National Tax Service Review Income 2009-0144 ( December 31, 2009)

The initial disposition is legitimate because it can not be considered as a partnership agreement in which half of profits accrued from the credit business are divided.

The part seeking the revocation of the surcharge and the part seeking the revocation of the reduction decision of this case are unlawful and dismissed, and it is difficult to view that a partnership agreement was made with the content that half of the earnings accrued from the credit business, and it is reasonable to prove necessary expenses. Therefore, the initial imposition is legitimate.

2010Guhap20324 Disposition of revocation of imposition of global income tax, etc.

JO

Head of Yongsan Tax Office

March 19, 2012

April 19, 2012

1. Of the instant lawsuit, the part of the Defendant’s claim against the Plaintiff on August 6, 2009 for the revocation of the portion exceeding the respective imposition disposition of KRW 00,00, interest income tax of KRW 00, resident tax of KRW 00, global income tax of KRW 00, interest income tax of KRW 00, resident tax of KRW 00, resident tax of KRW 00, global income tax of KRW 00, interest income tax of KRW 00, interest income tax of KRW 000, resident tax of KRW 00, and resident tax of KRW 00,000, respectively.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s imposition of global income tax of 00 won, interest income tax of 000 won, resident tax of 000 won, global income tax of 2006, global income tax of 000 won, resident tax of 000 won, resident tax of 000 won, global income tax of 2006, global income tax of 000 won, global income tax of 2007, interest income tax of 000 won, resident tax of 000 won, and resident tax of 00 won for 2007 shall be revoked.

1. Circumstances of the disposition;

A. The Plaintiff’s OO building between October 2005 and April 2007 between the Plaintiff and the Songpa-gu Seoul OOdong OO building

The term "OOOO" was operated by each other (hereinafter "the credit business in this case").

B. As to the Plaintiff between May 14, 2009 and June 24, 2009

In the business year from July 30, 2005 to 2007 of the same year, the Plaintiff calculated the total amount of interest accrued from the credit business in this case as KRW 000, and then the Plaintiff determined each global income tax, etc. accrued in 2005, 2006 and 2007 by means of estimation application of simple expense rate as follows. The Defendant issued a disposition of imposition of the above global income tax, etc. against the Plaintiff on August 6, 2009 (hereinafter “the original disposition”).

C. On November 4, 2009, the Plaintiff dissatisfied with the original disposition in this case and filed a request for review with the Commissioner of the National Tax Service on November 4, 2009, and the National Tax Examination Committee on December 31 of the same year re-designed the tax base and tax amount

The re-examination decision was made to the effect that the re-examination is ‘retailed'.

D. The director of the Seoul Regional Tax Office, on January 11, 2010 through February 5, 2010, after re-auditing the part of the original disposition in the instant case from January 11 to February 5, 2007, calculated the amount of gross income by 00 won. On March 9, 2009 of the original disposition in the instant case, the amount of KRW 00 out of the global income tax for the year 2005, KRW 00 out of the global income tax for the year 2006, and KRW 00 out of the global income tax for the year 2007, respectively, made a decision to reduce the amount of KRW 00 among the resident tax for the year 2005, KRW 00 among the resident tax for the year 2006, and KRW 00 among the resident tax for the year 207 (hereinafter referred to as the "decision to reduce this case"). Accordingly, the original disposition in this case that the Defendant rendered on August 6, 2009>

Facts without dispute over the basis of recognition, Gap evidence 1-1 through 9, Gap evidence 2, Eul evidence 1-1 through 6, Eul evidence 2 and 3, and the purport of the whole pleadings.

2. The part concerning claims for cancellation of each additional dues among the lawsuits in the instant case and whether the part concerning claims for cancellation of reduction decision in the instant case is legitimate

A. We examine ex officio the legitimacy of the part seeking revocation of each additional dues (including increased additional dues) among the instant lawsuit.

The additional dues or increased additional dues under Articles 21 and 22(1) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011) are naturally generated pursuant to the law without due process by the tax authority, unless national taxes are paid by the due date. Thus, the notice of additional dues notified by the tax authority while serving a letter of ordinary tax payment cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, the part seeking revocation of each additional dues in the instant lawsuit is unlawful.

B. Next, whether the part of the instant lawsuit seeking revocation of the instant reduction decision is legitimate

shall be deemed to be applicable.

After a certain tax imposition disposition, where the Tax Tribunal or the National Tax Examination Committee has made a decision to revoke part of the initial tax imposition in accordance with the decision and to revoke or reduce part of the initial tax imposition in accordance with the decision, the said re-revision disposition affects the legal effect only with respect to the part of the amount of the tax reduced by it, and the substance of the re-revision disposition is not the initial tax imposition disposition, separate from the initial tax imposition disposition, and the initial tax imposition disposition is not separate from the initial tax imposition disposition, but the partial revocation of the tax amount is a disposition which has a favorable effect on taxpayers. Accordingly, where the correction or re-revision is not yet revoked and the remaining part of the tax amount remains illegal, the subject of an appeal litigation is limited to the remaining part of the initial tax imposition disposition without cancellation by correction or re-revision (see, e.g., Supreme Court Decision 81Nu393, Nov. 23, 1982). Accordingly, in light of the above legal principles, the Defendant had no interest in the Plaintiff’s claim for revocation of the entire decision of this case.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) In engaging in the instant credit business, the Plaintiff: (a) provided funds to be loaned by the Plaintiff between GaO and GaO to take charge of the business and the collection of money; and (b) entered into a partnership agreement with GaO to have half of the earnings. Therefore, 00 won equivalent to 50% of the above gross income amount constitutes the income amount of GaO, not the Plaintiff, pursuant to the above partnership agreement; and (c) thus, the above amount should be excluded from the Plaintiff’s gross income amount.

(2) Among the Plaintiff’s entry and withdrawal details of the Plaintiff’s deposit account that the Defendant investigated as evidence for the instant disposition, the details of the Plaintiff’s deposit and withdrawal are included in a majority of the details of the Plaintiff’s repayment without interest. Such transactions are not only related to the instant credit business, but also unrelated to interest income. Thus, the amount corresponding thereto should be excluded from the Plaintiff’s total amount of income.

(3) In making the instant reduction decision after reinvestigation, the Defendant recognized only KRW 000 out of the KRW 000, which the Plaintiff claimed as necessary expenses, as necessary expenses. The Defendant’s use of the excluded KRW 000 as transportation expenses, entertainment expenses, vehicle maintenance expenses, etc. for customer management constitutes necessary expenses and should be additionally deducted.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) When the Plaintiff engaged in the instant credit business, GabO had been in charge of the loan and the collection of money by receiving from the said lending company the amount of KRW 000 per month wages of KRW 000 per month from the said lending company and KRW 000 per month.

(2) The Plaintiff, while engaging in the instant credit business, has stuffO use its own bank deposit account (******-***************) on the loan and the collection of money, and received a request from stuffO for funds necessary for the loan from its own national bank deposit account (Account Number:***-*******-******-*****);**;

*********************, the Plaintiff remitted the money to the above one bank account from around that time to April 2007, to the above one bank account, and 00 won was remitted to the above one bank account from around that time, until around that time, and 200 was engaged in loan business using the above money (hereinafter the Plaintiff’s each of the above accounts referred to as “the instant one”).

(3) An office in charge of loan business as mentioned above shall use funds borrowed from its own land in addition to the above funds provided by the plaintiff as a loan to its customers and shall recover from its customers.

The principal and interest were deposited in cash or in the account of this case to the Plaintiff.

(4) In the process of dispute over the distribution of profits around April 2007, the Plaintiff and GaO had closed the said lending company, and during which the Plaintiff inflicted an injury on GaO during the suspension of execution.

The decision was declared.

(5) On November 6, 2008, the Plaintiff, as described in the foregoing paragraph (2), received a transfer of a sum of KRW 000 won from the Plaintiff, and returned only KRW 000,000, which was the sum of the deposit account of this case, and embezzled the remainder of KRW 000,000, as described in the foregoing paragraph (3), filed a criminal complaint against PO as a suspicion of occupational embezzlement, but issued a non-suspect disposition.

(6) Meanwhile, the director of the Seoul Regional Tax Office, while conducting a tax investigation with respect to the Plaintiff as described in the above 1-B, demanded the Plaintiff to submit data, such as the statement of the revenue amount in relation to the instant credit business, but the Plaintiff did not comply with the above request for submission of data only with the reply that the Plaintiff did not have any knowledge of the instant credit business.

(7) On July 30, 2009, the director of the Seoul Regional Tax Office analyzed the details of the entry and withdrawal of the instant deposit account used by the Plaintiff for the instant credit business, and calculated a total of KRW 000 as a total interest income amount. The amount of the Plaintiff’s business income is calculated by estimation method of applying simple expense rate under Article 143(3)1(c)1-2 of the Enforcement Decree of the Income Tax Act, and then the Plaintiff calculated the Plaintiff’s business income

In addition, the original disposition of this case was made.

(8) After that, according to the decision of the National Tax Examination Committee, the director of the Seoul Regional Tax Office, as a result of a reinvestigation on the portion of the global income tax in the initial disposition of this case, shall set the total amount of interest income calculated at KRW 000,000, less the total amount of interest income, excluding the total amount of 000,000, which is deemed to have been used for personal purposes on holidays, after deducting the amount of the Plaintiff’s business income from the necessary expenses and deducting the amount of the Plaintiff’s business income, and accordingly, the original disposition of this case was reduced or corrected by the instant disposition of this case.

(9) On December 9, 2009, the Plaintiff filed a lawsuit claiming restitution of unjust enrichment with the Seoul Eastern District Court 2009Gahap21599, by asserting that Gao did not return an amount equivalent to KRW 000, as described in the above Paragraph (5). As a result, the Plaintiff filed a lawsuit claiming restitution of unjust enrichment with Gao on September 30, 2010, the following adjustment was made between Gao and Gao.

Facts without dispute over the basis of recognition, Gap evidence 3-2, Gap evidence 4, Eul evidence 7-1 through 4, Gap evidence 8-1, 2, Gap evidence 9, Gap evidence 10-1, 2, Gap evidence 11-1 through 4, Gap evidence 25, Eul evidence 4-1 through 3, Eul evidence 5-7, the purport of the whole pleadings, and the purport of the whole pleadings.

D. Determination

(1) Determination on the first argument

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax should be borne by the imposing authority. However, if the facts alleged in light of the empirical rule in the course of a specific lawsuit are revealed, it cannot be readily concluded that the other party is an illegal disposition that failed to meet the taxation requirement unless the facts at issue are proven that the facts are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 97Nu9895, Mar. 24, 1998). Based on the above legal principles, the above facts can be known through adding the whole arguments to the above facts of this case, namely, ① in operating the credit business of this case, the Plaintiff and Park O appears to have been in charge of operating and collecting funds raised by the Plaintiff. However, it cannot be deemed that the agreement between the Plaintiff and Park O was reached by dividing half of the profits accrued from the business of this case with the funds raised by the Plaintiff. Rather, it is difficult to view that the Plaintiff continued to receive a certain amount of funds from the Plaintiff and the Plaintiff’s profits from the entire amount of the funds.

independent loan business, separate from the credit business in this case, such as obtaining, appears to have been concurrently engaged in a loan business;

② The instant disposition was conducted on the basis of the Plaintiff’s entry into and withdrawal from the instant deposit account used for the instant credit business, and even based on the Plaintiff’s assertion, the purport of the Plaintiff’s assertion is that POO embezzled the instant disposition by failing to refund KRW 000,000, which was derived from deducting KRW 00,000, which was returned to the Plaintiff’s savings account from the Plaintiff’s 1 bank account. As such, it appears that the occurrence of interest income based on the details of entry into and withdrawal from the instant deposit account is recognized.

③ On the other hand, the details of entry and withdrawal in the deposit account of this case

If part of the calculated interest income amount includes the amount corresponding to the PO's income amount, the amount

J. The plaintiff, as a matter of course, has a duty to pay to ParkO, was not only filed a lawsuit claiming return of unjust enrichment against ParkO, but also on the premise that the amount of embezzlement of ParkO exceeds the estimated amount of dividend as a partner.

However, in light of the fact that these circumstances did not appear in the above litigation process) and the content of payment of KRW 000 to the settlement money from POs during the above litigation process, the total amount of income revealed in the entry and withdrawal details of the deposit account in this case can be recognized as the Plaintiff’s business income, and the statement of evidence Nos. 8-1, 2, 9, 11-4, and 12-14 are insufficient to reverse the above fact of recognition, such as that the amount equivalent to half of the total interest income is the income of POs. Therefore, the above assertion by the Plaintiff is without merit.

(2) Judgment on the second argument

Based on the above legal principles, it is difficult for the Plaintiff to believe that the instant tax disposition, as seen earlier, includes a monetary transaction unrelated to the instant credit business, among the details of the entry and withdrawal of the instant deposit account, was made based on the evidence of the instant deposit account used by the Plaintiff for the instant credit business, and as such, it can be sufficiently presumed that the Plaintiff suffered interest from the Plaintiff as the lender. Even if the Plaintiff was in a pro rata relationship, it is difficult for the Plaintiff, who was engaged in the credit business, to easily understand the amount of money without setting interest or maturity period, in light of the fact that it is difficult for the Plaintiff, who was engaged in the credit business, to make a loan on several occasions without setting the interest or maturity period, to easily understand in light of the common sense of society and the common sense of transaction. In addition, each statement of subparagraphs 26 through 37 (including the serial number, hereinafter the same shall apply) as it seems consistent with the Plaintiff’s above assertion, and there is no sufficient evidence to acknowledge it otherwise.

(3) Judgment on the third argument

In the administrative litigation seeking the revocation of taxation on the grounds of illegality, in principle, the tax authority bears the burden of proof as necessary expenses, in principle, on the grounds that the tax authority bears the burden of proving the legality of taxation disposition and the existence of taxation requirements. However, as necessary expenses are more favorable to the taxpayer, and most of the facts constituting the basis of necessary expenses are located within the control area of the taxpayer, so it is difficult for the tax authority to prove the burden of proof. Therefore, in a reasonable case where the taxpayer bears the burden of proving the burden of proof in consideration of difficulty of proof or equity between the parties, it should be returned to the taxpayer. Therefore, in a case where the taxpayer omitted the return on the tax base of global income tax and other necessary expenses, the existence of necessary expenses and business relevance should be proved by the taxpayer. Based on the above legal principles, it is difficult to see that the above 00 won of the Plaintiff’s assertion constitutes necessary expenses, i.e., the Plaintiff’s remaining expenses related to the above business and the above facts, regardless of the overall purport of pleading.

4. Conclusion

Therefore, the part seeking the cancellation of each additional dues among the lawsuit of this case and the part seeking the cancellation of the reduction decision of this case are unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as they are without merit. It is so decided as per Disposition.