(영문) 광주고등법원 2017. 12. 06. 선고 2016누10 판결

3. On February 3, 2012, the part exceeding KRW 9,021,310 among the disposition imposing the global income tax on the Plaintiff on February 3, 2008; the part exceeding KRW 5,420,750 among the disposition imposing the global income tax on the Plaintiff in 2009; the part exceeding KRW 27,814,850 among the disposition imposing the global income tax for the year 2008; and the part exceeding KRW 14,423,170 among the disposition imposing the global income tax for the year 209.

4. The plaintiff's remaining appeal is dismissed.

5. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

Value-added Tax 9,035,90 won, and 2 years in 2008, which the Defendant provided to the Plaintiff on December 3, 2012 by the Plaintiff.

Value-added tax 6,612,460 won, value-added tax 4,190,650 won, and value-added tax 2 February 2009

6,961,820 won, value-added tax for one year 2010 5,276,890 won, and value-added tax for two years 2010

Each imposition disposition of KRW 4,074,730, global income tax of KRW 27,862,850, 2009, for the year 2008

Imposition of global income tax of KRW 19,368,420, and KRW 7,308,000 of global income tax for the year 2010;

The imposition of wage and salary income tax of 4,467,120 won, 2,57,390 won, 2,201,130 won, 2008

The disposition is revoked (as mentioned in the foregoing, the defendant shall reflect the first instance judgment in the trial on December 2012, reflecting the first instance judgment in the trial.

3. A disposition of ex officio reduction was made, and the Plaintiff’s purport of the disposition is as above.

has been reduced;

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the first instance shall be revoked. The same shall apply to the purport of the claim.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

Reasons

1. Basic facts

The reasons why the court shall explain this part shall not be justified or added as follows:

As such, Article 8(2) of the Administrative Litigation Act, the Civil Procedure Act

It shall be quoted as it is pursuant to the main sentence of Article 420.

The judgment of the court of first instance is 191,602,282 '191,604,282 '191,604,282' on the 3th page of the judgment of the court of first instance.

○ The judgment of the first instance court is 64,184,708 won, "64,181,708 won" of the 4th trial judgment of the first instance court.

○ '31,774,930 won in the column of the amount in 2008 out of the items of global income tax on the 5th page of the judgment of the first instance.

'31,771,930 won, '64,184,690 won in total, '64,181,690 won in total, '64,181,690 won,' respectively.

○ In the first instance court’s judgment No. 5, the first instance court refunded “as a result, the third party was refunded” (this year 2008).

Wage and salary income tax: 4,467,120 won, wage and salary income tax for 2,557,390 won, and wage and salary income tax for 2010

The amount of 2,201,130 won has been reduced to 2,201.

The ○ judgment of the first instance court is 'the global income tax' in the 6th sentence, which is 'the global income tax' in the 2012.

○ On the 6th written judgment of the first instance court, the following shall be added.

i. The court of first instance rendered January 13, 2016 to the Plaintiff on December 3, 2012, 208

Imposition of value-added tax in excess of KRW 9,035,90, and imposition of value-added tax in 2008.

More than 6,612,463 won among dispositions, and during the imposition of value-added tax for two years in 2009

more than 6,961,824 won, and 4,074,732 won in the disposition of imposing value-added tax for two years 2010

exceeding 19,368,423 won among the disposition imposing global income tax for the year 2009

Part: 19,368,423 of the disposition imposing global income tax for the year 2009, the portion exceeding KRW 19,368,423, 2010

The portion exceeding 7,308,007 won among the disposition imposing global income tax belonging to each shall be revoked.

The judgment was pronounced.

(j) Around November 2017, the Defendant has ex officio reflected the first instance judgment.

Value-added tax shall be KRW 26,685,019, total income tax shall be KRW 54,539,281, as indicated below:

The Defendant issued a disposition of correction to reduce the corrected amount (hereinafter referred to as "the disposition of imposition issued on December 3, 2012 by the Defendant").

As above, "each of the dispositions in this case" shall be "each of the dispositions in this case."

§ 19,20(including paper numbers; hereinafter the same shall apply) of the 6th written judgment of the first instance court

In addition, the entry is added.

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

A. Judgment on the plaintiff's assertion

1) The part of KRW 2.5 million received from the Dong-gu Seoul Special Metropolitan City (Seoul Special Metropolitan City Common Rural Community Association)

A) Summary of the Plaintiff’s assertion

The amount of KRW 2050,000,000, out of the money deposited to the present ○○○○, is paid as the fees and litigation costs of the case of the personal bankruptcy and exemption of the members of the cooperative Kim Jong-dong (Seoul District Court 2009Hao○○○○, 2009, hereinafter referred to as the "GimaA bankruptcy case"), and the tax shall be imposed only on the remainder, other than the expenses of the stamp, service fees, etc. among the above 2.5 million won.

B) Determination

In full view of Gap evidence Nos. 25, 26, Eul evidence Nos. 6, and 7, the fact-finding results and the purport of the whole arguments to the △ District Court of this Court, 2.5 million won out of the money deposited by the △△△△△△△△ in the Kim A bankruptcy case was paid by the plaintiff to the ○○○○○, etc., and 2.5 million won in the above 2.5 million won in the notice of the Kim A bankruptcy case, and 85,980 won in the delivery fee, and 2,414,020 won in the above 2.5 million won in the above 2.5 million won in the above, taxes should be imposed only on the remaining 2,414,020 won except for the above 85,980 won in the notice. Accordingly, this part of the plaintiff's assertion is with merit.

2) An amount of KRW 6,70,000,000, which is KRW 1,1.2 million deposited in the current ○○ account by ParkB, is the money that the Plaintiff was unaware of. It is unreasonable to impose taxes by understanding the said KRW 1,50,00,00 among those cases as three cases requested by ParkB, including the Seoul High Court (Seoul High Court), 2009Na 2009Na ○○○ (hereinafter referred to as the “collection case”), △△△△△△△△△ (hereinafter referred to as the “unlawful△△△△ case”), △△△△△ (hereinafter referred to as the “△△△ case”), △△△△△△ (hereinafter referred to as the “value of goods”), and △△△ (hereinafter referred to as the “instant case”). Since the Plaintiff filed a normal tax return on the said three cases, it is reasonable to impose taxes by omitting sales.

B) Determination

(1) In light of the following circumstances, Gap’s evidence Nos. 15, 16, 25, 31, and Eul’s evidence Nos. 6 and 7, it is reasonable to view that the attorney’s fees among the above 1,120,000 won received by the plaintiff are limited to KRW 4,50,000,000, which are subject to value-added tax and global income tax.

(A) The written confirmation of transaction submitted by ParkB in the course of tax investigation indicates that: (a) the said KRW 4.5 million out of the said KRW 1.2 million was paid as an advance payment; and (b) the remaining money was paid as an additional expense. In addition, ParkB’s written confirmation of fact that the said KRW 4.5 million was paid as attorney’s fees (the collected amount of KRW 1.2 million, the unjust enrichment amount of KRW 2 million, and the amount of goods amount of KRW 1.3 million), and that the remaining KRW 6.7 million was paid as stamp and service fees.

(B) The Plaintiff submitted a power of delegation to the attorney of △△, a representative in the collection amount case, the case of unjust enrichment, and the case of goods price, and filed a lawsuit. The letter of delegation in the collection amount case is written as KRW 2.2 million (including value added tax). The letter of delegation in the case of unjust enrichment is written as KRW 1.8 million, value-added tax KRW 180,000,000,0000,000 won, and transit cost KRW 20,000. In addition, the sum of stamp borne by △△△△, except for the collection amount case, the case of unjust enrichment, and the appellate court,

(C) Although ○○○ was not an attorney-at-law, he was indicted as a violation of the Attorney-at-Law Act that he received money and handled legal affairs. As long as the Plaintiff took three civil litigations, it is difficult to deem that ○○○ was given and received economic benefits exceeding the compensation for actual expenses in return for handling legal affairs. However, even if he was acquitted in the above criminal case, it cannot be readily concluded that KRW 11.2 million was attributed to the Plaintiff or KRW 1.2 million was subject to the imposition of value-added tax and global income tax.

(D) As above, KRW 4.5 million, out of KRW 1.2 million, was acquired by the Plaintiff as the attorney’s fee for the above three civil actions, and the remaining KRW 6.7 million appears to have been paid as the stamp, delivery fee, etc., on the other hand, the evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff was paid as the price for the supply of services or as the Plaintiff’s income, and there is no other evidence to prove otherwise.

(2) Meanwhile, according to the aforementioned evidence, the Plaintiff issued a tax invoice of KRW 1.2 million under the name of YB with respect to the above KRW 1.2 million, and filed a tax return of KRW 1.2 million with respect to the above KRW 2 million received as the attorney’s fees for unjust enrichment cases, under the name of △△△, and issued a tax invoice under the name of △△△△, and filed a tax return of KRW 1.8 million with respect to the above KRW 1.2 million with respect to the amount received as the attorney’s fees for unjust enrichment cases. However, in the course of the tax investigation, the Defendant: (a) found the amount of KRW 2.1.2 million (the above KRW 1.2 million + KRW 1.2 million; (b) omitted sales to the Plaintiff’s tax amount of KRW 200,000,0000, KRW 2000, KRW 27.27,727,727,700,000).

3) Part 21,374,480 won for which the place of use has not been vindicated

The court's explanation on this part is identical to the entry of Article 2-3 (3) (No. 25, No. 14 through No. 29) of the judgment of the court of first instance (No. 25, No. 14, No. 29), except for the following additional judgments, and therefore, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420

The plaintiff asserts that the amount of "the item in the item of the receipt amount entered in attached Form 1, which the defendant had been included in the amount of the report, was not paid by the plaintiff, and the stamp is included in "service fees and other fees B" column of the same Table, so that the amount entered in "the stamp ①" column is double appropriated in the stamp, so it should be excluded from the amount of the report, and the source of the report is not clearly explained. However, according to each item of evidence Nos. 8 and 11718, the plaintiff's assertion that each item of the item of the receipt amount entered in attached Form 1, which is arranged to be paid by the client, is calculated on the basis of objective data, such as receipts prepared by the plaintiff to the client, and thus, the plaintiff's assertion that this part of the plaintiff's revenue was appropriated double is also without merit.

4) 69,106,745 won refunded

A) The plaintiff's assertion

The service fee paid by the court is not the Plaintiff’s income because it is expected to be refunded to the client. Therefore, the disposition imposing global income tax is unlawful.

B) Determination

The court's explanation on this part is the same as the statement in Article 2-3 (3) (4) (2) (29, 15, 32, 32) of the judgment of the court of first instance. Thus, this part of the judgment is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

5) Fees for issuance of the certificate of liability and part of the withdrawal equipment

A) The plaintiff's assertion

The fee for issuance of a certificate of liability and the cost of delivery are merely a mere delegation of the duty to demand the certificate of liability to be borne by the client and the actual expenses are reimbursed. Thus, it is not subject to additional tax, but it is not subject to employment income tax because it does not fall under the salary or bonus for employees.

B) Determination

The court's reasoning for this part is as stated in Section 2-c.2 (2) of the judgment of the court of first instance (Nos. 12 to 25) and Section 2-c. 5 (No. 32, No. 4 through No. 34, No. 19). Thus, this part's reasoning is identical to that of Section 2-c. 2 of the judgment of the court of first instance (No. 23, No. 12, No. 13), and Article 420 of the

B. The scope of the unlawful part of each disposition of this case

1) The part of KRW 2.5 million received from the Dong-gu Seoul Special Metropolitan City (Seoul Special Metropolitan City Common Rural Community Association)

A) Value-added tax for 1 year 2008

As seen earlier, since the value-added tax calculated by deducting KRW 2,414,020,00, excluding KRW 85,980,000,00,000 paid as stamp and service charges, from among 2.5 million deposited to ○○○○, is subject to taxation, the amount of value-added tax calculated by deducting KRW 78,163,00,000 (=85,980,000 ± 1.1.00) shall be KRW 9,021,319,00 as indicated in the table of legitimate tax amount in the following table. Therefore, the portion of the amount of value-added tax assessed by the Defendant, which exceeds KRW 9,021,310 (the fraction of less than KRW 10,00 pursuant to Article 47(1) of the Management of the National Funds Act, is unlawful.

B) Global income tax for the year 2008

Likewise, 2,414,020 won out of the above 2.5 million won can be deemed as Plaintiff’s income. However, since the remaining parts cannot be deemed as Plaintiff’s income, this part ought to be excluded from amount of global income tax when calculating global income tax. The global income tax amount for 2008 calculated by reflecting the aforementioned amount is KRW 27,814,854 as indicated in the final tax amount column in the table below. Therefore, the portion exceeding KRW 27,814,850 out of the disposition imposing global income tax for 2008 by the Defendant is unlawful.

2) 1,200,000 won deposited by ParkB in the current ○○ account

A) Value-added tax for 2 years 2009

As seen earlier, KRW 1.3 million out of KRW 1,1.2 million deposited by ParkB into the current ○○ account is subject to the imposition of value-added tax in 2009, but does not constitute the remainder. Therefore, the standard for imposing value-added tax in 2009 is for the amount exceeding KRW 29,026,836, omitted personal bankruptcy, KRW 1,499,091 above KRW 1.31,657,745 in total (i.e., KRW 1,300,000 in ±1.31,657,745 in total (i.e., KRW 1,30,000 in ±1.31,655 in value-added tax amount calculated based on this is for the following table. Therefore, the portion exceeding KRW 5,420,750 in the imposition of value-added tax in 209 by the Defendant is unlawful.

B) Global income tax in 2009

Likewise, the portion of KRW 1.3 million out of the above KRW 1.2 million may be deemed the Plaintiff’s income. However, since the remainder cannot be deemed as income of the window, this portion shall be excluded from the amount of global income tax when calculating global income tax. The global income tax amount calculated by reflecting this in 2009 is KRW 14,423,177, such as the entry in the final tax column in the column for tax payment in the table for the fair tax base since then, the portion exceeding KRW 14,423,170 among the disposition imposing global income tax for the year 2009 is unlawful.

C. Sub-decision

In full view of the above, the portion exceeding KRW 9,021,310 among each of the dispositions in this case in excess of KRW 5,420,750 in the imposition of the global income tax in 2009, the portion exceeding KRW 27,814,850 in the imposition of the global income tax in 2008, and the portion exceeding KRW 14,423,170 in the imposition of the global income tax in 209 should be revoked as it is unlawful.

3. Judgment on the defendant's appeal

Although the defendant appealed against the judgment of the court of first instance, as seen in the above basic facts, the part ordering the cancellation of the judgment of the court of first instance was revoked ex officio. Thus, the defendant's appeal became unlawful as there was no benefit of appeal.

4. Conclusion

If so, the plaintiff's claim is justified within the above recognition scope, and the remaining claims are dismissed for reasons. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal is accepted, and the part exceeding 9,021,310 won in the disposition of imposition of value-added tax for the first time in 2008, exceeding 5,420,750 won in the disposition of imposition of value-added tax for the second time in 2009, exceeding 27,814,850 won in the disposition of imposition of global income tax for the second time in 208, and exceeding 14,423,170 won in the disposition of imposition of global income tax for the second time in 209, and the part against the plaintiff in the disposition of imposition of global income tax for the second time in 209 shall be revoked, and the remaining appeal by the defendant shall be dismissed for reasons, and the defendant's appeal shall be dismissed. It is so decided as per Disposition.

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