Suwon District Court 2008Guhap2676 (209.08)

National High Court Decision 2007J2815 ( December 14, 2007)

evidence of a certificate that does not contain any specific content of the fact of sale

If credibility is not recognized to the extent that the value of evidence can not be easily denied because there is no specific content of the fact of sales in a written confirmation submitted by the person liable for duty payment, this does not constitute other data in lieu of books or documentary evidence that can serve as the basis for on-site investigation, even if a written confirmation by the person liable for duty payment

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of value-added tax of KRW 27,654,880 against the Plaintiff on January 17, 2007 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

가. 원고는 2001. 4. 1. 주식회사 ☆☆퍼슨스(이하 '소외 회사'라고 한다)와 대리점계 약을 체결하고 ○○시 수정구 ●●동에서 '★★ ○○점'이라는 상호로 소외 회사로부터 매입한 의류를 판매하는 영업을 하였다.

나. 원고는 2001. 7. 2.부터 2001. 11. 19.까지 사이에 14회에 걸쳐 소외 회사의 차명계좌인 박◆◆ 명의의 신한은행 계좌(이하 '차명계좌'라고 한다)에 148,800,000원을 입금하였는데, 서울지방국세청장은 2006년 12월경 소외 회사에 대한 세무조사 결과 위 차명계좌 입금액에 관하여 무자료 거래의 혐의가 있다고 피고에게 통보하였다.

C. On January 17, 2007, on the ground that the Plaintiff purchased 135,272,727 won (including value-added tax, 148,800,000 won) from the non-party company as non-indicted 135,272,727 won (including value-added tax) from the non-party company, the Defendant deemed that it omitted sales from 157,343,766 won (excluding value-added tax) by converting it into sales, and added the above omitted sales to the tax base in addition to the above amount to the tax base, the Defendant corrected 31,626,090 won from 148,80,000 won, which was 17,525,50 won (value-added tax amounting to 15,932,272 won) from the director of the Seoul Regional Tax Office, and notified the non-party company that the sales was not omitted, 31,629,2397 won (excluding value-added tax amount).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1-2, Eul evidence 2, Eul evidence 15-1 and Eul evidence 15-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

At the request of the non-party company, the plaintiff made a normal transaction, such as depositing the price for clothes into the corporate account or borrowed-name account of the non-party company and receiving a tax invoice on the whole amount of the purchase price. In other words, since the transaction details stated in the tax invoice (No. 3-1-9) issued by the non-party company to the plaintiff in 2001 are all the transactions of the plaintiff and the non-party company and the amount deposited into the borrowed-name account of the non-party company in 2001 (217,80,000) remains due to the non-party company's failure to receive the borrowed-name account from the non-party company to the account ledger of the non-party company's account, the non-party company's credit sales account for the non-party company does not remain in excess of 203,936,382 won and the non-party company's credit sales account for the non-party company was not entered in the account ledger of the credit sales account, the plaintiff also did not receive the purchase tax invoice equivalent to the borrowed account amount.

(b) Fact of recognition;

(1) 소외 회사 및 그 계열사인 유겐트어패럴 주식회사, 주식회사 ◎◎◎◎, 주식회사 ◇◇◇피제이(이하 '소외 회사 등'이라고 한다)는 2001년 1월경부터 다른 사업에 투자할 자금을 마련하기 위하여 박◆◆, 오□□, 전■■ 등 명의의 차명계좌를 개설하여 대리점에 대한 매출금액 일부와 상품보증금 등을 입금 받아 관리하였다.

(2) 원고는 소외 회사로부터 의류를 매입하고 그 대금으로 2001년 4월부터 2001년 12월까지 소외 회사의 법인계좌에 237,000,000원(그 중 2001년 2기에 해당하는 금액은 138,000,000원), 소외 회사가 개설한 박◆◆ 명의의 차명계좌에 217,800,000원(그 중 2001년 2기에 해당하는 금액은 148,800,000원)을 각각 입금하였고, 같은 기간 소외 회사로부터 합계 458,461,882원의 세금계산서 9장을 발행받았다.

(3) Meanwhile, the head of the account ledger of the non-party company 2001 stated that the sum of the credit sales account of the plaintiff 458,461,882 won is 254,525,50 won, and 203,936,382 won among them remains in the balance of the credit sales. In light of the contents, the amount deposited by the plaintiff to the corporate account of the non-party company is considered to have been deposited in the whole amount of the credit sales. However, the amount deposited to the account of the non-party company is merely 17,525,500 won among the amount deposited to the account of the non-party company, and there is no indication as to the remaining amount of 200,274,500 won (217,800,000 won - 17,525,500 won, and the amount corresponding to the second half of 201 is 131,274,500 won.

(4) 서울지방국세청장은 2006. 8. 16.부터 2006. 12. 22.까지 소외 회사 등에 대한 법인세 조사를 실시하여 소외 회사가 박◆◆ 등의 차명계좌에 입금된 911억여 원 중 551억여 원의 매출을 누락한 것으로 판단하고 소외 회사의 대표이사 박△△ 및 상무 김▲▲으로부터 소외 회사는 2001년 1기부터 2005년 2기 과세기간 중 붙임 명세 그 중에는 2001년에 원고가 소외 회사의 차명계화로 입금한 217,800,000원(그 중 2001년 2기에 해당하는 금액은 148,800,000원)이 매출누락된 것이라는 취지의 명세서 가 포함되어 있다]와 같이 제품을 매출하고 세금계산서를 미교부하였음을 확인합니다 라는 내용의 확인서를 교부받고 그 세무조사자료를 소외 회사 등에 대한 관할세무서장 인 동대문세무서장 및 원고에 대한 관할세무서장인 피고 등에게 각각 통보하였다.

(5) Based on the above notice, the defendant judged that the plaintiff omitted sales of KRW 157,343,76 [the amount obtained by converting value-added tax into sales] 135,272,727 won (the amount excluding value-added tax at KRW 148,80,00) at the second half-year 2001 and corrected the omitted sales amount to KRW 31,626,097 for the plaintiff on January 17, 2007 by including it in the base of value-added tax, and corrected the amount of value-added tax at KRW 31,626,097 for the plaintiff on January 22, 2007; the plaintiff was confirmed to have omitted sales of KRW 157,343,766 on February 22, 2007; the plaintiff was issued a written confirmation confirming that the amount of reduced sales was not KRW 157,3766 won prior to the reduction; the plaintiff's notice of tax payment was issued to the defendant under this case's disposition; the plaintiff's notice of KRW 2525197.257

(6) On the other hand, the non-party company, etc. imposed value-added tax and corporate tax on 55.1 billion won or more on the basis of data notified by the head of the Dong-gu District Tax Office, and filed a request for pre-assessment review and objection thereto. On May 16, 2007 and July 10, 2007, the head of the Seoul Regional Tax Office rendered a decision to re-examine the sales omission amount and to correct the tax base and tax amount. Accordingly, the head of Dong-gu Tax Office re-examineed the sales omission amount and revised the amount to 3.4.1 billion won to reduce the amount to 23.7 billion won. The non-party company, etc. dissatisfied with the above disposition, filed a tax appeal with the Tax Tribunal. On March 23, 2009, the Tax Tribunal decided to rectify the tax base and tax amount by reducing the amount to 4.9 billion won out of the omitted sales omission amount.

[인정근거] 다툼 없는 사실, 갑 제3호증의 1 내지 9, 갑 제4호증의 1, 2, 갑 제5호증, 을 제1호증의 1, 2, 을 제2호증, 을 제3호증의 1, 2, 을 제4, 5호증, 을 제6호 증의 1, 2, 을 제7, 8호증, 을 제10호증, 을 제12호증의 1, 2, 을 제13호증, 을 제14호 증의 1, 2, 을 제15호증의 1, 2, 을 제16호증의 1, 2, 3의 각 기재, 제1심 증인 김▲▲의 증언, 변론 전체의 취지

C. Determination

(1) Generally, in correcting the details of a taxpayer’s duty return due to an error or omission, it would be based on books or evidence. However, if it is recognized that there is an error or omission in the details of a tax return based on other data recognized as reasonable and reasonable, and an on-site investigation is possible, it may also be corrected by other data. However, if it is not recognized as credibility to the extent that the value of evidence can not be easily denied because there is no specific content in the certificate submitted by the taxpayer as the person liable for duty payment as the person liable for duty payment, even if it is a certificate of duty payment, it does not constitute other data substituting the books or documentary evidence (see, e.g., Supreme Court Decision 2001Du770, Jun. 24, 2003).

(2) We examine the instant case in light of the aforementioned legal principles. The Defendant’s materials used as the basis for the instant disposition include the written confirmation (No. 3 No. 1 and No. 2) and written confirmation (No. 6-1 and No. 2) prepared by Nonparty Company’s representative director, etc. and the Plaintiff’s confirmation document (No. 6-2) as seen earlier. However, in light of the following circumstances that can be known through the facts and records acknowledged earlier, it is difficult to dismiss the Plaintiff’s assertion that the Plaintiff merely deposited part of the credit purchase amount in the company’s name at the request of Nonparty Company, and did not omitted purchase and sales, and it is difficult to recognize that Nonparty Company and the Plaintiff omitted purchase and sales as above.

① The confirmation document prepared by the representative director, etc. of the non-party company is merely the content that the Plaintiff’s deposit in the borrowed name account is an omitted sales amount. The confirmation document prepared by the Plaintiff is merely the content that the Plaintiff omitted sales of KRW 157,343,766 during the second period of 201, and there is no specific statement about the transaction date, item, quantity, unit price, supply price, etc., and there is no evidence about the specific sales and purchase facts supporting the contents.

② The head of the competent tax office on the non-party company, etc. calculated the omitted amount of sales based on the confirmation document prepared by the representative director, etc. of the non-party company, and imposed the value-added tax, corporate tax, etc., but it was found that the amount equivalent

③ The omitted sales amount in the certificate prepared by the Plaintiff and the omission of sales in the certificate prepared by the representative director, etc. of the non-party company shall not coincide with the omitted sales amount based on the disposition of this case.

④ The Plaintiff’s KRW 454,800,000 (the corporate account 237,000,000 + the borrowed account 217,80,000,000) deposited into the corporate account and the borrowed account in 2001 is almost identical to the total amount of KRW 458,461,882, which was issued by the Plaintiff from the non-party company. Likewise, 200,274,500, out of KRW 217,80,000, which was omitted in the account ledger of the credit sales account of the non-party company in 2001, which was deposited by the Plaintiff to the borrowed account, was almost identical to the total amount of KRW 203,936,382, which was written as the credit sales amount of the Plaintiff of the non-party company under the above account ledger.

⑤ 소외 회사가 2001년 외상매출금 계정원장상 원고에 대한 외상매출금 잔액으로 기재되어 있는 203,936,382원에 관하여 그 변제를 독촉하는 등의 권리행사를 한 자료를 찾아볼 수 없고, 오히려 소외 회사는 원고가 차명계화에 입금한 금액도 매출을 누락한 것이 아니라고 주장하고 있다(갑 제4호증의 1, 2, 제1심 증인 김▲▲).

④ In light of the series of processes that the Defendant issued a written confirmation from the Plaintiff on January 17, 2007 and issued a tax notice pursuant to the instant disposition to the Plaintiff on January 22, 2007, it cannot be ruled out that the possibility that the Defendant’s tax officials were forced to prepare a written confirmation that the Plaintiff omitted the sales amount to the Plaintiff for the purpose of establishing the legitimate ground for the instant disposition.

(3) Therefore, the disposition of this case is unlawful.

3. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked and it is so decided as per Disposition.