Early High Court 201J 0394 ( October 27, 2011)

The plaintiffs' assertion that the sales agency fee was paid is without merit, and therefore the initial taxation disposition is legitimate.

Since it is difficult to believe that the plaintiffs' assertion and witness testimony that they actually paid the sales agency fee, and the evidence submitted by the plaintiffs are insufficient to admit the assertion, the initial taxation disposition is legitimate as the plaintiffs' argument is groundless.

2011Guhap5150 Global income and revocation of disposition

HAA et al.

the director of the tax office of Western

September 11, 2012

October 16, 2012

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s imposition of global income tax of 000 won for the year 2007, global income tax of 000 won for the year 2008, global income tax of 000 won for the year 2008, and global income tax of 000 won for the year 2007, and global income tax of 000 won for the year 2008 for the global income tax of 2008 shall be revoked.

1. Details of the disposition;

(a) From around 202, the Plaintiffs, the DefenseCC, the 0D, the 0E, and the leF (hereinafter collectively referred to as the “joint operators of the instant business”) jointly engaged in the construction, sale, and rental of commercial buildings in the Namyang-si, the Namyang-si, the GGGGGGGGGra, the HGGGGGGGGGra, and the HHGGGGGGra, the three IFD, and the details of the joint projects are as follows.

(Omission of Details of Projects)

B. On the other hand, joint business operators, including the plaintiffs, and joint business operators with whom the plaintiffs Haa own 100% of the shares and the representative director are the 100% of the shares, concluded a construction contract with HH Construction Co., Ltd. with the HH Construction Co., Ltd. with the 100% shares of the plaintiff Haa, and also paid the amount of expenses for the construction, upon entering into a sales agency contract with HH Construction Co., Ltd. with the representative director whose representative director the plaintiff Haa owns 100% shares, the amount of tax equivalent to 10% of the total income tax deducted from each necessary expense, and the amount of tax equivalent

C. The Director of the Central Regional Tax Office, as a result of the tax investigation, denies the total of the sales agency fees for the sales agency of the instant case among the total of 743,728,180, and 743,728, and 180, and the total of the sales agency fees for the sales agency of the instant case, and 38,000,000 (hereinafter referred to as "the instant sales agency fees") for the commercial buildings of the instant case, which were alleged to have been paid to the sales agency of the instant case, for the reason that the actual sales agency was not performed, and notifies the Commissioner of the Regional Tax Office, from among the total of the sales agency fees for the instant case, 200, the total of the global income tax for the tax years 200, and 00,000,000,000 won for the global income tax for the first to 207, and 200,000,000 from 208.

D. Accordingly, on October 13, 2010, the director of the Namyang District Tax Office imposed 000 won in total of the value-added tax on Plaintiff HA, who is a joint tax obligor for the instant joint business proprietor, as well as 00 won in the attached list, on the same day on Plaintiff HAB, and Defendant Chyang Tax Office imposed 00 won in global income tax for the year 2007 and 000 won in global income tax for the year 2008 on Plaintiff B, respectively (hereinafter referred to as “each of the instant dispositions”).

[Ground of Recognition] The facts without dispute, Gap evidence 2 to 8, and Eul evidence 1 to 3 (including each number, if any) and the purport of the whole pleadings

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

A. The plaintiffs' assertion

The co-owners of the instant case concluded a sales contract with the instant sales unit and lawfully, and accordingly, made the sales agency for the instant key issues, and paid the sales agency fees for the instant branch, but did not actually conduct the sales agency for the instant key issues, each disposition of the Defendants denying the deduction of necessary expenses and input tax amount is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) With respect to the new construction, sale, and rental business of the instant commercial building, the location and investment value of the IIII FO in the East Asian City, and IIII KHFD in the Namyang-si, etc. were completed at a rapid time, while the sale of the instant commercial building was not completed between the locations and investment values, and the instant commercial building was included in the unsold commercial building for a considerable period of time, and its details are as follows.

(Omission of Track Price in Dispute)

(2) On the other hand, the sales agency contract (Evidence 6-1 to 4) prepared between the instant pilot and the instant sales agency (the certificate No. 6-1 to 4) provides that there are no specific provisions on the period, time limit, and termination clause and the scope of business, different from the usual sales agency contract, and Article 5 provides that the sales agency fee shall be paid 13% to the B (the sales agency) even if the sales agency is sold to anyone by any of the following methods.

(3) The key issue of the instant case is about 2-4 years unsold in lots, and around 207 - around 2008, the sales took place in a short-term and short-term manner, and the buyers are both the subordinate companies of the instant construction, the sub-contractors, or their representatives or relevant persons, and the details thereof are as follows.

(Omission of Details of Cargo Business)

(4) The Defendants secured a substitute agreement (No. 7) under the J Construction’s name among the buyers in each of the dispositions in the instant case, and the said substitute agreement contains the content that the executor and the contractor will sell Hfra 00, 00, 00, 00, and 00 to J Construction Co., Ltd. for payment of the subcontract price of the new construction project in lieu of 00 won, and some of the special agreements set out therein are as follows:

(Non-matters of special agreement)

(5) However, the trial of this case actually paid the construction cost to the subcontractor, the subcontractor, and the subcontractor, etc. at the issue of this case, and the subcontractor, the subcontractor, and the subcontractor, immediately withdraw it and transfer the sales price to the account of the event of this case to the account of the event of this case, and if some of the details are detailed, they are as follows.

(A) From December 21, 2006 to August 31, 2007, the contractor of the instant case paid KRW 000 for the construction cost relating to the GGGGGGGG transportation, and KRW 000 for ten times from May 28, 2007 to April 24, 2008, respectively. In this regard, J Construction Co., Ltd. paid KRW 000 for the construction cost on December 27, 2006 and KRW 000 for each day when it received KRW 00 for the construction cost on January 22, 2007, and KRW 00 for the construction cost on January 22, 2007, and KRW 200 for the sale price of KRW 00 for the GGGGGG transportation and KRW 000 for the sale price of KRW 00 for the GGGGGGG transportation and KRW 200 for the sale price of KRW 008.270.200.27.27.27.200.

(B) From February 12, 2007 to August 23, 2007, the contractor of the instant case paid KRW 000 for the construction cost of GGGGGta, and KRW 000 for the construction cost related to HHFra over 19 times from July 27, 2007 to April 18, 2008. In this regard, the contractor of the instant case paid KRW 100,000 and KRW 00 for the construction cost of the instant case to the NA construction company’s representative, who is a shareholder of the KGra, received KRW 100,000 for several times, and KRW 00 for the construction cost of KRW 208,00 and KRW 00 for the sale price of the instant construction cost of KRW 80,000, and KRW 00 for the sale price of the instant construction cost of KRW 208,000 for the NAN and Section 208,204.

(C) From February 14, 2007 to August 30, 2007, the contractor of this case paid 000 won for the construction cost relating to GIST, and 000 won for the construction cost related to HHFra over 10 times from September 19, 2007 to April 24, 2008. In this regard, the contractor of this case paid 00 won for the construction cost of May 18, 2007, and 00 won for each of 000 won for the construction cost of 00.0 billion won for each of 00 GGG units and 000 won for the construction cost of 08 HM engineering, and 000 won for each of 208 HM engineering, and 000 won for each of 08 HM engineering and 2008,000 won for the construction cost of 00.8 billion won for each of the above dates.

(6) 한편 수분양자 중 김NN， 우PP(KK건설 주식회사의 주주)， 이QQ(RR강업 주식회사의 대표이사)는 모두 시공사 및 분양대행사가 누구인지도 모르고 그와 무관하게 해당 상가를 분양받았다는 취지의 확인서를 작성하여 피고들에게 제출한 바 있다.

(7) The Plaintiffs are asserting that the sales agency fee was paid in cash for the key issues of the instant case, and do not submit relevant financial transaction evidence. The Plaintiffs do not present the record of the sales agency fee payment from 2005 to 2008 prepared by the Plaintiff HA to record the details of the sales agency fee payment (No. B. 10) and do not present any details of the sales agency fee payment for the key issues of the instant case.

[Ground of Recognition] The entry in Gap, 11 through 13, 16 through 29, and Eul 5 through 10 (including each number, if any), and the purport of the whole pleadings

D. Determination

Inasmuch as the tax authority bears the burden of proving the legality of a taxation disposition, the tax authority bears the burden of proof as a matter of principle. However, deduction of necessary expenses is more favorable to the taxpayer, and most of the facts constituting the basis of necessary expenses is located in the controlled area of the taxpayer, so it is difficult for the tax authority to prove it, and it is reasonable to have the taxpayer prove it, taking into account the difficulty of proof or equity between the parties (see, e.g., Supreme Court Decision 91Nu10909, Jul. 28, 1992). The materials related to the sales agency fee of this case, including the plaintiffs, are not related to health supply of this case, and most of the materials related to the sales agency fee of this case, which were alleged to be actually paid by the public business entities including the plaintiffs, are difficult to find as the Defendants, the representatives of the government agencies, and the plaintiffs, and the public health service suppliers, etc., are not related to each of the above sales agencies, and thus, it is reasonable to recognize that the plaintiffs' testimony of this case were not related to the plaintiffs.

(1) The key issues of the instant case were the buildings sold in lots for a considerable period of time, and were sold to the general public from around 2007 to around 2008, to the subordinate companies of the instant case, to the sub-contractors, or to their representatives or relevant persons.

(2) As seen earlier, the instant sales agency contract contains no specific provisions on the period limitation and termination clause and the scope of business, and in any way, the sales agency fee shall be paid to the sales agency of this case even if the sales agency is sold in any way, and there is a substantial difference between the sales agency contract and the sales agency contract, which is the purpose of prompt pursuit of sales.

(3) The execution company of this case and the contractor of this case have a substitute agreement in the name of J Construction Co., Ltd., which can presume that there was a substitute agreement to sell the issue price in this case to the subcontractor and sub-contractor in payment of the work price, and the substitute agreement is relatively detailed, such as the execution company of this case and the contractor's signature and seal are not existing, but the designation number of the commercial buildings to be paid in lieu is stated, and the designated commercial buildings have been sold in lots to J Construction Co., Ltd and its sub-contractor and their sub-contractors and are considered to have been significantly reliable.

(4) Although the construction cost of the instant subcontractor was actually paid to the instant subcontractor, it is deemed possible because the said subcontractor, etc., who received the payment, withdrawn the payment and transferred the sale price to the account of the instant event. This is determined as possible because there was a prior real agreement as seen above. Meanwhile, the reason why there was a transfer between the instant event, the construction and the instant subcontractor, etc. on the same day, and the reason why there was a transfer of the price between the instant subcontractor and the instant subcontractor, etc. on the same day, and there is no way to explain otherwise except for the purpose of forming the appearance as if the provision of services through the exercise of the instant unit was actually done.

(5) As seen earlier, some of the buyers of this case purchased a commercial building without knowing at all the time to the contractor and the seller of this case.

(6) As seen earlier, the Plaintiffs asserted that they paid the sales agency fee for the instant key issues in cash, and did not submit the supporting financial transaction evidence, etc.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so decided as per Disposition.