[2] In a case where a local government-invested company did not give general instructions to and supervise a local government-invested company and managed a local government-invested company, the case holding that it is difficult to conclude that the legal effect of a cargo transport contract which the local government-invested company entered into with the opposite contractual party under its name belongs to the local government-invested company, and in this case, the local government-invested company's tax invoice under the name of the local government-invested company may constitute a different tax invoice

[2] In a case where a local government-invested company did not give general instructions to and supervise a local government-invested company and managed a local government-invested company, the case holding that it is difficult to conclude that the legal effect of a cargo transport contract which the local government-invested company entered into with the opposite contractual party in its name belongs to the local government-invested company, and in this case, the local government-invested company's tax invoice under the name of the local government-invested company may constitute a different tax invoice from fact

1. Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 8142, Dec. 30, 2006; hereinafter “the Act”) provides that an input tax amount in cases where all or part of the requisite entry items are not entered or entered differently from the fact in a tax invoice shall not be deducted from the output tax amount. Article 16(1)1 of the Act provides that the registration number and name or title of the supplier as one of the requisite entry items in the tax invoice. Thus, in cases where the actual supplier and the supplier under the tax invoice are different from the actual supplier, the relevant input tax amount shall not be deducted from the output tax amount.

Meanwhile, in the case of a contract between a trucking business operator holding a trucking transport business license and a trucking business operator, an automobile is registered in the name of a trucking business operator and reverted to a trucking business operator, and in the case of an internal sales contract between a borrower and a trucking business operator, each borrower is in the form of transportation business in which the borrower pays the rent to the trucking business operator, and even if the local owner directly operated and managed the vehicle in his/her name while he/she directly operated and managed the vehicle in which the local owner was employed, the legal effect of the contract is attributed to the designated company (see Supreme Court Decision 2000Da2069, Oct. 13, 200). Thus, the tax invoice issued by the other party cannot be deemed to be a different tax invoice, but it cannot be deemed to be a different tax invoice from the fact that the local owner was in the name of the other party to the contract without the intention of the other party to the transaction, and it cannot be deemed to belong to the company (see Supreme Court Decision 2007Da39794, Jul. 194, 20, 200193).

According to the reasoning of the judgment below, the court below found that the plaintiff company entered into a transportation contract with the non-party 1 corporation on June 1, 1998 to transport the products of the non-party 1 corporation and renewed the above contract each year; the non-party 3, etc., the non-party 2, the non-party 3, etc., the non-party 2, the non-party 3, etc. (hereinafter "the non-party 2"), after entering into an individual transportation contract with the plaintiff company, established an allocation plan for the quantities received from the plaintiff company, and transported the products of the non-party 1 corporation. The non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 3, etc., paid part of the transportation charges directly received from the plaintiff company under the name of management expenses, insurance premiums, oil rents, etc., and distributed the remaining amounts to the non-party 2 corporation, and the non-party 2, the non-party 2, who entered into the contract, as an external effect.

However, in addition to the facts acknowledged by the court below, the non-party 2 corporation did not take general direction and supervision as a branch entry company against the non-party 2 corporation. Rather, considering that the non-party 2 corporation did not carry out the transportation services of the non-party 2 corporation individually recruited by the non-party 3 and the auditor of the plaintiff company, such as preparing a vehicle management ledger, etc., and let the non-party 3 transport the products of the non-party 1 corporation. The representative director of the plaintiff corporation, the non-party 4 submitted to the tax office a written confirmation (Evidence No. 4) that the non-party 2 received the tax invoice of this case under the name of the non-party 2 corporation because the non-party 2 did not carry out the business registration of the non-party 2, and the tax invoice of this case includes the transportation services of the non-party 2, who requested the transportation of the non-party 3, the non-party 2 corporation and the non-party 2 corporation did not have the intent to do so.

Nevertheless, the court below did not review and decide whether the land owner company of this case had no intent to act as an agent for the non-party 2 corporation, and further whether the plaintiff company had no intent to act with the non-party 2 corporation, and determined that the legal effect of the cargo transport contract of this case belongs to the non-party 2 corporation only for the reasons indicated in its holding, and determined that the other tax invoice of this case does not constitute a false tax invoice. In so doing, the court below erred by misapprehending the legal principles as to the "tax invoice different from the facts" under the Value-Added Tax Act. The ground of appeal pointing this out has merit

2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)