If a tax invoice different from the fact is received, the period for exclusion from the imposition of additional tax on lack of evidence shall be five years.

The additional tax on lack of evidence is not the additional tax that is imposed on the failure to provide the documentary evidence as provided by the Act, but the additional tax that is imposed on the failure to provide the documentary evidence, and thus, the act of receiving a false tax invoice is only the reason for imposing the additional tax on lack of evidence, but it does not evade the additional tax on lack of evidence.

Article 27 (Calculation of Necessary Expenses of the Gu Income Tax)

Article 81 (Additional Tax)

1. The Defendant’s disposition of imposing global income tax of KRW 25,615,00 on the Plaintiff on October 4, 2007 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Paragraph 1 is same as paragraph 1 (the date of the disposition entered in the complaint, October 15, 2007, seems to be written in writing in light of the statement of No. 1).

1. Facts of recognition;

A. The Plaintiff is a business operator who runs the telecommunications business with the trade name of ○○-dong 3, Seoul, 186-○ from 186-○ to 186-○.

B. Around September 200, the Plaintiff subcontracted (the construction period: from September 28, 2000 to December 28, 2001) the construction of a new bus transmission facility that was contracted by the Seoul Telecommunications Corporation (hereinafter “○○○”) to ○○ Telecom Co., Ltd. (the construction period: from September 28, 2000 to December 28, 200) and paid KRW 172,990,000 for construction cost around January 13, 201. Around October 2000, the Plaintiff paid KRW 86,90,000 for the subcontracted construction work cost to ○○ Communications Co., Ltd. (the construction period: October 16, 200 to December 16, 201).

C. The Plaintiff initially received three copies of purchase tax invoices of KRW 256,150,000 (hereinafter “the instant tax invoices”) from the Korea○○○○○ Construction Company, instead of receiving purchase tax invoices from each of the above companies, in order to conceal the subcontracting of each of the above construction projects, and reported and paid the comprehensive income tax for the year 200 by including the said KRW 256,150,000 in the necessary expenses.

D. Around August 2004, the director of the mid-term Tax Office confirmed that the instant tax invoice was issued differently from the facts as a result of the on-site verification of value-added tax for the Plaintiff in 2000, and notified the Defendant, who is the competent authority at the Plaintiff’s domicile, of the relevant taxation data after correcting the value-added tax for the second year of 200 by deducting the said tax invoice from the input tax amount.

E. The Defendant paid the Plaintiff to ○○ Telecom Co., Ltd. and ○○ Communications Co., Ltd. on October 4, 2007: (a) recognized each construction amount as necessary expenses for global income belonging to the year 2000, but received disguised tax invoices other than the evidential documents provided in each subparagraph of Article 160-2(2) of the former Income Tax Act (amended by Act No. 6557 of Dec. 31, 2001; hereinafter the same) on the said necessary expenses as necessary expenses pursuant to Article 81(8) of the Act on the ground that the exclusion period for the imposition of national taxes falls under Article 26-2(1)1 of the Framework Act on National Taxes and that the Plaintiff’s act of receiving disguised tax invoices other than the evidential documents falls under Article 26-2(1)1 of the former Income Tax Act and notified the Plaintiff of KRW 25,615,000 as global

F. The Plaintiff appealed against the instant disposition and filed an appeal, but the Tax Tribunal dismissed the appeal on May 7, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2-1, 2-2, 3-1, 2-2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since five years have already elapsed since the disposition of this case was a limitation period for the imposition of national taxes, the plaintiff's tax liability was extinguished.

(b) Related statutes;

Article 27 (Calculation of Necessary Expenses of the Gu Income Tax)

Article 81 (Additional Tax)

C. Determination

(1) Article 26-2(1) of the Framework Act on National Taxes sets the exclusion period for the imposition of national taxes for ten years from the date on which national taxes may be imposed if a taxpayer evades, deducts, or deducts national taxes due to fraud or other unlawful acts (Article 26-2(1)); for seven years from the date on which a taxpayer is entitled to impose national taxes if a taxpayer fails to file a tax base return within the statutory due date of return (Article 26-2(1)); for five years from the date on which a taxpayer is entitled to impose national taxes if a taxpayer fails to reach a tax base return within the statutory due date of return; and for five years from the date on which a taxpayer is entitled to impose national taxes if a taxpayer fails to do so (Article 26-2(1) of the Act on National Taxes (Article 26-2(1) of the Act on National Taxes). Therefore, in order for the exclusion period for the imposition of the additional tax on lack of evidence to be ten years from the date on which the tax base of this case was imposed on the Plaintiff by fraud or other unlawful act.

However, since the Plaintiff actually disbursed expenses to meet the supply price of the tax invoice of this case by paying the total amount of KRW 259,890,000 to each of the above companies after conducting ○○ Telecom Co., Ltd. and ○○○ Telecom Co., Ltd. and subcontract transactions, even if the above amount was included in the necessary expenses, the Plaintiff does not evade, refund, or deduct the comprehensive income tax belonging to the year 200, which is the principal tax, and furthermore, the Plaintiff does not evade, refund, or deduct the relevant additional tax on non-proof of evidence, which is a national tax, by receiving the tax invoice of this case different from the facts. Therefore, the exclusion period of the additional tax on non-proof of evidence of this case is not ten years but five

(2) As to this, the Defendant: (a) imposed penalty tax on the Plaintiff for lack of evidence, since the Plaintiff failed to obtain legal evidence related to the necessary expenses under Article 160-2(2) of the Act from the time of the return of global income tax; (b) but (c) instead of the penalty tax on the receipt of the instant tax invoice different from the fact, the Plaintiff’s receipt of the instant tax invoice different from the fact is a ground for separate imposition of the penalty tax on lack of evidence, and thus, does not evade the additional tax on lack of evidence. Accordingly, the Defendant’s assertion is groundless.

(3) Therefore, even though five years have already passed since the date on which the Plaintiff received the instant tax invoice and filed the global income tax return, the Defendant’s disposition of imposing the additional tax on non-performance of evidence of global income tax on the premise that the exclusion period of the additional tax on non-performance of evidence of this case is ten years is unlawful.

3. Conclusion

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