Whether a request for correction is legitimate

The request for correction of this case can only be deemed to be for denying the contents of the report through the verification of the authenticity of the contents of the report and for recognizing other facts. The request for correction of evidential documents for this purpose is unlawful as it is not permitted due to the request for correction of an exception to the written investigation decision under the 1992 Act.

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

1. The Defendant’s disposition of imposition of global income tax amounting to KRW 2,662,648,970 as global income tax for the year 193 against the Plaintiff on April 1, 1996 and KRW 371,787,100 as global income tax for the year 194 shall be revoked. 2. Litigation costs shall be borne by the Defendant.

1. Details of the instant disposition;

The following facts may be acknowledged by integrating each of the statements in Gap evidence 1-1, 2, 2, 3, 4, 5-1 through 18, 6-1 through 16, 1, 2, 1 through 4-1, 2, 5, 5, 6, 7, and 1 through 4-1, 2, 5, 5, 6, 7, and 5-1 through 4-2, and there is no other counter-proof.

A. In filing a final return on the tax base of global income tax for the year 1993 and 194, the Plaintiff, as a housing constructor, filed a comprehensive return on the tax base of global income tax for the year 1993 and 1994, including the amount of income accruing from the sale in lots in 904 households, which was newly built in ○○○○○○○○○○○○, for a period of that period (hereinafter “the business income of this case”), the total amount of income shall be KRW 76,529,482,851 in 193, 13,721, 17,146 in 194; the amount of income shall be higher than the base return by each business type under the Income Tax Act; and the Plaintiff filed a final return on the tax base for the purpose of undergoing a written review (However, the estimated return on the real estate income to ○○○○○○○○) and paid the income tax to the Plaintiff, respectively, by submitting the adjusted return.

B. While the Defendant had failed to conduct a written deliberation on the Plaintiff’s respective global income tax on the grounds that it is necessary to conduct a detailed investigation, the Commissioner of the Regional Tax Office, the superior office of the Defendant, issued a suspicion that the amount of KRW 39,351,00,000 in the construction cost account as of the end of 1992, which was appropriated as the Plaintiff’s source of construction business income as the Plaintiff’s source of construction business income, is excessive, and on December 14, 1995, the Defendant demanded the Plaintiff to submit all relevant books of account until December 20, 195 (hereinafter the instant request for correction).

C. On December 20, 1995, the Plaintiff notified the Defendant that it could not submit all relevant books to the Defendant on account of the loss of all of the books. The Defendant, upon the Plaintiff’s application, made a written review decision (pre-amended by Presidential Decree No. 14467 of Dec. 31, 1994; Presidential Decree No. 199203 of Dec. 22, 1994; hereinafter referred to as “the pre-amended by Act No. 4803 of Dec. 199, 1992”) with respect to the income of this case, on the ground that it falls under Article 169(1)1 of the former Income Tax Act (the pre-amended by Presidential Decree No. 14803 of Dec. 194; hereinafter referred to as “the pre-amended by the Act No. 1992 of Dec. 12, 199) and Article 120 and 192 subparag. 16, 197.

2. Issues of the instant case and relevant statutes

A. Summary of the parties' arguments

The defendant asserted that the disposition of this case was lawfully made by applying the relevant laws and regulations based on the above grounds for the disposition of this case. The plaintiff asserted that the disposition of this case was unlawful on the following grounds.

In other words, in cases where a taxpayer subject to a written investigation determination under the 1992 Act files a final return of global income tax return along with the adjusted account statement of a tax accountant, the first income amount is evident, and the second return itself is objectively clear that the taxpayer committed the omission or error of income amount, etc., and on the premise that there are grounds allowing a field investigation, the taxpayer may request the correction of documentary evidence, etc. However, notwithstanding the absence of such grounds in the above final return by the Plaintiff, it is unlawful that the Defendant requested the submission of data and immediately conducted the instant disposition through a preliminary investigation on the ground that the Plaintiff

Therefore, the issue of the instant case is whether the tax authority can demand a correction by changing the type of investigation and decision-making when a person subject to written investigation and a written investigation report is a person subject to global income tax assessment. Therefore, the tax authority should first examine the contents of the relevant laws and regulations related to written review and request for correction and then make a judgment on the instant case.

(b) Alteration process of the relevant statutes;

The method of determining global income tax base and tax amount according to the final return of global income tax base can be divided into the final return and the government investigation decision. The government investigation decision is divided into a field investigation decision, a written investigation decision, and a written investigation decision. The provisions of the Income Tax Act on the said written investigation decision have changed as follows:

(1) The Act before 1990 and the Enforcement Decree thereof

former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990; hereinafter referred to as the "Act before 1990")

Article 119 [Determination in Writing] (1) In the final return on the tax base, if a certified public accountant or a certified tax accountant attaches an adjusted account statement confirmed that the contents of the report are justifiable, the tax base and tax amount shall be determined in writing by the report.

(2) The 1990 Act and its Enforcement Decree

former Income Tax Act (amended by Act No. 4520 of Dec. 8, 1992; hereinafter referred to as the "Act of 1990")

Article 119 [Determination in Writing] (1) (the main text shall be the same as the Act before 1990): Provided, That this shall not apply to cases where the entries are incomplete or are deemed false, or to cases as prescribed by the Presidential Decree (the establishment of a new letter).

The former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 13802 of Dec. 31, 1992; hereinafter referred to as the "Enforcement Decree of the 1990s")

Article 167 (Written Examination and Decision) (2) The term "case prescribed by the Presidential Decree" in the proviso to Article 119 of the Act means the case falling under any of the following subparagraphs:

1. Where he is punished under the Punishment of Tax Evaders Act;

2. Where obvious reasons exist to recognize that he/she has evaded a tax;

3. Where it falls under the reasons under the provisions of each subparagraph of Article 169 (1).

Article 169 [Estimated Investigation and Decision] (1) Clear objective reasons prescribed by the Presidential Decree in Article 120 (1) of the Act means the matters set forth in the following subparagraphs:

1. Where necessary account books and documentary evidence are missing or important parts are incomplete or false in calculating the tax base;

2. Where the contents of the captain are obviously false in light of the scale of facilities, number of employees, raw materials, commodities, products, market prices, various charges, etc.;

3. Where the contents of the captain are obviously false considering the quantity of raw materials used, electric consumption and other operations.

(3) The 1992 Act and its Enforcement Decree

former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994; hereinafter referred to as the "Act of 1992")

Article 119 [Determination in Writing] (1) Where a business operator who files a report on a final return on a tax base, calculates the tax base and amount of tax based on books and documentary evidence kept and recorded, and files a report accompanied by the adjusted account statement confirmed by a certified tax accountant that the entries therein are reasonable, falls under the standards prescribed by the Presidential Decree (Standards for Decision on Actual Investigation in Documents), the tax base and amount shall be determined by written

(2) In making a written decision under paragraph (1), where there are deficiencies or errors in a report or other documents submitted, the Government may request that such correction be made in writing under the conditions as prescribed by the Presidential Decree.

(3) Where the businessman in receipt of a request for correction under paragraph (2) fails to submit the corrected documents, or there exist evident grounds for making it impossible to determine the tax base and amount by a written deliberation even with the submitted corrected documents, or where the Presidential Decree prescribes (where the grounds for estimated determination exist, the principal may not be determined by a written deliberation, notwithstanding the provisions of paragraph (1).

The former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14467 of Dec. 31, 1994; hereinafter referred to as the "Enforcement Decree of the 1992")

Article 167(2) Deleted. ( December 31, 1992)

Article 168-2 [Request for Supplement and Correction] (1) The request for supplement and correction under Article 119 (2) of the Act shall be made in the document stating the matters in the following subparagraphs (hereinafter referred to as the “request for supplement and correction”) only once:

1. Personal details of the enterpriser;

3. Reasons for demanding the correction;

5. Other necessary matters.

(2) The business operator who has received the request for supplement under paragraph (1) shall supplement it within fifteen days from the date of receiving the written request for supplement.

3. The purpose of a written investigation and decision and the grounds for exclusion;

A. The purpose of the written deliberation and decision system

The written investigation system is a system that determines the tax base and the amount of tax by means of a written examination, where a certified public accountant or a certified tax accountant has attached an adjusted statement confirming that the details of the tax return are correct, under the conditions as prescribed by the Presidential Decree. That is, in other words, a person who is provided with income tax prescribed by the statutes, such as a person whose total amount of income, real estate income, or business income amount reported during the pertinent year is more reliable than the reported amount, or whose total amount of income can be easily calculated through the deliberation of the income standard rate deliberation council, etc., and who is provided with by the Commissioner of the National Tax Service, can only be determined as a written investigation with an adjusted statement prepared by a certified tax accountant, etc. along with the adjusted statement prepared by the certified tax accountant, etc., trust in the person subject to written investigation and the certified tax accountant, etc. to prepare and submit a adjusted statement confirming that the entries of the tax base return are correct, thereby making the government conduct a field investigation on behalf of the tax accountant, etc., raising the efficiency of tax administration and promoting the convenience of taxpayers (Supreme Court Decision 94Nu

B. The essential limitation of the written examination and decision system

Where a written investigation decision is filed, an exception that may conduct on-site investigation or on-site investigation without a written investigation decision, i.e., a correction of documentary evidence, any extent to which the scope may be requested.

Since the written psychological decision system provides benefits to a certain taxpayer, where such a person files a written psychological decision, barring any special circumstance, it shall not be determined by a field investigation rather than by a written psychological method. On-site investigation or an on-site investigation in violation of the law is an exercise of the right to impose tax disadvantageous to the people in violation of the law, and thus is contrary to the spirit of the principle of no taxation without law and is contrary to the good faith and good faith or the principle of no taxation against the people. Therefore

In other words, where it is clear that the adjusted account statement was prepared at all by false and processing without any basis, or it is evident that the revenue amount was omitted from the beginning without being included in the content of the report, or where it is objectively evident that the content of the report itself commits omission or error, etc., the tax base and tax amount may be determined by the on-site investigation or the adjusted account statement, without making a written investigation. However, if it is not so, it shall be determined based on the details of the tax base and the adjusted account statement (if it is not, within the scope of the content of the report, the determination of the tax base and tax amount by adding or adding the amount of gross income or the amount of income through the Si/Gun/Dong procedure on the calculation of gross income or necessary expenses under the Income Tax Act shall be included in the scope of the written investigation determination). The request for correction, such as the request for submission of documentary evidence, pursuant to the provisions of Article 100(5) of the Act on 192 for this purpose, shall not be allowed by allowing the on-site investigation or the estimated investigation (Article 1200).

(c) Grounds for and scope of the exclusion of the written examination and decision under the law of 1990.

(1) Under the prior law of 1990, there was no explicit legal basis. However, in the case where a written psychological report was made by newly establishing the proviso of Article 119 in the 1990 Act, there was a provision on exceptional cases where a practical investigation or an additional investigation may be conducted without undergoing a written investigation. This seems to have been complementary to the system that excludes the written investigation decision from a practical investigation or the determination of tax amount by a practical investigation or an additional investigation.

(2) The proviso of Article 119(1) of the 1990s Act and Article 167(2) of the Enforcement Decree thereof stipulate exceptional cases where (i) the entries in the report or the adjusted account statement are incomplete or false; (ii) where the person was punished under the Punishment of Tax Evaders Act; and (iii) where there are evident objective reasons to recognize the tax evasion; (iv) where there are reasons under each subparagraph of Article 169(1) of the Enforcement Decree thereof.

Among those cited by the above 190 law as reasons for excluding written investigations and making decisions as a field investigation or an additional investigation, the above (i), (ii), and (iii) reasons are clear that the above revenue was omitted from the beginning without including the above revenue in the contents of the report, or where it is objectively evident that the reported revenue was an omission or error by the contents of the report itself. Thus, it is natural that the tax base and tax amount can be determined by a field investigation or an additional investigation, instead of a written investigation, in such a case where there are such reasons.

However, the above (iv) causes require a field investigation to be conducted by the tax authority to verify and investigate the authenticity of the books and documentary evidence in calculating the tax base from the taxpayer in order to determine the existence of the estimation cause, and provide that the tax base and amount cannot be determined even through such a field investigation. Therefore, the reasons for (iv) causes are limited to cases where: (i) the taxpayer is required to correct documentary evidence, etc. and (ii) the taxpayer is allowed to conduct an on-site investigation if it is impossible to determine the tax base and amount of tax, and (iii) the tax base and amount cannot be determined by such field investigation.

In addition, if the tax authority makes a request for unlimited data at any time based on the above (iv), and then can conduct a field investigation or estimation investigation, this would result in impairing the essence of the decision of written investigation and denying the system itself. If such result is caused, Article 167(2)3 of the Enforcement Decree of the 1990 Act cannot be deemed as null and void in violation of the provisions of Article 119 of the 190 Act, a superior corporation that retained the written investigation decision system.

(d) reasons to exclude the decision of documentary examination under the law of 1992 applicable to this case.

(1) The 1992 Act, which applies to the instant case, amended and amended the provisions on the written hearing system and the grounds for exclusion, and stipulated the explicit provisions on the requirements and procedures for the request for correction.

First, while maintaining the written investigation decision system as it is, it has been maintained in accordance with Article 119(1) of the 1992 Act, the proviso of Article 119(1) of the 1990 Act and Article 167(2) of the Enforcement Decree of the 1990 Act, which listed the grounds for excluding the written investigation decision, has been deleted. Second, it is clearly stipulated that the requirements and methods of the request for correction can be made in writing only if there are deficiencies or errors in the report or other documents submitted under Article 119(2) of the 1992 Act and Article 119(2) of the 1992 Act.Third, by establishing Article 168-2 of the Enforcement Decree of the 1992 Act, it is stipulated that the detailed method and procedure of request for correction can be excluded from the examination in writing.

Article 119(1) of the Enforcement Decree of the National Assembly Act provides that "The above 192 Act explicitly provides that "if there are grounds for exclusion of the previous written review, the procedures and requirements for the phased review may be excluded." In other words, Article 119(2) provides that "if there are grounds for exclusion of the previous written review, the principle of written review shall be established, and if there are no expenses or errors in the documents in paragraph 2, it shall be limited that the business operator requested correction under paragraph 3 does not submit the corrected documents, or (2) if there are clear grounds for not making a written review even by the submitted corrected documents, or (3) if there are other reasons prescribed by the Presidential Decree (i.e., reasons for the determination of the written review), it shall be excluded from the written review." In other words, in light of the period of stay under Articles 119(1), 2, and 3 (1) and (2) of the Enforcement Decree of the National Assembly Act, it shall not be deemed that there are grounds for exclusion of the written review under paragraph 19 of the written review.

4. Determination on the lawfulness of the instant disposition

A. Reasons for the defendant's request for correction and decision of the estimated investigation

In full view of the above evidence and evidence Nos. 10-1, 2, 3, and 11-1 to 4 of the evidence A, and some of the testimonys of the witness Kim ○, and Kim ○, the following facts can be acknowledged:

(1) The Defendant, as a person subject to a written investigation decision in 1993 and 194, was found to have failed to make a final decision on the grounds that it was necessary to conduct a close analysis on the global income tax assessment report. Of that, ○○ Regional Tax Office, which is the Defendant’s higher government office, obtained a tax evasion report against the Plaintiff, and started a special tax investigation on all tax returns, including income tax, from 1991 to 194, and received from the Defendant the entire documents on global income tax return including the instant business income.

(2) In comparison with the Plaintiff’s report on value-added tax between 1990 and 193, the ○○ Regional Tax Office suspected that the construction account amount exceeded KRW 7 billion as a result of comparison with the Plaintiff’s report on the ○○ Tax Office from 1990 to 193.

(3) The head of ○○ regional tax office, on the ground that it needs to verify KRW 39,351,00,000 on the business income of this case as of December 14, 1995, demanded the Plaintiff to submit to the Plaintiff a book of account for the previous place of business during the above period pursuant to Article 201 (1) of the Income Tax Act at the time of investigating whether the matters of return on the income tax, etc. between 191 and 194 are appropriate.

(4) During the period of December 20, 195, the Plaintiff was unable to submit the pertinent books because it lost all of the pertinent books while moving three or more offices. The Defendant immediately excluded the written deliberation on the business income of this case, and issued the instant disposition of this case by the method of decision of correction through the estimated assessment based on the amount of income reported by the Plaintiff.

(5) Although the Plaintiff did not submit the balance sheet in 192 because there was no income related to the instant business income at the time of filing a global income return in 192, the Plaintiff did not submit the balance sheet in 192. However, Nonparty 1’s tax accountant in charge of the Plaintiff’s book keeping and tax management affairs concerning the instant business based on the relevant books of account for the instant business. The balance sheet was prepared in 1991 and 192, and 7,980,820,033 and 39,351,94,924 won in the construction cost account among the tangible fixed assets in 192 and 192, respectively. (Compared to the evidence 5-8, evidence 10-1, and 3 of evidence 10-3).

B. Whether the disposition of imposition by the decision of the preliminary investigation of this case is legitimate

According to the above facts, the following circumstances are revealed in relation to the request for correction of the instant case.

In other words, the above request for correction was made as part of a special tax investigation by ○○○○, rather than the Defendant, and the scope of “matters to be corrected in writing” is not limited to the Plaintiff’s global income tax return from 1990 to the “book on the previous place of business related to the income tax, etc.” from 1994. In addition, there is no specific statement as to whether the “reasons to require correction” exists in the submitted documents, and as long as it is not an omission in the amount of income itself, it is no more likely that the Defendant’s assertion of the above excessive appropriation of the cost of construction accounts, namely, as long as it is not an omission in the document itself, it constitutes an omission or error in the document itself submitted under the law of 192, the Plaintiff’s request for correction and correction under Article 192(1)9 of the General Act on 199, which is the basis of the Plaintiff’s request for correction and correction of the content of the report in this case from 28, 199 to 192.

Therefore, it is judged that the disposition of this case, which the defendant made a decision of estimation investigation on the ground that the plaintiff did not comply with it, based on the illegal request for correction, cannot be exempted from the illegality.

4. Conclusion

Thus, the plaintiff's claim of this case seeking the revocation of the disposition of this case is reasonable, and this case's claim is accepted, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

May 28, 1998