Daejeon District Court-2012-Gu Partnership-4977 ( March 23, 2014)

Whether there is a fiduciary duty negligence

In light of the facts revealed in the course of collecting data to determine whether the other party to a transaction is a qualified person, there is negligence in light of the fact that there is sufficient reason to suspect the other party as a disguised

Contents are added.AA.A.

Article 16 of the Value-Added Tax Act

2014Nu494 Revocation of Disposition of Imposition of Value-Added Tax

○ ○

○ Head of tax office

Daejeon District Court Decision 2012Guhap4977 Decided July 23, 2014

June 11, 2015

July 23, 2015

1.The judgment of the first instance shall be modified as follows:

A. On January 17, 2012, the Defendant’s imposition of value-added tax of KRW 181,307,150 for the first period of January 2009 against the Plaintiff; imposition of value-added tax of KRW 542,027,060 for the second period of value-added tax in 2009; imposition of KRW 371,228,60 for the second period of value-added tax in 2009; imposition of value-added tax of KRW 137,04,640 for the first period of value-added tax in 2010; imposition of value-added tax of KRW 46,36,960 for the second period of value-added tax in 2010; imposition of value-added tax of KRW 231,976,380 for the second period of value-added tax in

B. 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. Purport of claim

On January 17, 2012, the Defendant revoked each imposition of value-added tax of KRW 181,307,150 for the first quarter of 2009 against the Plaintiff, KRW 542,027,060 for the second quarter of 2009, value-added tax of KRW 137,004,640 for the first quarter of 2010, value-added tax for the second quarter of 2010, and value-added tax of KRW 231,976,380 for the second quarter of 2010.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Details of the disposition;

The reasoning for this part of the court's explanation is the same as that for 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 Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The reasoning for this part of the Court’s explanation is as follows. Thus, this part of the reasoning for the judgment of the court of first instance is the same as the corresponding part of the reasoning for the judgment of the court of first instance except for the addition of the following arguments at the end. Thus, this part of the reasoning is cited in accordance with

3) Illegal imposition of an unfair under-reported additional tax

Even if each of the tax invoices of this case constitutes a false tax invoice and is not recognized as a good faith and negligence of AA, AA filed a return on the tax base of value-added tax without knowing that each of the tax invoices of this case is a false tax invoice. This is not a case of underreporting the value-added tax base by improper means, and thus, AA should be subject to the general underreporting penalty tax, but the Defendant’s imposition of an unfair underreporting penalty tax by the first disposition of this case is illegal

C. Determination

1) Whether the first disposition of this case is unlawful

A) Facts of recognition

The reasoning for this part of the court's explanation is that the court accepted 135 times in total from March 11, 2009 to December 31, 2009 the closed Dong equivalent to KRW 18,66,794,500 of the supply price of No. 10, 14 of the judgment of the court of first instance. The court accepted 9,909,180,250 of the supply price over 68 times in total from March 11, 2009 to October 22, 2009 with the business registration certificate of 15, 19, 320,798, 900 of the supply price of No. 19, 320,798, 900 of the supply price of No. 320, 390, 360 through 370, 329 through 37, 37, 39 through 47, 370 of the Civil Procedure Act.

B) Whether each of the instant tax invoices is false

(1) Relevant legal principles

Article 17(2)2 of the Value-Added Tax Act provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries in a tax invoice are different from the fact. The meaning that an entry in a tax invoice is different from the fact refers to cases where the necessary entries in a tax invoice do not coincide with the actual supplier who supplied or is supplied with the goods or services, regardless of the formal entries in a transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

Whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act is determined individually and specifically by comprehensively taking account of various circumstances, such as the purpose, details, and mode of the transaction, the subject to whom profits accrue, and the payment relationship of the consideration, etc. of each transaction. The burden of proving that a specific transaction constitutes a tax invoice different from the fact prescribed in Article 17(2)2 of the Value-Added Tax Act where the input tax deduction is denied, on the ground that the specific transaction is a nominal transaction without actual delivery or transfer of goods (see, e.g., Supreme Court Decision 2008Du13446, Jun. 23, 2009).

(2) BB

Article 2. (1) 1 (A) of the facts of recognition as set forth in paragraph (1) can be known by comprehensively taking account of the overall purport of the pleadings. ① The BB continued to engage in the closed Dong wholesale business from around 2000; ② the Defendant, as so-called data, submitted the first disposition of this case on the premise that BB evaded value-added tax by submitting a false tax invoice for all the 1 and 2 years 2009. However, the ○○ Regional Tax Office only conducted a tax investigation on the 2009 period of the BB’s 209 period of value-added tax, and did not carry out a tax investigation on the 1st period of the 2009 period of tax payment; ③ The ○○ Regional Tax Office established BB as data on the 2nd period of the 2009 period of tax payment, but the 2BB had not been subject to a false disposition on the 200-year period of tax payment, and thus, the 2009 period of tax return on the 2000-year period of tax payment.

(3) CCC, DD, EE parts

Article 2. C. 1. A. In full view of the overall purport of the pleadings, ○○ Director of the Regional Tax Office’s ○○ Tax Office’s 2010 VAT for the first taxable period of 2010 for CCC. As to the second taxable period of 2009 for CCC, ○○ Head of the Local Tax Office conducted each tax investigation for 2009 for EE in 2009 for the second taxable period of 2009 for EE, and these companies were deemed to have different tax invoices issued during the above period and confirmed and accused them as data. However, the above facts are recognized by CCC on the following grounds: (a) during the second taxable period of the Value-Added Tax for 209 for the first taxable period of the Value-Added Tax for 209, EE was issuing only a false sales tax invoice without real consent during each taxable period of 2010, and there is no other evidence to acknowledge otherwise.

Therefore, since the part issued by CCC, DD, and EE among each tax invoice of this case cannot be deemed to constitute a false tax invoice, the plaintiff's assertion in this part is with merit.

(4) FF part

2. A. In full view of the overall purport of the pleadings, the facts found that AAA corporation received approximately KRW 320,000,000 from the 2nd taxable period of the value-added tax in 2009. However, the above facts alone are insufficient to deem it as a false sales tax invoice that is not accompanied by the actual transaction, and there is no other evidence to support this part of the Plaintiff’s assertion on this part.

(5) The remaining business partners except BB, CCC, DD, FF, and EE

2. 1). A) Comprehensively considering the facts of recognition and the purport of the entire argument as to transaction partners, it is doubtful that: ① considerable number of transaction partners and representatives of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the transaction partners have experience in the business related to the closure of the rest of the rest of the rest of the rest of the rest of the rest of the transaction partners, and some of them have served as an employee in criminal punishment or on the materials related to the issuance of false tax invoices, and the representative and auditors stated that they lent their names. In light of these facts, it is doubtful that they actually run each of the rest of the rest of the rest of the rest of the sales office of the rest of the rest of the sales office of the rest of the rest of the rest of the sales office of the rest of the rest of the rest of the sales office of the rest of the rest of the sales office of the rest of the sales office of the rest of the rest of the sales office of the rest of the sales office of the rest of the sales office of the rest of the sales office.

(6) Sub-committee

Therefore, since the portion issued by BB, GG, DG, DD, F, EE in each of the instant tax invoices does not constitute a false tax invoice, the said part of the instant first disposition is unlawful.

In the case of each tax invoice concerning the remaining transaction parties of this case, it constitutes a false tax invoice, and the above part is judged as to whether the AA is bona fide and without fault.

(C) Whether AA is a good faith or without fault or negligence

(1) Relevant legal principles

The actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the fact that the purchaser was not aware of the nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). However, in the case of waste resources, such as closed-dong, it cannot be deemed that the supplier was obligated to actively investigate whether the other party was a disguised business operator due to the nature of the distribution structure and transaction, and thus, there is sufficient circumstance to suspect that the other party was a disguised business operator in light of the facts revealed in the process of collecting data to determine whether the other party is a qualified business operator. However, the other party was negligent in not knowing that the other party was a disguised business operator (see, e.g., Supreme Court Decision 97Nu7660, Sept. 30, 1997).

(2) 11 business partners part

In light of the facts revealed in the process of collecting data to determine whether the other party is a qualified transaction party, it is reasonable to deem that there was a sufficient reason to suspect that the other party is a disguised business operator in light of the facts revealed in the process of collecting data to determine whether the other party is a qualified transaction party. Thus, it is insufficient to find that the evidence presented by the Plaintiff was insufficient to acknowledge that the Plaintiff was not negligent in not knowing that the name of the supplier of the tax invoice as to the transaction party as to the transaction party as to the negligence among the other transaction parties of this case was different from the actual supplier, and there is no other evidence to acknowledge this differently.

First, on January 23, 1978, AA was registered as a business operator and engaged in the copper processing business, and from July 4, 2006, 2006, ○○○○-gun, Chungcheongnam continued to operate the non-ferrous metal refining business by establishing the AA. The representative of AA has continuously established and operated AA, and therefore, AA has expertise in the distribution of the closed Dong.

Second, AA confirmed whether a person is a disguised supplier through an interview or interview with AA and its distributor wishing to start a transaction;

Third, while AA had a document omitted by the customer while commencing the transaction with the other transaction partner in this case, AA had a business registration certificate, resident registration certificate of the representative, a copy of the deposit sheet, a real estate lease contract, a bookbook, and a name of representative.

넷째, ① AAA에 2009. 7. 15. 최초로 폐동을 공급한 HHH은 약 3개월 전인 2009. 4. 2.에 사업자등록을 하였고, 사업자등록 당시 사업장인 구미시에 관한 임대차계약서상의 임대인이 위 토지의 소유자가 아니며 이후 이전한 사업장인 구미시에 관한 임대차계약서에는 계약일이 2009. 6. 30.임에도 명도일이 2011. 6. 30.로 기재되어 있는 등 임대차계약서가 위조된 것으로 보이는 점, ② AAA에 2009. 8. 4. 최초로 폐동을 공급한 III은 그 직전인 2009. 7. 13.에 사업자등록을 하였고, 대표이사는 이전에 폐동 관련 사업을 한 경험이 없었던 점, ③ AAA에 2009. 10. 23. 최초로 폐동을 공급한 JJJ은 그 직전인 2009. 10. 19.에 사업자등록을 하였고, 대표이사는 중국 교포로 4〜5년 전 한국에 입국하여 2009. 7. 6. 한국 국적을 취득하였을 뿐 폐동과 관련한 사업체에 종사한 경험이 전혀 없었던 점, ④ AAA에 2009. 10 .27. 최초로 폐동을 공급한 KKK은 그 직전인 2009. 10. 20.에 사업자등록을 하기는 하였고 사업장에 관한 임대차계약서가 위조된 점, ⑤ AAA에 2009. 10. 21. 최초로 폐동을 공급한 LLL은 그 직전인 2009. 10. 13.에 사업자등록을 하였고, 대표자는 일용노동에 종사하던 자로 이전에 폐동 관련 사업에 종사한 경험이 전혀 없었던 점, ⑥ AAA에 2009. 10. 21. 최초로 폐동을 공급한 MMM은 약 1개월 전인 2009. 9. 4.에 사업자등록을 하였고, 사업장 소재지 또는 사무실은 빌딩으로 야적장으로 사용하기에 부적절하고, 폐동 등이 일부 촬영된 사진이 있기는 하나 그곳이 MMM의 야적장인지 확인할 수 없는 점, ⑦ AAA에 2010. 9. 13. 최초로 폐동을 공급한 NNN은 약 3개월 전인 2010. 6. 1.에 사업자등록을 하였고, NNN은 특수절도, 도박개장죄 등으로 유죄를 선고받는 등 범죄경력이 다수 있고, 이전에 폐동관련 사업에 종사한 이력이 전무한 점, ⑧ AAA에 2010. 9. 9. 최초로 폐동을 공급한 PPP은 약 3개월 전인 2010. 6. 17.에 사업자등록을 하였고, PPP은 동일 업종에 근무하거나 사업한 이력이 전혀 없었던 점, ⑨ AAA에 2010. 10. 26. 최초로 폐동을 공급한 QQQ은 그 직전인 2010. 10. 11.에 사업자등록을 하였고, 대표이사는 이전에 폐동과 관련한 일을 한 적이 없고 세무조사 당시 실제 대표는 다르다고 진술하였으며, 아래에서 언급할 본점 및 사업장이 일치하는 점, ⑩ AAA에 2010. 10. 6. 최초로 폐동을 공급한 ㄹㄹㄹ은 약 3개월 전인 2010. 7. 21.에 사업자등록을 하였고, 대표이사는 이전에 폐동과 관련하여 일을 한 적이 없고 세무조사 당시 실제 대표가 있다고 진술하였으며, 위에서 언급한 바와 같이 본점 및 사업장이 일치하는 점, ⑪ AAA에 2010. 11. 4. 최초로 폐동을 공급한 RRR은 약 7개월 전인 2010. 3. 25.에 사업자등록을 하였고, RRR은 이전에 식품소매업, 인력 알선업을 한 적은 있으나 폐동 관련 사업에 종사한 바가 없는 점을 알 수 있다.

Fifth, AAA appears to have an interview with its representative and confirmed its business registration certificate, etc. in advance, if it appears that the representative of the other transaction parties of this case had never been experienced in relation to the waste operation distribution, and that there was sufficient circumstances to suspect that the other party would be a disguised business operator if he/she had supplied a considerable amount of waste operation without the lapse of several months or days.

(3) Nine business partners

3. (1) A. A. In full view of the following circumstances revealed by adding up the facts acknowledged in paragraph (c) (A) and each of the descriptions and images described in Articles 12 through 124 as well as the overall purport of pleadings, AA is deemed not to have known that the name of each supplier of each tax invoice issued by a customer who is responsible for the issuance of negligence among the remaining transaction parties of this case was different from the actual supplier, and it is reasonable to deem that AA was not negligent in not knowing such facts since it fulfilled its duty of care in transactions.

First, on January 23, 1978, AA was registered as a business operator and engaged in the copper processing business, and from July 4, 2006, 2006, ○○○○-gun, Chungcheongnam continued to operate the non-ferrous metal refining business by establishing the AA. The representative of AA has continuously established and operated AA, and therefore, AA has expertise in the distribution of the closed Dong.

Second, AA confirmed whether it is a disguised supplier through an interview or interview with AA and its distributor who wants to start a transaction.

Third, while AA had a document omitted by the customer while commencing the transaction with the other transaction partner without fault among the other transaction parties of this case, AA received a business registration certificate, resident registration certificate of the representative, copy of deposit passbook, real estate lease contract, bookbook photograph, and name of representative.

Fourth, AA prepared a written confirmation by identifying the value of supply through the process to determine the weight of the volume after classifying the waste movement, etc. by type in the vicinity of the fraternity, whenever the waste movement, etc. is supplied by the customer who is recognized as non-performance of the fault among the other transaction parties of this case, AA prepared a written confirmation of measurement, stating the date of measurement, the vehicle number, the name of the company and the weight of the vehicle, and the vehicle's entry report stating the expense log, the vehicle number, the vehicle number, the weight of the vehicle, and

Fifth, AA sent the value of supply calculated through measurements to the head of each transaction in the name of each transaction partner on the date close to the date of issuance of the tax invoice.

여섯째, ①SSS의 경우 대표이사는 일용노동경력만 있고 고철도매업에 종사한 적은 없으나, AAA에 2009. 4. 20. 최초로 폐동을 공급하기 약 3년 전인 2006. 3. 30. 사업자등록을 하였던 점, ② AAA에 2009. 3. 25. 최초로 폐동을 공급한 TTT는 약 2년 8개월 전인 2006. 7. 19.에 사업자등록을 하였고, TTT는 이전에 소규모 고철상을 운영하거나 고철수집 일용직에 종사하였던 점, ③ AAA에 2010. 6. 29. 최초로 폐동을 공급한 UUU은 약 8개월 전인 2009. 10. 25.에 사업자등록을 하였고, 타사의 직원으로 근무하는 등 폐동 관련 사업에 대해 어느 정도 경험이 있었던 것으로 보이는 점, ④ AAA에 2010. 1. 28. 최초로 폐동을 공급한 VVV은 그 직전인 2010. 1. 22.에 사업자등록을 하였고 대표이사는 폐동 관련 사업에 경험이 있는지 여부를 알 수 있는 객관적 자료가 없으나, 야적장을 보유하고 있었던 점, ⑤ AAA에 2010. 8. 11. 최초로 폐동을 공급한 WWW은 약 11개월 전인 2009. 9. 22.에 사업자등록을 하였고, 고물상을 운영한 경력이 있는 점, ⑥ AAA에 2010. 10 .19. 최초로 폐동을 공급한 XXX는 2002. 8. 23. 설립되어 화장품, 골프용품의 수입, 판매 등을 하다가 2010. 3. 23. 비철, 고철 도매업으로 법인 목적이 추가 변경되었는바, 그 대표이사는 폐동 관련 사업에 경험이 전혀 없지만 실제 업무를 담당했다고 하는 영업이사는 폐동관련 사업에 경험이 많아 보이는 점, ⑦ AAA에 2010. 11. 5. 최초로 폐동을 공급한 YYY은 약 9개월 전인 2010. 2. 16.에 사업자등록을 하였고, 이전에 폐동 관련업에 종사하지는 않았으나 야적장을 보유하고 있었던 점, ⑧ AAA에 2010. 12. 9. 최초로 폐동을 공급한 ZZZ은 약 3년 6개월 전인 2007. 6. 14.에 사업자등록을 하였고, 비록 거래 개시 시점의 대표이사는 폐동 관련 사업에 경험이 없으나, 과세관청의 조사결과 ZZZ이 2008년 1기부터 2010년 1기까지는 정상거래를 하였고, 2010년 2기부터 자료상으로 인정된 점, ⑨ AAA에 2010. 10. 28. 1회 폐동을 공급한 ㄱㄱㄱ은 약 3년 전인 2007. 12. 1.에 사업자등록을 하였고, ㄱㄱㄱ은 폐동 관련 사업 경험이 있으며, 과세관청의 조사결과 ㄱㄱㄱ이 2008년 1기부터 2010년 1기까지는 정상거래를 하였고, 2010년 2기부터 자료상으로 인정된 점을 종합하여 보면 전문가인 AAA으로서도 대표자가 폐동 관련 사업 경험이 있거나, 사업자등록을 한 지 상당히 지났거나, 기존에 정상적인 영업을 해 왔던 이 사건 나머지 거래처 중 무과실 인정 거래처가 위장사업자임을 알 수 있을 만한 충분한 정황이 있다고 보기 어렵다.

(4) Judgment on the defendant's assertion

Under the lack of supply as a high-priced waste resource among the rest of the clients of this case, AAA had been engaged in closed-end transactions for a considerable period of time, and thus, AAA had been well aware of the structure, distribution channel, form of transaction and transactional circumstances in the data, and risks thereof. In light of the fact that most of the clients of this case who had registered business with AA prior to a few months, most of the clients of this case did not initiate transactions with AA, and that there was a relatively short-term transactions with AA, and that there was a relatively large amount of transactions. In the case of the rest of the clients of this case, it is difficult to view that AAA had a facility for conducting wholesale business because there was no photograph of the place of business or any photograph of some of them did not appear to have been loaded, and that the representative of the customer at the time of the tax investigation was directly found at the time of the transaction, and that there was a statement that the director at the place of business, etc. was sexually discovered. In light of the fact that AA had not fulfilled its duty of care to exercise due diligence.

However, in the case of waste resources, such as waste metal, which are subject to the instant transaction, are traded by means of the sale of goods collected by small-scale scrap metal manufacturers to a metal manufacturer, such as AA. Thus, it is difficult to verify whether an intermediate transaction directly with the Plaintiff is a normal business entity in the case of AA, and further, it is difficult to verify the so-called waste trading channel claimed by the Defendant by confirming the purchaser’s daily transaction partner. It is highly likely that the transaction partner’s trade secret will not be disclosed. Furthermore, it is highly likely that an intermediate intermediary store for the reduction of transportation cost and the convenience of the transaction are collected from each place of business and carrying them directly at the same place of business as the customer, and it is not clear that the Defendant did not have any reason to conclude that there was no reason to acknowledge the remainder of the transaction partner’s transaction partner’s negligence in the process of investigating the transaction without fault in light of the characteristics of the supply of value-added tax system and the fact that there was no reason to deem that the Plaintiff did not have any other reason to be aware that there was no reason for the Plaintiff’s fault in the above.

(5) Sub-committee

Therefore, in the first disposition of this case, the part concerning the part concerning the transaction partner who is recognized as negligence among the remaining transaction parties of this case is legitimate, and the part concerning the transaction partner who is recognized as negligence among the parties of this case and the remaining transaction parties of this case should be revoked illegally.

D) Whether the portion of the first disposition of this case, which was unjustly underreported, is legitimate

(1) In light of the language, structure, etc. of relevant provisions, such as Article 47-3(2)1 of the former Framework Act on National Taxes, even if a taxpayer received a false tax invoice and under-reported the tax base, if the taxpayer did not know that there was a false certification, it cannot be deemed that the taxpayer under-reported the tax base by improper means. Moreover, in cases where a taxpayer received a tax invoice different from the actual supplier under the relevant tax invoice, and received the input tax deduction or refund from the actual supplier, and the taxpayer did not know that the tax base was false by gross negligence, such act constitutes a case where the taxpayer under-reported the tax base in an unfair manner under Article 47-3(2)1 of the former Framework Act on National Taxes, other than the awareness that the taxpayer would have received the input tax deduction or refund, the taxpayer should be aware that the taxpayer would have received the input tax deduction or refund of the value-added tax, excluding the output tax amount under the relevant tax invoice, or by filing a request for correction after filing the tax return or payment in whole under the relevant tax invoice (see, e.g.1615).

On the other hand, whether a disposition is lawful in a lawsuit seeking revocation of a tax disposition is determined depending on whether it exceeds a legitimate tax amount. The parties may submit objective tax bases and materials supporting the tax amount until the closing of arguments in the fact-finding court, and when calculating the legitimate tax amount to be imposed lawfully based on such materials, only the part exceeding the legitimate tax amount shall be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).

(2) In light of the following circumstances acknowledged as a whole in full view of the purport of the pleadings, namely, AAA appears to have been actually supplied at the time and at the price specified in each of the respective tax invoices of this case, and thereafter, AA had paid the purchase price and the total value-added tax thereon through the account of each of the respective transaction parties of this case. However, even if AA received an input tax deduction from the other transaction parties, the evidence submitted by the Defendant alone is insufficient to deem that AAA was true, and that the other transaction parties recognized as negligence among the other transaction parties of this case reported and paid the tax base and tax amount of value-added tax excluding the output tax under the respective tax invoices of this case, or filed and paid a request for correction by evading the liability for the payment of value-added tax under the respective tax invoices of this case, thereby undermining national tax revenues.

Therefore, Article 47-3 (1) of the former Framework Act on National Taxes should be imposed with respect to AA, which is not an unfair under-reported penalty tax under Article 47-3 (2) of the same Act. Therefore, the portion exceeding the amount of a general under-reported penalty tax, which is not an unfair under-reported penalty tax, is unlawful.

2) Whether the Plaintiff’s shares held in title trust was held in the name of the Plaintiff

The fact of ownership of shares is to be proved by the data such as the list of shareholders, the list of shareholders, or the list of corporate registers, etc.; Provided, That even in cases where a shareholder appears to be a single shareholder in light of the above data, in cases where there are circumstances, such as where a shareholder was stolen or registered in a name other than the real owner, the actual owner shall not be deemed a shareholder, but the nominal owner who asserts that he/she is not a shareholder should prove that he/she is not a shareholder (Supreme Court Decision 2003Du1615 Decided July 9, 2004).

원고가 AAA의 주식 5%를 보유하고 있는 사실은 제1항에서 본 것과 같으므로 원고가 명의신탁 사실을 입증해야 하는바, 갑 제11호증의 1, 2의 각 기재만으로는 원고의 주장과 같이 원고 소유 명의의 AAA 주식 5%의 주식에 관하여 원고가 아닌 ㄷㄷㄷ이 실질적으로 위 5% 주식을 보유한 주주임을 인정하기에 부족하며 달리 이를 인정할 증거가 없다. 따라서 원고의 이 부분 주장은 이유 없다.

(iii) a reasonable tax amount;

In a lawsuit seeking revocation of a taxation disposition, the subject matter of the disposition is whether the tax base and tax amount imposed and notified by the tax authority are objectively existing or not. Thus, the disposition of imposition is legitimate if the tax base and tax amount recognized by the pertinent disposition are justifiable. On the contrary, in a case where the tax base and tax amount recognized by the disposition of imposition are excessive than the legitimate tax base and tax amount, the disposition of imposition is unlawful within the scope exceeding the reasonable tax base and tax amount (see Supreme Court Decision 88Nu6504, Mar. 28, 19

In light of the above legal principles, the reasonable amount of tax calculated against the plaintiff is as shown in the attached Table 2. The amount of value-added tax for the second term of 209, the amount exceeding 371,228,60 won, the first term value-added tax for the second term of 2009, the amount of value-added tax for the second term of 2010, the amount of value-added tax for the second term of 2010, and the amount of value-added tax for the second term of 2010, the amount of value-added tax for the second term of 80,815,190 won is reasonable. Therefore, among the instant dispositions taken by the defendant against the plaintiff on January 17, 2012, the amount exceeding 181,307,150 won for the first term of 209, the amount of value-added tax for the second term of 209,04,640 won exceeding 46,366,960 won, and 3081.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above scope of recognition and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal shall be accepted and the judgment of the court of first instance shall be modified as above, and it is so decided as per Disposition.