Examination Income 2009-0141 ( December 28, 2009)

Whether a processed tax invoice that does not engage in real transactions related to the manufacture of communications equipment has been received

In full view of the fact that a company transferred money to the purchasing agency alone, it is insufficient to recognize it as a real transaction, and that it fails to present a certificate of acceptance, tally confirmation, and materials about the transportation of goods with respect to the goods purchased from the purchasing agency, it is reasonable to deem that a false document is issued without a real transaction.

The contents of the decision shall be the same as attached.

○ ○

Daejeon director of the tax office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of global income tax of KRW 5,886,602 against the Plaintiff on August 5, 2009 is revoked.

1. Circumstances of the disposition;

A. The Plaintiff is the representative of △△S Co., Ltd. (Before the mutual change on July 29, 2004: △△△ Co., Ltd.; hereinafter referred to as “non-party company”) that operates the development, manufacture, wholesale and retail of information and communications equipment parts.

나. 서울지방국세청장은 2007. 7. 9.부터 2007. 11. 19.까지 사이에 소외 회사에 대한 세무조사 결과 소외 회사가 2004년 제1기 부가가치세 과세기간 중 주식회사 ☆☆신(2004. 6. 18. 주식회사 ☐☐벌로 상호변경, 이하 ☆☆신 이라고 한다)으로부터 실물거래 없이 공급가액 62,999,996원의 가공 세금계산서(이하 이 사건 세금계산서 라고 한다)를 수취한 사실을 적발하고 소외 회사의 부가가치세 및 법인세를 경정하고, 위 62,999,996원을 소외 회사의 대표자인 원고에 대하여 상여처분하여 관할 처분청인 피고에게 소득금액변동통지를 하였다.

C. Accordingly, on August 5, 2009, the Defendant imposed global income tax of KRW 23,073,330 on the Plaintiff for the year 2004, but revoked KRW 17,186,728 out of the amount imposed on the Plaintiff on April 28, 2010 on the ground that the tax credit was omitted at the time of the above disposition (the disposition of this case was rendered on August 5, 2009, when the disposition of imposition of global income tax of KRW 5,886,60 as of August 5, 2009 remaining after partial revocation as above).

D. The Plaintiff appealed and filed a request for examination with the National Tax Service on October 20, 2009, but the said request for examination was dismissed on December 28, 2009.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, Eul evidence 2 (including each number)

Each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff made a real transaction between the non-party company and the Si/Gun/Gu company, and even though the defendant could confirm it by means of financial transaction data, it is presumed to be a processing transaction and imposed bonus on the plaintiff by estimating all the above transaction as a processing transaction and disposing of it. If the plaintiff made a transaction with the Si/Gun/Gu company, the plaintiff's sales place cannot make an actual transaction. Thus, the plaintiff requested the defendant to investigate the plaintiff's sales place, but the defendant's disposition of this case, which was refused, was unlawful as an estimated taxation.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Around September 2007, the head of Yongsan Tax Office conducted an investigation into the suspicion on the data of the Si/Gun/Gu New in New in New in △△△△ in △△△ in 2004, the issue amount of the false tax invoice in total of KRW 2,429,803,00 is 2,429,80,000, and the processing issue amount is 85.4%. Accordingly, the head of Yongsan Tax Office determined the Si/Gun/Gu New in △△△ and reported the Defendant of the details of the processed transaction as taxation data, while he notified the Defendant of the details of the processed transaction data.

(2) The details of the issuance of the tax invoice between the non-party company and the non-party company in the first period of 2004 and the details of the payment for the non-party company are as follows.

(3) 한편, 소외 회사가 위와 같이 송금한 대금의 수취인인 위 강BB은 주식회사 ♤♤컴퓨터의 대표자인 김CC의 배우자이고, 다른 수취인인 조DD은 주식회사 ▲▲어의 대표자인 홍EE의 배우자이다. 그런데 위 김CC와 홍EE는 자료상인 주식회사 ●●스와 주식회사 ▽▽톰의 실제 행위자로서 각각 수사당국에 고발 조치된 바 있다.

(4) On December 1, 2007, the head of Samsung Tax Office imposed the value-added tax of KRW 11,045,781 on the non-party company on the ground that the tax invoice of this case was due to the processing transaction without a real transaction. The non-party company complained against it and filed a lawsuit seeking its revocation by 2009Guhap28674 of the Seoul Administrative Court, but on February 4, 2010, the judgment against the plaintiff was pronounced.

[Ground of recognition] Facts without dispute, each of the evidences, Gap evidence 3, Gap evidence 5, Gap evidence 6, Eul evidence 3, Eul evidence 4 (including each number), and the purport of the whole pleadings

D. Determination

(1) In the event that a tax invoice on a part of the expenses reported by a taxpayer has been prepared in a false manner without a real transaction, which is proved to a considerable extent by the tax authority as to whether it is an actual cost, and the purpose of the expenses alleged by the taxpayer and the other party to the payment thereof have been proved to a considerable extent, the taxpayer needs to prove that it is easy for the taxpayer to present data, such as account books and evidence regarding the fact that such expenses have been actually paid (see, e.g., Supreme Court Decision 2007Du1439, Aug. 20,

However, as seen above, the following circumstances are as follows: ① objective financial data submitted by the non-party company as the settlement details of the transaction price with the Si/Gun/Gu New, Do New, is only the details of transfer of the money to the account in the name of Gangwon-do, its representative or employee, which is difficult to view it as the payment of the price for the goods arising from the normal transaction with the Si/Gun/Gu New, inasmuch as the above Red E is not related to the new Si/Gun New, its representative or employee (the plaintiff alleged that the above Hong E is a business director of the Si/Gun New, but there is no evidence to acknowledge it except the descriptions of the evidence No. 7, which is not believed) 2; ② the payer of the transfer of the money by the plaintiff is both the KimCC and the HongE's spouse; ③ even if the above remittance details can be seen as the result of the investigation of the documents confirming the transfer of the goods in question, the non-party company and the non-party company of Do New, which made the purchase price of the goods in question with the real goods in question.

(2) Meanwhile, the proviso of Article 106 (1) 1 of the Enforcement Decree of the Corporate Tax Act provides that in determining or correcting the corporate tax base, the amount included in the calculation of earnings shall be deemed to have been reverted to the representative, but the amount of which attribution is unclear. Thus, the recognition contribution system of representative under the Corporate Tax Act is not based on the facts that such income has accrued to the representative, but its purpose is to make certain facts recognized as such act be deemed as a bonus to the representative without regard to the actual facts that can be recognized as such act in order to prevent unfair acts under the tax law, regardless of the substance. In this case, unless the representative proves that the above amount included in the calculation of earnings clearly belongs to himself/herself, he/she shall be liable to pay the Class A labor income tax regardless of whether the amount is actually attributed to himself/herself (see Supreme Court en banc Decision 2006Da49789 delivered on September 18, 2008).

Therefore, in this case, so long as the tax invoice of this case is deemed to have been received as a processing transaction as seen above, the amount equivalent to the above tax invoice out of the company should be disposed of as bonus regardless of whether it actually accrued to the plaintiff, unless the plaintiff proves that it actually belonged to the above amount, and there is no other evidence to acknowledge this differently.

(3) Therefore, the Defendant deemed that the instant tax invoice was issued and issued as a processing transaction, and the instant disposition, which was issued as bonus to the Plaintiff as the representative, was lawful, deeming that the amount equivalent to the said tax invoice was out of the company from the non-party company.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.