Seoul Administrative Court 2012Guhap8533 (01.04)

It is reasonable to view that only 50% of the case fee has been paid to the Plaintiff under the circumstances of transaction.

Since 50% of the amount received from the time of the instant land brokerage was agreed to the Plaintiff, it shall be deemed that the Plaintiff received 50% only 50% of the amount in light of various transaction circumstances, such as the Plaintiff’s consistent statement by the honorarium payer to the effect that 50% was delivered to the Plaintiff.

2013Nu6055 Global income and revocation of disposition

- Appellants

IsaA

Head of Geumcheon Tax Office

Seoul Administrative Court Decision 2012Guhap8533 decided January 4, 2013

September 26, 2013

October 17, 2013

1.The judgment of the first instance shall be modified as follows:

A. On May 13, 2011, the Defendant’s disposition of imposition of the global income tax OOOO in 2005 against the Plaintiff is revoked.

B. The plaintiff's remaining claims are dismissed.

2. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

On May 13, 2011, the part of the disposition imposed by the Defendant against the Plaintiff on May 13, 201, which exceeds the OOO of the global income tax in 2005, shall be revoked.

2. Purport of appeal

A. Plaintiff: The judgment of the first instance court is modified as stated in the purport of the claim.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation is dismissed.

1. Partial citement of judgment of the first instance;

From 1. The reasoning of the judgment of this court is as follows: (a) the Plaintiff’s assertion, (b) the relevant part of the reasoning of the judgment of the court of first instance (from the second to fifth under the fifth under the judgment of the court of first instance) and the relevant part of the reasoning of the judgment of the court of first instance (from the second to fifth under the judgment of the court of first instance), and thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

From the second bottom of the ○○ to the OO00, the OO00 that is reduced to the fifth OO.

○ From the fifth bottom to the fifth below, the following shall be added to the following:

(4) Statement by KimB

At the time of 2005, KimB, who was a technical adviser of the non-party company, was present at the appellate court as a witness and testified as follows.

○ At the request of the president of the Park In-CC of the non-party company, the witness (hereinafter the same shall apply) asked KimD and the plaintiff about whether he can identify the factory site of the non-party company. Accordingly, KimD and the plaintiff tried to look into the factory site together.

○○ thereafter, the Plaintiff had contact with the witness to find a person who is willing to connect an appropriate site. Accordingly, the witness was present with the president of the ParkCC of the company, who is related to the certified judicial scrivener office in leisure. The witness did not immediately conclude a contract on the same day because he was first established in order to first verify the registry and relevant documents, such as land cadastre, with respect to the instant land. In this paper, the non-party company paid the down payment to KimE or the high FF and JeongG paid the Plaintiff as a honorarium for the introduction of the OOOOOO to the Plaintiff.

○ The president of the ParkCC of the non-party company did not intervene in the witness or the plaintiff and did not directly look at the seller's side and concluded a contract on the land of this case and paid the price.

"The president of ○○ ParkCC would pay the Plaintiff the amount of civil works included in the sales volume for the raising of the company's non-financing, so it was not always able to say that 50% of the construction cost was returned to the Plaintiff. The president of the ParkCC did not make the said remarks to a witness near him/her and first introduced to the Plaintiff who was a witness near him/her without making the said remarks is that it does not correspond to the reasons." "The statement that the president of the ParkCC first introduced to the Plaintiff is that it does not fit for the reasons that: "from the fifth to the fourth [based grounds for recognition] from the fifth to the fourth [the grounds for recognition], the statements in subparagraph 4, 5-1, 2, 6-1 to 3, and 6-2, and the testimony of the witness KimB of the appellate court," and 2."

A. The burden of proof on the tax base that is the basis of taxation is the tax authority in a lawsuit seeking revocation of the global income tax disposition, and the tax base is deducted from necessary expenses, and thus, the burden of proof on revenue and necessary expenses is also imposed on the tax authority in principle (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007). Meanwhile, if there is evidentiary evidence in conformity with the contents of the statement or there is no supplementary investigation such as confirmation of facts against the taxpayer, etc. by the investigation agency or the tax authority, the former report, etc., in which a statement by a person who is not a taxpayer is made in the course of investigation, is merely a unilateral statement made by the person who is not a taxpayer, and barring any special circumstances, it shall not be deemed as the assessment data on the taxpayer, barring any other special circumstances (see, e.g., Supreme Court Decisions 85Nu87, Jan. 20,

B. In light of the following circumstances, it is reasonable to determine that the money distributed to the Plaintiff at the case cost was OOO members, in light of the aforementioned evidence and the purport of the entire pleadings in the instant case.

(1) According to the testimony in the first instance trial of JungG, the Plaintiff at the time of the conclusion of the sales contract for the instant land was paid KRW OOOOOE to the Plaintiff. On October 5, 2005, the first instance court paid KRW OOOOOE again to the Plaintiff by high-F to pay KRW OOOOE to the Plaintiff. However, according to the testimony in the first instance trial of GoF, OOOOOE paid to the Plaintiff at the time of the conclusion of the sales contract for the instant land, OOOOE received from KimE and delivered by high-F to the Plaintiff at the time of the occurrence of the sales contract for the instant land, OOOOE received from the Plaintiff at the time of the occurrence of the contract, and OOOOE paid additional amount to the Plaintiff on October 5, 2005, and paid additional amount to the Plaintiff (i.e., basic OOOOOO £« + £« + OOF ＋’s testimony to the Plaintiff.

(2) JungG testified that 000 won was transferred to the Plaintiff by 5 OFO, among the 5 OFO's offices located in women's Do, after which 5 OFO was transferred to the Plaintiff by 0 OFO. In addition, the Defendant testified that 0OFO was under the sales contract or 5 OFO's transfer of the down payment, which was conducted by the president of the non-party company, to the Plaintiff as a check, and that the Plaintiff did not receive any receipt from the latter.” On the other hand, KimB did not conclude a contract or receive any down payment when the buyer and the other party did not receive any receipt from the Plaintiff. The Defendant testified that 0OFO was under the sales contract or 5 OFO's transfer of the down payment to 0 OFO to the Plaintiff. In light of the fact that 10OFO was under the sales contract or 5 OFO's transfer of the down payment to the Plaintiff.

However, according to the new statement of transactions between high FF (No. 5-1 and No. 2) of banks, it can be confirmed that the high FF made a withdrawal of the OE won out of the OE won received from regularG on October 5, 2005, and the remainder of OOE (=OOE -OOO) was remitted or withdrawn in cash to a third party over several hundred and twenty times thereafter. In this regard, in the confirmation document (No. 3) submitted to the Defendant on December 24, 2009, the high FF made a statement to the effect that it was paid to the Plaintiff on October 5, 2005, but in the first instance, the KF received from Kim Jong-won to the Plaintiff on October 5, 2005, and paid the remainder of the OE transfer from the OE to the Plaintiff, which was given testimony to the Plaintiff on October 5, 2005.

In accordance with the testimony of the above high F, the OOO (=OOO -OOO) out of the OOO members that JungG paid to the Plaintiff through the high FF on October 5, 2005 is that the actual payment was not made to the Plaintiff. Therefore, it cannot be deemed that Jung paid the Plaintiff on October 5, 2005 based on the above statement made by JungG.

On the other hand, in the first instance trial, the High FF testified to the effect that it received the OE in cash or check and paid it to the Plaintiff separately. However, even according to the statement of the High FF and JeongG, the High FF became aware of the original KimE, and the KimE was aware of the fact that the payment for the sale and purchase of the instant land was made through YG. The Defendant failed to submit any objective data regarding the receipt of the OE’s payment from the High FF received from the KimE, and if received, the payment was made, it is difficult to view that the High FF made a statement to the effect that it was not consistent with the Plaintiff’s historical receipt of the KFGO by delivery of the original KF’s new bank transaction inquiry (No. 5-1 and 2 of evidence No. 5-1). In light of the fact that the High FF made a statement to the Plaintiff on Oct. 5, 2005, it is difficult to view that the former FFF made a statement to the effect that it received the O’s directly from the Plaintiff.

(4) In the first instance trial, JungG testified testified that the 50% of the construction cost is conditional to the Plaintiff, and the 50% of the construction cost was paid to the Plaintiff on October 5, 2005 when entering into the contract. In this regard, the 50% of the construction cost was the fact that the employees of the non-party company should enter the non-party company at the time of entering into the contract. The testimony that the 50% of the construction cost should be paid to the Plaintiff on October 5, 2005 that the 50% of the construction cost should be re-entered to the non-party company. In relation to the money paid by JungG on October 5, 2005, the remaining 50% of the construction cost was paid to the Plaintiff.

However, JungG and GoF made a statement that 50% of the construction cost had been paid to the plaintiff or the non-party company as a witness at the first instance court. However, the testimony of JungG and GoF did not coincide with some of the testimony of the plaintiff or the non-party company, and the testimony of GoF itself is contradictory to the contents of the testimony (which is 50% of the construction cost of October 5, 2005, the GoF paid the plaintiff among them, and the GoF's testimony that the 50% of the construction cost was paid to the plaintiff or the non-party company was also inconsistent with the plaintiff's testimony that the 50% of the construction cost was paid to the non-party 1 to the non-party 20G, and that GoF used the plaintiff's testimony that the 50% of the construction cost was paid to the non-party 1 to the plaintiff or the non-party company, and that the 50% of the construction cost was returned to the non-party 2's testimony that the plaintiff and the non-party 2's testimony were not consistent.

(5) As such, the statements of JungG and GoF are not supported by objective evidence, and are not consistent with each other or inconsistent with each other, and there is no other evidence to prove that the Plaintiff received OOO in connection with the sale and purchase of the instant land at the case cost.

However, in light of the circumstances, such as the fact that JungG transferred to the GoF account on October 5, 2005, the OOOE was withdrawn as a check on the same day, and that the Plaintiff received the payment from the Plaintiff (i.e., the Plaintiff’s spouse’s OOOE presented for payment by HH + the OOOOE presented for payment by the Plaintiff’s mother-child), there is no dispute between the parties, and on the other hand, the remainder of the OOOEEE as the wife of Kim JJD was proved to have presented for payment by the Plaintiff, and Kim JJ as the wife of the above OD was involved in the instant land transaction along with the Plaintiff, it is reasonable to deem that the remaining OOD was allocated to KimD as the case cost.

Ultimately, the case cost that the Plaintiff received in relation to the sale and purchase of the instant land is the OOO cost.

C. If a reasonable tax amount is calculated on the premise that the Plaintiff received a distribution of the OO members at the case cost, it is a member of the OO as shown in the separate sheet, and the portion exceeding the OO members of the instant disposition should be revoked in an unlawful manner.

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 merit. Since the judgment of the court of first instance which partially different conclusions are unfair, the plaintiff's appeal shall be accepted in part and the judgment of the court of first instance shall be modified as above, and it is so decided as per Disposition.