early 2009west3000 (201.03.09)

In accordance with the rule of experience to deem that the commercial transport records appearing in the taximeter constitute a case of operating income.

There is no evidence to deem that the records of the taximeter are mechanical defects to the extent that it cannot be used as the basis data for taxation, and it is in accordance with the rule of experience to deem that almost most of the records of commercial transport appearing in the taximeter constitute a case where passengers are aboard and driving income

2011Guhap15299 Disposition of revocation of Disposition of Imposition of Value-Added Tax

XX Round Co., Ltd.

XX Head of tax office

January 13, 2012

March 9, 2012

1. All of the plaintiff's claims are dismissed.

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

6. Income amount in excess of 10, 1,010, 640, 204 value-added tax for 204, 205, 205, 206, 207, 306, 207, 306, 205, 306, 207, 306, 47, 206, 205, 306, 207, 206, 306, 47, 207, 205, 206, 306, 47, 206, 205, 206, 306, 47, 206, 205, 306, 306, 207, 47, 209, 206, 306, 209, 206, 207, 379, 209.

1. Details of the disposition;

A. The Plaintiff was established on March 10, 1971 and is engaged in the taxi transport business in Seoul XX-dong 000-00.

B. On December 11, 2004, the Plaintiff entered into a wage agreement under the method of "fixed taxi commission scheme" in which drivers pay a certain amount (hereinafter referred to as "fixed taxi commission") to the Plaintiff regardless of the amount of actual daily transportation income, and the costs equivalent to gas (hereinafter referred to as "excess gas costs") which drivers use in excess of gas of 25 liters per day received from the Plaintiff were agreed to be borne by drivers (hereinafter referred to as "fixed amount manufacturer"), and reported the value-added tax, etc. for the business year from 2004 to 2006, by calculating the fixed taxi commission as the amount of income of the Plaintiff and without making the amount exceeding the fixed taxi commission as the amount of income.

C. From August 11, 2008 to September 19, 2008, the defendant conducted a corporate tax integration investigation for the business year from 2004 to 2006 by the plaintiff, and deemed that the difference between the transportation revenue amount reported by the commission during the above taxable period and the transportation revenue amount based on the transportation record on the taxi transport record on the taxi transport record (hereinafter referred to as "tax taximeter") was omitted, and notified the plaintiff on October 30, 2008, and the plaintiff filed a request for a pre-assessment review against the defendant on December 1, 2008.

D. The Defendant conducted a reinvestigation from January 12, 2009 to February 13, 2009, and when only a fixed taxi commission was paid by leasing a taxi from the Plaintiff, the amount of income from the horse operation is owned by the engineer himself/herself, and the amount of income and expenses that the Plaintiff appropriated as excessive in relation to the article that the article himself/herself agrees to bear (hereinafter referred to as a "contract article") and the amount of income and expenses that the Plaintiff calculated in relation to the fixed amount article, such as inclusion of excess taxi commission in gross income, were adjusted as shown in attached Table 1 (hereinafter referred to as the "each disposition of this case").

E. On December 31, 2009, the Plaintiff dissatisfied with each of the instant dispositions, filed a request for an inquiry with the Tax Tribunal, but the said request was dismissed on February 24, 201.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 6, 8, 9, Eul evidence l through 16, 19, the purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits

The defendant argues that since the corporate tax for the business year 2006-2 was corrected rather than the reduction, 12,287,680 won of retirement allowance for the business year 2006-2 that the plaintiff asserted does not fall under the subject of appeal. However, in light of the purport of the claim, inasmuch as the subject of appeal is subject to the disposition of corporate tax for the business year 2006-1, the defendant'

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Claim ①, ②, ④, ② No., No., No.

A taximeter has a mechanical defect and lacks objective accuracy, and even if it is not charged transport of food, etc., it is impossible to identify the exact total amount of revenue in the transport records of the taximeter, such as the case where the taximeter operates the taximeter for the purpose of avoiding sanctions against refusal to take passengers. Therefore, the notice of change in income amount on the basis of the transport records of the taximeter, including apparent errors, is unlawful against this BB, CCC, ED, and EE. The notice of change in income amount is against the substantial taxation principles as stipulated under Article 14 of the Framework Act on National Taxes.

2) Claim 4

The Plaintiff already reported corporate tax by appropriating the fixed taxi commission of the full-time pregnant workers in the company’s gross income as if they were normally paid to the company. The amount of money not paid to the Plaintiff company was replaced by the amount equivalent to the above amount out of the recovered amount exceeding 25-liter spent in the course of paying wages, and reserved in the company. Therefore, 132,626,450 won should be excluded from the amount of bonus disposition for the full-time pregnant workers out of the recovered amount exceeding 25-liter’s oil costs.

3) Claim 3 or 8 related claim

43,161.748 won paid by the Plaintiff to retired articles as retirement allowance shall be included in deductible expenses, and the equivalent amount of corporate tax for the business year of 2006-1 and the notice of change in the amount of income shall be reduced.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Determination on the first argument

First of all, even if the difference between the amount of income based on the transport record of a taximeter and the fixed taxi commission is included in the plaintiff's gross income, the above amount is deemed as wages as remuneration for work and is also included in deductible expenses as it is paid to the worker (the person to whom the income belongs). Therefore, since any influence on the notice of change in the amount of income among each disposition of this case is not completed, this part of the plaintiff'

In addition, in general, since the contents of a taxpayer's return are erroneous or omitted, and it is recognized that there is an error or omission in the contents of the return and that there is an on-site investigation, it may be corrected by other data if possible. In this case, on-site investigation does not have any special method to the extent that it can be objectively obtained by means of distributing the actual income (see Supreme Court Decision 2002Du12786, Dec. 12, 2003), and the method of calculating the transportation revenue by a taximeter is an objective and neutral method in light of the following circumstances, so the plaintiff's above assertion is without merit.

A) According to Article 22(1) of the former Passenger Transport Service Act (wholly amended by Act No. 8980, Mar. 21, 2008) in effect during the instant taxable period, a transport business entity as prescribed by the Presidential Decree is obliged to receive full amount of the fare or charge that a transport business entity receives from the relevant driver, and imposes an administrative fine not exceeding KRW 10,000 on a person who violates such provision (Article 85(1)), in principle, a transport business entity is legally obligated to pay full amount of the fare or charge that a transport business entity received from the passenger (Article 21(1) and Article 94(1) of the current Passenger Transport Service Act).

B) There is no evidence to deem the mechanical defect in the taximeter to the extent that the record of the taximeter cannot be used as the basis data for taxation, and it is consistent with the empirical rule to view that most of the commercial transport records appearing in the taximeter constituted a case where passengers are aboard and an operating income is acquired.

C) As alleged by the Plaintiff, in cases where taxi drivers use a taximeter while passengers are not on board, it appears that there are many cases in light of the existence of various display functions (pre-contract, holiday, empty car, etc.) of the taximeter, and the probability and frequency of occurrence of circumstances asserted by the Plaintiff, etc. However, there are few cases where passengers are on board a taximeter without operating the taximeter depending on business section or method, and thus, the method of calculating the transportation income based on the taximeter does not seem to be disadvantageous to the taxi transportation business entity.

2) Determination on the second argument

Where a corporation fails to enter its sales in its account book despite the fact of sales, the total amount of the omitted sales, including the cost of raw material purchase, shall be deemed to have been leaked out, except in extenuating circumstances. In such cases, the special circumstance that the omitted sales are not leaked out, such as the omission of sales, shall be proved by the corporation asserting it (see, e.g., Supreme Court Decision 2001Du2560, Dec. 6, 2002).

In light of the above legal principles, it is not sufficient to recognize that the Plaintiff included the fixed taxi commission of 132,626,450 won in gross income when the Plaintiff filed a corporate tax, solely based on the materials submitted by the Plaintiff along with a preparatory statement attached to the Plaintiff, and the evidence attached to Gap evidence Nos. 10 and 111, and there is no other evidence to acknowledge it (In other words, the Plaintiff did not include the fixed taxi commission of 132,626,450 won in gross income (the above amount was included in deductible expenses when the Defendant rendered each disposition of this case). Therefore, it cannot be deemed that the Plaintiff appropriated the above amount as a substitute amount for the recovered amount of excess oil expense of 25 liter not included in gross income. Ultimately, the Plaintiff’s above assertion is not reasonable.

3) Judgment on the third argument

The burden of proving the tax base, which serves as the basis of taxation in a lawsuit seeking revocation of disposition imposing corporate tax, is located in the taxation authority, and the tax base is deducted from necessary expenses. Thus, the tax authority bears the burden of proving the income and necessary expenses. However, when a tax assessment is conducted in relation to omitted classes by a practical investigation decision, unless there is any evidence that there was a separate expense corresponding to the omitted class, the total amount of income should be added to the income amount, and the cost corresponding to the omitted class is also omitted, it accords with the empirical rule and the principle of equity (see, e.g., Supreme Court Decision 2010Du28076, Apr. 28, 201).

The plaintiff submitted Gap evidence No. 7, but Gap evidence No. 7 was unilaterally prepared by the plaintiff. The plaintiff does not present objective data, such as receipts or financial transactions, which can prove the payment details of retirement pay. In the case of "the remaining register before December 31, 2005" attached to Gap evidence No. 7, the stamp image verifying it is affixed to "the remaining register before December 31, 2005", while in the case of "the total retirement payment register" as of December 31, 2005 and "the interim settlement register as of December 31, 2005," it is written only with the same letter, "the total payment completion register", and it is different in the form of the ledger for the payment of retirement pay as of December 31, 200. Further, according to each of the above statements No. 17-1, 2-2, the plaintiff's assertion that the above disposition of this case had no effect on the payment of retirement pay of this case as of December 4, 2005.

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