자료상 확정자로부터 수취한 매입세금계산서에 대해 실지거래하였다는 주장의 당부[국승]
The legitimacy of the assertion that the purchase tax invoice received from the confirmation of the material was actually traded
The instant tax invoice may be presumed to have been prepared and issued without a real transaction, on the grounds that the seller’s criminal judgment became final and conclusive on the basis of data, and that the fact of payment by proxy to disguised normal transactions is confirmed, and there is no other evidence to acknowledge that the instant tax invoice was legitimate based on the real transaction. Thus, the instant disposition is lawful.
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The defendant's disposition of imposition of value-added tax (including additional tax; hereinafter the same shall apply) 1,441,040 won for the first half of January 2001 against the plaintiff on February 8, 2007 (to be deemed to be written in writing on February 1, 2006), 1,568,730 won for the first half of January 2002, 1,883,430 won for the second half of February 2002, 1,883,430 won for the first half of February 2002, and 5,521,530 won for the first half of January 2003, and 1,963,530 won for the second half of February 1, 2003, and 1,963, and 5
1. Details of the disposition;
A. The Plaintiff is an entrepreneur who runs precious metal retail business with the name of ○○○○○-dong ○○○○○○○○○○○○-dong ○○○○○○○○○○○○○○○○○○○○○○○, a business proprietor who runs a precious metal retail business. During the taxable period from January 2001 to February 2003, the Plaintiff received 73,893,000 won of the supply value from a stock company (hereinafter “○○○”). After receiving 19 copies of the purchase tax invoice on the current purchase (hereinafter “instant tax invoice”), the Plaintiff reported and paid value-added tax by deducting the relevant input tax amount from the output tax amount.
B. On February 8, 2007, the Defendant: (a) deemed that the Plaintiff received the instant tax invoice without real transaction from the Plaintiff, and (b) deducted the relevant input tax amount; (c) notified the Plaintiff of the correction and notification of value-added tax as stated in the purport of the claim (hereinafter “instant disposition”); (d) on March 9, 2007, the Defendant corrected and notified KRW 530,600, value-added tax for the last day of February 2001.
[Grounds for Recognition: Evidence No. 1-5, Evidence No. 1-2, Evidence No. 2-1, 2-1-6, and Evidence No. 4-2, the purport of the whole pleadings]
2. Whether the disposition is lawful;
A. The plaintiff's assertion
The instant disposition is an arbitrary and unfair disposition that is dismissed from substantive truth.
(b) Related statutes;
Article 17 of the Value-Added Tax Act
(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter
1. The tax amount for the supply of goods or services used or to be used for his own business;
2. The tax amount for the import of goods used or to be used for his own business; and
(2) The following input taxes shall not be deducted from the output tax amount:
1. An input tax amount in case where the list of the total tax invoice by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or entered differently from the fact, in case where the whole or part of the registration numbers or supply values by transaction parties in the submitted list of the total tax invoice by customer is not entered or entered differently from the fact, except in such case as prescribed by
1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a "necessary entry item") is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall
○ Decision and Rectification of Article 21
(1) The head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service shall determine or correct the tax base of value-added tax or tax amount
2. Where there are any mistakes or omissions in details of the final tax return;
3. Where the list of the total tax invoice by buyer or the total tax invoice by buyer is not submitted in the final tax return, or all or part of the submitted list of the total tax invoice by buyer is not entered or
(c) Fact of recognition;
1) On January 16, 2001, ○○ established ○○ Fund and operated it until July 2, 2002, and Kim○○ as its representative director from July 2, 2002 to June 5, 2004, which was its closing date.
2) As a result of an investigation into a suspected suspicion of ○○○○ Fund, the ○○ Fund and the ○○ Fund reported during the taxable period from January 2001 to January 2004 by ○○○○ Fund, which was the actual operator of ○○ Fund, were revealed by the processing sale and the processing purchase, were identified as material, and filed a complaint with the prosecution against ○○○ and ○○○ Fund, which were revealed by the processing sale and the processing purchase, on the basis of which the Defendant and other tax authorities notify the Defendant and other tax authorities of the details of the processed transaction including the instant tax invoice as taxation data.
3) After that, ○○○ and ○○○ were the actual sales of gold to the company “○○○” in the operation of the Plaintiff, and was indicted for committing an offense, such as preparing and issuing false sales tax invoices containing the instant tax invoices, and Kim○ was sentenced to a suspended sentence of two years in imprisonment for a year as ○○ District Court 2004Gohap204Gohap204 and 385 (combined) and the decision became final and conclusive. ○○ was sentenced to imprisonment for three years in ○○ District Court 2004Gohap368, 2005Gohap2, 42, 49 (Joint) and was sentenced to imprisonment for three years in ○○ High Court 206No62 (Separation), the appellate court, which was the appellate court, and was sentenced to imprisonment for three years in 3 years and a fine of 5.5 billion won in 2006Do7681, which was the final and conclusive.
4) Meanwhile, through the above criminal case, ○○○○○○ branch of ○○ Bank, which is one of its employees, used a method of depositing the sales amount into one’s account in the name of the said customer’s account in order to disguised the actual sales after preparing and delivering a false tax invoice to the processing customer. Of 19 tax invoice of this case, the sales amount was deposited on behalf of the said method in relation to 14 copies of the instant tax invoice.
[Reasons for Recognition: Evidence Nos. 1, 2, 3, 5, 6, 7, and 8 through 12-1, 2, and 3, respectively, and the purport of the whole pleadings]
D. Determination
In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be imposed on the person liable for taxation. However, if it is proved that the facts in question were presumed to be eligible for application of the empirical rule in light of the empirical rule in the specific litigation process, it cannot be concluded that the other party is illegal disposition lacking the taxation requirement (see, e.g., Supreme Court Decision 2002Du6392, Nov. 13, 2002). In this case, ○○○ and Kim○, who is the actual operator of the tax invoice of this case, are accused of the facts such as preparing and delivering false sales tax invoice of this case on the basis of the facts, such as the fact that the tax invoice of this case was prepared and delivered on the basis of the suspended sentence or the fact that the sales price of this case was made on the basis of the fact that ○○ and Kim○, a false sales tax invoice of this case on the basis of the fact that ○○ was deposited on behalf of the employee of this case, and thus, the plaintiff's assertion that the above facts were legitimate.
3. Conclusion
Thus, the plaintiff's claim of this case is dismissed as it is without merit.