Seoul Administrative Court 2010Guhap32365 ( November 25, 2011)

209u3752 ( September 9, 2009)

The disposition of this case, which calculated income amount by deeming the project implementation cost and sales fee as the plaintiff's sales, is unlawful.

Since it is a tax invoice different from the fact of delivery without supplying goods or services, it is unreasonable to determine and impose the comprehensive income tax including the amount paid in excess of 0 billion won out of the amount on the 1 tax invoice, and the amount on the 2

Article 80 of the Income Tax Act shall be decided and corrected.

2011Nu43265 Revocation of imposition of global income tax

KoreaA

head of Sung Dong Tax Office

Seoul Administrative Court Decision 2010Guhap32365 decided November 25, 2011

May 7, 2013

June 21, 2013

1.The judgment of the first instance shall be modified as follows:

A. On February 9, 2009, the part of the disposition imposed by the Defendant against the Plaintiff on February 9, 2009, which exceeds the OOE in the imposition of global income tax for the year 2006 shall be revoked.

B. The defendant's rejection disposition against the plaintiff on October 26, 2009 against the second time value-added tax correction claim was revoked in 2006.

C. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance shall be revoked.

The defendant's disposition of imposition of the global income tax OOO for the plaintiff on February 9, 2009 shall be revoked.

The defendant's rejection disposition against the plaintiff on October 26, 2009 against the second time of 2006 against the plaintiff shall be revoked.

【Plaintiffs have reduced the purport of the claim in the trial as above】

1. Imposition of global income tax and refusal of application for rectification;

The following facts are either disputed between the parties, or acknowledged in Gap evidence Nos. 1, 2, 19, and 20, by taking account of the overall purport of the pleadings.

[1]

○ The Plaintiff, a business operator who runs the construction business in the name of “B comprehensive construction,” has determined that OO-gu OO 229-49, O-dong 229-49, a business that newly constructs a main apartment on the 3rd underground floor (hereinafter referred to as “new construction business in this case”) was carried out, and contracted the construction of the said main apartment to CC-company (hereinafter referred to as “CC-company”) on March 10, 2003.

Since 2003, the Plaintiff did not file a comprehensive income tax for the year 2006 while running the new construction business of this case, and reported the value of supply for the second period value-added tax in 2006 to the OO.

[2]

As a result of the tax investigation conducted against the plaintiff from August 18, 2008 to December 31, 2008, the defendant decided and notified that the plaintiff did not submit books or evidential documents necessary for calculating the tax base pursuant to Article 80 (2) and (3) of the Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006; hereinafter the same shall apply) and Article 143 (1) 1 of the Enforcement Decree of the Income Tax Act (the sales belonging to the plaintiff in 2006) as the sales belonging to the plaintiff under Article 80 (2) and (3) of the Income Tax Act and Article 143 (1) 1 of the Enforcement Decree of the Income Tax Act (the payment for the project implementation services + the sales fees + the OOO) based on the income amount calculated by applying the simple expense rate to the plaintiff on February 9, 2009.

On the other hand, on October 22, 2009, the plaintiff filed a claim for the correction of value-added tax on the ground that the plaintiff excessive appropriation of sales at the time of filing the second final return of value-added tax in 2006 to the defendant, but the defendant rejected it on October 26, 2009 (hereinafter referred to as "disposition for refusal of correction of this case").

As to the global income tax for 2006 as seen earlier, the Defendant applied standard expense rate, unlike the initial one, to reduce the amount of the global income tax for 2006 to OOO(including the additional tax) on October 6, 2010 (hereinafter referred to as the “instant tax disposition”).

2. The plaintiff's assertion

A. Disposition of this case

As of November 30, 2006, the Defendant: (a) regarded the Plaintiff as the sales amount in 2006 and calculated the amount of income; and (b) issued the instant disposition after calculating the amount of income. The Defendant: (c) regarded the Plaintiff as the Plaintiff’s sales amount in 2006, the sum of the supply value of the tax invoice of the project implementation services cost (hereinafter “the first tax invoice in this case”) and the tax invoice of the sales commission (hereinafter “the second tax invoice in this case”).

However, the price for the above project implementation services is merely the amount on the tax invoice No. 1 of this case issued by the Plaintiff in short of the Plaintiff’s request, and the value of the commercial building actually received by the Plaintiff as a substitute does not reach the amount on the OOO won. Since the above commercial building was sold at low price, the amount exceeding the OOO won out of the tax invoice No. 1 of this case cannot be included in the Plaintiff’s sales because it was written without any actual transaction.

The above OOOOO is the cost actually spent by theCC company in the course of operating the new construction project of this case. To transfer the tax burden to the Plaintiff, it is merely the fact that the Plaintiff provided sales agency services to theCC company and received the corresponding tax invoice from the Plaintiff in disguised manner as the Plaintiff received the price.

Therefore, the instant disposition imposing the amount of income calculated by deeming the project implementation cost and the sales fee as the Plaintiff’s sales in 2006 is unlawful.

B. Disposition rejecting correction of the instant case

As above, the portion of the supply value of the first tax invoice of this case in excess of the OOO members, and the supply value of the second tax invoice of this case in excess of the OO members in excess of the sales amount actually generated to the Plaintiff. Thus, the part of the sales amount reported by the Plaintiff in relation to the second tax invoice of this case in 2006 in excess of the OO members is excessively appropriated.

Therefore, the rejection disposition of the instant correction is unlawful even if it becomes a ground for correction under Article 45-2(1)1 of the Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same).

3. Facts of recognition;

Each entry of Gap evidence 1, 8 through 13, 22 through 25, Eul evidence 6, 9 through 11, 15 through 18 (including serial numbers) is acknowledged as follows in full view of the whole purport of the pleadings.

[1]

In the new construction project of ○○, the Plaintiff bears the responsibility for authorization, permission, sale, and advertisement, and theCC company is responsible for construction and repair of defects. On March 10, 2003, the Plaintiff and theCC company confirmed the settlement amount of implementation company accounts to be received from theCC company as the OOO members.

On August 1, 2005, ○○ Plaintiff prepared a written agreement withCC companies on August 1, 2005 with regard to the volume of commercial buildings that the Plaintiff would first receive and the payment of the remaining settlement amount according to the actual sale rate in the future.

▷제1항

The plaintiff sells the 635.603 square meters and 106 square meters in total on the 4th floor and 635.601 square meters in underground and 106 commercial buildings (hereinafter referred to as "combined commercial buildings") and then redeems the development gains.

▷제4항

The OOOO which the plaintiff borrowed from the CC company at the cost of purchase of the EE shares will be repaid to the CC company before completion.

▷제5항

TheCC company shall pay the design cost (OOO: separate value-added tax), the unpaid sales agency fee and advertising expenses (OOO: separate) within one week after signing the agreement.

▷제6항

The plaintiff is to issue a tax invoice to theCC company immediately after signing the agreement on the portion of the unclaimed project cost, out of the project cost paid by theCC company.

▷제7항

CC enterprise refers to a loan with no interest of the OOO within one week after the signing of the agreement to the Plaintiff, and when theCC enterprise deposits the sales revenue of the commercial building that it pays to the Plaintiff as development gains, it will be repaid as the top priority.

▷제9항

The sales revenue of the commercial building, which is to be paid as development profit, shall be deposited into the hydro-dong multimodal sale account opened in the name of theCC company, and at the time all the obligations of the Plaintiff with respect to theCC company under this Agreement are settled, theCC company shall pay to the Plaintiff. In addition, in the event that the Plaintiff’s failure to perform its obligations under this Agreement causes damage to theCC company, theCC company may deduct the damages from the sales revenue of the commercial building, which is to be paid as the above development profit, and the Plaintiff shall compensate for the damages in excess: Provided, That after the completion, the implementation of the agreement with the Plaintiff and the ownership immediately after the issuance of the tax invoice, shall be transferred to the Plaintiff at the Plaintiff’s expense.

▷제10항

After the conclusion of the agreement, all affairs related to the sale in lots shall be handled at the responsibility of theCC company: Provided, That with respect to the development gains, theCC company shall issue a sales contract in the name of the plaintiff and handle it on its responsibility.

▷제11항

The plaintiff andCC companies confirm that they entered into this agreement by their free will, not by fraud, coercion or mistake, and the plaintiff, at the same time, does not make and enter into this agreement and does not make any monetary demand toCC companies in relation to this case, and the plaintiff promises to not raise any civil, criminal and administrative claims or objections toCC companies.

▷제12항

The agreement concluded on March 10, 2003 between the "OO-gu contract for the construction of a new construction project for the main complex of O-dong and the agreement concluded on October 2003 is null and void as of March 10, 200, and all of them will be reversed. In addition, the plaintiff shall not pay the amount borrowed to the plaintiff as a monetary loan agreement to the plaintiff: Provided, That the plaintiff shall pay the OOO which borrowed as a monetary loan agreement for the purchase of the right E-E shares until the completion of the construction, and the OOO which borrowed as a monetary loan agreement for the loan for the future shall be repaid in accordance with Article 7 of the agreement.

[2]

On November 2005, ○CC company constructed the above main apartment and received the completion and approval for use.

○ On March 31, 2006, the letter of agency service contract was drawn up between the Plaintiff andCC companies with the following contents:

▷제2조(계약기간)

From April 1, 2006 to June 30 of the same year.

▷제3조(원고의 업무대행 범위)

The production of carbags, the execution of newspaper advertisements, the production of magazines and the execution of advertisements, the execution of film production costs, the settlement of sales commission fees, the settlement of authorization fees, the execution of expenses for related services.

▷제4조(비용정산)

When the plaintiff requests in writing after prior execution of the duties under Article 3, theCC company shall pay the duties after confirmation.

On April 28, 2006, the Ministry of Trade, Industry and Energy prepared a letter of approval on April 28, 2006 and received approval.

With respect to the project of the Suchi Complex Construction Project, the executor of the construction project, BB comprehensive construction project, project costs, and loans, are as follows:

(1) Details and settlement of payment of project costs.

After processing our cost, sales value-added tax (OOO) shall be paid to the executive officer (in the case of the executive officer: the issuance of tax invoice).

Karog production cost, newspaper advertising cost, magazine production and advertisement fee, image production cost, sales fee, authorization and permission cost, service cost, OOOO (payment for the executor), additional OOOO(pre-payment for the executor).

(2) Settlement of loans.

Pursuant to Article 7 of the Agreement, with respect to loans (OOOO) under Article 4 of the Agreement and loans (OOOO) under Article 7 of the Agreement, the total amount of OOOOO shall be settled at 70% of the sales amount paid by us to us in lieu of the sales amount of the commercial buildings on the fourth floor.

On November 6, 2006, the Ministry of Trade, Industry and Energy prepared a letter of approval with the following contents and received approval.

With respect to the project of the O-dong Inter-Construction Project, with respect to the BB comprehensive construction project and the project costs and loans, the executor shall approve the operator of the construction project as follows:

(1) Details and processing of payments of loans.

Total amount of loans, OOOO(Completion of Settlement of Land Prices), OOOO(Completion of Settlement), cost processing OOOOO(Completion of Settlement), OO0 won for leased balance, OOOOO0 for offset of purchase and sale taxes (so-called 401), commercial buildings (No. 401) and OO00 won for cash recovery (so-called O00).

* The cost processing (OOO) of the sale commission(s) shall be made on April 28, 2006.

On November 30, 2006, the Plaintiff received OOOO from the CC company for project implementation services. However, the Plaintiff agreed to purchase the remainder of the commercial buildings excluding No. 401 of the 4th floor above the above main apartment and the 106th floor No. 106 among the 106th floor No. 106, and issued the first tax invoice of this case at the request of the CC company, and issued the second tax invoice of this case at the request of the CC company.

On December 8, 2006, the Plaintiff completed the registration of ownership transfer for the remaining commercial buildings of this case under the name of the Plaintiff, and attempted to sell them, but all the remaining commercial buildings of this case were disposed of by auction due to low sales performance. The bid price was the total amount of OO0 won.

4. Determination

A. Part of the first tax invoice of this case

(1) The circumstances examined in full view of the purport of the entire pleadings are as follows.

￭ 원고와 CC기업 사이의 2003. 3. 10.자 약정에서 이 사건 신축사업과 관련한 시행사 정산금을 OOOO원으로 정하였으나, 2006. 11. 30.자 약정에서 사업시행용역 대가로 OOOO원을 지급받되 이 사건 나머지 상가를 OOOO원에 매입하는 것으로 합의함으로써 사업시행용역 대가의 지급에 갈음하여 이 사건 나머지 상가를 대물변제받기로 합의한 것으로 보이는데, 원고가 대물변제로 이 사건 나머지 상가를 공급받은 이상, 사업시행용역 대가라는 수입은 실현된 것으로 보아야 할 것이다.

￭ 원고가 대물변제를 받으면서 평가한 이 사건 나머지 상가들의 가액은 당초의 상가분양가격의 합계인 OOOO원과 거의 일치하고 있고(갑 제19호증, 을 제7호증 참조), 위 가액은 원고와 CC기업이 서로 합의한 가격이므로, 장래 미분양으로 인한 손실이 예상된다는 사정만으로 그 가액이 과다계상된 것으로 볼 수 없다.

￭ 또한 이 사건 나머지 상가들의 경락가액이 OOOO원 정도였다는 사정만으로 위 상가들의 실제 가치가 OOOO원에 미치지 못한다고 단정할 수는 없다.

(2) In full view of the above circumstances, sales related to the first tax invoice of this case cannot be deemed to have been excessively appropriated. Accordingly, the Plaintiff’s assertion on this part is without merit.

B. Part of the second tax invoice of this case

(1) On March 31, 2006, the Plaintiff entered into a contract on behalf of theCC company to vicariously carry out the production, etc. of the Kavina from April 1, 2006 to June 30, 2006. The fact that the Plaintiff issued the 2 tax invoice of this case on November 30, 2006 that the value of supply as of November 30, 2006 to theCC company was stated as OOO and item as the sales expense is as above.

(2) However, the aforementioned facts are examined based on the overall purport of the pleadings, and the following circumstances are as follows: (a) the record of Gap evidence No. 26, and witness KimF testimony.

￭ 원고와 CC기업 사이의 2005. 8. 1.자 합의서의 작성으로, 원고가 CC기업에게 이 사건 신축사업의 시행권을 전부 양도하고, 그 때까지 원고가 투입한 비용 등과 수익금 배분액 등을 모두 합하여 사업시행용역 대가를 OOOO원로 정한 후 지상 상가 4층 전체 635.603평과 지하 1층 상가 B01호 106평을 대물로 받았으며, 위 합의서 작성 이후 분양과 관련한 모든 업무는 CC기업의 책임으로 처리하기로 하였다. 따라서 위 합의서 작성 이후 원고가 분양 관련업무를 수행하거나 그 관련비용을 지출할 필요가 없고 그에 관한 자료도 없으므로 원고와 CC기업 사이에 체결된 분양대행용역계약서는 CC기업이 이미 지출한 사업비에 대하여 원가처리를 하기 위하여 형식적으로 작성한 것으로 보인다.

￭ CC기업 내부에서 작성된 2006. 11. 6.자 품의서(을 제9호증) 상 CC기업이 2005. 8.경 이미 원고에 대하여 OOOO원의 대여금채권을 가지고 있었다고 기재되어 있는데, 위와 같은 대여금채권이 존재하였음에도 2005. 8. 1.자 합의서 작성 당시 위 대여금채권을 명시하여 시행개발이익과 상계처리하지 않고, 설계비, 미지급분양대행 수수료 및 광고선전비용 등 합계 OOOO원을 합의서 작성 후 일주일 내로 지급하기로 약정한다는 것은 경험칙상 납득하기 어려우므로 CC기업의 원고에 대한 대여금채권이 실제로 존재하였다고 보기 어렵다(위 합의서 상 CC기업의 원고에 대한 대여금채권은 권EE 지분 매입비 OOOO원과 그 후 대여하기로 한 OOOO원만이 명시되어 있을 뿐이다).

￭ 가사 원고가 2006. 3. 31.자 대행용역계약서의 내용과 같이 2006. 4. 1.부터 같은 해 6. 30.까지 사이에 실제로 분양대행 업무를 수행하였다고 하더라도, 평균적으로 분양수수료는 분양가의 5% 정도에 불과하므로 OOOO원 정도의 분양수수료가 발생하기 위해서는 OOOO원 정도의 분양이 이루어져야 하는데(분양수수료가 OOOO원이라 하더라도 OOOO원 정도의 분양이 이루어져야 한다), 2005. 8. 1. 이후에 원고가 실제 분양대행을 하였다는 자료가 없는 점에 비추어 볼 때, 위 OOOO원을 분양수수료로 보기 어렵다.

"￭ 2006. 11. 6.자 품의서상 '분양수수료 원가처리 OOOO원(처리완료)

2006. 4. 28. 기품의 득함'으로 기재되어 있는데, 원고가 2006. 3. 31. CC기업과 사이에 분양대행 계약을 체결한 것이라면 채 한 달도 경과하지 않은 시점에 OOOO원의 분양수수료 채권이 발생하였다는 것도 납득하기 어렵다.",￭ 2006. 4. 28.자 CC기업 영업관리부의 품의서에서 'OOOO원은 기지급사업비로서 CC기업에서 원가처리 후 매출부가세(OOOO원)는 시행사에 지급할 예정', '사업비 합계 OOOO원은 시행사 기지급'이라고 기재되어 있는데, 이 사건 제2세금계산서는 2006. 11. 30.자로 발행되어 있어 사실과 다르다.

￭ 2003년경부터 이 사건 신축사업을 시행한 재건축조합이 존재하였으나, 그 조합이 정식으로 인가받지 못한 상태여서 사업자등록증을 받지 못하여 세금계산서를 발행할 수 없었으므로, CC기업은 원고를 경유하는 방식으로 이 사건 신축사업에 필요한 비용을 지출한 후 원고로 하여금 BB종합건설 명의의 세금계산서를 발행하게 하는 방식으로 지출한 비용의 회계처리를 한 것으로 보인다.

￭ 2005. 8. 1.자 합의서 제6항에서 CC기업이 기투입한 사업비 중 미증빙금액 부분에 대하여 원고가 CC기업에게 세금계산서를 발급키로 한 점, 이 사건 제2세금계산서에도 분양수수료가 아니라 '분양 제경비'라고 기재되어 있고, 회계전표에도 기재되어 있는 점 등을 고려할 때, 이 사건 제2세금계산서는 원고에 대한 분양수수료가 아니라 이 사건 신축사업 시행과정에서 CC기업이 지출하였으나 증빙을 구비하지 못한 각종 비용을 회계처리하기 위한 목적에서 발행된 것으로 보인다.

￭ CC기업에서 작성한 BB종합건설 대여금내역(을 제10호증)에 의하면, OOOO원은 주택구입비, 설계비, 철거비, 기타수수료(조합운영비, 이주비) 등으로 사용되었다고 기재되어 있어 이 사건 신축사업의 진행과정에서 재건축조합에 지급되거나 비용으로 지출된 것으로 보이므로 가사 위 비용이 원고의 계좌로 입금되거나 원고에게 교부되었다 하더라도 원고에 대한 대여금으로 보기 어렵다.

(3) In full view of the above circumstances, it is reasonable to view the instant secondary tax invoice as either issued without a real transaction or as a false tax invoice, and thus, in calculating global income tax reverted to the year 2006, an OOO member, which is the value of supply of the instant secondary tax invoice, shall be excluded. Accordingly, the Plaintiff’s assertion on this part is with merit.

C. Violation of the justifiable amount of global income tax and the disposition rejecting correction

(1) As above, if the Plaintiff’s sales belonging to the year 2006 as the Plaintiff’s KRW OO in the instant tax invoice and the global income tax corresponding to the year 2006 is calculated, the Plaintiff becomes an OOO member as indicated below (the “justifiable amount of global income tax calculation table”). Therefore, the portion exceeding the KRW OO in the instant disposition is unlawful.

[Calculation Table of Global Income Tax Amount]

Gu Sector

Disposition of this case

Justifiable Tax Amount

Amount of increase or decrease

The total amount of revenue

OOO

OOO

OOO

Global income amount;

OOO

OOO

OOO

Amount of income deduction

OOO

OOO

OOO

Tax Base

OOO

OOO

OOO

calculated tax amount

OOO

OOO

OOO

Tax Credit System

Tax reduction and exemption system

Amount of final tax

OOO

OOO

OOO

Additional Tax

OOO

OOO

OOO

Additional Tax Amount

Total final tax amount

OOO

OOO

OOO

(2) As seen earlier, since the instant secondary tax invoice is either issued or different from the fact that it was issued without a real transaction, the supply value of the instant secondary tax invoice ought to be excluded in calculating the output amount of the value-added tax for the second period of value-added tax in 2006. Accordingly, the instant disposition rejecting correction was unlawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without merit. It is so decided as per Disposition by the court of first instance according to the reduction of claim in the trial.