(영문) 서울행정법원 2018.10.19.선고 2018구합68742 판결

The defendant's refusal of registration (from July 1, 2018 to March 31, 2019) and the disposition of KRW 4.5 million against the plaintiff on May 25, 2018 shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. The Plaintiff passed the tax accountant examination in 2001 and completed the registration of the tax accountant, and operated the Btax office in Seongbuk-si, which is called “C” from 2011, and was in charge of D’s tax agent’s business.

B. From April 18, 2016 to May 17, 2017 of the same year, the Suwon Tax Office conducted a tax investigation on D, and confirmed that D omitted comprehensive income tax of KRW 46,00,000,000, which was deposited in the business account, was omitted at the time of filing a global income tax return for global income tax for 2014. Accordingly, on June 2, 2016, the head of the Suwon Tax Office demanded disciplinary action against the Plaintiff to the Commissioner of the Central Tax Office, and the Deputy Director of the Central Tax Office demanded disciplinary action against the Plaintiff on March 13, 2017.

D. On November 30, 2016, the Plaintiff closed its business, and the Defendant, as indicated below, violated Article 12 (Duty of Good Faith) of the Certified Tax Accountant Act. On May 25, 2018, the Plaintiff issued a disposition of refusal of registration (from July 1, 2018 to March 31, 2019) and an administrative fine of KRW 4.5 million to the Plaintiff (hereinafter “instant disposition”).

○ The Plaintiff should have verified the propriety of the amount of revenue by comparing the details of transactions in the business account with the tax invoice and supply price in the course of performing his/her duties. However, the Plaintiff failed to examine it, thereby failing to exhaust the comprehensive income tax. The Plaintiff confirmed that the amount of revenue was omitted from the “review of the amount of income” item of the certificate of bona fide return reverted to 2014, thereby

【Fact-finding without a dispute over the basis of recognition, Gap evidence 1 through 3, 6, Eul evidence 1 and 2, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) only in 2014, C was a business entity subject to verification of faithful reporting exceeding KRW 2 billion, and the Plaintiff became aware of such fact at the time of filing the final return of value-added tax with respect to C around January 2015. As such, D was not using the business and personal account strictly, as it did not use the business and personal account strictly. As the Plaintiff was reported as global income tax for the year 2015, it was impossible for C to compare and verify both the details of its report and documentary evidence when it reported global income tax for D in 2014. Therefore, it is difficult to deem that the Plaintiff violated its duty of good faith, and thus, the instant disposition was unlawful.

2) Even if the grounds for disciplinary action exist against the Plaintiff, the Plaintiff, who closed his/her business around November 30, 2016, is unable to engage in the tax business for a period of more than two years due to the instant disposition. Considering the degree of violation of the Plaintiff’s duty, the Plaintiff’s damages incurred to the Plaintiff, etc., the instant disposition is against the principle of proportionality, too harsh to the Plaintiff, and is unlawful by abusing and abusing discretion.

(b) the existence of the reasons for the measure;

1) Article 12(1) of the Certified Tax Accountant Act provides that "A certified tax accountant shall perform his/her duties in good faith and maintain dignity."

2) In full view of the relevant laws and regulations, Gap evidence Nos. 4 and 5, and Eul evidence Nos. 4 and 4 as a whole and the purport of the entire pleadings, the plaintiff is deemed to have violated the duty of good faith under Article 12 of the Certified Tax Accountant Act by failing to faithfully perform its duties in preparing books for global income tax return filed by D.

A) Article 160(1) of the Income Tax Act provides that "a business operator shall keep evidentiary documents, etc. so that he/she can calculate his/her amount of income and keep and manage books in accordance with a double-entry bookkeeping so that all transaction records of his/her business can be grasped objectively." The person obliged to book-keeping by double-entry bookkeeping shall use a business account when he/she supplies or supplies goods or services in relation to his/her business in accordance with Article 160-5 of the Income Tax Act. D is a person obliged to book-keeping by double-entry bookkeeping,

B) Article 1-2 of the Certified Tax Accountant Act provides that "the mission of a certified tax accountant is to contribute to protecting taxpayers' rights and interests as a tax specialist with public nature and faithfully performing his/her duty to pay taxes." In light of the public nature, etc. of the said certified tax accountant’s business, the Plaintiff, who is a certified tax accountant acting for the preparation of books for reporting D income tax and filing income tax returns, has the duty to examine whether the amount of income entered in the books conforms to the future transaction amount, etc. of the business account regardless of whether D is a certified tax accountant subject to the verification of good faith. Nevertheless, the Plaintiff’s conduct of tax agent’s business with belief only at the end of

C) Although the Plaintiff failed to review the business account at the time of filing a final return on the tax base of global income reverting to D in 2014 and verify the amount of income, the Plaintiff submitted a certificate of bona fide return to the effect that “the amount of business income calculated by books and evidence was faithfully verified in accordance with the Income Tax Act.” Article 2 Subparag. 8 of the Certified Tax Accountant Act provides that the verification of bona fide return under the Income Tax Act is one of the duties of a certified tax accountant, and Article 70-2(2) of the Income Tax Act extends the period for filing a final return on the tax base of global income of a business operator subject to verification of bona fide return from May 1 to June 30 of the following year. In light of this, the Plaintiff’s submission of a certificate of bona fide return at the time of filing a final return on the tax base of global income due to the fact that D became a business operator subject to verification of bona fide return, without properly

3) Therefore, the Plaintiff’s assertion on this part is without merit. It is reasonable to deviate from and abuse of discretion.

1) According to the following circumstances revealed in light of the overall purport of the pleadings as seen earlier, even considering the circumstances alleged by the Plaintiff, it is difficult to deem the instant disposition to be unlawful by contravening the principle of proportionality or by abusing discretion.

A) The bona fide return verification system stipulated in Article 70-2 of the Income Tax Act is introduced to the purport of preventing a bona fide return and supplementing the limit of the administrative ability in tax investigation by inducing a bona fide return through having a personal entrepreneur above a certain size verified the appropriateness of accounting and tax processing from a tax specialist before filing a income tax return. Even if the bona fide return verification system acts for a tax agent, it is difficult to have a question about the legitimacy of the instant disposition in light of the purport of the aforementioned system, and the degree of the Plaintiff’s breach of duty of care.

B) The Plaintiff’s mission is a tax specialist with public nature and a tax accountant who contributes to protecting the rights and interests of taxpayers and having them faithfully perform his/her duty to pay taxes, and requires a high level of service sincerity. Nevertheless, as a result of the Plaintiff’s unfaithful performance of duties, D was able to evade income tax of KRW 46,000,000 by omitting KRW 316,000 business income income in 2014. In light of this, the degree of violation of the Plaintiff’s duty cannot be deemed to be negligible.

C) Article 2(1)3 (c) of the Certified Tax Accountant Disciplinary Punishment Regulation provides that "where the amount of tax evasion due to a false entry, etc. is less than 50 million won, the amount of tax evasion shall be less than two months from the reprimand to the suspension of duties, or a fine not exceeding 500,000 won," and Article 2(1)5 (b) of the same Act provides that "where the amount verified falsely due to a false entry, is more than KRW 100,000,000,000 or less than KRW 500,000,000,000 or more than three months from the suspension of duties, or KRW 50,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won, or more than three years,000,00 won.

D) The Plaintiff voluntarily closed his/her business in accordance with his/her own judgment. As long as the period of voluntary closure and the period of denial of registration due to disciplinary action cannot be equally assessed, it cannot be determined whether the instant disposition, including the period of voluntary closure, deviates from or abused the discretionary authority.

2) Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.