Seoul Administrative Court-2016-Gu Partnership-75425 ( March 30, 2017)

Whether a different tax invoice is true, and whether the imposition of national tax is legitimate or not;

In addition to the cancellation of the portion of the judgment of the court below because it is unlawful in the application and interpretation of the tax law, the adjusted disposition including the value-added tax on the amount subject to the additional tax due to the lack of qualified evidence

Article 76 (Period for Excluding Assessment of National Taxes)

2017Nu4599 Revocation of Disposition of Imposition of Value-Added Tax, etc.

EE

Head of a tax office and 2 others

Seoul Administrative Court Decision 2016Guhap75425 decided March 30, 2017

October 25, 2017

November 22, 2017

1. A claim that is changed in exchange by this Court:

A. On June 9, 2017, the part that exceeds KRW 33,44,670 of the disposition of imposition of additional tax to be paid in the certificate of payment of corporate tax for the business year 2009; the part that exceeds KRW 90,288,911 of the disposition of imposition of additional tax to be paid in the certificate of payment of corporate tax for the business year 2009; the part that exceeds KRW 21,874,318 of the disposition of imposition of additional tax not paid in the certificate of payment of corporate tax for the business year 2010; and the part that exceeds KRW 24,061,750 of the disposition of imposition of additional tax not paid in the certificate of payment of corporate tax for the business year 2011.

B. The plaintiff's remaining claims against the defendant provisional tax office are dismissed.

2. The plaintiff's appeal against the defendant Naba director and the multilateral director of the tax office is dismissed.

3. The plaintiff bears the costs of appeal between the plaintiff, the defendant Nab Tax Office, and the multilateral tax office. 10% of the total costs of appeal between the plaintiff and the defendant Ga Tax Office shall be borne by the defendant Ga Tax Office, and the remainder by the plaintiff respectively.

The judgment of the first instance court is revoked. The revocation of all of the dispositions of each of the separate sheet made by the Defendants against the Plaintiff (the Plaintiff, at the first instance court, changed the purport of the claim regarding the portion of additional tax not received in the certificate of corporate tax payment on June 9, 2017, which was issued by the head of the tax office of the second instance against the Plaintiff on December 1, 2015 **,**,****,*****,**************************, on the grounds that the correction was made on the portion of additional tax not received in the certificate of corporate tax payment on December 1, 2015 by the head of the tax office of the second instance on the ground that the correction was made on June 9, 2017).

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance, except for dismissal or addition of part of the judgment of the court of first instance as follows. Thus, the meaning of terms used in this part is identical to the judgment of the court of first instance in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the same shall apply to the judgment of the court of first instance).

○ The 3rd and the 15th and 16th "the defendants" are different from "the head of the Nana Tax Office and the head of the Dada Tax Office".

○ “As described in attached Form 1,” in the third 20 to 21.

The 00th page 2 of the 4th page "the correction and notification was made (hereinafter collectively referred to as "each of the dispositions in this case")" and the following are the same.

Of the details of the disposition on imposition on June 9, 2017, Defendant AB Tax Office issued a notice of correction and notification, Defendant AB Tax Office issued a notice of imposition of additional tax on the kinds of corporate tax issued from 2009 to 2011 by Defendant AB Tax Office, as stated in the part of the disposition on imposition on Defendant AB Tax Office, and the amount of additional tax on the kinds of corporate tax issued for the business year from 2009 to 201, * the amount of additional tax on the kinds of corporate tax paid for the business year 2009 ******,***, ****, additional tax on the kinds of corporate tax paid for the business year 2010 ***, ****** each disposition on imposition in the attached Form hereinafter referred to as “each disposition”).

○ Heading 5 to 6 of the fourth place [based grounds for recognition] add “Nos. 14 (including each number),” to “No. 14.”

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiff's assertion

The court's reasoning for this part is as follows: "Imposition" of the first instance court's 4th 19th 19th 19th 4th 19th 19 and 20th 4th 19th 20th 19th 19th 20th 19th 20th 19th 20th 20th 19th 20th 19th 200th 20th 200th 19th 200th 200th 200th 200th 200th 200th 200th 200th 200th 200th 200th 200th 200th 20th 200th 200th 200th 200th 200th 200th 200th 200th

B. Relevant statutes

This Court's explanation is the same as the corresponding part of the judgment of the first instance (from 16th to 17th end of the judgment). Thus, this Court's explanation is citing it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Whether the instant tax invoice constitutes a false tax invoice

The reasons why the court shall explain this part of the judgment of the court of first instance are as follows.

With the exception of confinement or addition, the relevant part of the decision of the court of the first instance is identical to that of the corresponding part of the decision of the court of the first instance (Articles 8(2) and 8, 16). Thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

The ○○ 3rd page of the 7th page “............., among any series of transactions, whether a specific transaction constitutes a nominal transaction for which no substantial delivery or transfer of goods is made shall be individually and specifically determined by comprehensively taking into account all the circumstances, such as the purpose, process and mode of the transaction by the transaction party, the subject to whom the profit is attributed, the process of movement of goods in reality, the payment of the price, etc. (see, e.g., Supreme Court Decision 2010Du8263, Nov. 15, 2012).”

Between 8 and 17, the following shall be added:

“(7) The Plaintiff is a legally effective system regardless of whether the benefit or expenses incurred in the transaction accrue.

Although the Supreme Court en banc Decision 2012Du22485 Decided May 18, 2017 cited by the Plaintiff argues that a taxpayer of value-added tax should be determined on the basis of a person who entered into a contract, barring any special circumstance, the validity of a contract is determined on the basis of the mutual agreement between the parties to the contract, whereas the denial of input tax deduction on a tax invoice different from the fact is intended to prevent the termination that is the foundation of the overall taxation due to an ambiguous transaction, and thus, even if the contract between the Plaintiff and B is valid under private law, it cannot be an obstacle to the judgment that the instant tax invoice is a false tax invoice (the Supreme Court Decision 2012Du2485 Decided May 18, 2017 cited by the Plaintiff is the trustee who transferred the right to use and consume the goods to the other party, and even if the truster or beneficiary who did not have a direct legal relationship with the other party to the transaction does not belong to the profit and expense, it is inappropriate to invoke this case as a matter of value-added tax as a taxpayer in a trust relationship.

(d) Whether there is any ground to exclude the processed purchase amount from the deductible expenses in calculating the corporate tax base;

The court's explanation concerning this part of the judgment of the court of first instance (8 pages)

Since it is the same as the entry of the 18th to 9th page, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act.

E. Whether the exclusion period of imposition, and the illegal under-reported additional tax are legitimate

The reasons why the court shall explain this part of the judgment of the court of first instance are as follows.

With the exception of confinement or addition, the relevant part of the decision of the court of the first instance is identical to that of the corresponding part of the decision of the court of the first instance (Articles 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ Of the 12 pages 10 and 11 below, the following shall be added:

"Cheating under Article 26-2 (1) 1 of the former Framework Act on National Taxes" shall be imposed and collected from taxes.

Although it does not constitute a mere failure to file a return under the tax law or making a false report without accompanying any other act, it may be deemed that the imposition and collection of taxes has been impossible or considerably difficult (see, e.g., Supreme Court Decision 2014Du2522, Sept. 15, 2015). Whether the active intent of concealment can be objectively revealed, as well as whether the basic book stating import or sale was falsely prepared; whether the method of determining the relevant tax is a method of imposing taxes; whether the relevant method of imposing taxes is a method of imposing taxes; whether the details leading to a failure to file a report or a false report; the details and degree different from the facts leading to a false report; the method of filing a false report; and whether a false report or a false report; and whether the relevant document submitted a false document that leads to a false report or a false document should be determined based on the overall circumstances such as the tax base and the function of the relevant document (see, e.g., Supreme Court Decision 201Do21384, Apr. 21, 2019).

○ “Once payment is made” in Part 4 of the 13th page, followed by inserting “after receiving the tax invoice of this case different from the facts from B.”

In addition, "the corporate tax" in the 6th sentence of the 13th place shall be added to "the corporate tax shall be paid in lieu of the plaintiff's report as the method of tax return."

Article 26-2(1)1 of the Enforcement Decree of the National Tax Act provides that "in the case of the 8th and 9th of the 13th, the national tax shall be evaded, refunded or deducted."

(f) Whether the imposition of additional tax not received in the certificate of payment of corporate tax is legitimate

1) Relevant provisions and legislative purpose

Article 76 (5) of the Corporate Tax Act provides that "the head of a tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount or the amount received differently from the fact as corporate tax unless he/she applies the proviso of Article 116 (2) to the goods or services supplied by a business operator prescribed by Presidential Decree in connection with his/her business or receives false evidentiary documents, except for cases where the proviso of the same paragraph applies." Article 116 (2) of the same Act provides that "where a corporation is supplied goods or services with a business operator prescribed by Presidential Decree and pays the price, he/she shall keep evidentiary documents falling under any of the following subparagraphs." Article 116 (2) of the same Act provides that "credit card sales slips under the Specialized Credit Financial Business Act ( subparagraph 1), cash receipts ( subparagraph 2), tax invoices under Article 32 of the Value-Added Tax Act (Article 32), and Article 121 and Article 163 (4) of the Income Tax Act (Article 160) of the Corporate Tax Act).

2) Whether an additional tax is imposed

In light of Articles 76(5) and 116(2) of the former Corporate Tax Act and Article 32(1) of the former Value-Added Tax Act, a corporation that receives goods or services in relation to a business must receive evidentiary documents under each subparagraph of Article 116(2) of the former Corporate Tax Act (hereinafter “legal certificate”) from “person who actually conducted a transaction in supplying goods or services.” Thus, where a person who actually conducted a transaction in supplying goods or services fails to receive evidentiary documents from “the person who actually conducted a transaction in supplying goods or services,” it constitutes an additional tax under Article 76(5) of the former Corporate Tax Act, and even if such corporation received legal certificate from a person who is not “the person who conducted a transaction in supplying goods or services” (see, e.g., Supreme Court Decision 2010Du24654, Apr. 26, 2012).

According to the above legal principles, since the plaintiff received the tax invoice of this case from BB even though he was actually supplied with the processed meat from the fraternity meat processing company other than BB, it shall be subject to the penalty tax not receiving the certificate of corporate tax expenditure. Accordingly, the plaintiff's assertion against this is without merit.

3) Whether the additional imposition standard amount is included in the value-added tax amount

A) Whether the transaction partner’s tax base calculation is considered as value-added tax

(1) Article 14(1) of the Corporate Tax Act provides that the income of a domestic corporation for each business year shall be the amount calculated by deducting the total amount of deductible expenses for the business year from the total amount of gross income for the

Article 18 Subparag. 5 of the same Act provides that the output tax amount of value-added tax shall not be included in gross income for the purpose of calculating the income amount of a domestic corporation for each business year. On the other hand, under Article 21 of the Corporate Tax Act, input tax amount of value-added tax is not included in deductible expenses in calculating the income amount of a domestic corporation for each business year, but the tax amount in cases where value-added tax is exempted or other cases prescribed by Presidential Decree are exceptionally included in deductible expenses. However, the issue in calculating the corporate tax base of a counterpart business operator is the output tax amount of value-added tax.

(2) Article 19(2) of the Income Tax Act provides that business income shall be the total amount of income in the pertinent taxable period and the necessary expenses incurred therein shall be deducted, and Article 26(9) of the same Act provides that

The output tax amount of value-added tax stipulates that it shall not be included in gross income when calculating the amount of income in the relevant taxable period. On the other hand, when calculating business income under Article 33(1)9 of the Income Tax Act, the input tax amount of value-added tax is not, in principle, included in necessary expenses, but exempted from value-added tax or the value-added tax paid by a simplified taxable person in cases prescribed by Presidential Decree is exceptionally included in necessary expenses. Thus, as in the case of the corporate tax as seen earlier, the value-added tax amount

(3) According to Article 29(1) and (3) of the Value-Added Tax Act, the tax base of value-added tax on the supply of goods or services shall be an amount calculated by aggregating the supply value of goods or services supplied in the pertinent taxable period. In this case, the value-added tax shall include all the monetary values received from the person who receives the goods or services, but shall not include value-added tax. Meanwhile, Article 63(1) of the Value-Added Tax Act provides that the tax base of a simplified taxable person shall be the total supply value in the pertinent taxable period. However, under Article 36(1) of the Value-Added Tax Act, where a simplified taxable person supplies goods or services, he/she shall issue a receipt instead of issuing a tax invoice as prescribed by Presidential Decree (the receipt shall include the proceeds from supply under Article 73(7) of the Enforcement Decree of the Value-Added Tax Act) if the other party to the transaction is a simplified taxable person, it does not seem that Article

(4) Ultimately, the value-added tax cannot affect the computation of the tax base by the opposite contractual party.

B) Determination

In full view of the following circumstances, it is reasonable to interpret that the “amount not received or mistakenly received” under Article 76(5) of the Corporate Tax Act refers to the amount excluding the value-added tax, that is, the value of supply. Therefore, the imposition of additional tax by the Defendant AB Tax Office’s failure to receive the certificate of payment of corporate tax on a different premise is unlawful and the Plaintiff’s assertion pointing this out has merit

(1) Article 76 (9) 4 (e) of the Corporate Tax Act shall apply where an invoice or receipt under Article 121 (1) or (2) of the Corporate Tax Act is issued in the name of a person, other than the person who actually supplies goods or services after being supplied with such goods or services.

In the case of a invoice or receipt under Article 121 (1) or (2) of the Corporate Tax Act, the additional tax is imposed on the basis of the value of supply.

② The purport of Article 116(2) of the Corporate Tax Act and Article 76(5) of the same Act, which are sanctions for nonperformance of obligation, focuss on inducing a business operator, who is the opposite contractual party, to foster the tax base, and as seen earlier, the value-added tax does not affect the calculation of the tax base of the business operator, who is the opposite contractual party. In addition, Article 18(1) of the Framework Act on National Taxes provides that when interpreting and applying tax-related Acts, the property rights of the taxpayer should not be unfairly infringed on in light of the equity in taxation and the unity of the pertinent provisions. Thus, interpreting that the value-added tax is included in the "amount not received or received differently from the fact" under Article 76(5) of the Corporate Tax Act is the result of imposing the penalty tax on the portion not related to the tax base

③ The Defendant cited the proviso of Article 116(2) of the Corporate Tax Act and Article 29(7) of the Value-Added Tax Act on the ground that the amount of value-added tax should be included in the “amount not received or mistakenly received” under Article 76(5) of the Corporate Tax Act. However, the proviso of Article 116(2) of the Corporate Tax Act and Article 158(2)1 of the Enforcement Decree of the Corporate Tax Act only stipulate that the transaction amount per case includes value-added tax in determining whether the transaction amount is not more than 30,000 won, and they do not include the amount that is the basis for imposing additional tax. Article 29(7) of the Value-Added Tax Act provides that the said provisions shall not be deemed to include the amount received as the consideration in return for the payment

4) Sub-committee

Ultimately, when calculating the penalty tax amount of unclaimed amount of the business year *,**,***,**,*,*,*,*,*,*,*,*,*, business year 201 *,*,**,**,**,*,**,**,**,** (see each of the evidence No. 1-1 through 3, and evidence No. 1-4 through 6). Therefore, the part in excess of the above amount among the disposition imposing additional tax of unclaimed amount of the corporate tax by the head of the tax office having jurisdiction over the payment certificate of the defendant A, should be revoked as it is unlawful.

3. Conclusion

Therefore, the claim for revocation of the disposition imposing additional tax on Defendant A’s failure to receive the certificate of payment of corporate tax by the head of the AB Tax Office whose exchange had been changed in this court shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit (the judgment of the court of first instance was invalidated since the lawsuit on the disposition imposing additional tax on Defendant BB Tax Office’s failure to receive the certificate of payment of corporate tax, which falls

The plaintiff's claim for revocation of each disposition by the defendant Naba Tax Office and the Multilateral Tax Office shall be dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided, and each appeal by the plaintiff Naba Tax Office and Multilateral Tax Office shall be dismissed as it is so decided