Additional 2010-0169 ( November 01, 2010)

The decision of corporate tax base is prior to the disposition of tax imposition and cannot be seen as an administrative disposition subject to the appeal lawsuit.

The corporate tax base decision is the prior decision of the tax imposition disposition, which does not take effect immediately, and it does not have any way to dispute the taxation disposition when the tax imposition disposition is made later, and it cannot be seen as an administrative disposition which is the object of the immediate appeal lawsuit by the tax authority.

2011Revocation of disposition of revocation of imposition of corporate tax, etc.

주식회사〇〇

〇〇세무서장

1. The part of revocation of the disposition demanding correction of the corporate tax base of the lawsuit in this case is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

On March 2, 2010, the Defendant’s disposition that corrected the tax base for the business year 2007 from KRW 79,193,536 to KRW -45,093,536 to KRW -45,093,536 to KRW -273,585,351 to KRW -141,85,351 to KRW -141 to KRW.

The Defendant’s imposition of value-added tax of KRW 6,240,640 on March 2, 2010 against the Plaintiff on March 2, 2010, value-added tax of KRW 12,00,000 on the first year of 2008, value-added tax of KRW 26,529,90 on the second year of 2008 is revoked.

1. Details of the disposition;

(a) The plaintiff's business: Real estate rental business and real estate sales brokerage business;

B. Plaintiff’s purchase transaction and tax return

1) Acceptance and delivery of 4 copies of tax invoices from July 3, 2007 to August 19, 2008 (hereinafter “instant tax invoices”).

- 매입처 : 〇〇개발 주식회사(후에 □□개발 주식회사로 명칭 변경)

- Trade items: 165,800,000 won in total of the sales commission

2) Report and payment of each corporate tax and value-added tax for the year 2007 and 2008

- the purchase value equivalent to the input tax deduction and supply value in deductible expenses;

C. Correction and notification of the Defendant on March 2, 2010

1) Grounds

A) Value-added tax for the second period between the second period in 2007 and the second period in 2008: false tax invoice denial and non-deduction of input tax amount;

B) Corporate tax for the business year 2007 to 2008: non-deductible expenses in the amount of purchase

(iii) the details of revision;

A) Correction of value-added tax (hereinafter “value-added tax of this case”)

- For the second period of 207: 6,240,640 won

- For the first period of 2008: 12,000,000

- For the second period of 2008: 26,529,900

(B) the increase or decrease of corporate tax base (hereinafter referred to as “the increase or decrease in corporate tax”);

- For the business year of 2007: -79,193,536 won to -45,093,536 won to be corrected;

- For the business year of 2008: -273,585,351 Won -141,885,351

D. On September 3, 2010, the Plaintiff appealed and filed a request for review with the National Tax Service on September 3, 2010, but was filed on November 1, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including paper numbers) and the purport of the whole pleadings

2. Determination

A. The plaintiff's assertion

원고는 〇〇시 〇〇구 〇〇동 301-3 〇〇시네마1번가 3층 중 일부(이하 '이 사건 건물'이라 한다)에 관하여 〇〇개발 주식회사와 분양대행계약을 체결한 후 위 회사에 실제로 분양대행수수료를 지급하고 이 사건 세금계산서를 교부받은 것이다. 따라서 이 사건 세금계산서가 허위의 세금계산서임을 전제로 한 피고의 이 사건 부가가치세경정 처분 및 이 사건 증액경정은 위법하므로 모두 취소되어야 한다.

B. Relevant statutes

It is as shown in the attached Form.

C. Whether the instant order was disposed of

The tax base decision is a prior decision prior to the disposition of tax imposition, which does not take effect immediately, but does not have any way to dispute the disposition of tax imposition when there is a subsequent disposition of tax imposition (see Supreme Court Decision 82Nu236, Jan. 21, 1986), and thus, it cannot be deemed as an administrative disposition that is the object of the immediate appeal lawsuit by the tax authority (see Supreme Court Decision 82Nu236, Jan. 21, 1986). The same applies to the correction of the tax base for tax assessment. Therefore, the instant adjustment made by Defendant A against the Plaintiff on March 2, 2010 cannot be deemed an administrative disposition, and the part seeking revocation of the instant adjustment is unlawful.

D. Whether the disposition of correction of value-added tax in this case is legitimate

In light of the following circumstances, it is reasonable to view that the instant tax invoice is a tax invoice different from the facts, and the Defendant’s disposition of this case is lawful, in light of the following circumstances acknowledged by the respective entries and arguments in Gap’s Nos. 1, 2, 5, and 10, and Eul’s Nos. 2, 3, 4, and 6 (including various numbers):

1) 원고가 분양수수료를 〇〇개발 주식회사 또는 그 임직원의 계좌로 이체하였다는 내역과 이 사건 세금계산서상의 공급가액 및 일자가 서로 일치하지 않고, 일부는 현금으로 지급하였다고 하나 이를 쉽사리 믿기 어렵다.

2) Of the instant building, multiple contracts are mixed between the Plaintiff and executor, △△ Industrial Development Co., Ltd. and buyer, and there are many differences in the amount of the sales price, and there is a different contract between the details of the tax invoice issued and the details of the actual payment. On December 27, 2007, the remaining three floors of the instant building, excluding subparagraph 309, were only registered in the name of △△ Industrial Development Co., Ltd. on the same day as the registration of ownership in the name of △△△ Industrial Development Co., Ltd., Ltd., the enforcement company on December 27, 2007, and there is no transfer of ownership in the name of the Plaintiff or buyer.

3) 원고의 대표이사는 세무조사를 받을 당시 〇〇개발 주식회사의 실무자들로부터 협박을 받아 이 사건 건물의 분양과 관련하여 허위의 분양계약서를 작성하고 허위의 매출세금계산서를 발행한 적이 있다고 진술하였다.

3. Conclusion

Thus, among the lawsuits in this case, the part concerning the claim for cancellation of the increase in this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as they are groundless.