If it is proved that the facts of taxation requirements have been presumed through legitimate tax investigation, the taxpayer must give counter-proof notice thereof.

If it is revealed that the facts alleged in the facts of taxation in light of the empirical rule in the specific litigation process have been proved, the other party cannot be readily concluded that the pertinent taxation disposition is illegal disposition, unless it proves the circumstances that the pertinent facts were the issue and cannot be eligible for application of the empirical rule.

Article 1 of the Value-Added Tax Act

Article 13 of the Value-Added Tax Act

2016 disposition of revocation of the imposition of value-added tax

Park ○

○ Head of tax office

January 19, 2017

February 9, 2017

1. The Defendant’s imposition of value-added tax of KRW 5,102,370, which was imposed on the Plaintiff on October 21, 2014, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of value-added tax on October 21, 2014, KRW 817,530 for the first term in 2010, KRW 5,102,370 for the second term in 2010, KRW 900,440 for the second term in 2011, KRW 1,472,23 for the second term in 201, KRW 1,586,720 for the first term in 2012, KRW 2,480 for the second term in 2012, and KRW 2,480,850 for the second term in 2012, and KRW 1,261,630 for the first term in 2013.

1. Details of the disposition;

A. From February 12, 2004, the Plaintiff is a business entity who runs an attorney-at-law business in the trade name of △△△ legal office.

B. From July 28, 2014 to September 24, 2014, the Defendant: (a) conducted global income tax investigation for the taxable year 2013 from 2010 to the Plaintiff (hereinafter “tax investigation of this case”); (b) determined that: (c) the sum of KRW 88,958,720, as shown in the separate sheet 1 (hereinafter “instant list”) was omitted and reported to the Plaintiff; (d) the amount omitted sales was totaled of KRW 88,958,720 as indicated in the separate sheet 1 (hereinafter “instant list”); and (e) the amount omitted sales was included as the tax base for each taxable period; (e) the amount omitted sales was totaled of KRW 10, KRW 817,530, KRW 200, KRW 530, KRW 205, KRW 205, KRW 2010, KRW 2010, KRW 2810, KRW 2015, KRW 2010, KRW 20146810,20140.

Table Omission of the Table

C. The Defendant revoked 3,400,000 won out of the omitted sales for the second period of February 2011, 201 that 3,400,000 won was paid to the attorney-at-law located in Busan, who is not the Plaintiff. On August 26, 2015, 56,540 won, including additional dues for 16,177 won, was refunded to the Plaintiff on August 26, 2015. In addition, 16,00,00 won was 3,00,000 won in the account opened at the new bank of Jeju, 200,000 won in the account opened at 20,000 won in the instant list, 00 won in each of 20,000, 000, 10,000, 200, 00, 200, 30,000, 20,000 won in each of the instant lawsuit.

D. On December 17, 2014, the Plaintiff dissatisfied with the previous disposition of this case and filed a request for review with the Board of Audit and Inspection on December 17, 2014, and the Board of Audit and Inspection rendered a decision on November 12, 2015 that the Plaintiff’s request pertaining to ○○ General Construction shall be dismissed, and the remainder of the request shall be dismissed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 23 through 25, Eul evidence Nos. 1 through 5, 7, 8, 10 and the purport of the whole pleadings

2. The legality of the instant disposition

A. The plaintiff's assertion

1) The procedure of the instant tax investigation is unlawful

The tax investigation of this case was conducted through information on tax evasion, and the defendant, in principle, should conduct an investigation only on the tax evasion claimed by the informant, but the scope of the investigation of this case was extended by abuse of the right to conduct the tax investigation of this case. In the process of the investigation, there was an unlawful violation of the procedure of the defendant's tax investigation in order to provide the plaintiff's account, such as SeoA and JejuB.

2) Non-existence of grounds for disposition

A) Violation of law in including the omitted amount of the litigation cost

The litigation costs, such as stamp fees, transit fees, delivery fees, and records duplication fees, paid by the plaintiff on behalf of the parties to the lawsuit, shall be deducted from the omitted sales amount, as the plaintiff paid the amount to be paid by the parties to the lawsuit on behalf of the parties to the lawsuit.

B. Violation of law in counting the omitted amount of the returned amount

The Plaintiff returned KRW 1,500,00,000, out of the commission fees received from KimF, and KRW 2,700,000, out of the commission fees received from JungG, and thus, the amount of such refund shall be deducted from the omitted amount of sales.

C) Violation of inclusion of omission in sales as to the commission fee of Hah in sales

Of the 12,00,000,000 won deposited by HH, KRW 1,00,000,00 is money transaction between HH and HA. The Plaintiff filed a lawsuit claiming the return of fees against the Plaintiff, and the Plaintiff withheld the report of the fee of KRW 8,477,00,00,000, which was reported on September 4, 2013. As such, each of the above amounts should be deducted from the omitted amount of sales.

D) Illegal inclusion of the omitted sales amount in the omitted sales

The Plaintiff reported to the Defendant on July 20, 2010, KRW 1,500,000, out of the commission fees of Park II on July 20, 2010, and KRW 1,000,000, out of the commission fees of theJ on August 31, 2010, should be deducted from the sales omission amount.

E) Illegal inclusion of omission in sales on commission fees of KimF in sales

Even according to the defendant's calculation, the omitted amount of KimF's sales is KRW 1,587,520, not KRW 1,712,480, not KRW 1,587,520, and thus, the calculation of the omitted amount of sales

F) Illegal inclusion of omission in sales amount of redD deposits

HongD is a person who is unaware of the Plaintiff and does not correspond to the Plaintiff’s sales amount, and thus, it should be deducted from the omitted sales amount.

G) Violation of inclusion of omission in sales through fact inquiry

소송당사자들에 대한 사실조회를 통하여 매출누락금액을 산정한 경우, 원고는 이 사건 목록 중 소명금액과 달리 실제로 김KK로부터 1,000,000원, 김LL로부터 2,000,000원, 김MM, 박PP로부터 1,000,000원, 문QQ으로부터 1,000,000원, 박RR로부터 총 1,400,000원, 이SS으로부터 1,000,000원, 정TT으로부터 900,000원, 최UU로부터 1,000,000원을 수령하였을 뿐인데, 위 소송당사자들이 소송결과에 불만을 가지고, 악의적 감정에서 허위로 실제 수임료보다 과다하게 수임료를 지급하였다고 진술한 것이므로, 원고가 수령한 수임료를 초과한 금원은 매출누락금액에서 차감되어야 한다.

3) A deviation from and abuse of discretionary power

Of the parties to the instant tax investigation, the instant disposition is unlawful as it deviates from and abused discretionary power, in light of all the circumstances, including the origin, process, and process of the instant tax investigation, and the degree of the Plaintiff’s violation, that the instant disposition was voluntarily reported prior to the instant tax investigation.

B. Relevant statutes

Attached 2 is as shown in the "relevant Acts and subordinate statutes".

C. Facts of recognition

1) At the time of the instant tax investigation, the Defendant: (a) investigated the account of the Plaintiff’s employee and the StateB; (b) made a statement of transactions for the verification of attorney’s fees to 175 parties to the lawsuit pending in Ulsan via the Plaintiff; and (c) specified the omitted amount of the instant sales through the Plaintiff’s vindication.

2) Upon filing a return on the tax base of value-added tax in February 2013, the Plaintiff included KRW 7,700,000 (excluding value-added tax 770,000) in sales revenue issued by HH (value-added tax). The Defendant refunded KRW 7,700,000 to the Plaintiff on October 24, 2013, including KRW 7,700,000, which included the amount of KRW 7,700,00 in the value-added tax base of the Plaintiff’s revised tax base of value-added tax in 2013, on the ground that the period during which the sales revenue accrued was not 2, 2013, which was not 2,013, and was 1,700,000,000 in the value-added tax base of value-added tax. Accordingly, the Defendant refunded the Plaintiff on October 24, 2014, including the refund amount to KRW 70,007,0758.

[Reasons for Recognition] Facts without dispute, the evidence mentioned above, Eul's evidence No. 6, the purport of the whole pleadings

D. Determination

1) Determination of illegality in the procedure of tax investigation

Article 21(1)1 and 2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter referred to as the "former Value-Added Tax Act") provides that "where a business operator fails to file a final return, the head of a tax office having jurisdiction over the place of business may investigate the tax base of value-added tax and the amount of tax payable for the taxable period and the amount of tax refundable for the taxable period, and make a decision or correction." Article 81-6(3)3 and 4 of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015) provides that "in addition to an investigation by periodic selection under paragraph (2), a tax official may conduct a tax investigation if there is evident evidence to acknowledge a suspicion of omissions or errors in the details of a return."

As to the instant case, the following circumstances are acknowledged by comprehensively taking account of the overall purport of the arguments on the evidence as follows: (i) the Defendant conducted the instant tax investigation to verify the propriety of the report after examining the Plaintiff’s report and analyzing the omitted amount, etc.; (ii) the Plaintiff received fees from HH, which the Plaintiff designated as the informant, and (iii) the Plaintiff received from HH to the west account; (iv) even if the Defendant had made the instant tax investigation by reporting HH’s tax evasion, it cannot be deemed unfair that the Defendant requested the Plaintiff to provide the account to the Plaintiff, stateB, etc.; and (iii) it cannot be deemed that the Defendant conducted the instant tax investigation for other purposes; and (iv) there is no other evidence to deem that the Defendant conducted the instant tax investigation by abusing its authority to conduct the instant tax investigation or conducted the instant tax investigation for other purposes; and there is no other evidence to acknowledge any illegality in the process. Therefore, the Plaintiff’s assertion in this part of this case is without merit.

2) Determination on the non-existence of the grounds for disposition

A) Relevant legal principles

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the facts of taxation requirement in light of the empirical rule are presumed in the course of a specific lawsuit, the other party cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirement, unless it proves the circumstances that the pertinent facts are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decisions 97Nu13894, Jul. 10, 1998; 2003Du14284, Apr. 27, 2004; 2006Du6604, Feb. 22, 2007).

B) Determination on the unlawful assertion of the omission of the costs of lawsuit in sales

In light of the following facts, the aforementioned facts, the evidence as seen earlier, and Eul evidence, together with the purport of the entire argument in the statement of evidence No. 9, i.e., ① there is no evidence to deem that the Plaintiff paid some of the litigation costs claimed by the Plaintiff, ② the transit fee paid to the relevant attorney-at-law cannot be deemed as the litigation costs to be borne by the parties to the lawsuit in the event the attorney-at-law accepted the case, and the above card cannot be deemed to have been used for the handling of the case. ③ The Plaintiff concluded a contract with the court reproduction card submitted by the Plaintiff to the effect that the above card was not used for the handling of the case, ③ the litigation costs necessary for the handling of delegated affairs with the party to the lawsuit must be immediately paid as requested by the Plaintiff, ③ even if the Plaintiff paid the litigation costs, it seems that the Plaintiff could have been paid separately from the acceptance fees, and ④ the fact that the Plaintiff received the fees including the stamp, service fees, etc. at the acceptance stage of the case is difficult to calculate the litigation costs in advance.

C) Determination as to the unlawful assertion of inclusion of the amount refunded in sales

The evidence presented by the Plaintiff alone is difficult to recognize the fact that the Plaintiff returned part of the fees received from KimF and JungG, and there is no other evidence to acknowledge it. Therefore, this part of the Plaintiff’s assertion is without merit.

D) Determination as to the allegation of illegality in including the omission in sales as to the commission fee of HaH

The evidence No. 10-5 (C. 100,000 won out of 12,00,000 won deposited by HH is not a fee but a monetary transaction between HH and HA, and there is no other evidence to prove otherwise.

In addition, Article 9(2) of the former Value-Added Tax Act provides that "the time when the service is supplied shall be when the service is supplied or when the goods, facilities, or rights are used." In this case, it is reasonable to view that the time of supply of the service is the time when the service is supplied is not the time of termination of the dispute over the entrustment fees. In full view of the above-mentioned facts and the purport of the arguments in the above evidence, the Plaintiff did not accept the entrustment fees, not the time of termination of the dispute over the entrustment fees. In light of the above-mentioned facts, the court below found that the Plaintiff received the entrustment fees from HH on March 31, 2010; KRW 1,00,000; KRW 5,000,000 on December 9, 2010; KRW 3,000,0000 on February 14, 2012; KRW 8,470,000 on September 4, 2013; and there were no errors in law regarding the above provision of the Plaintiff’s sales fees for 2010 years.

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

E) Determination as to the unlawful assertion of omission in sales of the amount already reported

In full view of the aforementioned facts and the purport of the argument in the above evidence, the Plaintiff reported to the Defendant on July 20, 2010, KRW 1,500,000, out of the fees paid by Park II, and deposited KRW 2,060,000 from Park II on August 9, 2010, and the Plaintiff reported KRW 1,00,000, out of the fees paid by this JJ to the Defendant on August 31, 2010, and received KRW 2,500,000 from this JJ on September 3, 200. The above facts of recognition and the purport of the argument in the above evidence as a whole are as follows: (i) the Plaintiff’s first return of value-added tax without receiving the fees is difficult to obtain easily in light of transaction norms; and (ii) the Plaintiff’s return of each of the above fees paid as value-added tax after filing the return of value-added tax, and thus, did not seem to have received the fees additionally.

F) Determination as to the allegation of illegality in including the omission in sales as to the commission fee of KimF

According to Eul evidence No. 3 (the third page of the report on the closure of investigation), the defendant can find the fact that the plaintiff received 3,300,000 won from KimF and filed a value-added tax on 1,50,000 won out of them and used 212,480 won as litigation costs, while recognizing that the plaintiff used 212,480 won as litigation costs, the defendant can find the fact that the amount omitted in sales is calculated as 1,587,520 won (i.e., the fees of KRW 3,300,000 - the reported amount of KRW 1,50,000 - the litigation costs of KRW 212,480) not as 1,712,480, not the reported amount of KRW 1,712,480. Accordingly, the part of the plaintiff's allegation in this part is justified.

G) Determination as to the allegation of illegality in inclusion of the omission in sales of the amount of redD admission

In full view of the aforementioned facts and the purport of the argument in the above evidence, in most cases where the parties to the lawsuit deposit the fees to the next borrowed account used by the plaintiff, the fact that most of the above fees were paid from the next borrowed account to the next borrowed account, and on August 11, 2010, redD also deposited KRW 10,000,000 from the JejuB’s account used by the plaintiff, and it is recognized that the amount of KRW 10,000,000, which is the next day, was deposited from the above account, was withdrawn from August 12, 2010, there is room to doubt that the amount of redD deposit is also deposited as the amount of the fee of the case.

However, the above facts alone cannot be presumed to have been established in light of the empirical rule. The evidence submitted by the defendant alone cannot be viewed as a person who is related to the case that the plaintiff accepted by the plaintiff, either entirely or mainly managing and using the StateB's account, or since there is no other evidence to acknowledge it, the amount of redD deposit should be deducted from the omitted sales amount. Accordingly, the plaintiff's assertion on this part is with merit.

H) Determination on the unlawful assertion of omission in sales through fact inquiry

The above-mentioned facts, and the whole purport of the oral argument as a whole, are as follows, namely, ① the amount of the fee calculated through the fact inquiry (2,000,000 to 10,000,000

(1) The Plaintiff’s fees (2,060,000 to 6,000,000) for each case received through the borrowed-name account are similar to the amount of the commission fees (2,060,000 to 6,000,000) on the other hand, while considering the fact that the amount of the commission fees (600,000 to 2,000,000) for the above fact-finding persons asserted by the Plaintiff is significantly higher than the amount of the commission fees (2,00,000 to 6,000,000) on the above fact-finding persons claimed by the Plaintiff, there is no evidence to deem that the above fact-finding persons were dissatisfied with the outcome of the lawsuit and that there was no statement

3) Determination on the assertion of deviation and abuse of discretionary power

Even if a certain administrative act is a binding act or a discretionary act, it cannot be uniformly defined as a discretionary act or a discretionary act, and it should be determined individually in accordance with the form, system, or language of the provision that forms the basis of the pertinent disposition (see, e.g., Supreme Court Decision 94Nu12302, Dec. 12, 1995). Article 1(1)1 of the former Value-Added Tax Act, which provides the basis of the instant disposition, provides that “The value-added tax shall be imposed on the supply of goods or services.” Examining the form and text of the above provision, it is reasonable to deem the instant disposition based on the above provision as a binding act. Accordingly, this part of the Plaintiff’s assertion that there is discretion to the Defendant regarding the instant disposition is without merit.

4) Scope of revocation

In a case where a party cannot calculate the legitimate amount of tax to be imposed lawfully because he/she failed to submit objective tax base and the allegations and materials supporting the tax amount until the closing of pleadings, the entire taxation disposition should be revoked. In such a case, the court does not have the duty to identify the amount of tax to be imposed actively by its authority and calculate the amount of tax to be imposed (see, e.g., Supreme Court Decision 94Nu13527, Apr. 28, 1995).

Based on the above legal principles, in light of the above facts, it can be recognized that KimF's fee and redD deposit amount are calculated as the omitted amount of value-added tax for the second period of February 2010. Therefore, the imposition of value-added tax for the second period of February 2010 related thereto should be revoked. However, the evidence submitted by the closing date of the argument in this case alone is difficult to specify the penalty tax for the above amount. Thus, the defendant's disposition to impose value-added tax for the second period of February 2010 against the plaintiff should be revoked.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.