2013 Parts 2955

The burden of proof for the facts of taxation is on the tax authority.

The daily report of this case, which was found to have been falsified based on the empirical rule, cannot be viewed as a reference material to presume the fact of taxation requirements for the disposition of this case, and thus, failed to prove the fact of taxation requirements for the disposition of this case.

Article 16 of the Framework Act on National Taxes

2014Guhap692 Revocation of Disposition of Imposition of Value-Added Tax

Development of a limited partnership OOO

O Head of tax office

October 28, 2014

November 21, 2014

1. Attached Forms 1 through 2, 2011, which the Defendant provided to the Plaintiff on December 3, 2012, to the Plaintiff on December 1, 2007

The imposition of value-added tax equivalent to the amount stated in the "value-added tax" column and the imposition of corporate tax equivalent to the amount stated in the "value-added tax" column shall be revoked in all from the year of 2007 to the business year of 2011.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a corporation established on February 15, 1984 and engaged in the filling business of liquefied petroleum gas (hereinafter “LPG”) and wholesale and retail business with the OO-type O-type 1192-2 as its principal place of business.

B. The OO regional tax office conducted a tax investigation with respect to the Plaintiff from August 27, 2012 to October 26, 2012 by the year 2007 to 2011. The results of the investigation are as follows.

1) In light of the sales daily report (hereinafter “instant sales daily report”), the Plaintiff omitted 000 won from the year 2008 to the year 2011 as follows.

2) From 2008 to 2011, the Plaintiff issued processed tax invoices with no real trade equivalent to the total supply value of KRW 000,000, or omitted the issuance of tax invoices with the total supply value of KRW 000 as follows.

3) In 2007, the Plaintiff unfairly appropriated the LPG inventory equivalent to the total quantity of 00 kilograms and the total amount of 000 kilograms as a decrease loss, even though there is no decrease in the LPG inventory as follows.

4) The Plaintiff unfairly appropriated 000 won in total, including eligible welfare expenses, from 2007 to 2009, as follows.

5) The Plaintiff unduly appropriated the total amount of KRW 000 ( KRW 000 in 2007, KRW 000 in 2008, KRW 000 in 2008, and KRW 000 in 2009) paid to AA who has not worked in the year 2007 through 2009.

C. Accordingly, on December 3, 2012, the Defendant imposed a total of 000 won of the value-added tax from the first to the second half of 2011 as follows, and imposed a total of 000 won of the corporate tax from the year 2007 to the year 2011 (including each additional tax; hereinafter the same shall apply), and notified the representative member BB of the change in income amount of 00 won.

D. On February 25, 2013, the Plaintiff filed an objection, and on March 21, 2013, the Director of the Regional Tax Office recognized KRW 000 of the total benefits paid to AA from March 21, 2013 to 2009 as the Plaintiff’s deductible expenses and corrected the tax base and tax amount, and decided to dismiss the remainder of the claims.

E. The Defendant included the total amount of KRW 31,50,000 in deductible expenses paid by AA; the corporate tax in the business year of 2007 is KRW 000; the corporate tax in the business year of 2008 is KRW 000; and the corporate tax in the business year of 2009 is KRW 000; and the Defendant notified the representative member BB of the change in the amount of income.

F. On June 13, 2013, the Plaintiff filed an appeal with the Tax Tribunal against the foregoing decision on the objection. On December 5, 2013, the Tax Tribunal re-examineed the sales based on the actual amount of passbook entry, etc. during the business year from 2008 to 2011 as to whether there was a loss of stock reduction in the business year 2007, and made a decision to rectify the tax base and tax amount according to the results. The remaining claims were dismissed.

G. Pursuant to the decision of the pertinent Tax Tribunal, the director of the regional tax office issued a reinvestigation from December 18, 2013 to January 6, 2014. On January 8, 2014, the director of the regional tax office notified the Plaintiff of the result of tax investigation that the initial disposition of value-added tax and corporate tax was justifiable (hereinafter “instant disposition”).

H. On March 28, 2014, the Plaintiff sought the revocation of the instant disposition against the Defendant in this court.

The suit of this case was filed.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, Eul evidence 1, 2, and 3 (including a Serial number; hereinafter the same shall apply), Eul evidence 5 to 9, and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. Defendant’s assertion

From 2007 to 2009, the defendant not admitted as losses in the course of the disposition of this case

The portion on necessary expenses, such as welfare expenses, was dismissed by the Tax Tribunal on December 5, 2013. Since the period of filing the instant lawsuit was 90 days prior to the filing of the lawsuit by the Plaintiff on March 28, 2014, the Plaintiff’s claim for this portion should be dismissed as unlawful.

B. Determination

On December 5, 2013, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s request for adjudgmenting the sales amount based on the actual input amount, etc. of passbooks during the business year from 2008 to 2011 as well as the inventory loss in the business year from the year 2007 to correcting the tax base and tax amount. Meanwhile, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s request seeking inclusion of necessary expenses, such as welfare expenses, in deductible expenses. The Defendant notified the Plaintiff on January 8, 2014 that the initial disposition was justifiable as a result of reexamination, and the fact that the Plaintiff filed the instant lawsuit on March 28, 2014 is as seen earlier.

However, whether to include necessary expenses, such as welfare expenses, as deductible expenses, is limited to one item calculated by calculating the tax base and amount of tax of the instant disposition, and it cannot be deemed that this part is a separate taxation. As such, once the Plaintiff received a notice from the Defendant on January 8, 2014 that the initial disposition of this case was justifiable as a result of reinvestigation, and filed a lawsuit seeking cancellation of the disposition of this case on March 28, 2014, for which 90 days have not passed thereafter, the instant lawsuit on welfare expenses, etc. cannot be deemed to have lapsed.

Therefore, the defendant's above assertion is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The CCC, as a person in charge of the management and accounting of the Plaintiff, embezzled the Plaintiff’s public funds over a long-term period, engaged in the issuance of tax invoices and the ordinary accounting work, operated and entered the processed sales amount in the instant sales daily report in order to conceal them, thereby causing the occurrence of false attempted bonds. However, the Defendant issued the instant disposition on the premise that based on the instant sales daily report, which is a false book organized by CCC, the Plaintiff’s sales omission amount from 2008 to 2011, reaches KRW 000, and thus, the instant disposition violates the underlying taxation principle.

2) In the LPG charging station, the occurrence of a certain amount of fugitive loss each time when gas injector was actually put in and subtracted from the gas.

In addition, it is a practice that accounts for a certain amount of loss due to the defective container and mechanical defect, etc. However, the Defendant unilaterally recognized it as omitting sales without calculating 00 billion won for the business year 2007 or without proving the causal relationship with the sales amount.

3) From 2007 to 2009, necessary expenses, such as welfare expenses, etc. during the business year were used as meal expenses, etc. for employees, and the counterpart cannot issue a tax invoice as a simplified taxable person, and it is not a transaction subject to receipt of regular evidence under tax law, and thus should be included in deductible expenses.

However, the defendant did not recognize it as losses, and the disposition of this case was taken.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion of violation of the principle of taxation basis

A) Relevant legal principles

Generally, in a lawsuit seeking revocation of disposition imposing tax, the burden of proving the facts of taxation requirement is imposed.

indirect proof, even if there is no direct proof of the facts of taxation requirements; or

by reasoning of the most reasonable explanation in light of the rule of experience; and

If the existence of the tax-requirements fact can be presumed, it should be proven, and therefore, indirect facts that can be recognized in light of the empirical rule in the course of specific litigation can be found.

As long as the facts are revealed, the other party to the disposition imposing the tax shall not be subject to the empirical rule.

such rule of experience in the case in question shall not be subject to such rule of experience.

without proving that the taxation disposition does not meet the taxation requirements.

It cannot be readily concluded that it is a legal disposition (see, e.g., Supreme Court Decision 2006Du6383, Sept. 22, 2006).

B) the facts of recognition

(1) The director of the regional tax office may conduct a tax investigation on the Plaintiff from August 27, 2012 to October 26, 2012.

During the process, the plaintiff did not prepare a receipt book on the details of purchase and sale.

The daily report of this case containing details necessary for the collection, etc. of sales bonds shall be prepared in an electronic format.

The fact was confirmed.

(2) On the instant sales day, the daily sales status, including customers, sales dates, credit sales on the preceding day, sales volume, sales amount, total amount of credit sales claims, and total amount and total amount of accounts receivable, were recorded and managed on the daily sales day of this case. The instant sales day was prepared and managed by the CCC and Kim*, who was the accounting officer of the Plaintiff’s management and accounting officer.

(3) As a result of the above tax investigation, the director of the regional tax office determined the difference between the total amount of sales by taxable period and by customer and the total amount of the Plaintiff’s report on sales of value-added tax as stated in the instant sales report as an omitted amount of sales. However, in the process of determining the omitted amount of sales, the director of the regional tax office confirmed the addition of the actual transaction details by customer submitted by the Plaintiff as evidence and deducted the amount equivalent to approximately KRW 000,000, which was recognized to have not been made against six business parties, including

(4) The director of the regional tax office notified the defendant of the omission amount calculated as above, and the defendant.

On December 3, 2012, based on the result, the instant disposition was taken against the Plaintiff.

(5) On the other hand, the Plaintiff prepared and managed the instant sales daily report on May 9, 2012 with respect to the CCC.

Criminal complaint was filed on suspicion of occupational embezzlement, etc.

(6) The CCC denied the charge of occupational embezzlement in the course of the investigation, and made profits regardless of whether it actually deposits when the loss occurred due to the injury, and thus, it made a window dressing accounting in a way that generates the processed expenditure again to meet the amount on the account book after causing the processed sales in order to make a more profit to the owner of the company. The Plaintiff stated that the amount recorded on the account book and the amount confirmed by the actual transaction partner are different, and that the difference was embezzled by itself.

(7) In addition, since around 2005, CCC had operated window dressing accounts; there was no separate account book recording actual transactions other than the instant sales day recording processed sales, and the profits accrued from window dressing accounts cannot be distinguished from normal profits and profits accrued from window dressing accounts; in order to meet the amount of the documents, etc. attached to the monthly closing account statement, CCC stated that the Plaintiff forged private documents on the savings passbook and the payment receipt of value-added tax used by the Plaintiff.

(8) The plaintiff's accounting employee Kim* also deposited in the above investigation process by his customer.

After confirming the details and the details paid, computerized entry was made on the sales day of this case. At that time, CCC was prohibited, and CCC stated that the sales day compensation of this case was deleted from the sales day payment received from the sales office, such as the insolvency gas company, or that it fabricated the amount of payment even after depositing the payment into the purchasing office, such as Epis Co., Ltd. In addition, Kim* stated to the effect that at that time, there was a difference between the actual amount and the book amount, and that there was a little difference between the other transaction parties.

(9) On February 3, 2014, the public prosecutor of the branch office of the Changwon District Public Prosecutor’s Office issued a disposition against CCC to have no suspicion of some occupational embezzlement, and filed a public prosecution against some occupational embezzlement, fabrication and uttering of private documents, theft, etc. under the jurisdiction of the branch office of the Changwon District Court as the head office of the Changwon District Public Prosecutor’s Office of the branch office of the branch office of the branch office of the branch office of the branch office.

(10) On August 21, 2014, the above court found the Defendant guilty of embezzlement of the part that embezzled total of KRW 000 through 19 times in the manner of remitting the gas price received from the customer to his bank account without remitting it to the Plaintiff. On the other hand, the court found the Defendant guilty of larceny of private document forgery and uttering of the documents related to the settlement of accounts, such as the savings passbook, payment receipt of value-added tax, and the cash account book, and sentenced the Defendant to imprisonment with prison labor for one year.

(11) Meanwhile, on November 28, 2013, the Plaintiff’s Punishment of Tax Evaders Act by a public prosecutor of the branch office of the Changwon’s District Public Prosecutor’s Office.

A disposition was taken to the effect that the violation was suspected.

(12) Gas purchases under the Plaintiff’s tax account book for purchase from 2008 to 2011; and

The annual receipts and disbursements according to the sales volume and the inventory on the settlement of accounts of the sales of the instant case;

The calendars are as follows:

(13) The net access amount of the bank account under the Plaintiff’s name, the net access amount of the bank account under the Plaintiff’s name, and the sales amount and the difference thereof, revealed by the Director of the Regional Tax Office from December 18, 2013 to January 6, 2014, submitted by the Plaintiff as the taxpayer, are as follows.

(14) In addition, the details of deposits in the bank account in the Plaintiff’s name for the O Energy, O Energy, and Ogas apparatus amounting to KRW 000,000, which was initially recognized as an omission amount by the Plaintiff’s sales, and the results of deposits in the Ogas and Ogas that the Plaintiff reported excessive amount than the actual sales are as follows.

[Reasons for Recognition] Unsatisfy, Gap evidence 11 to 16, Gap evidence 18, 22, 24, 25, 26, Eul

Nos. 3, B Nos. 10 through 15, Eul Nos. 17 and 18, the purport of the whole pleadings

C) Determination

In full view of the following circumstances revealed according to the above facts, the Defendant cannot regard the daily sales of this case, which was found to have been falsified based on the empirical rule, as materials to presume the facts of taxation requirements of the instant disposition, and thereby failed to prove the facts of taxation requirements of the instant disposition. Therefore, the instant disposition is deemed unlawful in violation of the underlying taxation principle, and thus, the Plaintiff’s assertion pointing this out is with merit.

(1) In general, in light of the principle of taxation based on the basis of taxation, it is reasonable to rely on books or documentary evidence when correcting errors or omissions in the details of a taxpayer's duty return due to their errors or omissions.

The burden of proof on the facts of tax requirements is imposed on the tax authorities.

② The instant daily sales report is recorded electronically on the basis of the transaction party, date of sales, credit sales on the preceding day, sales volume, sales amount, total amount of credit sales claims, and total amount and total amount of time measurement, etc. of the Plaintiff’s sales related to the Plaintiff’s sales. Therefore, barring any special circumstance, the tax authorities can determine the tax base and tax amount based on the instant daily sales report.

(3) Accordingly, the commissioner of the regional tax office has calculated the omitted sales based on the sales data of this case in the course of tax investigation, and among them, 00 housing management corporation that the plaintiff revealed not to be a real transaction.

In other words, the amount equivalent to approximately KRW 000 against six business partners was deducted from the omitted amount of sales. The defendant made the instant disposition on the basis of the omitted amount of sales calculated as above.

④ However, the CCC, who prepared and managed the instant sales daily report, voluntarily processed the sales amount recorded in the instant sales daily report from around 2005 to the effect that it is impossible to distinguish the profits accrued from the normal profits and the profits accrued from the window dressing accounting in the course of being investigated into suspicion of occupational embezzlement. Kim* also stated that CCC operated the instant sales daily report by eliminating the details of deposits, etc. in the instant sales daily compensation.

⑤ In order to meet the sales amount on the documents attached to the monthly balance sheet, including embezzlement of occupational embezzlement, CCC recognized the charge of forging and uttering private documents with respect to the forged portion of the documents, such as savings passbooks and the receipt for payment of value-added tax, and also recognized the charge of larceny with respect to the stolen portion of various accounting and settlement documents, such as cash receipt and cash account books, by which the processing amount can be known. On the contrary, the Plaintiff was subject to a disposition that there was no suspicion as to the charge of violating the Punishment of Tax Evaders Act.

6. Meanwhile, the volume of the sales on the daily sales of this case as indicated in the sales slip of this case is more than the aggregate of the purchase quantity shown in the tax invoice purchased by the Plaintiff and the quantity of the carry-over stock indicated in the settlement of accounts. It is a proviso to suspect the credibility of the sales on the daily sales slip of this case to the effect that the sales exceed the purchase quantity and the stock quantity owned by the Plaintiff.

7) In light of such circumstances, the Tax Tribunal rendered a decision on December 5, 2013 to the effect that the Plaintiff’s sales based on the actual amount of passbook entry, etc. during the business year from 2008 to 2011 should re-examine the sales and correct the tax base and tax amount according to the result. However, the Director of the Tax Tribunal re-audited only the amount of passbook entry to some business entities from December 18, 2013 to January 6, 2014.

(8) Although the decision of the Tax Tribunal’s re-audit does not necessarily require the initial disposition to be corrected, the said re-audit decision appears to the purport of ordering the investigation of actual sales and the correction of tax base and tax amount on the premise that the sales day of this case was falsified and its nature as taxation data was contaminated, and it cannot be viewed to the effect that the initial disposition is reasonable by investigating sales of some enterprises.

9. Furthermore, according to the results of the above re-audit, the sales amount and the Plaintiff listed in the sales daily report of this case

The difference in net entry fee on the bank account cannot be deemed to be a minor difference in the difference in the amount of KRW 000, KRW 000 in the year 2008, KRW 000 in the year 2009, and KRW 000 in the year 2011. In addition, in the case of the year 2009 and 2010, the amount of net entry on the bank account is larger than the amount of the sales on the date of the instant sales. Therefore, it is difficult to view that the instant sales on the date of sales is indicated in the actual sales status.

(10) As a result of the above re-audit, the Plaintiff’s portion calculated as an omission in sales from 2008 to 201, equivalent to approximately 92% of the total sales amount, which was deposited from the O Energy, O Energy, and Ogas Agency to the Plaintiff’s bank account, is not much different from the sales amount indicated in the instant sales slip.

In addition, even if the director of the regional tax office originally found the amount equivalent to approximately KRW 000,000, which the Plaintiff was not the actual transaction, was deducted from the omitted sales amount, it is difficult to give credibility to the daily sales of this case itself.

11) In full view of these circumstances, the Plaintiff can be deemed to have proved that the daily report of this case was falsified and cannot be considered as taxation data. The Defendant cannot be deemed to have presumed the fact of taxation in light of the empirical rule as expected only on the instant daily report without the best effort to identify the Plaintiff’s actual sales according to the purport of the re-audit decision by the Tax Tribunal.

2) Determination on the assertion that inventory loss was recognized

A) If a lack of inventory is discovered as a result of a field investigation of inventory assets conducted by the tax authorities as of the end of the previous business year, the tax authorities must prove that such shortage of inventory results from sales between the pertinent business year or between the previous business period (see, e.g., Supreme Court Decision 92Nu12094, Aug. 12, 1994).

B) Based on these legal principles, it is acknowledged that the Plaintiff appropriated the LPG inventory equivalent to the total quantity of 00 kilograms in 2007, total amount of 000 won as a decrease loss; the director of the regional tax office, 00 of the regional tax office, considered that the Plaintiff was unfairly appropriated as a decrease loss in inventory even though the Plaintiff did not incur a decrease in the appearance of the LPG inventory, and that the instant disposition was taken. Meanwhile, according to the Plaintiff’s monthly statement of accounts in 2007, the Plaintiff’s monthly statement of accounts was stated that the increase in inventory was continuously made. However, insofar as the Plaintiff’s monthly statement of accounts was deemed to have been falsified falsely, the credibility of the monthly statement of accounts cannot be guaranteed; the Tax Tribunal’s re-examineed the inventory loss for the business year in 207 and ordered the tax base and the amount to be corrected according to the results; however, it cannot be readily concluded that the Plaintiff’s monthly statement of accounts or re-audit did not have any specific evidence that the aforementioned increase in inventory did not occur.

Rather, in light of the business form and scale of the Plaintiff’s industry, etc., it appears that a certain amount of decrease is likely to occur whenever the Plaintiff deviates from the LPG gas in accordance with the empirical rule. According to the written evidence No. 21-1, No. 21-2, and No. 3, the OOO regional tax office recognized and corrected the tax base and tax amount by deeming that the OOgas industry, limited liability company, and OOOO industry as inventory loss was an omission of sales. Therefore, the Defendant’s disposition of this case by converting the sales amount into sales amount is unlawful, and the Plaintiff’s assertion on this point is with merit.

3) Determination on the assertion of inclusion of necessary expenses such as welfare expenses in deductible expenses

In light of the fact that the burden of proof of the tax base is on the tax authority, and the tax base is deducted from necessary expenses, so the burden of proof of income and necessary expenses is on the tax authority, but most of the facts generating necessary expenses are in the territory under the control of the taxpayer and it is easy to prove it, it is consistent with the concept of fairness to recognize the necessity of proof for the taxpayer by allowing presumption of non-existence with respect to necessary expenses which the taxpayer does not perform the duty of proof (see, e.g., Supreme Court Decision 2002Du1588, Sept. 23, 2004).

However, according to the statement in Eul evidence No. 5, the plaintiff can recognize the fact that the plaintiff did not submit specific and objective evidence as to necessary expenses, such as welfare expenses. In such a case, the presumption of non-existence of necessary expenses is accepted, and the plaintiff as a taxpayer must bear the burden of proof. Since the plaintiff failed to submit evidence that can be recognized in this case, necessary expenses, such as the above welfare expenses, shall not be included in deductible expenses.

Therefore, this part of the plaintiff's assertion is without merit.

4) Sub-committee

After all, the instant disposition violates the underlying taxation principle, and the proof of the facts of taxation requirements is also fulfilled.

Since there is an error in law, it must be cancelled.

4. Conclusion

Therefore, since the plaintiff's claim is well-grounded, all of them shall be accepted, and it is decided as per Disposition.