Busan District Court-2014-Gu 2111 (Law No. 15, 2015)

Even if a tax investigation is conducted again for only other items except for the specific items for which the initial tax investigation has been conducted, it constitutes a duplicate investigation.

Even if a tax official conducts a tax investigation again for only the specific items in the same taxable period, even though the details of tax investigation overlap by conducting a tax investigation again for those items other than the specific items originally planned by a tax official, conducting a tax investigation again for the same taxable period of such items shall constitute a reinvestigation as prohibited in Article 81-4 (2) of the Framework Act on National

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

2015Nu21766 The revocation of the disposition to impose value-added tax, etc.

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1. ○○ Head of ○○ Tax Office;

Busan District Court Decision 2014Guhap21111 Decided June 25, 2015

December 18, 2015

January 22, 2016

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

A. On June 3, 2013, the head of ○○○○ Tax Office revoked the imposition disposition of KRW 43,415,880 on the first-year value-added tax for the Plaintiff on June 3, 2013, KRW 49,172,170 on the second-year value-added tax for the year 2008, KRW 33,318,280 on the first-year value-added tax for the year 2009, KRW 45,015,930 on the second-year value-added tax for the year 209, KRW 46,398,890 on the first-year value-added tax for the year 2010, KRW 40,294,100 on the second-year value-added tax for the year 2010, KRW 33,832,860 on the first-year value-added tax for the year 201

B. On June 3, 2013, the lower court revoked each disposition of KRW 147,970,240, global income tax for the Plaintiff in 2007, global income tax for the year 2008, global income tax for the year 272,321,200, global income tax for the year 209, global income tax for the year 227,949,740, global income tax for the year 2009, and global income tax for the year 235,001,610 for the year 2010.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, the part arising between the Plaintiff and the Defendant ○○○ Head of the tax office is ten minutes, and the remainder is borne by the Plaintiff and the Defendant ○○ Head of the tax office, respectively, and the part arising between the Plaintiff and the Defendant ○○ Head of the tax office is ten minutes, and the part arising between the Plaintiff and the Defendant ○○ Head of the tax office is borne by the Plaintiff, and the remainder

The judgment of the first instance shall be revoked. The disposition of the head of the tax office of ○○○○○ shall be revoked on June 3, 2013 with respect to the Plaintiff on the first-year value-added tax of 43,415,880 won, second-year value-added tax of 2008, 49,172,170 won, first-year value-added tax of 2009, 33,318,280 won, second-year value-added tax of 209, 45,015,930 won, second-year value-added tax of 209, 46,398,890 won, second-year value-added tax of 20,294, 290, 2010, 30, 205, 207, 204, 207, 205, 2017, 203, 2017.

1. Details of the disposition;

A. From November 30, 2004 to 100, the Plaintiff engaged in beauty and art business, such as eyebrow surgery, with the trade name of △△ beauty, and closed down on February 13, 2012.

B. From August 29, 2011 to September 16, 2011, the “○○○ Tax Office” for the Plaintiff:

From July 1, 2006 to June 30, 201, "type of investigation: Value-added tax investigation: Value-added tax investigation; and the reason for investigation: It was analyzed as a result of reviewing the contents of the report that there were omissions of revenue amount, etc., and thus omitted cash sales by conducting a tax investigation (hereinafter referred to as "the first tax investigation of this case") to verify the propriety of the report; and verified the fact that the report was not filed with respect to KRW 87,795,00 of the rental income of real estate owned by the Plaintiff; and KRW 17,850,00 of the rental income of the commercial buildings owned by the Plaintiff; from the second half of 2006 to the first half of 2011, the aggregate of value-added tax of KRW 76,885,520; and KRW 83,351,890 of the global income tax for the year 206 to the year 2010.

C. On November 29, 2012, the Busan regional tax office received a tax evasion report (hereinafter referred to as “instant tax evasion report”) from the Plaintiff’s neighboring figures and confirmed the details of the acquisition and transfer of assets, including real estate owned by the Plaintiff during the period of △△ beauty operation, and determined that the Plaintiff’s acquisition of real estate (specific acquisition details are the details of the acquisition of attached Form 3 real estate; hereinafter referred to as “Plaintiff’s real estate”) with considerable credibility in the contents of the instant tax evasion report. On January 17, 2013: The investigation period: January 21, 2013 to February 28, 2013; tax items subject to investigation: Integrated investigation by individual entrepreneurs (income tax, value-added tax, etc.); and tax investigation by omitting the details of the report from 207 to 2011.

(d) The Busan Regional Tax Office, through the second tax investigation of this case, shall have four post office accounts (***********-**-*********************************************************************************************************************************************?*********** by reference to the above accounts), the total amount of cash deposits of the Plaintiff from 200, 27506, 46565, 2565, 205, 3656, 465, 2565, 256, 256

E. Accordingly, on June 3, 2013, the head of ○○○○○ Tax Office issued a disposition of value-added tax 43,415,880 won for the Plaintiff in 2008, value-added tax 49,172,170 won for the second period of value-added tax in 2008, value-added tax 33,318,280 won for the second period of value-added tax in 209, value-added tax 45,015,930 won for the second period of value-added tax in 209, value-added tax 46,398,890 won for the first period of value-added tax in 2010, value-added tax 40,294,100 won for the second period of value-added tax in 200, 201, 21, 14,106,710 won for the second period of tax in 203, 2017.

F. The Plaintiff filed an appeal with the Tax Tribunal against each of the instant dispositions, but the said appeal was dismissed on May 23, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 6, 7, 8, Eul evidence Nos. 1 through 5, 16, 22, 23 and 29 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The assertion that it is a disposition based on illegal double taxation

Although ○○○ Tax Office conducted all the Plaintiff’s sales and income from the second to the first half of 2006 through the first tax investigation of this case and imposed value-added tax and general income tax, it constitutes an illegal duplicate investigation that the Busan Regional Tax Office conducted the second tax investigation of this case again. Therefore, among each disposition of this case, the part corresponding to the taxable period that had already been investigated at the time of the first tax investigation of this case is based on an illegal duplicate investigation, and thus, it should be revoked. The remaining disposition is made by the data acquired by the illegal duplicate investigation, and thus the principle of exclusion from Germany should be revoked.

(2) Claim for violation of based taxation

The Defendant’s cash deposited to the account of this case without objective proof is a △ beauty business.

The settlement of cash income amount is illegal because it violates the principle of taxation based on the basis of taxation.

B. Relevant statutes

The term "attached Table 1" is as stated in the relevant Acts and subordinate statutes.

C. Determination as to whether it constitutes an illegal double taxation-free measure

(1) Among each disposition of this case, value-added tax and 2007 for the period from January 2008 to January 201.

The portion on which each consolidated income tax has been imposed from the year to 2010

(A) Article 81-4(2) of the Framework Act on National Taxes provides that "a tax official shall not conduct a reinvestigation for the same tax item and for the same taxable period except in cases prescribed by Presidential Decree where there is clear evidence to prove a suspicion of tax evasion, where it is necessary to investigate the other party to the transaction, where he/she erred in connection with two or more business years, where he/she conducts an investigation following a decision on necessary disposition pursuant to Article 65 (1) 3 (including cases where it is applied mutatis mutandis under Articles 66 (6) and 81), or where it is similar thereto and where it is prescribed by Presidential Decree." Article 63-2 of the Enforcement Decree of the same Act provides that "a reinvestigation for the disposal of all kinds of taxation data or a confirmation and investigation for the determination

(B) In cases where a tax official conducts a tax investigation over a certain taxable period of a certain tax item, as well as conducting a tax investigation for only a specific item in the said taxable period, conducting a tax investigation again for the same taxable period of the said item constitutes a reinvestigation prohibited under Article 81-4(2) of the Framework Act on National Taxes. It does not mean that the content of a tax investigation does not overlap by conducting a tax investigation again only for other items except the specific items originally conducted by a tax official. Provided, That it is unreasonable to conduct a tax investigation over all other items at the time of the initial tax investigation, such as where it is deemed that it is unreasonable to conduct a tax investigation over a certain item because the scope of a tax investigation is extended due to the extension of the scope of a tax investigation for the said items in other items or taxable periods (see Supreme Court Decision 2014Du126262, Feb. 26, 2015).

(C) Among each disposition of this case, value-added tax and global income tax for the period from January 2008 to January 201, 201 as seen earlier, as well as business income omitted in the course of operating △△ beauty for each taxable period as seen earlier, and as well as value-added tax and global income tax were imposed on the Plaintiff’s real estate rental income during the pertinent taxable period. As such, the part relating to value-added tax and global income tax during the pertinent taxable period in the instant secondary tax investigation is a duplicate investigation prohibited under Article 81-4(2) of the Framework Act on National Taxes. Even if the instant secondary tax investigation was conducted simultaneously with the investigation on the income tax and value-added tax for the Plaintiff’s acquisition of high-priced real estate, such circumstance alone does not constitute a special case where it is unreasonable to conduct a tax investigation over all items at the time of the instant primary tax investigation.

(D) On this issue, the defendant asserts that since the second tax investigation of this case was conducted in accordance with the report of tax evasion of this case specific and reliable, it constitutes "cases where there is clear evidence to acknowledge a suspicion of tax evasion" (Article 81-4 (2) 1 of the Framework Act on National Taxes) or "re-investigation for the disposal of taxation data" (Article 81-4 (2) 5 of the Framework Act on National Taxes and Article 63-2 subparagraph 2 of the Enforcement Decree of the same Act) and the duplicate tax investigation should be exceptionally permitted.

However, in light of the following circumstances, it is difficult to acknowledge that the duplicate tax investigation is exceptionally permitted due to the Defendant’s assertion, and there is no other evidence to acknowledge it, and thus, it is difficult to accept the above assertion by the Defendant.

1) A tax investigation must be conducted within such minimum scope as may be necessary for appropriate and fair taxation. Further, a re-audit of the same tax item and taxable period may seriously infringe upon taxpayers’ rights and interests, such as taxpayers’ freedom of business, as well as the risk of arbitrary tax investigation by the tax authorities, and thus, it is necessary to be prohibited, except in exceptional cases where the presumption of taxpayers good faith is clearly excluded and thus subject to preferential tax investigation, "where there is specific information on taxpayers under Article 63-4 (1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15968 of Dec. 31, 198)," "where there is specific information on taxpayer's tax evasion" under Article 63-4 (1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15968 of Dec. 31, 1998), and thus, it is difficult to see that a re-audit is a case where there is no clear evidence or rationality in light of the aforementioned legal principles that a tax evasion is unreasonable.

2) In light of the provisions of Article 81-4(1) and (2) of the Framework Act on National Taxes and the purport thereof, “where there is clear evidence to acknowledge suspicion of tax evasion” as one of the cases exceptionally permitted, it shall be limited to cases where the possibility of tax evasion is recognized by objective and reasonable data, and it is reasonable to interpret that such data do not include the materials already examined in the previous tax investigation (see, e.g., Supreme Court Decision 2010Du6083, Oct. 27, 201). Therefore, in the process of verifying the authenticity of the instant tax evasion report, the Defendant acquired real estate equivalent to approximately 2.5 billion in the Plaintiff’s account while operating △△△△ △△ Do. In light of the fact that the Plaintiff had already acquired real estate from 60 years to 10 years prior to the date of the instant tax investigation, it is difficult to find that the second tax investigation of this case was legitimate since the Plaintiff had already acquired real estate from 10 years to 20 years prior to the date of the instant tax investigation.

3) In addition, "Various taxation data" under the former part of Article 63-2 subparagraph 2 of the Enforcement Decree of the Framework Act on National Taxes for the processing of various taxation data is prepared or acquired by an institution other than a tax authority which does not abuse or are not likely to arbitrarily exercise its authority to investigate for official

The term “tax evasion report” refers to data provided to the tax authority, which is necessary for the imposition and collection of national taxes and for the management of tax payment, and such data does not include taxation data that the tax authority prepared or acquired in the previous tax investigation (see, e.g., Supreme Court Decision 2014Du43257, May 28, 2015). This case’s tax evasion report does not include data prepared or obtained for the purpose of its official duties by any institution other than the tax authority, or provided to the tax authority, as well as data acquired in the previous tax investigation by the Defendant related to the real estate acquired by the Plaintiff or transaction details, etc. through the instant account, as seen earlier. Thus, the second tax investigation of this case

(E) Therefore, each of the dispositions in the instant case was imposed on each of the value-added tax and each of the consolidated income tax from 2007 to 2010 from January 1, 2008 among the dispositions in the instant case was imposed on the basis of an unlawful duplicate tax investigation, and thus, it is unlawful without any need to examine whether the disposition is unlawful or not, and thus, it should be revoked.

(2) Of the instant dispositions, the part on which the VAT was imposed on 2011 and the global income tax for 2011 on each of the instant dispositions

(A) Of the instant secondary tax investigation, the part related to value-added tax for 2011 and global income tax for 2011 pertaining to the instant secondary tax investigation is different from the instant primary tax investigation and taxable period, and thus cannot be deemed as a duplicate tax investigation. Therefore, this part constitutes legitimate tax investigation.

(B) The Plaintiff asserted that the principle of Germany and the principle of exclusion should be applied to the instant secondary tax investigation, based on the data acquired through an illegal duplicate tax investigation during the instant secondary tax investigation. However, as seen earlier, the disposition of the value-added tax and the global income tax for 2011 on the second tax investigation during the instant secondary tax investigation is based on the lawful part during the instant secondary tax investigation, and it cannot be deemed unlawful due to the unlawful duplicate tax investigation during the instant secondary tax investigation. Thus, the Plaintiff’s aforementioned assertion cannot be accepted.

D. Determination as to whether the underlying taxation principle has been violated (related to the value-added tax for 2 years 2011 and the global income tax for 2011)

(1) In order to correct any error or omission in the final return on the tax base of a taxpayer pursuant to the provisions of the Income Tax Act, it shall be deemed that the other party is an illegal disposition that fails to meet the taxation requirements unless it proves that the other party is not eligible to the application of the empirical rule, and it is possible to conduct a field investigation. On the other hand, on the other hand, a field investigation shall be conducted in such a way as to capture the actual income and there is no specific limitation on the objective method. Thus, in determining the total revenue amount of a taxpayer by investigating the amount deposited in the financial institution account of the taxpayer, the determination of the amount of tax revenue constitutes an objective on-site investigation method. In general, in a lawsuit seeking revocation of the disposition imposing tax, the burden of proof on the facts related to the taxation requirements should be borne by the taxpayer. However, if the other party is presumed to have proved the fact in question in light of the empirical rule in the specific litigation process, it cannot be concluded that the pertinent taxation disposition is an unlawful disposition that failed to meet the taxation requirements (see, e.g., Supreme Court Decision 2003Du1484).

(2) In light of the following facts and circumstances acknowledged in light of the overall purport of the pleadings in the instant case’s health team, the facts seen earlier, and evidence Nos. 3, 10, and evidence Nos. 3 and 6, the Defendant considered the Plaintiff’s cash income amount in total of KRW 671,951,946 ( KRW 82,413,446 + KRW 189,538,500 on February 2, 2011).

(A) The defendant determined that the sum of the post office account********** 708,379,155 (including 70 won deposited into the post office account other than the post office account) and the Busan Bank account for KRW 708,379,155 (including 70 won deposited into the post office account other than the post office account), KRW 363,84,556 deposited at the second time of 201, KRW 1,072,223,711, KRW 400,271, KRW 765 (including 225,965, KRW 709 + KRW 174,306,65666, which had been explained by the plaintiff as having no connection with the business, was the amount of cash transfer, the period of deposit, the amount of cash deposit, and interest on deposit, etc. as legitimate method of calculating the income amount in cash and objective on the spot investigation.

(B) From July 28, 2010 to December 28, 2011, KRW 1,146,730,156 was deposited in the post office ① account. From January 5, 2005 to December 31, 2011, the sum of KRW 629,842,275 was deposited in the Busan Bank account at KRW 1,672 times every 1,672 times. However, the post office account and the Busan Bank’s branch at which the post office account is opened are located are located at the distance of 2 to 3 minutes from the △△ beauty and the Plaintiff’s workplace.

(C) In addition to the first tax investigation of this case, the Plaintiff recognized that the money deposited in cash in the Busan bank account was cash income earned by operating △△△ beauty. Meanwhile, the Plaintiff asserted that the money deposited in the post office account including the post office ① account was the money recovered after lending to another person. However, the Plaintiff did not submit at all a monetary loan contract or account that is able to know that the Plaintiff lent money to a post office account including the post office ① account, and considering all circumstances, such as the size of the money deposited in the post office account including the post office ① account, and the frequency of deposit collection, it is difficult to believe that the Plaintiff’s above assertion is difficult, and there is no other evidence to deem that the Plaintiff had any other income than the income from the operation of △△△ beauty.

(3) Therefore, it is reasonable for the Defendant to impose the amount of KRW 14,106,710, and global income tax of KRW 143,150,340, and global income tax of KRW 143,150,340, which accrue from the Plaintiff’s operation of 2011, based on the amount of cash income of KRW 671,951,946 (1), 482,413,446 + 189,538,500, 2011). Accordingly, this part of the Plaintiff’s assertion that each of the above dispositions violates the principle of base taxation under different premise is unacceptable.

-3. Conclusion

Therefore, the plaintiff's claim is justified within the above recognition scope, and the remaining claims are dismissed as they are without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the plaintiff falling under the disposition of imposition of value-added tax and global income tax belonging from 2007 to 2010 among the judgment of the court of first instance against each of the judgment of the court of first instance shall be revoked, and each of the above dispositions shall be revoked, and the plaintiff's remaining appeal shall be dismissed as there is no ground for appeal.