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(영문) 선의의 거래 당사자인지 여부(취소)

조세심판원 조세심판 | 2007-06-29 | 국심2007중0187 | 부가

[Case Number]

National High Court Decision 2007J0187 (Law No. 29, 2007)

[Items]

Addition

[Types of Decision]

Revocation

[Summary of Decision]

It is reasonable to view that a bona fide trading party has fulfilled its duty of care in trading with a purchaser company, such as confirming the representative's resident registration certificate, corporate account, etc. immediately before commencing trading.

[Related Acts]

Article 17 of the Value-Added Tax Act / Receipt and safekeeping of documents evidencing the disbursement of / Article 116

【Determination following Decision】

National High Court 208C698/ Korean High Court 2008 / 2008 / 2012-Gu 1175/ 20153/ 2012 Before 2012, 5239/ 2013 Before 2012/ 2013 Before 2013, 2013 Before 2835/ Before 2013

【Disposition】

The disposition of imposition of KRW 22,96,460 for the business year of January 31, 2005, imposed on the claimant corporation by the head of the OO head of the tax office on October 12, 2006 and the disposition of imposition of KRW 154,226,710 for the first year of 205 shall be revoked.

【Reasoning】

1. Summary of disposition;

A. In the first taxable period of 2005, the applicant corporation operating non-ferrous metal wholesale and retail business purchased non-ferrous metals such as copper from OO Co., Ltd. (hereinafter “OO”) and received 25 copies of the tax invoice of KRW 1,149,823,000 (hereinafter “market tax invoice”) from 1,149,823,000, filed a return on input tax deduction and deductible expenses, and filed a return on the value-added tax and corporate tax.

B. On October 12, 2006, the disposition authority issued a notice of the fact that the issue tax invoice is not true for a supplier, and issued a notice of correction of the corporate tax amount 22,96,46,460 for the business year of January 1, 2005 and the corporate tax amount 22,96,460 for the business year of December 31, 2005 to the applicant corporation.

(c)the claimant corporation appealed to it and filed an appeal on December 29, 2006;

2. Opinion of the requesting corporation and the disposition agency;

A. The claimant corporation's assertion

It is difficult to expect that a trade has been conducted through a two-OO, which is claimed as the head of the business of the key trading office, to secure a business registration certificate, representative resident registration certificate, and copy of a corporate account passbook at the time of the trade, to transfer all the transaction proceeds to the corporate account to the corporate account, to fulfill the duty of care as a bona fide trading party, and to impose a duty to verify whether there is a separate representative in the first transaction with the corporation.

(b) Opinions of disposition agencies;

The key transaction office was charged as a processing company to evade tax, and the representative director of the requesting corporation stated that the twoOO actually determined the main contents such as the unit price and quantity at the time of the transaction with the corporation, and thus the disposition imposing tax by deeming the key tax invoice as a disguised tax invoice is justifiable.

3. Hearing and determination

(a) Points in dispute;

Whether the claimant corporation received the issue tax invoice as a bona fide trading party

B. Relevant statutes

(1) The following input tax amounts shall not be deducted from the output tax amount under Article 17 of the Value-Added Tax Act:

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 be excluded;

(2) Article 76 of the Corporate Tax Act (excluding the corporation prescribed by the Presidential Decree). The chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax the amount calculated by adding an amount equivalent to 2/100 of the unpaid amount, except in case where the provisions of the proviso of Article 116 (2) are applied.

Article 116 (Receipt and Safekeeping of Documentary Evidence of Expenditures) (2) In the case of paragraph (1), where a corporation receives goods or services from a business operator prescribed by the Presidential Decree and pays the price, it shall receive and keep documentary evidence falling under any of the following subparagraphs: Provided, That the same shall not apply to cases prescribed by

2. Tax invoice under Article 16 of the Value-Added Tax Act;

C. Facts and determination

(1) According to the review materials, such as investigation and uniform statements, submitted by the disposition agency:

(A) On November 19, 2004, the key trading office was a non-ferrous metal wholesaler, which started the business and closed the business on November 16, 2005, and reported only the value-added tax for the first time in 2005 during the business period. The reported tax invoice was issued without real transaction, and was found to have been published without real transaction, and was charged as all data on January 23, 2006, and the actual business operator was investigated as a double-stock exchange.

(B) On the other hand, the claimant company purchased non-ferrous metals and supplied them to the OO, etc., but the actual purchaser is both OO and only the tax invoice was received from the main trading office, and thus, issued the tax disposition.

(2) We examine the claim corporation's assertion that it is a bona fide trading party that believed that it is a transaction with the main trading office.

(A) According to the written response submitted by the agency, the representative director of the requesting agency became aware of the OO through the introduction of OOO by non-contractors, and the twoOO was determined on the unit price and quantity at the time of the instant transaction, but the twoOO believed that the OO was engaged in the business of gathering the representative OO in the name of the key transaction office, and that the twoOO was believed to have been able to believe that the twoOO was owned by the twoO, but the entity did not think that it was owned by the twoO.

(B) The representative director of the applicant corporation attended the National Tax Tribunal meeting (OOO, June 14, 2007) to state that "the chief executive officer of the dispute transaction office became aware of the issues transaction office through the twoOOO, the chief executive officer of the dispute transaction office, confirmed the business registration certificate, etc. of the trading office according to the OOO's transaction system under the name of the main trading office, and started the transaction, and the transaction price also was remitted to the corporate account of the main trading office."

(C) In light of the business registration certificate, the resident registration certificate of EO, the representative of EO, and the copy of the corporate account passbook submitted by the applicant corporation, it appears that the applicant corporation received it by facsimile on January 6, 2007, prior to the date of the first issuance of the issue tax invoice ( January 7, 2007).

(D) According to the issues tax invoice, measurement certificate, disposal authority's investigation paper, disposal authority's investigation paper, OO2OO, O20, O200, etc., the applicant corporation purchased 451,967 kilograms over 1,149,824,700 won and sold 1,166,607,330 won to OOOOO, etc., and the claim corporation transferred 1,264,807,170 won, which is equivalent to the proceeds from supply of the tax invoice on June 30, 2005, to OO264,807,170 won, which is equivalent to the proceeds from supply of the issue tax invoice and the Internet banking. < Amended by Presidential Decree No. 18740, Jun. 29, 2005>

(E) On the other hand, the claimant corporation submitted the name of the twoOOO, expressed as the head of the business division of the main trading office at the time of this transaction.

(f) If an entrepreneur confirms the business registration certificate of a trading partner and issues or receives a tax invoice for the transaction, even if the trading partner was determined as a trading partner due to the investigation by a related agency, if the trading partner can be seen as a trading partner in good faith, it shall not be subject to disadvantageous disposition such as correction (see the General Rules of the Value-Added Tax Act, 21-0

In the case of this proposal, it is reasonable that the applicant corporation has fulfilled its duty of care as a bona fide trading party in the transaction with the disputed Trading Agency in full view of the fact that it is difficult for the applicant corporation to know that the applicant corporation is not a real representative, and that it is difficult to expect that the applicant corporation has a separate representative of the purchasing company starting the first transaction with the applicant corporation, considering the fact that it is difficult to expect that the applicant corporation has fulfilled its duty of care as a bona fide trading party in the transaction with the disputed Trading Agency, in consideration of the fact that it is difficult to expect that the applicant corporation is a bona fide trading party in good faith.

(3) Therefore, the disposition that the disposition agency imposed on the issue tax invoice after deducting the input tax amount related to the issue tax invoice and imposing the non-Evidence penalty tax is deemed inappropriate.

4. Conclusion

This case's petition for adjudication is with merit as a result of the review, so it is decided in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes.