Seoul Administrative Court 2008Guhap11310 ( September 23, 2008)

Whether the payment is made in full and whether there is a false transaction where there is no evidence that it is returned.

Inasmuch as there is no evidence to find that the purchase price was fully paid by means of bank remittance, issuance of bills, etc., and that the said price was paid to the purchaser for the purpose of pretending real transactions, etc., it cannot be deemed a false tax invoice without real transactions solely on the basis of the facts charged on suspicion of material and the question about the time of payment.

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

Article 17 (Payable Tax Amount)

Article 19 (Scope of Deductible Expenses)

1. Revocation of a judgment of the first instance;

2. Each disposition taken by the Defendant against the Plaintiff on March 2, 2007, including value-added tax of KRW 12,244,700 for the first term of 205 and corporate tax of KRW 27,961,980 for the 200 business year, 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 imposition;

The reasons for this part are the same as the corresponding part of the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act. However, in the second part, "Ma, the plaintiff, who was dissatisfied with the disposition of this case, filed an appeal with the National Tax Tribunal on June 1, 2007, but the National Tax Tribunal made a decision to dismiss it on December 14, 2007."

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

Although the Plaintiff purchased the instant tax invoice five times from the non-party company to June 9, 2005, the instant tax invoice was unlawful to deem that the Plaintiff received the instant tax invoice without a real transaction solely on the ground that he/she actually operated the non-party company was accused of the fact that he/she received the instant tax invoice without a real transaction.

(b) Related statutes;

Article 17 (Payable Tax Amount)

C. Determination

In an administrative litigation seeking revocation on the grounds of illegality of taxation disposition, in principle, the defendant, who is the taxation authority, bears the burden of proof with respect to the legality of disposition and the existence of the facts requiring taxation. However, with respect to the existence of special circumstances that have occurred since the empirical rule, the taxpayer, must bear the burden of proof or proof with respect to the Plaintiff, which is the tax base of corporate tax, in principle, the burden of proof with respect to the amount of expenses to be included in deductible expenses, which are the basis of the determination of the amount of income. However, there are cases where the taxpayer bears the burden of proof in consideration of the equity of the parties (see, e.g., Supreme Court Decision 91Nu12912, Mar. 27,

According to the following: (a) the tax invoice of this case was prepared and delivered differently from the fact without real transaction; (b) Gap evidence Nos. 6-1, 2, 7-1, 3, 8, and 9-1 through 3, 7-2, and Eul evidence Nos. 8, and 9; and (c) the witness testimony of the first instance court, the first instance court: (a) the non-party company was practically operated by Kim○-chul; (c) the former owner lent his business registration name at the request of Kim Il-chul; and (d) the former owner, in the course of the data investigation on the non-party company of the first instance tax secretary's sales of the non-party company's 1,950,000 won of sales of its sample production in the year 205, except for the amount of KRW 8,050,000,000 of sales of the non-party company's sample production and issued the processed tax invoice; (b) the first instance court also testified that the plaintiff and the non-party 2.

However, each of the above evidences and evidence Nos. 2 through 5, Gap's evidence Nos. 13 and evidence Nos. 13 were revealed to the effect that the above ○○○○○○○○ apartment's testimony was based on the whole purport of Kim Jong-ok's testimony, i.e., (i) the former ○○○○ used violent violence during his business conflicts with Kim○○○, and was detained by Kim Jong-ok, and (ii) the fact that the instant transaction was true in the process of the agreement (Evidence No. 2), and a statement of confirmation of the fact that the transaction was conducted (Evidence No. 4), and that the above ○○○○○○○○○○○○○○ apartment's transaction was conducted in the name of the above ○○○○○○○○○○○○'s actual management, and that the above ○○○○○○ apartment's statement was conducted in the name of the above 1st 5th 6th 7th 2005.

Conclusion

If so, the defendant's disposition of this case is unlawful, so the plaintiff's claim shall be accepted for the reasons of the reason, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked as per Disposition.