. ○○○○○, Inc. (hereinafter “instant company”) is a company that was engaged in retail and electronic commerce from February 6, 200 and closed on September 30, 2004 while engaging in retail and electronic commerce, and the Plaintiff was a representative director of the instant company.

나. 이 사건 회사는 2003년 제1기분 부가가치세 과세기간 중 2002. 3. 31. 이미 폐업한 주식회사 ◎◎◎◎(이하, '폐업회사'라고 한다)로부터 공급가액 합계 7천만 원의 매입세금계산서 2매(2003. 4. 21.자 공급가액 41,800,000원의 매입세금계산서 및 2003. 5. 19.자 공급가액 28,200,000원의 매입세금계산서. 이하, '이 사건 각 세금계산서'라고 한다)를 수취하여 위 매입가액의 합계액을 손금에 산입한 후, 2003년도 법인세를 신고하였다.

C. The head of Seocho District Tax Office deemed each of the instant tax invoices as the processed tax invoices received without real transactions, and notified the Defendant of the above fact after disposing of the amount of KRW 77,00,000 (the sum of value-added taxes on each supply value) as the recognition of the Plaintiff, in calculating the amount of income for the business year 2003 of the instant company.

D. On February 10, 2006, the Defendant issued a disposition to the Plaintiff on February 10, 2006, stating that the Plaintiff’s total income of KRW 77,000,000 that was disposed of as above in the amount of KRW 18,00,000 in the amount of earned income in the year 203 (hereinafter “instant disposition”).

E. On April 11, 2006, the Plaintiff filed a request for examination against the instant disposition with the Commissioner of the National Tax Service, but received a decision of dismissal on July 10, 2006.

[Ground of recognition] Facts without dispute, Gap 1, 2, 13 evidence, Eul 1 through 4 (including each number), the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. Party’s assertion and issues

(1) The plaintiff's assertion

(A) Since the instant company entered into a contract on the construction of a website and server with the closed company, and received each of the instant tax invoices, each of the instant tax invoices does not constitute a processed tax invoice.

(B) In addition, each of the instant tax invoices was not proven to have been actually reverted to the Plaintiff.

(C) Therefore, the Defendant’s disposition of this case is unlawful.

(2) The defendant's assertion

Since the closed company has already closed its business in 2002, each of the tax invoices of this case that the instant company received from the closed company in 2003 constitutes a processed tax invoice received without real transaction, and thus, the amount equivalent to each of the tax invoices of this case shall be deemed to have been disclosed from the company. Since it is unclear to the person to whom it belongs, it shall be deemed to have been reverted to the Plaintiff, who was the representative director of the instant company. Accordingly, the Defendant’

(3) Issues

Therefore, the issues of the instant case are whether each of the instant tax invoices constitutes a processed tax invoice, and whether the amount equivalent to the value of supply under each of the instant tax invoices can be deemed to have been reverted to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether each of the instant tax invoices constitutes a processed tax invoice

As seen above, the closed company has already closed its business on March 31, 2002, prior to the issuance of each of the instant tax invoices to the instant company, and the fact that the instant company received each of the instant tax invoices without being provided services under a contract by the closed company or paying the price to the closed company is the Plaintiff. In light of such fact, each of the instant tax invoices shall be deemed to constitute the processed tax invoices (the Plaintiff’s assertion that each of the instant tax invoices is not the processed tax invoices, unlike this, shall not be accepted).

(2) Whether the amount equivalent to the value of supply under each tax invoice of this case can be deemed to have been reverted to the Plaintiff

As seen above, each of the tax invoices of this case constitutes a processed tax invoice, and thus the company of this case included the amount equivalent to the amount stated in each of the tax invoices of this case in the calculation of income for the 2003 business year in the calculation of income for the 2003 business year in the account book shall be deemed to have been included in the processing cost, and therefore, barring special circumstances, the corporate income equivalent to the amount stated in each of the tax invoices of this case shall be deemed to have been out of the company (see, e.g., Supreme Court Decision

In addition, as long as the Plaintiff did not prove that the person to whom the above income accrued out of the company was attributed, the above income accrued out of the company pursuant to the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act shall be deemed to have been reverted to the Plaintiff as the representative director of the instant company (other than this, the Plaintiff’s assertion that the above income accrued out of the company was not proved to have been actually reverted to the Plaintiff is rejected).

(3) Sub-determination

Therefore, the defendant's disposition of this case is legitimate on the premise that the amount equivalent to each of the tax invoices of this case was leaked out and reverted to the plaintiff.

3. Conclusion

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

Relevant statutes

Corporate Tax Act

Article 67 (Disposition of Income) In filing a report on the tax base of corporate tax on income for each business year pursuant to the provisions of Article 60 or in determining or revising the tax base of corporate tax pursuant to the provisions of Article 66 or 69, the amount included in the calculation of earnings shall be disposed of as bonus, dividends, and reserves from the company to the person to whom such amount belongs as prescribed

Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706 of Feb. 19, 2005)

Article 106 (Disposition of Income)

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of under the provisions of the following subparagraphs. The same shall apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed as accrual to the representative (where the total number of stocks held by an officer, etc. who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30% or more of the total number of stocks issued or total investment amount of the relevant corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation which has been exempted from withholding taxes under the provisions of Article 46 (12) of the Restriction of Special Taxation Act reports that there is a separate representative among the officers who are stockholders, the reported person shall be the representative, and where

(a) Where the person of accrual is a stockholder (not including stockholders who are officers or employees), the dividends of the person of accrual;

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

(c) Where the person to whom the income accrues is a corporation or an individual operating the business, other outflow from the company: Provided, That it shall be limited to cases where the distributed profit constitutes the income of a domestic corporation or a domestic business place of a foreign corporation under Article 94 of the Act for each business year, or the business income of a resident or a nonresident

(d) Other income of the person to whom it reverts, in case where the person to whom it reverts is the person.