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서울고등법원 2019. 04. 24. 선고 2018누56611 판결

부외비용 수입누락 부분에 대응하는 손금만을 실지조사가 아닌 추계조사방법에 의하여 산출·공제할 수는 없음[국승]

Case Number of the immediately preceding lawsuit

Suwon District Court-2017-Gu Partnership-60827 ( October 28, 2018)

Case Number of the previous trial

Examination-corporation-2016-0026 ( October 28, 2016)

Title

Only the deductible expenses corresponding to the omitted portion of the non-regular expenses shall not be calculated and deducted by the method of an additional investigation, not the field investigation.

Summary

If a taxpayer who seeks to obtain an excess expense deduction, he/she shall assert and prove the omission of the expense by himself/herself, and only the deductible expenses corresponding to the omission of revenue shall not be calculated and deducted by the estimation investigation method, not by the on-site investigation.

Article 19 of the Corporate Tax Act

Cases

2018Nu5611 Revocation of Disposition of Imposing Corporate Tax

Plaintiff and appellant

○ General Construction Corporation

Defendant, Appellant

○ Head of tax office

Judgment of the first instance court

Suwon District Court Decision 2017Guhap60827 Decided June 28, 2018

Conclusion of Pleadings

April 3, 2019

Imposition of Judgment

April 24, 2019

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The imposition of corporate tax of KRW 343,771,570 (including additional tax) rendered by the Defendant to the Plaintiff on May 2, 2016 shall be revoked.

Reasons

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's explanation concerning this case is as stated in the reasoning of the judgment of the first instance except for the modification of the corresponding part of the judgment of the first instance as follows 2. Thus, this court shall accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be corrected;

○ 5. The following shall be added to the right side of the last 5-way "no evidence exists":

Furthermore, Article 112 of the Corporate Tax Act provides that "a corporation with a liability for tax payment shall keep its account books by double entry system, and keep and preserve important evidentiary documents related to the account books." In full view of the aforementioned facts and the overall purport of the arguments presented by the Plaintiff, it is difficult to view that the contractor of the instant construction contract, as a contractor of the instant construction contract, the Plaintiff, who is a corporation, cannot prove the existence of expenses related to omitted income and the omission of the return due to force majeure, such as natural disasters, or other causes not attributable to the Plaintiff, or causes not attributable to the Plaintiff. Rather, it is difficult to view that the Plaintiff asserted taxation by means of additional investigation instead of actively proving relevant expenses in order to avoid additional taxation issues against the subcontractor.

The following shall be added to the right side of the 8 line below 6 pages "2005du14561)."

Unless special circumstances exist, such as where the tax authority finds any income omitted in the initial return of a corporation due to a field investigation by determining the tax base and amount of tax on the corporation's income, it shall be deemed that the corresponding purchase cost was separately paid for losses, such as the corresponding purchase cost, was already included in the total deductible expenses corresponding to the total income. In such cases, if a taxpayer who seeks to include the expenses in deductible expenses intends to obtain the deduction on the ground that he/she omitted the return on the expenses corresponding to the omission income, he/she shall assert and prove the omission. In such cases, the deductible expenses corresponding to the omission portion shall not be calculated and deducted by the estimation method, not by the field investigation, unlike the method of determining the total deductible expenses (see Supreme Court Decision 2002Du2673, Nov. 27, 2003).

○ 6 The following shall be added to the right by inserting 6 pages:

(3) In light of the above legal principles, if the standard expense rate of the Plaintiff’s total tax base and tax amount for the business year 2012 is calculated based on the estimation method, the Defendant is deemed to have to impose the tax base and tax amount more than the amount of the instant disposition on the Plaintiff. Thus, the instant disposition, which is within the scope of the amount of the additional tax imposed based on the estimation method, should not be revoked as an unlawful disposition, on the ground that the Defendant did not calculate the tax base and tax amount by the estimation method.

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.