Whether the imposition of value-added tax by estimation is legitimate

Even if a tax invoice, account book, and other evidence submitted by the Plaintiff were to be improper and a new material was submitted, if the tax base and tax amount cannot be calculated based on the material, it is lawful.

Article 80 (Determination and Correction)

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of value-added tax against the Plaintiff on January 18, 2005, of KRW 1,935,710 for the second term of February 1999, and KRW 2,214,90 for the second term of February 2, 2000, and KRW 1,935,830 for the first term of January 200, and revocation of each disposition exceeding KRW 1,935,830 for the first term of January 1, 200 (it is a clerical error on January 20, 2005).

1. Details of the disposition;

The following facts are recognized by the parties to the dispute or by considering the overall purport of the arguments in each entry of Gap's evidence 5, 15, 18, and 1-1.

A. (1) Between November 10, 1993 and February 2, 2001, the Plaintiff ○○○-dong ○○○○-dong between November 10, 1993 and February 2, 2001

In the name of '○○○○○', a miscellaneous wholesale business such as a household device (hereinafter referred to as '○○○○○○○○') was operated on February 2, 2001, the company established ○○○○○○○○○ in the same place and run a bitry and miscellaneous retail business.

(2) On May 26, 199, the Plaintiff was supplied by ○○○○ in the manufacturing industry, such as the mutual name of “○○○○○” from around February 8, 2002.

B. On January 18, 2005, the Defendant purchased from ○○○○ as non-material the amount indicated below [Attachment 1] ① purchase amount (hereinafter “market purchase amount”). The tax invoice, account books, and other documents to calculate the sales tax base are nonexistent or material is incomplete, and there is no tax invoice, account books, or other documents to calculate the sales tax base, and there is no significant part of the estimation applying the gross profit ratio (15.7% in 1999, 17.42% in 2000), and the following [Attachment 1] ② sales estimate amount shall be considered as the sales omission amount and the tax base shall be considered as the sales omission amount, and then, the Defendant imposed the value-added tax (including additional tax) such as the entry “tax amount notified” (hereinafter “instant disposition”).

Taxation Period

(1)

Purchase Price

(2)

Amount of estimated sales

(3)

Sales amount

(4)

Additional Tax

(5)

Notice Tax Amount

Jinay

199

2 Initials

7,779,800

9,238,576 won

923,857 won

929,861 won

1,853,710 won

hereinafter referred to as "the second disposition" in 99.

200

1. Initials

8,606,545 won

10,422,069 won

1,042,206 won

954,138 won

1,996,340 won

hereinafter referred to as "the first measure" in 00.

202

2 Initials

10,030,545 won

12,146,457 won

1,214,645 won

1,000,259 won

2,214,900 won

The second disposition in 00 is called ‘the second disposition'.

[Attachment 1]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

[Attachment 1] The entry is as follows.

B. Relevant statutes

[Attachment 2] The entry is as follows.

C. Facts

In addition to the above evidence, the following facts are recognized when adding up the testimony of Gap 1 through 3, 6 through 14, 19 through 21, Eul 1-2, Eul 2, Eul 3-1, Eul 4, and witness ○○○○○.

(1) From April 20, 200 to April 20, the Plaintiff operated the business operator’s name with the business operator’s name as the principal. However, from around that time to October 31 of the same year, the Plaintiff operated the business operator’s name under the name of the accounting employee ○○○, and up to February 2, 2001, the Plaintiff operated the business operator’s name under the name of the business manager ○○.

(2) (A) In 199, the Plaintiff reported that, at the time of the return of value-added tax for the first time in 1999, there remains a stock equivalent to KRW 4,805,00 in total, 850 in total, and 350 in total, and each return of value-added tax for the same period and 2 years in 2000, the Plaintiff reported sales on the basis of each tax invoice listed below [Attachment 2] received from ○○○ (hereinafter “instant tax invoice”).

[Attachment 2]

Suppliers

Persons who receive the supply

Date of Preparation

Items

Value of Supply

Trade Name

Name

Trade Name

Name

○○ ○

○ ○

○○ ○

July 6, 1999

Oil and water play equipment other than others

2,300,000 won

○○ ○

○ ○

○○ ○

August 3, 1999

Water play equipment other than water play equipment

2,337,750 won

○○ ○

○ ○

○○ ○

○ ○

July 31, 2000

police officer:

2,300,000 won

○○ ○

○ ○

○○ ○

○ ○

August 31, 200

police officer:

2,700,000 won

(B) On the other hand, the Plaintiff submitted a list of total tax invoices to a serious distribution company as sales data at the time of filing each of the above value-added taxes.

(3) (A) On February 2003, the Plaintiff informed the Plaintiff that the total sum of supply values indicated in Chapter 17, including the trading statement (A evidence 1; hereinafter referred to as “the trading statement of this case”) on May 26, 199, prepared between the Plaintiff and ○○○○○○○○○, a transaction of KRW 57,953,220,00, which was not issued by the tax invoice, etc., was an unissued transaction.

(B) Accordingly, the head of ○○ Tax Office imposed value-added tax on the omitted sales revenue on ○○○○, and ○○○ paid it.

(4) (A) The details of each statement of transactions made between July 199 and August 199 from July 2, 200 to August 200 of the instant statement of transactions are as shown in [Attachment 3].

(B) When ○○○ supplied the Plaintiff with the number of competitions, etc. indicated in the instant specification sheet, ○○, upon the Plaintiff’s request, directly sent to the phrases stores, sportsmen, etc. (it does not include a company-type distributor confirmed in the list of the total tax invoices under paragraph (2) (b) above) indicated in the item column of the said specification, and then placed the goods invoice, such as the transportation invoice, etc. on the Plaintiff. After confirming the fact, the Plaintiff entered the list and entered the date of the original order as the trading date. The said goods were delivered to the Plaintiff’s customer after the date following the date of dispatch by ○○, etc.

(5) On the other hand, the transaction books that describe the details of transactions, such as the waterway supplied to the Plaintiff, include the details of transactions consistent with the contents of the instant transaction statement. On April 14, 2001, the Plaintiff returned 4,551,520 won to ○○○ on April 14, 2001.

D. Determination

(1) Determination on the argument in Section 1. of [Attachment 1]

(A) Article 21(1)2 and Article 21(2)1 of the former Value-Added Tax Act (amended by Act No. 7007 of Dec. 30, 2003; hereinafter referred to as the "Act") provides that in case where the tax base and payable amount are corrected due to an error or omission in the details of the final tax return, tax invoices necessary for the calculation of such tax base. If there is no account book or other evidence or there is no material part, it may be revised by estimation under the conditions as prescribed by the Presidential Decree.

(B) If the tax authority deems that tax invoices, account books, and other evidence submitted by a taxpayer upon filing a return of tax base and amount of tax are unfaithful, it shall point out the illegality and conduct a field investigation by receiving new data, and even if based on such data, it shall make a decision on the additional investigation only when it is impossible to determine the tax base and amount of tax. The taxation by the decision on the additional investigation without taking such procedures is unlawful as it goes against the requirements for the additional taxation. However, in light of the fact that the reasons for taking such procedures are exceptionally permissible when the decision on the additional investigation cannot be made on the basis of the principle of the basic taxation, the tax authority shall point out the illegality of the tax invoice, account books, and other evidence submitted by the taxpayer and submit new data, and thus, it cannot be deemed unlawful merely because the tax authority did not take such procedures until it is evident that the tax base and amount of tax cannot be determined on the spot investigation even if it did not take such procedures (see, e.g., Supreme Court Decision 2004Du829

(C) Comprehensively taking account of the content and legal principles of such relevant Acts and subordinate statutes, it cannot be deemed that the Defendant demanded the Plaintiff to submit data on whether to omit a report on the sales amount corresponding to the issue purchase amount, or received such data. However, the statement of this case submitted by the Plaintiff upon notifying the Plaintiff of the omission of sales amount by ○○○○○, stating that considerable parts of the number of pages, etc. supplied in the relevant transaction were sold to Seodaemun stores and sports companies, etc., and these contents are different from those of the Plaintiff at the time of the Plaintiff’s declaration of the value-added tax. Nevertheless, the Plaintiff failed to submit the sales data of the said phrase stores, sports companies, etc. from the time of the said report to the time of the instant case, and the Plaintiff failed to operate ○○○○○○○○○ after April 20, 2000, considering that even if it was conducted on the spot investigation, it cannot be deemed that there was no evidence to deem any error in taxation by the Defendant as otherwise.

(D) Therefore, the above argument is without merit.

(2) Determination on the argument in Section 2. of [Attachment 1]

(A) As to the claim for the deduction under subsection (1)

1) Article 9(1) of the Act provides that with respect to the time of supply for the goods, ① the time when the goods are delivered where the transfer of goods is required (Article 1(1)); ② the time when the goods are made available where the transfer of goods is not required (Article 2(2)); ③ the time when the supply of the goods becomes final and conclusive where the application of subparagraphs 1 and 2 is not possible (Article 1(3)

2) In light of the above-mentioned facts in C. C., the Health Center and the trading date of July 3, 199 are indicated on June 30 of the same year. However, since this is the case where the transfer of goods is necessary, the time when the goods are delivered to the sales office requested by the Plaintiff pursuant to Article 9(1)1 of the Act shall be deemed the time of supply. As seen above, the above goods are delivered to the Plaintiff’s business partner after ○○○ delivered the goods to the Plaintiff’s business partner, and the time of supply shall be deemed to be after July 3, 1999, the date of the transaction statement, or even if it is not so, the time of supply shall be deemed to be after the 1st of the same month.

3) Therefore, under the premise that the transaction time is June 30, 1999, the above assertion that the pertinent part does not belong to the second half of 1999 is without merit.

(B) As to the claim for deduction under subsection (1)(2)

1) Comprehensively taking account of the aforementioned facts, it cannot be seen that there is no case consistent with the date of preparation or supply value, etc. of the instant tax invoice among the details of transactions listed in the instant tax invoice among the details of transactions in the instant tax invoice. In light of the following: (a) the Plaintiff already supplied data to a major distribution business entity based on each tax invoice, etc. listed in the said table at the time of return of value-added tax in 199 and 200 each two years; and (b) obtained input tax deduction regarding the said data; (c) the instant tax invoice was sold in the form of a sales with a word store, a sports company, etc. with a considerable number of the parts indicated in the instant tax invoice; and (d) thus, it cannot be deemed that the supply value in the instant

2) Therefore, the above part of the assertion is without merit.

(C) As to its claim for deduction under subsection (3)

1) As seen earlier, even if the Plaintiff returned 4,51,520 won to ○○○ on April 14, 2001, there is no evidence to deem that it was returned to ○○○ by means of a transaction corresponding to the key purchase amount. Furthermore, considering the time of return, the time of return may not affect the transaction during the taxable period of the instant disposition, and thus, it cannot be deducted from the key purchase amount.

2) Therefore, the above part of the assertion is without merit.

(D) As to its claim for deduction under subsection (1)(4)

1) As seen above, the Plaintiff reported that the total amount of KRW 4,805,00 remains in total, 850 in the return of value-added tax on January 1, 1999, and 350 in total, but such inventory amount is related to the Plaintiff’s tax base and is irrelevant to the issue purchase amount revealed as non-data transaction.

2) Therefore, this part of the claim for deduction is without merit.

(3) Sub-determination

Therefore, the Plaintiff’s assertion does not have any reason or reason (the method of calculating the tax amount on which the Plaintiff seeks revocation or does not contact with it) and the instant disposition is lawful.

3. Conclusion

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