Cho Jae-2015-China-1617 ( October 21, 2016)

The propriety of the disposition of this case by omitting the amount deposited into the business account

Since there is a high probability that each of the accounts in this case is deposited in a case where there is sufficient indirect fact to regard it as the principal account that the Plaintiff manages the attorney's office fees, it is reasonable to deem that the taxation requirement has been satisfied in the part excluding part of the amount verified not to be the attorney fees.

Article 24 of the Income Tax Act

2016Guhap958 Global Income and Revocation of Disposition

Song AA

○ Head of tax office

August 22, 2017

November 7, 2017

1. "Amount of notified tax after re-investigation" in the list of imposition disposition (attached Form 1) imposed by the Defendant against the Plaintiff is revoked each of the corresponding parts exceeding KRW 59,093,511 (including additional tax) in total of KRW 635,974,840 (including additional tax) of global income tax in 2008 through 2012 as stated above.

2. All remaining claims of the Plaintiff are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The judgment that the defendant's "tax amount notified after re-investigation" of the list of imposition disposition (attached Form 1) imposed by the defendant against the plaintiff shall be revoked each of the total global income tax of 635,974,840 (including additional tax) in 2008 to 2012.

1. Details of the disposition;

A. The Plaintiff is a business entity that runs an attorney-at-law business in the trade name of the Plaintiff from April 12, 2007 to**Gu********ddd'*******'s legal office.

B. From April 7, 2014 to May 22, 2014, the Defendant conducted a personal integrated investigation on the Plaintiff (the period subject to investigation: the period from January 1, 2008 to December 31, 2012) with respect to the Plaintiff, the Defendant confirmed the aggregate of the revenue omitted (hereinafter referred to as “amount omitted”) of the Plaintiff’s income omitted, and ② verified the aggregate of the revenue omitted from the Plaintiff’s income deposited in each of the above accounts without reporting and list of clients by case number collected from the National Court Administration (******-***************************-4*******-02-************; hereinafter referred to as “each of the above accounts”).

C. Accordingly, the Defendant issued a correction notice to the Plaintiff (attached Form 1) on the “the initial notice tax amount” list of imposition dispositions, as stated in each of the pertinent dispositions, of total global income tax in 2008 to 2012 (including additional taxes) in total 652,922,820 (including additional tax).

D. According to the Plaintiff’s decision of reinvestigation on December 3, 2014 to January 16, 2015, the Defendant conducted a reinvestigation (the period subject to investigation: January 1, 2008 through December 31, 2012) with respect to the Plaintiff from January 3, 2014 to January 16, 2015, as follows: (b) as follows: (c) the amount of KRW 980,922,00 calculated by subtracting the total of KRW 41,00,00 from the revenue amount (i.e., the amount of KRW 1,021,92,00; - 41,000,000 (hereinafter referred to as “amount of omission in revenue”); and (i) the amount of omission in revenue and the amount of omission in revenue are as stated in the list [Attachment 2].

E. Based on this, the Defendant issued the notice of the global income tax in 2008 to 2012 as stated above (attached Form 1) (hereinafter “the notice of tax amount after re-investigation”) with a total of 635,974,840 won (including additional tax) stated in the list of imposition disposition, and issued the notice of reduction correction (hereinafter “each disposition remaining after correction of reduction”).

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 11, 2015, but the Tax Tribunal decided to dismiss the claim on March 21, 2016.

Facts without any dispute, Gap evidence 1, Eul evidence 1 through 7 (including paper numbers), the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) The Plaintiff shall report to the Korean Bar Association the entire case accepted as an attorney-at-law. As such, the Defendant must grasp the omitted amount of revenue based on the certificate of transit (Evidence A No. 16) accepted, and the taxation requirement that the amount falls under the omitted amount should be proved by the Defendant. However, the Defendant must prove that it was deposited only without specifically examining the use of the money deposited in each of the instant accounts, the reason why the money was deposited, the withdrawn amount, and whether the money was returned, etc., in light of the fact that it was deposited only without examining the purpose of use of the money deposited in

2) Specifically, [Attachment 2] List of Revenue Omitted Amount] is calculated by including expenses, such as stamp, delivery fees, appraisal fees, etc., in the amount of each omission of import of this case as indicated in each of the pertinent items. There are many cases where the Plaintiff withdraws or returns the fees to the account designated by the client or the client due to the Plaintiff’s loss during the process of the case, and there are cases where the original Defendant or the Defendant, etc. directly pays the fees due to the nature of the appointment of the attorney. However, even when the transfer of the fees is made by a family member or a third party, it cannot be deemed as a double taxation if the nominal owner of each omission of import of this case is different from the nominal owner of the attorney’s appointment.

3) Therefore, each of the instant dispositions against the Plaintiff was unlawful, even though each of the instant revenues omitted was not an income, and thus there was no taxation requirement.

B. Determination

1) Legal principles on taxation requirements and burden of proof of necessary expenses

A) Inasmuch as the tax authority bears the burden of proving the fact of taxation requirement in a lawsuit seeking revocation of a tax imposition disposition, the taxpayer’s account constitutes sales or revenue. The taxation requirement is a principle that the tax authority bears the burden of proving that the amount of money deposited in the account of the financial institution. However, the taxpayer’s account constitutes sales or revenue may be proved by disclosing or indicating indirect facts that can be presumed in light of the empirical rule in the course of specific lawsuit (see, e.g., Supreme Court Decision 2003Du14284, Apr. 27, 2004). In such cases, whether such presumption can be determined by considering whether the relevant financial institution’s account was used as the main deposit or management account for sales or revenue, deposit date, and deposit amount corresponding to sales or revenue from the account, and whether the account constitutes a specific type of deposit or sales revenue (see, e.g., Supreme Court Decision 2000Du14284, Jul. 27, 2007). 207).

On the other hand, the burden of proof of necessary expenses, such as the cost of lawsuit paid in attorney fees, shall be imposed on the tax authority. However, considering that the necessary expenses are favorable to the taxpayer and most of the facts that generated necessary expenses are located in the area under the control of the taxpayer and it is easy to prove them, it is consistent with the concept of fairness to recognize the necessity of proof to the taxpayer by permitting presumption of non-existence with respect to necessary expenses for which the taxpayer does not perform the duty of proof (see, e.g., Supreme Court Decisions 2002Du1588, Sept. 23, 2004; 86Nu121, May 24, 198).

B) In the instant case, comprehensively taking account of the above facts and the evidence revealed, the following circumstances are revealed. ① The Plaintiff appears to be able to obtain additional business income, such as legal advice, etc., even in addition to the case reported as the number of local bar associations. ② The Plaintiff received and managed fees on several occasions through each of the instant accounts that was not reported for business from 2008 to 2012. ③ In light of the depositee of each of the instant accounts deposited in each of the instant accounts and the amount, etc., the above omitted amount is deemed to be a type of external statement corresponding to the delegation fees. ④ The Plaintiff issued a tax invoice on part of the contract fees even if the Plaintiff received the commission fees, and omitted sales. ⑤ The Defendant confirmed the omission of the revenue amount based on the list of clients by case number collected from the National Court Administration, and then deducted the reported amount of revenue amount from each of the instant accounts, and thus, the Plaintiff’s assertion that each of the instant accounts did not constitute an omission of the contract fees for the Plaintiff’s principal account, as long as it is acknowledged that each of the Plaintiff’s specific contract fees for the instant accounts were insufficient.

2) Specific determination

In light of the relevant evidence and the overall purport of the pleading as indicated in the "List of Omitted Revenue Amount" column, it is reasonable to view that each of the above amounts stated in the Nos. 21, 52, 55, 82, 95, 11, 12, 119, 12, 12, 19, 200, 200, 200, 200,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

Furthermore, it is difficult to view that each of the relevant evidences stated in the column for "related evidence" of the same list has sufficiently proved that each of the relevant evidences was submitted to the import declaration or deposited regardless of the fees, and there is no other evidence to prove otherwise.

3) Sub-decisions

Therefore, the "political tax amount" of the year 2009 through 2012, which is calculated again by calculating the amount of global income based on the amount of each deduction of each deduction of this case from the omitted amount of income of this case, is the same as the amount stated in the relevant item, so the part of each disposition of this case made by the defendant against the plaintiff which exceeds the relevant legitimate tax amount of each of the above cases shall be revoked as it is unlawful.

3. Conclusion

If so, each claim of the plaintiff is accepted within the scope of the above recognition, and each remaining claim is without merit, and all of the claims are dismissed. It is so decided as per Disposition.