Even if re-audit was originally corrected as at the time of re-audit, it does not go against the binding force of the decision of the trial, and the omission of sales shall be determined

It is not against the binding force of the decision of the tax Tribunal to make a correction of the initial investigation according to the re-audit decision of the Tax Tribunal, and according to the facts, such as conversion of a personal entrepreneur into a corporation, the time of sale of inventory assets, continuous purchase of non-data, etc.

Article 66 (Determination and Correction)

2016Guhap50297 Revocation of Disposition of Imposition of Corporate Tax, etc.

AAAA

Head of Guro Tax Office

April 14, 2016

May 12, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of corporate tax on March 3, 2014 (including additional tax) on the Plaintiff shall be revoked. On March 3, 2014, a notice of change in income amount that the Defendant made against the Plaintiff was made to BB on March 3, 2014 is revoked. The Defendant’s imposition of value-added tax ○○○○○○○ (including additional tax) on the Plaintiff on March 10, 2014 is revoked.

1. Details of the disposition;

A. The Defendant issued a notice of correction and notification of corporate tax ○○○○○○○○○ (including additional tax) on March 3, 2014, on the ground that the Plaintiff’s total revenue amount was omitted (hereinafter “the sales amount of this case”) after conducting an integrated investigation of the Plaintiff for the business year 2008-2012 from December 16, 2013 to January 24, 2014 with respect to the Plaintiff. On the same day, on March 3, 2014, the Defendant issued a notice of correction and notification of change of income amount by disposing of the Plaintiff’s income amount as bonus to Nonparty BB, who is the representative director of the Plaintiff company, and notified the Plaintiff of change of income amount by disposing of the Plaintiff’s income amount ○○○○○ (including additional tax) as bonus, and issued a correction and notification of correction (hereinafter “instant disposition”).

B. On May 12, 2014, the Plaintiff dissatisfied with the instant disposition and tried to the Tax Tribunal on May 12, 2014. On August 10, 2015, the Tax Tribunal rendered a re-examination to the effect that, after the establishment of the Plaintiff Company, the Tax Tribunal re-examineed whether the BB held a seal-on inventory as an individual business entity and sold it, and subsequently, corrected the tax base, tax amount, and the amount of notice of change in income amount of the instant disposition.

C. From September 7, 2015 to September 26, 2015, the Defendant conducted a reinvestigation according to the decision of the Tax Tribunal and decided to maintain the instant disposition on October 7, 2015 after examining the written opinions, confirmation documents, etc. submitted by the Plaintiff.

[Ground of Recognition] Unsatisfy, Gap evidence 1-1-15, Gap evidence 2-1-5, Gap evidence 3

-1, 2, Eul's entry of No. 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

First, the defendant maintained the disposition of this case without any reinvestigation even after the review decision by the Tax Tribunal, which is unlawful against the binding force of the review decision.

Second, the sales amount of this case is only the money received by selling a stock outside the account books of "AAAAA Company" operated by BB as an individual entrepreneur before the establishment of the Plaintiff Company, and is irrelevant to the sales amount of the Plaintiff Company. Thus, the disposition of the Defendant of this case is unlawful on a different premise.

B. Whether the disposition of this case is against the binding force of the re-investigation decision

On the other hand, the decision of the Tax Tribunal to re-examine the matters pointed out in the decision concerned and order the defendant to make a follow-up disposition in accordance with the results. It does not prohibit the original disposition from being maintained when it is judged lawful and reasonable even after re-examination. As seen earlier, the defendant made a decision to maintain the disposition in this case by re-auditing the materials, etc. submitted by the plaintiff after the decision of the Tax Tribunal, and the defendant's contents of re-audit cannot be deemed as formal as being contrary to the binding force of the decision of the Tax Tribunal. Accordingly, this part of the plaintiff's assertion is without merit

C. Whether the sales revenue of this case belongs to an individual in the order of gambling

(i) fact-finding

A) From January 15, 1996, Nonparty BB, the representative director of the Plaintiff Company, carried on the adjacent wholesale and retail business from January 15, 1996 to “AAAAAB,” and decided to convert it into the corporate business. On July 29, 2005, the Plaintiff Company was established and transferred all inventory assets to the Plaintiff at approximately KRW 00 million.

B) On August 1, 2005, the Plaintiff, a place of business of the AAAA company, commenced ○○○○-ro, Guro-gu, Seoul, ○○○○○○○○○, ○○○○○○○○○○, and the employees, sales and purchases of the AAA company were also transferred to the Plaintiff.

C) After that, on November 1, 2005, AAA company converted the type of business into real estate leasing business, and leased the said place of business to the Plaintiff.

D) Nonparty CCC, the deposit owner of the account in which the instant sales amount was deposited (hereinafter “instant account”), is the spouse of DB, who is a partner of BB, and DD is in office as an internal director of the Plaintiff Company.

E) After the establishment of the company, the Plaintiff continued to purchase non-data after trading. In particular, from the second half of 2008 to the first half of 2011, the Plaintiff purchased non-data at least KRW 00 billion annually from ○○ Trade.

F) The Defendant was informed that the Plaintiff continued tax evasion and transactions using a borrowed account, double account, etc., and had the Plaintiff started a tax investigation. The above information contains the account number, deposit account holder, ID and password, etc.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 4, 5, Eul evidence Nos. 1 to 8, 10, and 11

The purpose of the whole theory

2) Determination

Generally, in a lawsuit seeking the revocation of a tax imposition disposition, the burden of proof of the fact of taxation requirements shall be deemed to be an imposing authority. However, in a case where it is proved that the fact of taxation requirements has been presumed in light of the empirical rules in the course of a specific lawsuit, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirements unless it proves that the pertinent fact of taxation is inappropriate to apply the empirical rules or that there are special circumstances to exclude the application of such empirical rules in the pertinent case (see Supreme Court Decision 2002Du6392, Nov. 13, 2002).

According to the above facts, the sales revenue of this case was entirely transferred to the plaintiff company from August 1, 2005, and the inventory assets held by the Gap company have been transferred to the plaintiff as all of the inventory assets were transferred to the plaintiff, and the accounts have been finished. After about three years, the sales revenue of this case was deposited and managed through the account of this case in the name of next person. The plaintiff was discovered while buying and selling non-data at the above time, and the plaintiff was exposed to tax evasion by using the account of this case. Considering these circumstances, the sales revenue of this case is in accord with the rule of experience to deem that the sales revenue of this case belongs to the plaintiff. On the other hand, if there were special circumstances that BB remains without transferring part of the inventory assets of the Gap company to the plaintiff as alleged by the plaintiff, and there was a lack of recognition on the sole basis of the statements in subparagraphs 4 through 9.

Therefore, the disposition of this case is legitimate, and the plaintiff's assertion disputing it is without merit.

3. Conclusion

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

shall be ruled.