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서울고등법원 2014. 06. 12. 선고 2013누20525 판결
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Case Number of the immediately preceding lawsuit

Seoul Administrative Court 2012Guhap26234 ( October 14, 2013)

Case Number of the previous trial

early 2012west 3615, 14.05 2013;

Title

It is difficult to regard it as an unfair taxation due to defects in the procedures of the tax investigation.

Summary

The Defendant appears to have omitted prior notice of tax investigation by deeming that there is a risk of destruction of evidence, etc. while commencing a tax investigation on the Plaintiff’s business establishment after receiving a report of tax evasion, and appears to have been paid in 07 years. Therefore, it is difficult to deem that there is procedural defect in the prior notice of tax investigation and the extension of the scope in relation to the instant taxation disposition.

Related statutes

Article 47 of the Framework Act on National Taxes, prior notice of and request for postponement of tax investigation under Article 81-7 of the Framework Act on

Cases

2013Nu20525 Global income and revocation of disposition

Plaintiff and appellant

Park AA

Defendant, Appellant

1. The head of the Mapo Tax Office;

Judgment of the first instance court

Seoul Administrative Court Decision 2012Guhap26234 decided June 14, 2013

Conclusion of Pleadings

May 29, 2014

Imposition of Judgment

June 12, 2014

Text

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

On December 14, 2012, the head of the regional tax office’s disposition on the imposition of global income tax additional OOOO on the Plaintiff is revoked.

2. The plaintiff's appeal against the chief of Mapo Tax Office and the remaining appeal against the chief of Mapo Tax Office is dismissed.

3. The appeal costs incurred between the Plaintiff and the Defendant Mapo Tax Office and the total litigation costs incurred between the Plaintiff and the Defendant are fully borne by the Plaintiff.

Purport of claim and appeal

On May 17, 2012, the judgment of the court of first instance is revoked. The imposition of OOOO of the principal tax on global income tax against the Plaintiff by the head of Mapo-gu Tax Office and the imposition of OOOO of the global income tax against the Plaintiff on December 14, 2012 is revoked (the Plaintiff corrected the purport of the claim in the appellate court as above).

Reasons

1. Partial citement of judgment of the first instance;

From January 1 to February 2 of the reasoning of the judgment of this court, the part of the corresponding part of the reasoning of the judgment of the court of first instance is dismissed as follows, and the Plaintiff’s assertion as to additional tax is identical to the reasoning of the judgment of the court of first instance, except for adding the judgment identical to that of paragraph (2). Thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

O) Part II of Paragraph 9 of Paragraph 9 of Paragraph 9 (including additional tax OOO(s) (including additional tax - additional tax - additional tax - amount calculated OOO - additional tax - additional tax - less than 10 won) is higher than OOO - 12 is higher than 12, and the amount of OO 2 of Paragraph 18 is added following the 18th OO 20.

O The following shall be added to the 5th page 10:

In this regard, the Plaintiff asserts to the effect that if it is reasonable to interpret Article 48 subparagraph 8 of the Enforcement Decree of the Income Tax Act as above, the above provision permits taxation at a place without actual income, which violates the principle of substantial taxation. Therefore, the above provision is a provision requiring determination of the year to which total income is attributed according to the principle of confirmation of right. The principle of confirmation of right, which is the principle of determining the period to which income is attributed, is the principle of determining the period to which income is attributed, shall be the time when the right which is the cause of income is not the time when the income is realized and the income is calculated based on the time when the right is not the time when the income is realized and the income is the time when the income is not the time when the income is actually realized. As a method of calculating the income for the pertinent year, the principle of confirmation of right is to allow a prior taxation on the actual uncertain income under the premise that it is to be realized in the future, and thus, it is to uniformly understand the tax fairness by preventing the taxpayer’s income from affecting the taxable year’s income by the taxpayer.

In addition, the Plaintiff asserts that each of the dispositions of this case is unlawful since the Defendants failed to prove the specific basis or calculation method of the income subject to taxation and the tax base.However, in full view of the purport of the entire arguments in Gap evidence Nos. 6, 7, Eul evidence Nos. 1 through 3, 7, and Eul evidence Nos. 10-1 and 2, the Plaintiff omitted the total service cost for the year 2008 (i.e., OOOwon + 2008 + 2OOOOO) from the income amount [the Plaintiff first filed a lawsuit against the Defendant Marpo Tax Office prior to the filing of the lawsuit of this case, prior to the filing of the lawsuit of this case, the appellate court ruled that the Plaintiff’s appeal was dismissed (Seoul High Court Decision 201Nu29721, Jul. 20, 2012) and the method of calculating the amount of the principal tax of this case (the above judgment of this case was final and conclusive).

In addition, Seoul High Court Decision 2012Nu7853 Decided July 20, 2012 (Seoul High Court Decision 201Nu29672 Decided July 20, 2012; 201Nu29672 Decided July 20, 2012) is added to the action for revocation of the value-added tax for the first and second period of 2008.

O The details of the attached Form 7 of this Judgment shall be added to the related Acts and subordinate statutes not exceeding 7 pages.

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

In addition, the amount of the penalty tax calculated by the Defendants is not correct and the amount of the penalty tax was imposed without specifying the period for calculating the penalty tax. In particular, without any legal basis, the Defendants’ imposition of the penalty tax in bad faith to the Plaintiff is in violation of the principle of proportionality, the principle of excessive prohibition, the principle of equity, and the principle of due process. Moreover, the Defendants’ revocation of the initial imposition of penalty tax and re-disposition ex officio is also unlawful.

B. Determination

1) In full view of each of the statements in the evidence No. 4-1, No. 4-2, No. 1, No. 5, and No. 7, the penalty tax of this case among each of the dispositions in this case can be acknowledged as being calculated and imposed as shown in the separate sheet of account. However, under Articles 47-3(3) and 47-2(5) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010), where the penalty tax of inorganic and underreported are applied simultaneously, only a larger amount of penalty tax can be imposed. Accordingly, the imposition disposition of inorganic penalty tax of this case is unlawful.

(2) Meanwhile, in full view of the purport of evidence No. 4-1 of the oral argument, the head of the regional tax office’s regional tax office, upon imposing additional tax on December 14, 2012, may recognize the fact that the notice clearly states the grounds for calculating additional tax, such as the period of imposition of additional tax. Furthermore, even before the Plaintiff’s filing of the revised global income tax base return even before the instant disposition, the Plaintiff could have reduced the amount of additional tax in good faith by paying under-reported comprehensive income tax. In light of the above, it cannot be deemed that there is any justifiable ground for not being able to cause the Plaintiff’s failure to report and pay global income tax, and thus, the imposition of additional tax against the Plaintiff cannot be deemed as violating the principle of proportionality, the excessive prohibition principle, the principle of equity, and the principle of due process. In addition, it cannot be deemed that the imposition of additional tax on December 14, 2012 by the head of the regional tax office ex officio revoked the initial imposition of additional tax, and the grounds for imposition of additional tax on December 14, 201.

1) In full view of each of the statements in the evidence No. 4-1, No. 4-2, No. 1, No. 5, and No. 7, and the purport of the entire pleadings, the penalty tax of this case among each of the dispositions of this case may be recognized as having been calculated and imposed as shown in the separate sheet. However, according to Articles 47-3(3) and 47-2(5) of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010) and Articles 47-3(3) and 47-2(5) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010), only the amount of penalty tax equivalent to the larger amount among the non-use penalty tax and under-reported penalty tax may be imposed. Accordingly, the disposition of imposition of under-reported penalty

(2) Meanwhile, in full view of the purport of evidence evidence No. 4-1 of the oral argument, the head of the regional tax office may recognize the fact that he/she imposed additional tax on December 14, 2012, stating the grounds for assessment of additional tax, such as the period of imposition of additional tax, in the notice. In addition, even before the Plaintiff issued the revised global income tax base return even before each of the instant dispositions, it cannot be deemed that there is any justifiable reason that does not lead to the Plaintiff’s failure to report and pay global income tax, and thus, it cannot be deemed that the imposition of additional tax against the Plaintiff violates the principle of proportionality, the excessive prohibition principle, the principle of equity, and the due process of law. In addition, the Plaintiff’s ground for imposition of additional tax on December 14, 2012, which exceeds the original imposition of additional tax by the head of the regional tax office, cannot be said to have been reversed, and thus, it cannot be deemed that the Plaintiff’s ground for imposition of additional tax on the remainder of the grounds for imposition of additional tax on December 14, 20101.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as without any justifiable reason. Since the judgment of the court of first instance is unfair in part by accepting part of the plaintiff's appeal, and the part of the judgment of the court of first instance which ruled against the plaintiff as ordered to revoke under the above among the judgment of the court of first instance shall be revoked. The part which exceeds the OOO won among the disposition of the additional tax imposed on the plaintiff on December 14, 2012 by the director of the regional tax office shall be revoked. The plaintiff's appeal against the director of Mapo Tax Office and the remaining appeal against the director of the regional tax office against the defendant Mapo Tax Office shall be dismissed.