Supreme Court Decision 2014Guhap63916 ( November 28, 2014)

It shall be determined by comprehensively taking into account various circumstances concerning the amount deposited in the account of the relevant financial institution, such as the possibility of mixing funds for other purposes other than sales or revenue.

It is difficult to view that there was sufficient proof that some of the amounts were paid to a normal import declaration or deposited regardless of the acceptance of the case, and that there was sufficient proof that the remaining amounts were paid to a normal import declaration or deposited without the relation to the acceptance of the case only with the evidence submitted.

2015Nu1344 Revocation of Disposition of Imposition of Value-Added Tax

OO

O Head of tax office

Supreme Court Decision 2012Du7769 Decided June 23, 2015

November 27, 2015

January 29, 2016

1. The remainder of the judgment of the court of first instance excluding the part as referred to in paragraph (1) shall be modified as follows:

A. Of the instant lawsuit, the Defendant’s imposition of value-added tax of KRW 22,16,780 on September 8, 2006 exceeds KRW 20,494,319 on the second period of value-added tax of KRW 22,116,780 on the Plaintiff in 2006; the amount exceeding KRW 14,801,92 on the imposition of KRW 20,493,190 on the first period of value-added tax in 2002; the amount exceeding KRW 13,481,453 on the imposition of KRW 21,840,627 on the second period of value-added tax in 202; and the amount exceeding KRW 16,864,320 on the imposition of KRW 15,398,04,320 on the first period of value-added tax in 203; the amount exceeding KRW 14,178,7301,3151.

B. As to the remaining disposition after the above dismissal, the part which exceeds 13,792,783 won out of value-added tax for the second period of 2001 20,494,319 won against the Plaintiff on September 8, 2006; the part which exceeds 10,531,535 won out of 14,801,923 won of value-added tax for the second period of 2002; the part which exceeds 8,556,652 won out of 13,481,453 won of value-added tax for the second period of 2002; the part which exceeds 10,521,153 won out of value-added tax for the second period of 203 15,398,047 won of value-added tax for the second period of 203; and the part which exceeds 11,511,380,237,7824.

C. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. The plaintiff's purport and purport of appeal

A. Purport of claim

The Defendant revoked the disposition of imposition of value-added tax for the second period of 20 years against the Plaintiff on September 8, 2006, KRW 24,316,930 for the second period of 20 years, value-added tax for the first period of 22,751,980 for the second period of 202, value-added tax for 24,404,430 for the second period of 202, value-added tax for the first period of 203, value-added tax for 17,200,740 for the first period of 203, value-added tax for 14,93,940 for the second period of 203.

B. Purport of appeal

The part against the plaintiff, excluding the part of paragraph (1) of the order, shall be revoked in the judgment of the court of first instance. The part of the defendant's disposition of imposition of value-added tax of 22,116,780 won for the second period of 20 years against the plaintiff on September 8, 2006, of 17,50,454 won from among the disposition of imposition of value-added tax of 22,116,780 won for the second period of 20 years, and of 17,50,500,454 won from among the disposition of imposition of value-added tax of 20,493,190 won for the first period of 202, and of value-added tax of 21,840,627 won for the second period of 202, and of value-added tax of 16,864,320 won for the first period of 203, the part of imposition of value-added tax of 14,730 won for two years.

2. The defendant's purport of appeal

The part against the defendant, excluding the part of paragraph (1) of the judgment of the first instance, shall be revoked. The plaintiff's claim against the defendant shall be dismissed.

[This part of the judgment of the court of first instance dismissed due to the defendant's ex officio reduction (this part of paragraph (1) is not included in the scope of the judgment of this court according to the fact that the plaintiff and the defendant did not appeal]

1. Details of the disposition;

A. From May 27, 1994, the Plaintiff is a business operator who runs a defense project in the OOdong OO of Seoul OO-gu and OO building OO-O.

"나. 도봉세무서장은 2006. 3. 18.부터 2006. 4. 14.까지 원고에대하여2000년〜2003년 과세연도를 대상으로 한 세무조사를 실시한 결과，원고의 업무 관련 계좌인 OO은행 계좌(이하 비 사건 계좌'라 한다)에 입급된 금액 중 합계 614,480,122원(20이년 도 2기분 125,345,012원, 2002년도 1기분 123,016,960원, 2002년도 2기분 138,858,830 원, 2003년도 1기분 119,433,020원, 2003년도 2기분 107,826,300원의 합계액，이하이 사건 수입누락금액'이라 한다)의 매출(수임료)을 누락하여 신고한 것으로 판단하고, 부 가가치세 결정결의서(안)을 작성하여 피고에게 통보하였다.",다. 이에 피고는 2006. 9. 8. 원고에 대하여 2001년도 2기분 부가가치세 24,316,930 원，2002년도 1기분 부가가치세 22,751,980원，2002년도 2기분 부가가치세 24,404,430 원, 2003년도 1기분 부가가치세 17,200,740원，2003년도 2기분 부가가치세 14,933,940 원을 각 부과하였다.

D. On this ground, the Plaintiff asserted that it was erroneous for the Commissioner of the National Tax Service to have determined that the portion of the input fees unrelated to the fees was omitted in each disposition of imposition stated in the preceding paragraph, and filed a request for a review (Supplementary 2006-0372) against the Commissioner of the National Tax Service, but the said request was dismissed on December 27, 2006.

"On November 2, 2009, the defendant accepted part of the plaintiff's assertion and revoked part of the omission amount of import of this case and refunded the tax amount as stated in attached Form 1'ex officio reduction ① (ex officio reduction) in attached Form 1', as stated in attached Table 1'. "Ex officio reduction ① (in litigation), the remaining tax amount is reduced as stated in attached Table 1'." In accordance with the purport of the judgment on March 26, 2012, which is after the decision of the court below was rendered, the defendant revoked part of the omission amount of import of this case. "Ex officio reduction ②" in attached Form 1, the remaining tax amount was reduced as stated in attached Table 1's ex officio reduction ②, and the remaining tax amount was reduced as stated in attached Table 1's ex officio reduction ② (after the declaration of reduction of the source of transmission). (b) The defendant's statement that the remaining tax amount was reduced as stated in attached Form 1's documents, and each part is included in the evidence No. 1 or 8(6).1).

2. Whether the part concerning the claim for revocation of ex officio cancelled tax amount among the lawsuit in this case is legitimate

In the imposition of KRW 21,239,579 among the imposition of KRW 22,16,780 on September 8, 2006 by the Defendant against the Plaintiff on the second half year of 2001, the part of KRW 17,50,50,454 among the imposition of KRW 20,493,190 on the first year of 2002, the part of KRW 21,840,627 on the imposition of value-added tax for the second year of 202, and KRW 16,864,320 on the imposition of value-added tax for the first year of 203, KRW 16,209, KRW 740 on the first year of 203, KRW 14,178, KRW 730 on the imposition of value-added tax, and KRW 11,68,946 on the first year of 200, the Defendant’s ex officio revocation of the imposition.

Therefore, among the instant lawsuits, the part exceeding KRW 22,16,780, which the Defendant imposed on the Plaintiff on September 8, 2006, exceeds KRW 20,494,319, among the imposition dispositions of KRW 20,49,319, the part exceeding KRW 14,801,923 in the imposition disposition of KRW 20,493,190 in the first term value-added tax in the year 2002, the part exceeding KRW 13,481,453 in the imposition disposition of KRW 21,840,627 in the second term value-added tax in the year 202, the part exceeding KRW 16,864,320 in the imposition disposition of KRW 16,864,320 in the first term in the year 203, the part that the Defendant sought revocation of the imposition disposition of KRW 15,398,178,730,1381.

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

A. The plaintiff's assertion

(1) It is unreasonable to set the amount deposited in the instant account without any ground on the ground that the Defendant, the disposition agency, should prove it, but the Plaintiff’s explanation was not made.

(2) Most of the omitted revenues of this case were normally reported by the Plaintiff, and only the relationship between the actual client and the depositor was not revealed. Moreover, the remainder was deposited for other reasons, such as monetary transactions between the parties irrelevant to the acceptance of the case, and the transfer of the account for monthly salary for employees, and thus, does not constitute the omitted revenues.

Article 2(1) of the Value-Added Tax Act provides that each disposition of this case imposed on the Plaintiff is unlawful.

Judgment

(1) The burden of proof of taxation requirement

(1) As a matter of principle, tax requirements should be proved by the tax authority to prove the facts of taxation requirements in a lawsuit seeking revocation of a tax imposition disposition, and the amount deposited into the account of a financial institution by a taxpayer should be proved by the tax authority. However, whether the amount deposited in the account of a financial institution constitutes sales or entry into the account of a financial institution can be proved by either disclosing or indicating indirect facts that can be presumed in light of the empirical rule in the specific litigation process (see, e.g., Supreme Court Decision 2003Du14284, Apr. 27, 2004). In such cases, it is reasonable to determine whether the relevant financial institution can be presumed as such based on the empirical rule or other circumstances that the relevant account has been used as its main deposit or management account, and whether it has sales or entry into the account, weight of sales or entry into the account from among the transactions, and the other party and amount of deposits in the account, and if so, it should be easily determined as to the relevant financial institution’s deposit or entry into the account.

(B) In the instant case, in light of various circumstances indicated in the record, such as the fact that most of the money deposited in the instant account falls under the fee related to the instant case, and that some of the depositors are the Plaintiff, but the possibility that the Plaintiff would have deposited in the instant account after receiving the fee in cash cannot be ruled out, it is highly probable that the amount deposited in the instant account falls under the Plaintiff’s fee sales, so long as there is sufficient indirect fact to regard the instant account as the Plaintiff as the principal account managing the attorney’s fee, so the amount deposited in the instant account is highly likely to fall under the Plaintiff’s fee sales. Thus, as examined below, it cannot be deemed that there was any error in each disposition of this case imposing value-added tax on the premise that the amount deposited in the instant account falls under the Plaintiff’s fee sales, excluding the amount already reported or cannot be viewed as the fee, and that the amount deposited in the instant account falls under the Plaintiff’s fee sales.

(2) Concerning the omission of import of the instant case

In full view of the evidence stated in the column of “(for recognition 1 of Attached 4-1, evidence indicated in the table, evidence Nos. 7, evidence Nos. 2-5, and evidence Nos. 2-2-2-5, and the purport of the whole pleadings, etc., the amount omitted in the revenue amount corresponding to the separate sheet Nos. 4(attached 2) shall be deemed to have been proved that the normal import declaration was performed or deposited without relation to the acceptance of the case. The detailed grounds for and reasons for the determination of each of the above items shall be substituted by the detailed matters listed in Attached 4 (the applicant, the details of the report, and the expenses, etc.), and the basis for the determination of some items shall be added to the following.”

① The Plaintiff, 5.5 million won deposited in the name of GabO on September 24, 2001, shall be deducted from the reported income amount on September 25, 2001, since the Plaintiff entered into an agreement with the victim on the leb’s lebher’s leb and 5.5 million won on the lebher’s leb’s lebs, and on October 2001 on the leb’s lebs leb’s lebs leb’s lebs lebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs ebs.

② On August 22, 2003, the Plaintiff, which was deposited in the name of KimB as of August 22, 2003, entered into a fee agreement with KimB appellate case on August 22, 2003, agreed upon two million won for the retainer (including value added tax), two million won for the suspension of execution as a condition for successful remuneration, and two million won for the payment from KimB as of the same day. The Plaintiff can be recognized as having reported 2.5 million won as a criminal fee for KimB as of September 17, 2003. Thus, it is reasonable to deem that the already reported amount was already implemented.

case-related officer

① Attached 2 No. 159, Oct. 25, 2001, deposited in the name of the Plaintiff on October 25, 2001; KRW 15 million deposited in the name of the Plaintiff on November 1, 2001; KRW 3 million deposited in the name of the Plaintiff on November 1, 2001.

Since each of the above deposits is acknowledged to be the fact that the Plaintiff transferred from the Mner account to the instant account, it is not related to the acceptance of the case. Accordingly, it should be deducted from the amount of income omitted from the report.

② Attached 2 No. 217 No. 217, May 22, 2002 KRW 1 million deposited in the name of Jeong, and KRW 9 million deposited in the name of Jeong on May 22, 2002, No. 218, May 22, 2002

In order to file an application for formal trial with a summary order of KRW 2.5 million for the crime of occupational injury, the Plaintiff delegated the Plaintiff with the authority to file a lawsuit for the said criminal case and related civil cases. The Plaintiff issued a tax invoice of KRW 1,00,000 on April 23, 2001 with respect to the fees for civil and criminal cases; the tax invoice of KRW 1,50,000 on August 6, 2001; the amount of KRW 1,50,000 for the civil case fees; the amount of KRW 1,50,000 for the criminal case fees; and the amount of KRW 1,50,000 for the criminal case fees was entrusted to the victim under the pretext of agreement; and while the civil procedure is in progress, it is reasonable to deem that the amount of each of the above fees for criminal proceedings constitutes part of the amount of each of the fees for criminal proceedings under the name of the victim.

③ The Plaintiff owned 22 million won, which was deposited in the name of KimCC as of March 31, 2003, OO-dong O-dong O-dong O-O apartment OOO2, but the Plaintiff’s children resided in the above apartment, and went on May 14, 2003. Around that time, on March 31, 2003, KimCC sent 22 million won to the instant account under the Plaintiff’s name. The KimCC reported the transfer of the above apartment on June 18, 2003, and resided until January 19, 2005. Thus, it is reasonable to view that the amount of the above entry in the name of GOCC constitutes part of the Plaintiff’s deposit money for the lease of the above apartment owned by the Plaintiff.

(D) As to the KRW 2.5 million deposited in the name of KimD on September 24, 2002, No. 244 No. 244, 2002

Judgment

“Plaintiffs shall conclude the acceptance agreement on September 23, 202 with Kim DD and Kim E-E criminal cases (appeal) KRW 2.5 million: KRW 2.5 million at the time of a judgment of innocence: KRW 500,000; KRW 2.750,000 on the following day to the account of this case; on September 27, 2002, KRW 1.5 million; on September 27, 2002, KRW 1.5 million was alleged to have been declared to have been declared to have been declared to have been declared to have been declared to have been KRW 30,000 for KRW 20,000 for KRW 20,000 for KRW 30,000 for KRW 20,000 for KRW 40,000 for KRW 9,000 for KRW 20 for KRW 40,000 for KRW 9,000 for KRW 40,000 for KRW 94 for the above import declaration.

Therefore, the part of the lawsuit in this case, which was revoked ex officio, shall be dismissed in an unlawful manner, and the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the remaining part of the judgment of the court of first instance, other than the part of Paragraph (1) of the order, is unfair by partly reaching this conclusion, the plaintiff's appeal shall be partially accepted, and it shall be modified as above, and the defendant's appeal shall