Ulsan District Court-2016-Gu Partnership-296 (2018.08)

Since individual deposits are recognized as transactions unrelated to revenue in light of the date, amount, transaction counterpart, etc., they cannot be viewed as omitting the Plaintiff’s sales.

(1) Even if the amount deposited in the account of a financial institution can be presumed to constitute sales or revenues, if there are special circumstances that can be acknowledged as a personal transaction unrelated to revenue in light of the date, amount, transaction counterpart, and circumstances, it cannot be readily concluded that such individual deposit constitutes sales or revenues omitted from the report.

Article 57 of the Value-Added Tax Act;

Busan High Court 2018Nu20917

Park ○

○○ Head of tax office

Ulsan District Court Decision 2016Guhap296 Decided February 8, 2018

February 27, 2019

April 3, 2019

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition disposition of KRW 23,50,00 among the imposition dispositions of KRW 23,50,00, KRW 201,550 for the second period of value-added tax for March 3, 2015, and KRW 20,428,00 among the imposition dispositions of KRW 91,50 for the first period of value-added tax for the year 2010, and KRW 20,428,00 among the imposition dispositions of KRW 94,621, and KRW 241 for the second period of value-added tax for the year 2010, KRW 25,948,00, KRW 67,200 for the first period of year 207, KRW 146, KRW 37,736,580 for the second period of value-added tax for the second period of 203, KRW 206, KRW 2017, KRW 3637,2014, KRW 20136, KRW 2013637,37,20137,20136.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

This Court's reasoning is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) Plaintiff’s assertion

This Court's reasoning is as follows: "2...... the plaintiff's assertion is the same as the part of "the plaintiff's assertion". Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2) Defendant’s assertion

In light of the date of deposit, its counterpart, and amount, etc., the account opened to each of the above accounts constitutes a principal entry and management account concerning the sales or revenues of the instant workplace, and the money deposited to each of the above accounts in light of the date of deposit, its counterpart, and amount, etc. (In addition, it seems that there is little possibility that transactions unrelated to the sales or revenues of the instant workplace would be mixed with each of the above accounts). Therefore, it can be sufficiently presumed that the amount deposited to each of the above accounts constitutes taxable sales or revenues related to the instant workplace. Therefore, the amount of the instant deposit should be deemed to constitute sales or revenues related to the instant workplace. Even if not, if the other party to the instant deposit received a tax invoice from the Plaintiff, if it is a PC bank business operator, or if it is confirmed that details of deposit transactions with each of the above accounts are traded more than 30 times, each of the above amounts shall be deemed to constitute sales or revenues related to the instant workplace.

B. Determination

1) Legal principles

In a lawsuit seeking revocation of a tax imposition disposition, the burden of proof of taxation requirement lies in the tax authority’s failure to pay taxes, and the taxpayer’s account constitutes sales or revenues, and the tax requirement is a principle that the tax authority bears the burden of proving that the amount deposited in the account of a financial institution. However, the fact that the amount deposited in the account of a financial institution constitutes sales or revenues can also be proven by either disclosing or indicating indirect facts that can be inferred in light of the empirical rule in the specific litigation process (see, e.g., Supreme Court Decision 2003Du14284, Apr. 27, 2004). In such cases, whether such presumption can be determined ought to be based on the following circumstances: (a) whether the relevant financial institution’s account has been used as a principal deposit or management account for sales or revenues; (b) whether the account is an external type of sales or revenues; (c) the share of sales or revenues-related transactions in the account, other than sales or revenues, and (d) the possibility and degree of mixing of deposits in the relevant account.

(ii) review;

In light of the following circumstances, in view of the facts without dispute between the parties and the entire purport of the pleading as a whole, it is insufficient to readily conclude that the Defendant’s entire amount deposited in the account in the name of the Plaintiff or Park Jong-○○, which was subject to taxation, falls under the sales or revenues of the instant workplace. Moreover, in light of the aforementioned legal principles, it is difficult to view that the fact to the extent that the Defendant’s entire amount deposited in each of the above accounts can be presumed to fall under the Plaintiff’s sales or revenues, or that there was sufficient indirect evidence to acknowledge such fact.

① In light of the date of deposit, the other party, and the amount of money deposited in the passbook under the name of the Plaintiff or the head of the Tong ○○○○○○ during the taxable period, the Defendant identified most of the money as the Plaintiff’s sales without examining specifically whether there is a appearance to view the Plaintiff as the Plaintiff’s sales (i.e., without checking the reason and circumstance of deposit, etc. against the other party to the deposit or making sufficient investigation into the details of tax return and comparison, etc.).

② The details of transactions presumed by the Defendant to have been sold by the Plaintiff according to the aforementioned method shall be six years.

As 8,000 items exceed 8,00 items, it is highly probable to include errors to presume that the amount deposited solely by account transaction constitutes the Plaintiff’s sales or revenues without any other objective data. However, if the above account is excluded from itself, there is no other direct data to presume that the amount deposited in this case is the Plaintiff’s sales.

③ During the taxable period, the Defendant excluded KRW 136 cases 240,195,323 from the Plaintiff’s estimated sales. However, it is unclear what is the criteria for the Defendant to exclude some of the inputs from the estimated sales. The details of transactions excluded therefrom include a considerable amount of inputs that may be viewed as the Plaintiff’s sales. The Defendant did not clearly explain the criteria for estimated sales.

④ The Defendant calculated the omitted amount by the method of deducting the amount reported by the Plaintiff for each taxable period from the input amount of the instant case without verifying whether individual transactions constituting the input amount of the instant case constitute the Plaintiff’s sales or revenues. In accordance with such method, it is highly likely that the amount already reported by the Plaintiff would be included in the omitted amount due to overlap of the amount already reported by the Plaintiff.

⑤ In the instant entry amount, it is difficult to presume the Plaintiff’s sales in light of its appearance, such as the details of transactions that the Defendant itself acknowledges as not being the Plaintiff’s sales, as in the case of “○○○○○○○○○○○○○○○○○○○○○○” or “○○○○○○○○○○○○○○”.

6. In addition, since the facts subject to taxation are in principle proved by the tax authority, it is necessary to prudently consider the presumption of sales or income based on the account details only, and such presumption is difficult.

If permission is granted, the burden of substantial burden of proof may be transferred to the general public and the imposition of administrative convenience may result in a result of allowing the imposition of administrative burden. In a case where a taxation disposition is conducted on the basis of the presumption of presumption and its legitimacy is disputed in the administrative litigation, the court shall strictly apply the presumption of presumption by taking into account

[Defendant asserts that the whole amount of the deposit should be regarded as taxable sales or income only when the other party to the deposit received a tax invoice from the Plaintiff when the other party to the deposit was made or the other party to the deposit received not less than 30 times. However, it is difficult to accept it on the ground that it is merely a arbitrary classification that the other party to the deposit did not undergo sufficient investigation (the reason and circumstance of the deposit or comparison with the details of the tax return by the other party to the deposit).

3. Conclusion

Therefore, the disposition of this case is unlawful without examining the remaining arguments of the plaintiff, and thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.