Cho Jae-2013-2260 (No. 22, 2017)

A duplicate tax investigation is illegal but not invalid.

Re-audit of the same tax item and taxable period as the primary tax investigation is illegal unless there are special circumstances exceptionally permitted. Although the defects of the duplicate tax investigation constitute serious procedural defects, it does not constitute grounds for invalidation merely because it simply provides an opportunity to explain without submitting a re-audit point or a new taxation data.

Article 81-4 of the Framework Act on National Taxes (Prohibition of Abuse of Right of Tax Investigation)

Incheon District Court 2017Guhap50786 Such revocation, etc. of disposition of imposing corporate tax

AA Corporation

BB Director of the Tax Office

2018.06.07

8.07.05

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

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

Cheong-gu Office

Above all, the Defendant’s corporate tax of KRW 199,432,250 for the business year of 2007 to the Plaintiff on March 4, 2013;

Imposition of KRW 110,158,00 of corporate tax for the business year 2008, and KRW 174,572,680 of corporate tax for the business year 2009

Sector and the first value-added tax for 2007 49,270,180, and second value-added tax for 2007 46,273,260

Won, 73,615,780 won of value-added tax for 1 year 2008, and 38,615,020 of value-added tax for 2 year 2008;

Value-added tax for 1 year 2009 39,382,660 won, and value-added tax for 2 year 2009 47,642,720 won

A disposition and a notice of change in the amount of income on March 10, 2013, issued by the Defendant to the Plaintiff on March 10, 2013 is invalid. It is confirmed that the notice of change in the amount of income is invalid.

Preliminaryly, the imposition of each of the above corporate tax, imposition of value-added tax, and notification of change in income amount shall be revoked.

1. Details of the disposition;

A. The Plaintiff’s business contents, etc.

The plaintiff (formerly:OOT) has dismantled the scrapped vehicles to sell scrap metal in Korea, or has a business (hereinafter referred to as "business related to scrapping") exported to the labor limited liability company of Mongolia (hereinafter referred to as the "MNA"), which is a local subsidiary of Mongolia, and the business (hereinafter referred to as "ware-off business") leasing and subleting the scrap metal from the Han Heavy Industries Co., Ltd. (hereinafter referred to as "ware-transfer business"), which is located in the 640-dong, Seo-gu, Incheon.

(b) Primary tax investigation and primary corrective disposition;

CCC head of the tax office conducted a tax investigation for the business year from March 19, 2012 to August 20, 2012 (hereinafter referred to as "the first tax investigation") of the Plaintiff from March 19, 2012 to August 20, 2012, based on the amount on the daily table, which is a confidential account book for the scrapping-related business, and based on the amount deposited in the account in the name of JungA for the warehouse transfer-related business, the Plaintiff omitted sales while filing a report on corporate tax and value-added tax. The Plaintiff did not report the gift of KRW 68 million from the Plaintiff in relation to the acquisition fund of real estate even if the Plaintiff received the gift of KRW 68 million from the Plaintiff in relation to the acquisition fund of real estate, and the Plaintiff did not report the change in the value-added tax on August 1, 2007 to 209, and notified the amount of income for the business year from August 20, 2012 to 20B.

C. From October 8, 2012 to October 25, 2012, the Director of the Regional Tax Office of China and the Director of the Regional Tax Office of the Second Revision Dispositions conducted a regular business audit for CCC tax secretary in 2012 and instructed the first tax audit to point out the following problems:

Irregular domestic sales omissions

With respect to the scrapping-related business, the plaintiff on the daily account table 2007 to 2009

amounting to KRW 526 million in advance, value-added tax costs of KRW 217 billion in advance, which is an item to be required to be paid, the amount of KRW 526 million in advance,

Other than 20,000,000 won 1.27 billion won in total shall be excluded from the omitted domestic sales.

It is improper to investigate the omitted domestic sales amount.

Inspection on the omission of overseas sales;

At the time of commencement of the first tax investigation, only 5% of the export amount to the MmonAA shall be reported by the Plaintiff.

Information was made that the amount of the subscription was not paid to the account of the Government of the Government of the Republic of Korea, and the Government of the Government of the Government of the

From 2007 to 2011, 760 million won was confirmed to be deposited in foreign exchange accounts.

of this case, the court did not examine the person;

failure to investigate the source of funds to repay the principal and interest of bank loans of the United States;

Bank loans related to the Plaintiff’s acquisition of the land in the Goak-si, Goak-gu, Yungpo-si, Yungpo-si 733-27

It is confirmed that the principal and interest of KRW 500 million are repaid with the Plaintiff’s funds, but this is so confirmed.

failure to conduct an investigation;

Accordingly, the director of the CCC set the investigation period from December 26, 2012 to February 8, 2013, the director of the CCC conducted a reinvestigation on the Plaintiff (the Plaintiff’s general corporate tax for the business year from 2007 to 2009 was converted to a corporate tax offense investigation after the Plaintiff’s general corporate tax for the business year from 2007 to 2009; hereinafter “instant reinvestigation”) and as a result, additional detection was made in conformity with the above audit and inspection matters.

The fixed amount of assets omitted in domestic sales;

After examining the related accounts, which did not consider the omitted amount of sales at the time of the primary tax investigation (the amount of sales on the daily account table and the proceeds from supply on the sales tax invoice by each customer on the daily account table, and the net amount of transactions on the account of the Plaintiff, JungA, the Plaintiff’s employees, the MaximumO, and POs, etc.), the Plaintiff’s additional detection of the omitted amount of domestic sales in the business year from 2007 to 209

Detection of the omitted foreign sales

On the basis of the details of the Plaintiff’s foreign exchange account and the Plaintiff’s export pages in the year 2007-201, the amount deposited in the UA and the Plaintiff’s foreign exchange account shall be deemed as the export price in the MmonA, and the omission in overseas sales shall be discovered.

5 Detection of source of funds to repay principal and interest of bank loans of the Government.

Recognizing that the repayment amount of principal and interest of bank loans of the appropriate AA was paid as the Plaintiff’s revenue, the Plaintiff’s disposal of KRW 42,485 million as the bonus for the business year from 2007 to 2012 as the Plaintiff’s revenue.

According to the results of the reexamination of this case, the director of the CCC, as stated in the “Secondary Correction Disposition” column in the attached Table, imposed corporate tax on March 4, 2013 to the Plaintiff in the business year of 2007, and imposed the secondary value-added tax in the year of 1 to 2007, as well as in the year of 2009. On March 10, 2013, the income amount belonging to the business year of 2007 to 2009 was disposed of as the bonus to the Party B and the Party A, and notified the change in the amount of income (hereinafter referred to as the “Secondary Correction Disposition”).

(d) Revision to reduction according to a decision of the Tax Tribunal on reexamination;

On July 22, 2014, upon the plaintiff's request for the second corrective disposition, the Tax Tribunal re-converted the part of the foreign currency transaction amount which the defendant (the jurisdiction of the defendant was transferred to the defendant following the establishment of the Gimanan Tax Office) without withdrawing the part of the foreign currency transaction amount or simply purchased foreign currency due to omission of sales. In the case of scrap-related business and warehouse transfer business, the Tax Tribunal made a decision to correct the tax base and tax amount of value-added tax, corporate tax, and the notice amount of change of the income amount by examining whether the omission of sales amount was calculated twice or included in the omission of sales amount with the plaintiff's explanation.

Accordingly, the defendant shall conduct a reinvestigation, and the defendant shall conduct a reinvestigation on April 3, 2009, out of the total amount of foreign currency transactions.

The amount of KRW 81,739,605, which is confirmed to have been withdrawn from the foreign exchange account under the name of Jung and deposited into another foreign exchange account, shall be deducted from the revenue amount. Of the omitted domestic sales amount, the aggregate of KRW 761,421,59, such as the amount verified as double taxation, and the amount verified as deposit or electricity deposit amount, etc. out of the total revenue amount due to the omission of the deposit or electricity deposit amount due to the omission of the warehouse sales revenue, shall be deducted from the revenue amount, and the amount of KRW 169,937,00,00 of the electric fee for the warehouse transfer business shall be deducted from the revenue amount, as described in the "reduction tax amount in the attached Table" column, the corporate tax for the business year from 2007 to 2009, and the second value-added tax and income income earner for the business year from 2007 to 209 to 2009, the remaining portion of the revised tax amount shall be deducted from the Plaintiff on November 19, 2014.

[Reasons for Recognition] Evidence Nos. 1 through 11, Evidence Nos. 1 through 10, the purport of the whole pleadings

2. Judgment as to the main claim (whether the disposition in this case is null and void)

A. The plaintiff's assertion

The re-audit of this case constitutes a re-audit prohibited under the Framework Act on National Taxes, since it constitutes a re-audit prohibited under the Framework Act on National Taxes, as it does not constitute exceptional grounds for permission, such as the first tax investigation.

(b) Related statutes;

former Framework Act on National Taxes (Amended by Act No. 11604, Jan. 1, 2013)

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

(1) Any tax official shall conduct a tax investigation to the minimum extent necessary to realize proper and fair taxation and shall not abuse the right of tax investigation for any other purpose.

(2) Tax officials may not conduct reinvestigation for the same items of taxation and for the same taxable period, except in any of the following cases:

1. Where obvious evidence exists that prove a suspicion of tax evasion;

2. Where it is necessary to investigate a trading partner;

3. Where mistakes relating to two or more business years exist;

5. Other cases similar to subparagraphs 1 through 4, which are prescribed by Presidential Decree.

Enforcement Decree of the former Framework Act on National Taxes (Amended by Presidential Decree No. 24366, Feb. 15, 2013)

Article 63-2 (Prohibition of Overlapping Investigation)

"Cases prescribed by Presidential Decree" in Article 81-4 (2) 5 of the Act means any of the following cases:

2. Where a reinvestigation for the handling of all kinds of assessment data, or a confirmation investigation for determination of the national tax refund is conducted;

3. Where re-revision is made without conducting on-site investigation for tax disposition pursuant to Articles 81-5 and 81-12 of the Act.

C. Determination

1) Whether the reinvestigation of this case constitutes an illegal reinvestigation

To substantially determine or correct the tax base and amount of tax;

Therefore, in cases where taxpayers, etc. are contacted directly at the offices, places of business, factories, or places of business of taxpayers, etc. and ask questions over a considerable period of time, or inspect and investigate books, documents, and articles for a certain period of time, a re-audit is prohibited, barring special circumstances (see, e.g., Supreme Court Decisions 2014Du8360, Mar. 16, 2017; 2015Du3805, Dec. 13, 2017).

In full view of the following circumstances, Gap evidence evidence Nos. 4, 8 through 11, Eul evidence No. 4 and Eul evidence No. 4, i.e., the investigator belonging to the CCC request the plaintiff and JungA to explain the nature of the amount deposited in the foreign exchange account under the name of Jung for the investigation of the plaintiff's scrapping-related business, and the amount deposited in the foreign exchange account from the representative director, JungB, and JungA, it is explained that the amount deposited in the account was deposited in the regularAB deposit account. On January 14, 2013, the investigator sent questions about the amount deposited in the foreign exchange account under the name of Jeong, prepared a written answer, prepared and submitted by JungB, and received data on real estate located in Mongolia, etc.

Furthermore, there is no reason to deem that the re-audit of this case constitutes “cases where there is clear evidence to acknowledge a suspicion of tax evasion” under Article 81-4(2)1 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same) or “cases where a reinvestigation for the handling of all kinds of taxation data” under Article 63-2 subparag. 2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 24366, Feb. 15, 2013) is exceptionally permissible due to the fact that the re-audit of this case was based on new data not already investigated in the first tax investigation.

Therefore, the reinvestigation of this case violates Article 81-4(2) of the former Framework Act on National Taxes and is illegal.

of this chapter.

2) Whether the instant disposition is null and void

A) The part of the disposition of this case, which corresponds to the omission of domestic sales in the disposition of this case

Even if a taxation disposition was based on an illegal reinvestigation, if it is merely a correction of the error of the initial taxation disposition, such taxation disposition cannot be deemed unlawful (see, e.g., Supreme Court Decisions 2010Du6083, Jan. 27, 201; 2016Du5421, Dec. 13, 2017).

Among the dispositions of this case, the portion corresponding to the determination of the amount omitted in domestic sales is merely based on the determination of the amount omitted in domestic sales based only on the materials already acquired and investigated in the first tax investigation, and there was no question, inspection, investigation, etc. at the time of the reexamination of this case. Thus, regardless of the reinvestigation of this case, it is just regardless of whether the reexamination of this case was illegal.

B) In order for the remaining portion of the disposition in this case, other than the portion corresponding to the determination of the amount omitted in domestic sales, to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is serious and objectively obvious as it violates the relevant laws and regulations. In determining whether there is a significant and apparent defect, the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the said disposition, should be examined in a teleological perspective, and a reasonable consideration should be given on the specificity of the specific case itself (see, e.g., Supreme Court Decisions 2002Da68485, Oct. 15, 2004; 2012Du1228, Mar. 27, 2014). Meanwhile, in a lawsuit seeking the confirmation of the invalidity of the disposition in this case, the Plaintiff is liable to assert and prove the grounds for the invalidity (see, e.g., Supreme Court Decision 91Nu630, Mar. 10, 1992).

As seen earlier, the re-audit of this case violates the principle of prohibition of duplicate tax investigation under Article 81-4(2) of the former Framework Act on National Taxes, and thus constitutes a serious procedural defect in taxation disposition. However, the re-audit of this case was conducted in accordance with the direction of the Director of the Central Tax Office, an audit agency, to conduct a re-audit on intellectual matters in the audit process. The content of such a re-audit is not to obtain new taxation data on the Plaintiff, but to provide the Plaintiff representative director, YB, and YA with an opportunity to explain the nature of the amount deposited in the foreign exchange account in the name of NA. It is only to the extent that the substantial taxation data have not been secured in the re-audit process, and it is hard to view that the re-audit of this case constitutes an unlawful re-audit under Article 81-2(2)1(a) of the Framework Act on National Taxes, which was conducted at the time of the re-audit as it was objectively difficult to view that the act was conducted from the time of the re-audit to the point of view that it was unlawful.

Therefore, it cannot be deemed that the remainder of the disposition of this case, excluding the portion corresponding to the determination of the amount omitted in domestic sales, is null and void as a matter of course.

3. Judgment on the preliminary claim (whether the lawsuit for preliminary claim is legitimate);

The defendant asserts that the preliminary claim seeking cancellation of the disposition of this case is unlawful, since it was filed after the period for filing the lawsuit expires.

The re-audit decision which is conducted in practice as a type of the decision on the objection, etc. is bound to be considered as a modified decision with the intent of the disposition agency to part of the decision on the objection, etc. concerning the matters pointed out in the relevant decision, and the contents of the subsequent disposition should be considered as part of the decision on the objection, etc. Accordingly, the re-audit decision shall take effect as a decision on the objection, etc. by supplementing the contents of the subsequent disposition by the disposition of the disposition agency. Therefore, it is reasonable to deem that the period of the request for review, the period of the request for adjudgment, or the period of the request for adjudgment or the period of filing the administrative litigation according to the re-audit decision should be counted from the date when the objection, etc. is notified of the subsequent disposition (see, e.g., Supreme Court Decision 2011Du

On July 22, 2014, the Plaintiff filed a request with the Tax Tribunal for a trial against the head of the CCC head of the tax office on the second corrective disposition, and received a re-audit decision from the Tax Tribunal. Accordingly, the Defendant conducted a re-audit and notified the Plaintiff of the decision of reduction on November 19, 2014. The Plaintiff filed the instant preliminary claim on February 27, 2017, which was 90 days after the filing period for the instant preliminary claim. As such, the Plaintiff’s preliminary claim was unlawful since it was filed after the lapse of the filing period.

4. Conclusion

Of the instant lawsuit, the ancillary claim is dismissed, and the plaintiff's main claim is dismissed, and it is so decided as per Disposition.