Seoul Administrative Court 2006Guhap48356 ( November 26, 2009)

National Tax Service Review Income 2006-0308 ( November 10, 2006)

Unless it proves that the money deposited in the fee account is not related to the fee, the original tax disposition is legitimate.

On the premise that the money deposited in the account falls under the fee, and the Plaintiff failed to properly prove the fact that the money deposited in the account is not related to the fee, so the disposition imposing a comprehensive income tax by deeming that the fact of taxation was satisfied is not erroneous.

209Nu40744 global income and revocation of disposition

- Appellants

Ansan

Head of the Do Tax Office

Seoul Administrative Court Decision 2006Guhap48356 Decided November 26, 2009

July 5, 2011

February 23, 2012

1. The remainder of the judgment of the court of first instance excluding the part as referred to in paragraph (1) shall be modified as follows:

2. As to the Plaintiff:

(a) the portion exceeding KRW 155,963,821 of the disposition imposing global income tax of KRW 156,726,059 for the tax year 200 on May 16, 2006;

B. The portion exceeding KRW 236,140,240 among the disposition of imposition of global income tax of KRW 264,276,368 on September 8, 2006; the portion exceeding KRW 105,072,368 among the disposition of imposition of KRW 148,72,414 on global income tax of the year 2002; and the portion exceeding KRW 121,770,403 among the disposition of imposition of KRW 137,057,030 on global income tax of the year 2003, shall be revoked.

3. The plaintiff's remaining claims are dismissed.

4. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. The plaintiff's purport and purport of appeal

A. Purport of claim

The Defendant’s imposition of global income tax of KRW 180,785,653 as of May 16, 2006 against the Plaintiff and the imposition of global income tax of KRW 282,921,437 as of September 8, 2006, global income tax of KRW 164,737,010 as of September 8, 2006, and global income tax of KRW 141,126,10 as of the year 2003.

B. Purport of appeal

The part against the plaintiff, excluding the part of paragraph (1) of the order, in the judgment of the court of first instance, shall be revoked. The defendant additionally revoked the part of imposition of KRW 156,726,059 against the plaintiff, imposition of KRW 156,726,059 on global income tax for 200 on May 16, 206, and imposition of KRW 260,689,96 on global income tax for 2001 on September 8, 2006, imposition of KRW 264,276,368 on global income tax for 200, and imposition of KRW 139,701,358 on global income tax for 202, imposition of KRW 148,723,414 on global income tax for 202, imposition of KRW 137,057,030 on global income tax for 203.

2. The defendant's purport of appeal

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

[This part of the judgment of the court of first instance dismissed due to the defendant's ex officio reduction (this part of paragraph (1) is not included in the scope of the judgment of this court according to the fact that the plaintiff and the defendant did not appeal]

1. Details of the disposition;

A. From May 27, 1994, the Plaintiff is an enterpriser who runs a defense business from Seoul XXdong 000-000.

B. From March 18, 2006 to April 14, 2006, the Defendant conducted a tax investigation for the tax year 200 to 2003, 200 to 2003, the Defendant reported the total amount of KRW 1,017,356,126 (203,78,100, KRW 324,432,916, KRW 260, KRW 260, KRW 208, KRW 200, KRW 208, KRW 200, KRW 360, KRW 200, KRW 360, KRW 200, KRW 200, KRW 360, KRW 206, KRW 200, KRW 360, KRW 200, KRW 360, KRW 200, KRW 360, KRW 200, KRW 3600, KRW 205, KRW 3200, KRW 2000, KRW 36300.

C. As to this, the Plaintiff asserted that it was erroneous for the Commissioner of the National Tax Service to have determined that the portion of the input fees unrelated to the fees was omitted in each disposition of imposition listed in the preceding paragraph, and filed each request for examination (income 2006-0252, 0308) against the Commissioner of the National Tax Service, but all of the said claims were dismissed on September 27, 2006 and November 10, 2006.

D. During the lawsuit of this case, the defendant accepted part of the plaintiff's assertion as stated in the annexed Form 2's non-statement, and revoked part of the omission amount of import of this case and refunded the relevant tax amount (b) as follows (the remaining part of each disposition of this case is "each disposition of this case", and this is the same as the amount stated in the annexed Form 1'Ⅲ.).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 11 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

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

A. The plaintiff's assertion

(1) It is unreasonable to set the amount deposited in the instant account without any ground on the ground that the Defendant, the disposition agency, should prove it, but the Plaintiff’s explanation was not made.

(2) Most of the omitted revenues of this case were normally reported by the Plaintiff, and only the relationship between the actual client and the depositor was not revealed. Moreover, the remainder was deposited for other reasons, such as monetary transactions between the parties irrelevant to the acceptance of the case, and the transfer of the account for monthly salary for employees, and thus, does not constitute the omitted revenues.

(3) The Plaintiff did not have any excessive appropriation of personnel expenses for employees, or any omission of the report of sales by a joint proprietor of the StateB attorney.

(4) Therefore, each of the dispositions of this case, imposing the global income tax on the Plaintiff, even though there was no taxation requirement, is unlawful.

B. Determination

(1) The burden of proof of taxation requirement

(A) In a case where the tax base and tax amount determined through a written examination is denied and on-site investigation is conducted on the grounds of the omission of the amount of income, the investigation of the amount deposited in the account of a financial institution and determining the amount of total revenue of a taxpayer constitutes a legitimate on-site investigation (see, e.g., Supreme Court Decisions 2001Du4399, Mar. 11, 2003; 2002Du12786, Dec. 12, 2003; 2003Du14284, Apr. 27, 2004). Generally, the burden of proving the fact of taxation requirement in a lawsuit seeking revocation of tax imposition is deemed to be the imposing authority unless the other party proves the fact that it was not eligible for the application of the empirical rule in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the taxation requirement in question is illegal disposition that satisfies the pertinent requirements of taxation (see, e.g., Supreme Court Decisions 2002Du636660, Jul. 2626, 29607.

(B) In the instant case, in light of various circumstances indicated in the record, such as the fact that most of the money deposited in the instant account falls under the fee related to the instant case, and that some of the depositors are the Plaintiff, but the possibility that the Plaintiff would have deposited in the instant account after receiving the fee in cash cannot be ruled out, so long as indirect facts are revealed to be sufficient to regard the instant account as the principal account that the Plaintiff manages the attorney’s office fee in light of the empirical rule, it cannot be deemed that there was any error in each disposition of the instant case, on the premise that the money deposited in the instant account falls under the commission fee, unless the Plaintiff proves that the money deposited in the instant account is not related to the commission fee, on the premise that there was no special circumstance that the money deposited in the instant account falls under the commission fee, and thus, it cannot be deemed that there was

(2) Concerning the omission of import of the instant case

(A) In full view of the evidence as shown in the separate sheet No. 7, Eul evidence No. 6 to 8, Eul evidence No. 6 to 8, and the purport of the whole arguments and arguments, the "amount cancelled" as stated in the separate sheet No. 4 (the corresponding order No. 2) shall be deemed to have been proven that the case where a normal import declaration was performed or was deposited without relation to the acceptance of the case. The detailed basis for the determination of each of the above items shall be substituted by the detailed statement No. 4 (the client for the report, relation, details of the report, etc.), but the following grounds for the determination of some items are added.

① Attached 4 Nos. 80: KRW 20,030,000 deposited into the instant account on January 8, 2001, which was transferred for use as a deposit for the release of Suwon District Court Sejong District Court Decision 2000Kadan1380, which was the Defendant for the instant case, and it is recognized that the Plaintiff was released on January 10, 201 upon withdrawal and deposit by the Plaintiff.

② Attached Nos 4 and 175: 5 million won deposited into the instant account on December 15, 2001 in the name of KimE, KimE, the Plaintiff’s wife, lent KRW 15 million to KimE, the Plaintiff’s wife, and was paid KRW 1.5 million from KimE as monthly interest from April 24, 200 to October 31, 2001, and it appears that the money was deposited under the pretext of partial repayment of loan.

③ Attached 4 Nos. 201: KRW 15 million deposited into the instant account in the name of HanF on March 12, 2002, appears to be the money deposited as security for a request for a stay of compulsory execution in accordance with the judgment against the Plaintiff’s damages claim case requested by HanF, the husband of HanF, the Plaintiff’s senior high-ranking villages.

④ Attached Nos 4 203: 5 million won deposited into the instant account in the name of thisG on March 12, 2002 is presumed to be a loan in light of the fact that the Plaintiff repaid it through another bank account on the same day.

⑤ Attached Nos 4 22: In relation to the instant case, the fact that a KRW 5 million was deposited in the instant account on June 5, 2002 in the name of the largest KK, which is the wife of H on June 5, 2002. However, as long as a KRW 4.5 million was returned on July 5, 2002, the amount equivalent to the said amount does not constitute the omitted income amount.

④ Attached Nos 4 230: The fact that the account of this case was deposited in the name of KimL on July 18, 2002 in relation to the constitutional complaint case on July 18, 2002, but as long as one million won was returned on October 4, 2002, the amount equivalent to the above amount does not constitute the omitted income amount.

7) Attached Nos 4 249: Of the KRW 2.65 million deposited into the instant account in the name of MaM on October 18, 2002, KRW 20 million appears to have been transferred to Y under the pretext of payment in accordance with the decision in lieu of the final and conclusive mediation of the Seoul Family Court case 2002Du5329, 2002dhap1505 (MM seems to have been transferred to MaO in the form of compensation and division of property).

① Attached Nos 4 and 267: 5 million won deposited into the instant account in the name of KimP on February 13, 2003 is paid to the Plaintiff as a commission when the Plaintiff accepted the instant case from KimP, and as long as it is acknowledged that the Plaintiff returned the said money on February 18, 2003 after the Plaintiff resigned from the said account, the said amount does not constitute the omitted income amount.

⑨ 별지4 순번 298 : 이 사건 계좌에 2003. 6. 20. 김QQ 명의로 입금된 70만 원은 원고가 2002. 10. 23. 김QQ에게 100만 원을 대여하였다가 대여금 일부 상환의 명목으로 송금받은 돈으로 보인다.

(10) Nos. 4 309: 2.2 million won deposited into the instant account in the name of KimS on August 23, 2003, as the fee for the criminal case of YangR, are deemed to have been deposited as the retainer (the Defendant asserted that the Defendant confirmed that KRW 12.2 million was paid to the Plaintiff through a telephone conversation with KimS, but there is no evidence to acknowledge this).

11. Attached Nos 4 310: The loan amount of KRW 10 million deposited into the account of this case on August 23, 2003 in the name of YoonT seems to be the loan amount in light of the fact that the Plaintiff repaid the same amount to YoonT in installments from August 29, 2003 to October 15, 2003.

(12) No. 330 No. 4 : 400,000 won deposited into the account of this case in the name of EW, a Dong of U.S. on November 25, 2003, appears to be the money that the plaintiff lent to U.S., but received as the repayment of the loan.

(B) It is difficult to view that the remaining part of the Plaintiff’s assertion (excluding the part of the omitted amount recognized as the “amount of cancellation of income amount” under the preceding paragraph had the pertinent money received a normal import declaration or had it deposited without relation to the acceptance of the case (it is difficult to accept the duplicate amount of the instant case’s income return) by re-ordinate only the amount obtained by subtracting the Plaintiff’s revenue return, etc. (Evidence B) and the Plaintiff’s revenue amount verified through comparison with the Plaintiff’s initial total revenue amount deposited into the instant account, and other amount verified by proving the source (see, e.g., evidence Nos. 5 and Nos. 146 through 170). The part of the Plaintiff’s assertion (Attachment 23, 64, 84, 89, 107, 107, 148, 151, 227, 236, 287, 304, 3086, etc.).

(C) According to the separate sheet 44,377,415 (the total amount of KRW 909,00 for the year 200, KRW 35,62,480 for the year 2001, KRW 78,361,935 for the year 2002, and KRW 29,44,00 for the year 203) shall be deducted from the omission amount of import of this case. The amount of tax calculated again by reflecting it shall be as shown in the separate sheet 1. The plaintiff's assertion on this part is with reasons within the scope of the above amount.

(3) The employee personnel cost and sales (the reported portion by a joint business operator)

According to the purport of each of the statements and arguments in Eul evidence Nos. 1 through 4 and 11, it is recognized that the plaintiff appropriated the relevant employee labor cost per se, and that the plaintiff did not report the sales (fee fee) of JejuB, which is employed by the plaintiff and received KRW 5 million per month, including the plaintiff's sales. The testimony of the data submitted by the plaintiff and the witness Park Jong-chul is insufficient to reverse the above facts of recognition. Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as they are without merit. Since the part of the judgment of the court of first instance excluding the part of Paragraph (1) of the order is partially different, it is so decided as per Disposition by changing it as above (it is so decided as per Disposition by the court of first instance (it is so decided as to provide the plaintiff with sufficient opportunity to organize and submit materials up to the trial, an additional assertion that can be raised constitutes a means of attack and defense against practical time period, and all submitted materials so far are reviewed closely and reflected in the conclusion).