National Tax Service Review Income 2009-0123 ( November 09, 2009)

The disposition imposing tax on an amount of money deposited in the financial account on the account is legitimate.

The calculation of the amount deposited in the financial account as an omitted sales amount in the absence of all books or documentary evidence necessary to determine the tax base shall belong to the objective on-site investigation method, and the disposition against which value-added tax is imposed is legitimate.

2010Guhap24845 Disposition of revocation of Value-Added Tax Imposition

XX

O Head of tax office

2011.03.16

2011.04.13

1. The plaintiff's claim is dismissed.

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

The Defendant imposed value-added tax on the Plaintiff on June 1, 2009 28,291,400 won, value-added tax on the second quarter of 2004, value-added tax on the second quarter of 2004, 7,957,720 won, value-added tax on the first quarter of 2005, 5,816,090 won, value-added tax on the second quarter of 2005, 15,569,300 won, value-added tax on the first quarter of 2006, 7,550,980 won, and value-added tax on the second quarter of 206, 4,61,6410 won, value-added tax on the second quarter of 206, 1,68,870 won, 207, value-added tax on the second quarter of 207, 047, 650 won, 2081, 208108 won.

1. Details of the disposition;

A. Since January 10, 1987, the Plaintiff registered as a business entity under the Value-Added Tax Act and operated several workplaces. The details of the operation of the workplace confirmed by the integrated national tax computer network are as follows.

B. From 2002 to 203, the Defendant was informed of the Plaintiff’s tax evasion of value-added tax in the instant place of business during the instant period of business from 2002 to 2003, and selected the Plaintiff as a subject of the rectification of value-added tax in 2002 and 2003, and conducted a tax investigation with respect to the Plaintiff on April 2009. In the process of the investigation, the Defendant confirmed that the Plaintiff continued to conduct the business and selected the Plaintiff as a subject of the integrated investigation and started further investigation.

C. From June 1, 2009 to 2008, the Defendant continued to operate the business in the instant workplace with the trade name of XX electricity. From 2004 to 2008, the Defendant omitted the sales amount of KRW 419,227,272 from the Plaintiff’s business income. A part of the instant workplace was leased to △ Electricity, but the amount of KRW 39,223,513 was omitted from the sales amount of the leased income. The Defendant disposed of value-added tax for the first period of 28,291,40, 2004 on the business income and real estate rental income for 2 years, 7,957, 720, 205, value-added tax for 1 year to 208, 5, 816, 306, 207, 208, 208, 208, 2006, 206, 2006, 2008.

D. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on August 22, 2009, but the Commissioner of the National Tax Service dismissed the request on March 11, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, 7 evidence, Eul evidence 1, and the purport of the whole pleadings

A. The plaintiff's assertion

1) Portion of omission in sales of business income

The Defendant imposed value-added tax on most of the money deposited to the business account managed by the Plaintiff after the date of report on discontinuance of business based on the fact that the Plaintiff continued to operate the XX electricity at the instant workplace even after the date of report on discontinuance of business, considering that most of the money deposited to the business account was an omission of sales from the business income. However, the Plaintiff did not operate the business at the instant workplace after the date of report on discontinuance of business, and the Plaintiff was either personal monetary lending or loan transaction, or the outstanding money that was deposited to the business account due to the transfer of the business was repaid. However, this part of the Defendant’s disposition that imposed value-added tax by deeming it as the entire business income is unlawful.

2) The omission of sales on rental income

Although the Plaintiff only lent part of the instant business site to South Korea, △△ Electric Representative, the Defendant’s arbitrary calculation of rent and value-added tax without confirming objective data, such as rent receipts, is also unlawful.

3) The part on the violation of imposition of value-added tax against simplified taxable persons

The plaintiff was registered as a simplified taxable person in the trade name "○○ Electricity" in 2007, but the plaintiff was registered as a simplified taxable person in 2007 and 208.

The defendant's disposition station that imposes value-added tax on the omitted income at a general taxable rate;

City illegal.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Circumstances for calculating the omitted sales of business income

A) Around April 2009, the Defendant visited the instant workplace to conduct a tax investigation against the Plaintiff. On December 31, 2003, the Plaintiff came to know the circumstances where the Plaintiff runs an electric part Do and retail business with the trade name called “ XX electricity,” which is already reported on December 31, 2003.

나) 이에 피고는 원고가 폐업신고를 한 후에도 이 사건 사업장에서 XX전기라 는 상호로 사업을 계속 영위하면서 이에 대한 소득을 누락했을 가능성이 있다고 보고 원고에 대해서 관련 장부제출을 요구하였으나 원고가 이를 제출하지 아니하자, 원고의 사업용 계좌인 우리은행 계좌(07X-XXXXXX-XX-XXX) 및 제일은행 계좌(22X-XX-XXXXXX) 를 확보한 다음 2004. 1. 1.부터 2008. 12. 19.까지 기간 동안에 나타난 입금내역을 조사하였다.

C) As a result of the investigation, there is a trace of continuously entering and withdrawing different amounts from each other from the number of accounts to be seen as business transaction companies in each of the above account transaction details. The Defendant calculated the omitted amount of sales on business income by deeming that the Plaintiff’s remaining input amount excluding the same amount of deposits, such as the transaction details deposited by the Plaintiff or the same amount of deposits presumed as the cancellation of the transaction details, or the transaction details without deposit details, was omitted. The specific details are as follows.

2) Calculation of omitted sales of rental income

A) At the time of visiting the instant business place, the Defendant also became aware of the circumstances in which △△ Electricity leased and used part of the instant business establishment.

B) Accordingly, the Defendant calculated the omitted amount of rental income on the basis of the confirmation letter prepared by Nam-A, the representative of △△ Electricity, the △△ Electrical, that the Plaintiff would have leased part of the instant place of business and omitted income therefrom, and requested the Plaintiff to submit a lease contract with respect to the Plaintiff, but refused to submit the claim that the Plaintiff leased the said place of business without compensation. The content of the lease contract related to the said place of business was confirmed to be KRW 10,000,000, monthly rent of KRW 700,000, which is the representative of △△△△ Electrical, and the standard electronic financial statements reflecting the content thereof, and the detailed details are as follows

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, 17, Eul evidence Nos. 1 through 10 (Ga number Nos. 1 through 10), the court's fact-finding results with respect to South A, the purport of the whole pleadings as a whole.

D. Determination

1) As to the allegation of omission in sales of business income

A) In revising the final return on the tax base of a taxpayer due to an error or omission, it is deemed that the details of the tax return are erroneous or omitted by other data, but if it is recognized that there is an error or omission in the details of the tax return and that it is possible to conduct a field investigation, it can also be corrected by other data. On the other hand, on-site investigation does not have any special restrictions as long as it can be objectively done by taking advantage of the actual number of business. As such, the determination of the taxpayer's sales by investigating the amount deposited in the financial institution account of the taxpayer constitutes a legitimate on-site investigation with objectivity. Generally, in a lawsuit seeking revocation of tax imposition, the burden of proof as to the facts of taxation must be borne by the taxpayer. However, if the facts alleged in light of the empirical rule are revealed in the course of a specific lawsuit, it cannot be readily concluded that the other party is an unlawful disposition that fails to meet the taxation requirements unless it proves the circumstances that the facts in question are not eligible to be subject to the application of the empirical rule (see, e.g., Supreme Court Decision 2003Du14284).

B) In light of the aforementioned legal principles, the health team, the facts acknowledged earlier, and the following circumstances acknowledged by the evidence revealed earlier, namely, the Plaintiff already reported the closure of the business.

In full view of the following facts: (a) the Defendant took advantage of the circumstances where the Plaintiff continues to engage in the business at the instant business establishment for the purpose of identifying the omitted amount of income therefrom; and (b) the Defendant calculated the omitted amount based on the amount of money deposited in the Plaintiff’s business account as the Plaintiff failed to submit it; (c) the amount of money deposited in the Plaintiff’s business account is excluded from calculation of omitted amount of sales; and (d) the amount of money deposited in the Plaintiff’s name or the estimated amount of cancellation of a transaction; and (c) the transaction details of the business account are found to have been continuously deposited in different amounts from each other from the number of hundreds seen as a business transaction company even if the Plaintiff did not submit books or evidentiary materials necessary for determining the tax base; and (e) the Defendant calculated the omitted amount of sales at the instant business establishment by calculating the amount deposited in the Plaintiff’s business account in the Plaintiff’s business account, barring special circumstances, it shall be presumed that the Defendant calculated the omitted amount of sales at the instant business establishment’s sales amount.

The plaintiff asserts that most of the money deposited in the business of this case after the date of the report on the closure of business is personal loan transactions or is repaid for the outstanding money that was not received before the date of operation of XX electricity. However, considering the above evidence and the overall purport of oral argument, the plaintiff continued to conduct the business at the place of the business of this case, i.e., "the plaintiff's actual business without the purpose of collecting the outstanding money even after receiving the tax investigation," the plaintiff's statement to the effect that "the plaintiff did not open the business for the purpose of collecting the outstanding money," and that there was no possibility that the above financial transaction or the outstanding money was not presented to the business of this case after the date of the report on the closure of business." However, it is difficult to conclude that the plaintiff could not have opened the above business for the purpose of collecting the outstanding money after the date of the report on the closure of the business of this case.

2) As to the allegation on the omission of sales on real estate rental income

In full view of the facts and the evidence mentioned above, the plaintiff continued to lease part of the workplace of this case to △△ Electrical even after the date of the report on the closure of the business of this case, and the defendant has received a written confirmation from the plaintiff that "the plaintiff used part of the workplace of this case as a deposit of KRW 10,000,000, monthly rent of KRW 700,000 from the plaintiff," and the financial statements of △△ Electrical in 2004 through 2008, "20,000,000 as a deposit for lease," and "8,40,000,000 as a deposit for lease ("7,20,000,000,000)" are written respectively, and according to this, the defendant's assertion that "10,000,000,000 or more rent of KRW 70,000,000 as a deposit for lease of this case was omitted.

3) As to the illegality of imposition of value-added tax against simplified taxable persons

In full view of the aforementioned evidence and the overall purport of the arguments, the following circumstances, i.e., (i) the Plaintiff filed for a simplified taxable person at around 2007: (ii) the Plaintiff reported the business as a simplified taxable person on September 20, 2007; (iii) but (iv) the instant business was operated ex officio as of September 20, 207 because it was not verified that it had been operated at the said place of business; (iv) on the other hand, the instant business was operated separately from the place of business in XX Dong, Seoul OO-dong 237-O; and (v) even if the instant business was registered and reported as a simplified taxable person, the instant business should not be deemed as being subject to the provision of the simplified taxable person as a matter of course; and (v) the instant business should be separately subject to the application of the simplified taxable person as to the instant business (Articles 5(1) and 25(1) of the Value-Added Tax Act); and (v) the Defendant’s business is not subject to the final consumer parts of value-added tax (Article 27(2).7).

3. Conclusion

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

shall be ruled.