Seoul Administrative Court 2007Guhap26117 ( October 23, 2008)

National High Court Decision 2007west0230 (O4, 2007)

Whether the restaurant business was jointly run or not.

After preparing a written withdrawal from the business, the plaintiff is deemed to have entered into a partnership agreement and operate a restaurant jointly by deeming that it is the fact that the separate business operator is registered and that the plaintiff is expected to receive the profit in return for the provision of the store.

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

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On August 1, 2006, the head of the defendant Youngpo Tax Office imposed each of the first quarter value-added tax for the year 2004, the second quarter value-added tax for the year 2004, the second quarter value-added tax for the year 2004, the first quarter value-added tax for the year 25,96,590, the second quarter value-added tax for the year 2005, the second quarter value-added tax for the year 2005, and the second quarter value-added tax for the year 29,878,720, and the defendant Sungpo Tax Office for the year 204,719,210, the global income tax for the year 204, and the global income tax for the year 2005, 18,589,910.

2. Purport of appeal

It is the same as the disposition.

1. Details of the disposition;

A. The Plaintiff, as the owner of Yongdo-dong 13-20 Fel underground 3 and 4 (hereinafter “instant store”) in Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, Seoul (hereinafter “the instant store”), was registered as the late AA and joint business operators (hereinafter “instant restaurant”) with respect to the restaurant of the trade name, i.e., the instant store from July 2, 2002 to April 6, 2006, with its place of business from July 2, 2002 to the business registration certificate.

B. As a result of the on-site tax investigation conducted on the instant restaurant from March 7, 2006 to April 13, 2006, the head of the tax office having jurisdiction over the instant restaurant: (a) determined that the instant restaurant’s total sales from January 1, 2004 to December 31, 2005 (hereinafter “the instant taxable period”) are merely a half of the total sales amount; (b) on the grounds that the sales amount cannot be calculated immediately on the basis of each purchase amount of the instant taxable period, and (c) determined the tax base by estimating sales amount based on each purchase amount of the instant taxable period; (d) on August 1, 2006, the amount of the global income tax imposed on the Plaintiff on KRW 4,684,540, the amount of value-added tax imposed on KRW 27,467,09, the value-added tax on KRW 2050, the amount of each of the instant tax office imposed on KRW 975,205,29656,296,205.

C. On January 12, 2007, the Plaintiff filed an objection against each of the dispositions of this case with the National Tax Tribunal, but the National Tax Tribunal dismissed the Plaintiff’s request on June 14, 2007.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1 to 4, Gap evidence 2, 3, and 4-1, 2-2, Eul evidence 1-1 to 4-2, Eul evidence 2-1, 2-2, Eul evidence 10-1, 2, Eul evidence 16-1, 16-2, Eul evidence 18-1, 2-2, and the purport of the whole pleadings

2. Whether the dispositions of this case are proper; and

A. The plaintiff's principal

(1) The Plaintiff only leased the instant store to the SiA, and there was no fact that the Plaintiff jointly operated the instant restaurant with the SiA, and there was no report on the business of the instant restaurant, and the Plaintiff’s report on the business registration certificate cannot also be seen as the reason why the Plaintiff was registered as a joint proprietor of the instant restaurant. However, the Plaintiff’s report and payment made by subtracting 50% of the losses of the instant restaurant from global income is merely the Plaintiff’s arbitrary treatment in accordance with the Plaintiff’s business registration certificate. Accordingly, each of the dispositions against the Plaintiff, which was registered as a joint proprietor of the instant restaurant during the instant taxable period, was unlawful against the principle of substantial taxation under Article 14 of the Framework Act on National Taxes.

(2) Even if the Plaintiff jointly operated the restaurant in this case with the SiA, it is unlawful for the Plaintiff to estimate the sales based on only the unilateral statement of the SiA without undergoing the submission of materials or the requirement, and to estimate the sales. Since the method of estimation is also in violation of the law, each of the dispositions in this case is unlawful.

(b) relevant statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) On January 30, 2001, KimCC leased the instant store from the Plaintiff with a deposit of KRW 30 million, monthly rent of KRW 30 million, and the period from January 30, 2001 to January 30, 202, and then applied for the registration of the instant restaurant on March 12, 2001. At the time of failure of the fire safety inspection, the certificate of the report was delayed and the certificate of the business report was not attached to the instant restaurant. The employees, the employees, KimB, et al., and one other, in order to verify the business form, the local identification of the instant restaurant was made, and the name written after the local confirmation stated to the effect that the Plaintiff, the principal owner of the building, is the applicant for the registration of the business, and it is reasonable to issue the business registration certificate to the joint business entity.

(2) On March 13, 2001, KimCC operated the restaurant business in this case with the common shares of KimCC and the plaintiff. KimCC prepared a joint contract stating that "a license and business is responsible for the plaintiff and the plaintiff shall share 50% of each of the plaintiff." On March 14, 2001, the following day after withdrawal of the above application for the above business registration on March 15, 2001, and completed the business registration by filing an application for the business registration with the plaintiff and the plaintiff as 50% of each of the above joint contract. On May 17, 2001, KimCC completed the business registration as a general restaurant with respect to the restaurant in this case.

(3) On April 26, 2002, KimCC entered into a contract to transfer all the rights to the restaurant of this case (including claims to refund deposit amounting to KRW 30 million) and all the facilities of this case to KRW 270,000,000, and received and delivered the payment by June 29, 2002.

(4) On July 2, 2002, the plaintiff, KimCC, and the late A prepared a written withdrawal from the business in which the plaintiff, the plaintiff, the plaintiff, and the late A prepared a written withdrawal from the business in which they would withdraw from the business in which they would act as the partners. On the same day, the lateA completed a report on the correction of business registration for the restaurant in this case as a joint businessman (50 per share) with respect to the plaintiff and the plaintiff, along with the written withdrawal from the business in this case. The lateA operated the restaurant in this case and closed the restaurant on January 25, 2006.

(5) On March 10, 2006, the late 200, when filing a petition for bankruptcy with the Seoul Central District Court, the Plaintiff reported monthly debts of KRW 120,841,150 to the Plaintiff. On May 15, 2006, the Plaintiff leased the instant store in KRW 30,000,000 to KimCC for KRW 30,000 and KRW 300,000. The late 200, the Plaintiff acquired the instant restaurant from KimCC on April 30, 2002, and the Plaintiff entered into a lease contract with the same content as KimCC. From April 30, 2002 to January 2006, the Plaintiff did not pay KRW 135,000,000 to the Plaintiff, and the Plaintiff did not receive KRW 300,000,000,000,000 from KRW 30,000,00,00.

(6) From March 27, 2006, the head of Si/Gun/Gu made a tax investigation on the restaurant in this case, and judged that there was omission in sales as to the total sales amount of the taxable period in this case only to the half of the total purchase amount, and requested the SiA and the Plaintiff to submit account books and relevant documentary evidence, respectively, and requested the SiA and the Plaintiff to submit documentary evidence. The SiA and the Plaintiff to verify documentary evidence without complying therewith. The SiA determined the estimated sales amount by applying the value-added rate publicly notified by the Commissioner of the National Tax Service based on the purchase amount of each taxable period of this case (sales table - purchase table - purchase table - purchase table / sale table / sale table x 100) and notified the correction and notification of the value-added tax. Meanwhile, the head of Si/dong Tax Office notified the above taxation data from the head of Si/Mapo Tax Office to include the omitted

(7) However, in the course of the above tax investigation on March 31, 2006, the lateA stated to the effect that “the Plaintiff and the Plaintiff, while engaging in the same business, shall not pay rent for the instant restaurant, and shall be paid to the Plaintiff by 25% ashulule, instead of paying rent for the instant store, but did not make any profit-sharing at all, because it did not make any profit.”

(8) After that, on April 4, 2006, the Plaintiff entered into a partnership agreement with the Park Don-do who acquired the instant store on March 13, 2001 with the same contents as the above joint contract, and on April 5, 2006, Park Don-do filed an application for business registration with the trade name called "EEE EE EE EE EE E EE E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E EM with the above joint contract. On April 10, 206, the Plaintiff issued the business registration certificate following the on-site verification of the instant store, and according to the "on-site verification report for business registration prepared at the time of the above business registration", the source of the business fund is the Plaintiff's business income.

(9) On June 30, 2006, the Plaintiff drafted a written withdrawal from the business in which the Plaintiff wishes to withdraw from the business in the partnership with Park Jong-D, and Park Jong-D filed a report on the correction of the business registration with the above business in which the business operator of the above "EEE collection expenses" was changed solely by attaching the written withdrawal from the partnership.

(10) The plaintiff is not registered as a rental business operator in connection with the store of this case.

21. He has completed registration as a real estate rental business.

(11) Meanwhile, when the Plaintiff returns and pays the global income tax for the portion of the year 2001 to the portion of the year 2005, it reported and paid the comprehensive income tax after subtracting 50% of the losses of the restaurant of this case from the aggregate of the losses of the restaurant of this case in addition to the store of this case (50% of the money was returned and paid by KimCC and the appellate court), and when filing and paying the global income tax for the portion of the year 2007, the above amount of the global income tax for the year 2007 was 27,396,365 won, which is 50% of the total amount of the value-added tax base for the year 2006.

Facts without dispute over recognition, Gap's evidence 7, 8, 9, 14, Eul's evidence 17-l through 33, Eul's evidence 1, 2, 3, Eul's evidence 8-1 through 8, Eul's evidence 9, Eul's evidence 10-1, 2, Eul's evidence 11-9, Eul's evidence 12-1 through 8, Eul's evidence 13-1, 2, Eul's evidence 14, 15, 17-1, 2, Eul's evidence 17, 18-2, Eul's evidence 21, Eul's witness A, part of ParkD's testimony in the first instance trial, the fact-finding conducted by the court of the first instance against the Administrator of Yeongdeungpo-gu Seoul Metropolitan Government, the purport of the whole pleadings and the whole arguments.

D. Determination

(1) Whether the Plaintiff jointly operates the restaurant in the instant case

First of all, the Plaintiff recognized the fact that the joint agreement with KimCC on March 13, 2001 (Evidence B No. 8-4) and KimCC, and the withdrawal from the business of July 2, 2002 with the trial court (Evidence B-8) was prepared on July 2, 2002. Thus, barring any special circumstance, it is presumed that the agreement was entered into with KimCC and the trial courtA as stated in each of the above disposition documents.

In addition, the following circumstances and records revealed through the above facts and records, i.e., KimCC and late A completed the business registration for the restaurant of this case on the basis of the above joint contract and withdrawal from the business. The plaintiff reported and paid the income tax for the restaurant of this case from the portion belonging to 2001 to the portion belonging to 205 on the ground of the above business registration. According to the letter of local confirmation prepared by the so-called "Ombibibibibibibibiiiiiiibibiiiiiiiiiiiiiiiiiiiiiiiiibibibiiiiiiiiiiiiiiiiiiibiiiiiiiiiiiiiiiiiiiiiiibiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiibiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiibiation of the 1stibiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiation of the 5thiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii.

Therefore, there is no number of days for the plaintiff to receive a partial statement.

(2) Whether the taxation by estimation is appropriate or not

Article 21 (2) of the Value-Added Tax Act provides that when the tax authorities determine or correct the tax base and amount of tax, it shall be based on the tax invoice, account books, and other evidence, but the tax invoice, account books, and other evidence necessary for the calculation of the tax base may be estimated if there is no necessary tax invoice, account books, or other evidence in the calculation of the tax base or the material part is incomplete, and each subparagraph of Article 69 (1) of the Enforcement Decree of

In this case, although there is a reason to suspect that the sales revenue of this case was omitted, such as half of the sales revenue as a result of the tax investigation on the restaurant of this case, but there is no evidence such as account books or electronic data to verify the sales revenue, the fact that the defendant failed to present documentary evidence, such as account books or electronic data to confirm the sales revenue of the restaurant of this case, is recognized as above. Thus, it constitutes an estimation cause under Article 21(2) proviso of the Value-Added Tax Act. Furthermore, it is reasonable and reasonable estimation method that the defendant estimated sales revenue by applying the value-added rate set by the Commissioner of the National Tax Service based on the purchase value of the restaurant of this case is a legitimate method under Article 69(1)4 (e) of the Enforcement Decree of the Value-Added Tax Act so that the actual amount close to the truth can be reflected in the legitimate method under Article 69(1)4

Therefore, there is no number of days for the plaintiff to take part of the suit.

3. Conclusion

If so, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.