Daegu District Court-2017-Gu Partnership-1713 ( November 08, 2018)

Cho Jae-2017-Gu-609 ( April 10, 2017)

The disposition that corrected the tax base and tax amount by applying the additional rate to the omission of purchase by the plaintiff is legitimate.

The disposition that the plaintiff remitted to the employee account of the purchasing agency is legitimate based on the omission of purchase notified by the purchasing agency due to omission of sales.

Article 21 of the Value-Added Tax Act (Determination and Correction)

Article 69 of the Enforcement Decree of the Value-Added Tax Act

Daegu High Court-2018-Nu-5278

○ ○

○ Head of tax office

.04.26

.05.31

1. Revocation of a judgment of the first instance;

2. Of the instant lawsuits, the part demanding revocation in excess of KRW 11,413,030, and KRW 6,981,670 of value-added tax for 2012 and the part demanding revocation of the imposition disposition of value-added tax for 1 year 2013 are all dismissed.

3. The plaintiff's remaining claims are dismissed.

4. The Plaintiff shall bear 80% of the total litigation costs, and the remainder shall be borne by the Defendant.

1. Purport of claim

The Defendant’s revocation of the imposition of value-added tax of KRW 9,679,340 for the first period of value-added tax in June 10, 201, KRW 11,904,840 for the second period of value-added tax in 2011, KRW 201 for the second period of value-added tax in 201, KRW 7,058,950 for the second period of value-added tax in 201, and KRW 1,585,280 for the first period of value-added tax in 2013 for the first period of value-added tax (the date of the imposition of value-added tax in 1,2,3, and KRW 4 for the first period of value-added tax in 2011 for the first period of value-added tax was erroneous on August 10, 2016.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. Status of the parties

1) The Plaintiff is a person engaged in entertainment tavern business under the trade name of ○○○○○○○-ro 00 to ○○○○○-ro from December 1, 2009.

2) BB Co., Ltd. (hereinafter “B”) is a company that runs an imported alcoholic beverage wholesale business from August 14, 1990 to ○○○○○-ro 000-1.

B. Plaintiff’s report and payment of value-added tax

The Plaintiff reported and paid the value-added tax for the first period of 201, the second period of 2011, the second period of 2012, and the first period of 2013 as follows:

Table omitted.

(c) investigation into BB;

1) As a result of conducting a non-regular tax investigation on '***' which is a business partner of BB around November 2013, the head of ○○○ Tax Office confirmed that the said main office purchased the two shares without issuing a tax invoice from BB, and paid the liquor to D's deposit account, which is an employee of BB.

2) The director of ○○○○ Regional Tax Office conducted an alcoholic beverage distribution tracking investigation with respect to B from March 13, 2014 to May 22, 201 of the year. Moreover, the director of ○○ Regional Tax Office investigated the details of the sales tax invoice issuance to BB’s customer and the details of the financial transaction with respect to 19 bank accounts among the 27 bank accounts in the name of 11 shareholders, EE, employees, D, etc. (hereinafter “related accounts”).

3) As a result of the foregoing investigation, the director of the regional tax office of ○○○○ may issue the sales tax invoices of KRW 2,841,046,973, which amount to 104 customers including the Plaintiff, to the sum of the supply values of KRW 2,841,046,973 from 2011 to 2013, and issued the sales tax invoices of the amount equivalent to that amount excessively to the customer with whom

D. Imposition of value-added tax on the plaintiff

Table Omission of the Table

1) Accordingly, the director of the regional tax office of ○○○ has notified the Defendant of the taxation data that the Plaintiff failed to file a return on the purchase amount of value-added tax even though the Plaintiff was supplied with alcoholic beverages equivalent to KRW 135,301,460 from BB to 2013 and paid the price to the relevant account.

2) Based on the above taxation data, the Defendant calculated the Plaintiff’s omitted sales amount corresponding to the above purchase amount by applying the national average value-added rate by business type (29.79-31.05%) to the total purchase amount omitted by the Plaintiff, as set out in the following [Attachment].

* Amount omitted in sales = omitted purchase amount of report 】 1/ (1-value added rate)

3) In addition, the Defendant calculated the Plaintiff’s tax base of value-added tax for the first period of 201, No. 1, 2011, No. 2, 2012, and 1, 2013 by adding up the sales revenue initially reported by the Plaintiff to the amount omitted from sales calculated by the method of estimated investigation as seen above.

4) Accordingly, on June 10, 2016, the Defendant: (a) imposed the value-added tax of KRW 9,679,340 for the first year of 201, with the exception of the amount of tax reduced or exempted and the amount of tax paid, (b) KRW 5,931,334 + additional tax of KRW 3,748,09; (c) KRW 11,904,840 for the second year of 2011 (this tax + KRW 7,507,629 + additional tax of KRW 4,397,216); and (d) KRW 7,058,950 for the second year of 2012 (this tax + KRW 4,782,815 + 2,276,140); and (e) notified each of the additional tax of KRW 15,281,415,150 for the second year of 2013 + the additional tax of KRW 15,1415

(d) Procedures of the previous trial; and

On January 13, 2017, the Plaintiff filed an appeal with the Tax Tribunal on January 13, 2017, which was dissatisfied with the imposition of each value-added tax, but the appeal was dismissed on April 10, 2017.

E. Defendant’s correction of reduction

On April 10, 2019, when the instant case is pending in this court, the Defendant estimated the tax base by means of an estimate survey to apply the nationwide average value added rate by business type, and notified the Plaintiff of the amount of tax corrected on April 23, 2019 (the first imposition of value-added tax 9,679,340 on June 10, 201 against the Plaintiff on June 10, 201 and the second imposition of value-added tax on August 2011 against the Plaintiff on August 10, 2016, "the imposition of each value-added tax remaining after the reduction as follows among the imposition of value-added tax on the second and second imposition of value-added tax in 2011 against the Plaintiff on August 10, 2016". The first imposition of value-added tax in 2013 was revoked ex officio).

Table omitted.

Facts without any dispute over recognition, Gap's 1, 2, Eul's 2, 8 through 16, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Of the instant dispositions, the part that was revised and notified on April 10, 2019 was illegal since five years have elapsed from the exclusion period for imposition of value-added tax.

2) The Defendant concluded that the Plaintiff’s payment to the savings account of BB employees, etc. was the purchase amount omitted by omitting the Plaintiff’s return. However, the Plaintiff did not obtain any under-issuance of the sales tax invoice from BB, and in particular, the Plaintiff’s purchase amount omitted by the Defendant is merely a vague presumption under the circumstances where it is difficult to ascertain whether the Plaintiff engaged in a transaction of alcoholic beverage supply with BB and at any time.

In addition, the money deposited by the Plaintiff into the said deposit account includes ① the money deposited in the name of repayment of the outstanding amount (14,851,170 won) for alcoholic beverages purchased fromCC (the company run by ○○○○, a substantial operator of B) before 201, ② the money deposited in the name of repayment of borrowed money (130 million won) and ③ the money deposited by FF that is not related to the Plaintiff’s transaction.

Therefore, it is unlawful for the Defendant to calculate the omitted purchase amount of the Plaintiff’s report without any specific basis, and calculate the omitted purchase amount and the tax base amount by means of the estimation survey, based on the omitted purchase amount.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the action seeking reduction, rectification, and revocation of the ex officio revocation is legitimate

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2013Du13655, Oct. 25, 2018).

The Defendant’s rectification of the tax base of each of the above value-added taxes on April 10, 2019 by re-calculationing the tax base of each of the above value-added taxes by means of an estimated assessment on April 10, 2019, KRW 11,904,840 won for the second period value-added tax in 201, KRW 11,413,030, and KRW 7,058,950 for the initial tax amount of the value-added tax for the second period in 2012 is reduced to KRW 6,981,670, and the disposition for imposition of the first

Therefore, among the instant lawsuits, the part seeking revocation exceeding KRW 11,413,300 of value-added tax for 201, and value-added tax for 2012 6,981,670 of value-added tax for 2012, and the part seeking revocation of the imposition of value-added tax for 1 year 2013, seeking revocation of the imposition of value-added tax for 1 year 201 without its validity has already become illegal as there is no benefit

2) As to the Do and argument of exclusion period of imposition

Since the disposition of reduction or correction is not the original report or disposition of imposition and the actual disposition of separate taxation, but the original report or disposition of imposition are partly revoked, it shall be determined as of the date of the original disposition even after the exclusion period for imposition expires.

The defendant's decision of correction on April 10, 2019 on the remaining portion that remains without revocation is the date of the original disposition, which is August 10, 2016, and it is clear that this is within five years from the date on which the value-added tax can be imposed. Thus, the plaintiff's exclusion period and assertion based on the date of the decision of correction on reduction are not acceptable (the first value-added tax in 201 was maintained as it is, and the first value-added tax in 201 was completely revoked).

3) The legality of determining the tax base and tax amount

In full view of the following circumstances, Gap evidence Nos. 2, 3, and Eul evidence Nos. 3 through 7, and 14 by adding the whole purport of the pleadings, the determination of the tax base and the amount of value-added tax by each taxable period of this case is lawful, and there is no error as alleged by the plaintiff.

① The Defendant identified the sum of the amount transferred by the Plaintiff to the account of BB employees, etc. as the total purchase amount from BB, and considered the remainder calculated by subtracting the sum of the proceeds from purchase tax invoices received by the Plaintiff from B and CCC as the omission amount of purchase by the Plaintiff. In light of the fact that BB directly received liquor payment from the Plaintiff and other transaction parties, most of them are received from the Plaintiff to the account under the name of the said employees, and most of them received liquor payment through the account from EE and EE, an employee, from which the Plaintiff was a shareholder or employee, and then transferred to B through the account in the name of the said employees, it is reasonable to view that the said account of B employees, etc. is the principal account in the management of BB alcoholic beverages, and as seen thereafter, it is difficult to accept the Plaintiff’s argument regarding the details of transfer to the said account, and it is reasonable to view that the amount transferred by the Plaintiff

② The Plaintiff asserts that, among the money transferred to the account of BB employees, etc., the Plaintiff’s partner, not the purchase price, but the Plaintiff’s 30 million won borrowed from BB on December 7, 2009, and the Plaintiff’s repayment of KRW 100 million borrowed from BB around that time through Kim* through BB (the Plaintiff’s tax proceeding included KRW 45 million in the first period of time in 2011, KRW 57 million in the second period in 2011, KRW 57 million in the second period in 2011, KRW 24 million in the second period in 2012, KRW 16 million in the above borrowed amount). However, the Plaintiff’s assertion that the Defendant’s non-purchase amount was erroneous in determining the tax base and tax amount based on the borrowed amount. However, in light of the long-term loan status (Evidence No. 5) of BB, the Plaintiff’s assertion that the loan to the Plaintiff, F, or A was not entered in the first half year in the loan agreement with B1.

③ BB의 직원인 김##는 BB에 대한 조세범처벌법 위반 사건의 수사과정에서, 거래처로부터 주류대금이 입금되면 BB보다 규모가 작은 CC의 미수금에 먼저 충당하고, 그 후 남은 금액이 있으면 BB의 미수금에 충당한다는 취지로 진술하였다(을 제7호증). 원고가 제출한 자료(갑 제5호증)에 따르면, 원고는 2011. 1. 21. BB에 대한 주류대금을 결제한 사실이 있는데, 위와 같은 김##의 진술에 따르면, 원고의 CC에 대한 미수금은 그 이전에 모두 변제되었다고 봄이 타당하다. 따라서 피고가 원고의 2011년 제1기 매입누락액으로 파악한 금액 중에는 CC에 대한 2011년 제1기 이전의 미수금에 대한 변제금이 포함되어 있다는 원고의 주장도 받아들일 수 없다.

④ 피고는 FF이 원고와의 AA 동업관계를 청산한 이후인 2012. 10. 이후에 BB 직원 등 계좌에 입금한 돈은 위 동업관계 청산 이후 FF이 운영한 '@@@'의 주류 매입대금으로 산정하고, AA의 매입금액에서 제외하였으므로, FF이 AA의 주류대금과는 무관하게 BB 직원 등 계좌에 입금한 돈이 원고의 매입누락액에 포함되었다는 원고의 주장 역시 받아들일 수 없다.

⑤ According to the results of the tax investigation conducted on BB, the Defendant imposed a penalty tax on BB due to the omission of sales (issuance of insufficient sales tax invoices, etc.). BB filed a lawsuit seeking revocation of the said disposition (○○ District Court 2015Guhap000, 017Nu000, 017Nu000, and 2018Du0000, and 2018Du0000). However, the Defendant was sentenced to a final judgment that rejected all of the claims.

3. Conclusion

Among the instant lawsuits, the part demanding revocation in excess of KRW 11,413,030, and value-added tax of KRW 6,981,670 for the second year of 2012 and the part demanding revocation of the imposition of value-added tax of KRW 6,981,670 for the second year of 2012 are all dismissed, and all of them are dismissed, and the remainder of the Plaintiff’s claim is dismissed as it is without merit. Since the judgment of the first instance court is unfair, it is so unfair to conclude, it is so revoked, and it is so decided as per Disposition by the assent of all participating Justices on the bench.