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(영문) 이 사건 목재펠릿의 실제 수입자가 선하증권을 양도한 공급업체인지 선하증권을 양수한 청구법인인지 여부 등

조세심판원 조세심판 | 2018-10-29 | 조심2017전4173 | 부가

【Request Number】

Cho Jae-hoon 2017 Jeon 4173 ( October 29, 2018)

[세 목]

Addition

[Types of Decision]

Dismissal

[Summary of Decision]

국내 공급업체들이 수출자인 해외거래처와 직접 교섭하여 계약을 체결하고, 신용장(L/C)을 개설하여 수입대금을 지불한 점, 선사 및 포워딩 업체와의 계약, 국내 입항 후 하역 및 국내 창고 보관, 운송업체 선정도 국내 공급업체가 진행한 점, 청구법인 산하 ▣▣본부의 납품일정에 따라 목재펠릿을 운송하고 ▣▣본부에 도착하여 납품되기 전까지 발생하는 목재펠릿에 대한 모든 위험과 품질 저하로 인한 패널티, 납품 지연으로 인한 지체상금까지 국내 공급업체가 부담하였음이 선하증권 양도계약서 및 사실관계에서 확인되는 점 등에 비추어 이 사건 목재펠릿의 실제 수입자는 국내 공급업체이고 청구법인은 이들로부터 매매거래를 통해 목재펠릿을 구입하였다고 봄이 상당하다고 판단됨

[Related Acts]

Article 3 of the Value-Added Tax Act / Article 35 of the Value-Added Tax Act / Article 39 of the Value-Added Tax Act / Article 50 of the Value-Added Tax Act / Article 60 of the Value-Added Tax Act / Article 106 of the Restriction of Special Taxation Act / Article 47-3 of the Framework Act on National Taxes/ Article 12-2 of the Enforcement Decree of the Framework Act on National Taxes

【Determination following Decision】

Cho 2019 Deputy 3351

[주 문]

The appeal is dismissed.

[이 유]

1. Summary of disposition;

A. The claimant corporation is a corporation that operates the power resource development and development business from April 2, 2001 after physical division by OOO and supplies electricity produced from coal, heavy oil, LNG as a raw material to the parent company through OO.

B. In order to satisfy the mandatory allocation of new and renewable energy imposed by the government’s mandatory supply system of new and renewable energy (hereinafter “OO”) or “OO system, the applicant corporation entered into an international tender for the import of wood pellets that is a fuel for thermal power generation from May 2013 and received wood pellets from the domestic supplier of the same country (hereinafter “domestic supplier”) with a bill of lading (B/L) transfer agreement (hereinafter “market purchase agreement”), and received wood pelpellets from that domestic supplier.

In this process, domestic suppliers shall import timber pellets from a foreign country and pay the proceeds thereof, and the applicant corporation shall accept a bill of lading from the domestic supplier prior to the import clearance pursuant to the contract for the purchase of wood pellets to the customs collector and pay customs duties, import value-added tax and customs fees at the time of customs clearance, and receive refund by deducting the paid value-added tax amount

C. Around the end of 2016, the applicant filed a revised return and paid import value-added tax (including general under-reported penalty taxes) refunded from the second to first in 2013 to the prosecution, etc. on the following points: “The filing corporation may not be deemed a legitimate tax processing if it filed an import declaration on the importation of wood pelletss to a customs office, and after paying the import value-added tax on the importation of wood pelletss, it may be difficult

D. As a result of the investigation into the requesting corporation from February 24, 2017 to May 25, 2017, the Director of the Regional Tax Office of OO (hereinafter “the Director of the Regional Tax Office”) notified the requesting corporation of the result that the act of receiving the value-added tax as an input tax amount is subject to unfair under Article 47-3(1)1 of the Framework Act on National Taxes regarding the act of receiving the input tax amount by concluding a bill of lading transfer contract with a domestic supplier, and the requesting corporation is subject to unfair under-reported additional tax under Article 47-3(1)1 of the Framework Act on National Taxes. The disposition authority issued a tax invoice without being supplied with the actual goods, and notified the requesting corporation of the result that the value-added tax should be subject to unfair under-reported additional tax, etc.

1. Details of correction and notification by the Director of the OO

1. Details of correction and notification by the Director of the OO

E. The applicant filed an appeal on August 25, 2017.

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

A. The claimant corporation's assertion

(1) The applicant corporation is an importer who is a person liable to pay customs duties and value-added tax as a beneficiary of profits accrued from the importation of wood pellets, and furthermore, he/she received a bill of lading prior to the import declaration and completed the import declaration under his/her own name, and is in a legitimate position

(A) Article 35 of the Value-Added Tax Act provides that when a taxpayer files a declaration on and pays customs duties to the head of a customs office following the import of goods, the value-added tax on the import of the goods shall be declared and paid along with customs duties; the head of a customs office shall issue import tax invoices; the head of a customs office provides that an importer shall issue an import tax invoice; the meaning of an importer's "importer" under Article 19 (1) 1 of the Customs Act provides that the person liable for duty payment shall be the owner who imports the goods, i.e., the importer was designated as the person liable for duty payment; and Article 35

(B) The wood pellets is imported to be consumed directly by the applicant corporation for the self-consumption of the development fuel, and is actually consumed as the production fuel, and the applicant corporation announced the public announcement on the premise that it imports the wood pellets from abroad from the time of the first public announcement; ② the above public announcement states the purpose of use to be used for the development fuel; ③ the quality and quantity of the wood pellets in addition to the final purpose guidance; ③ the import price determination right is stated in the applicant corporation (i.e., the supplier is merely the fee of the amount equivalent to the incidental expenses; and the supply price of the overseas production company is not affected by the overseas production company); ⑤ the applicant corporation directly conducted on the site inspection of the production company in order to verify the overseas production capacity, and directly examined the results. In light of the purpose, place of use, final user of the wood pellets, the applicant corporation constitutes customs duties and the owner of the goods that are the taxpayer of value-added tax.

(C) Meanwhile, on the other hand, a domestic supplier asserts that the domestic supplier is the importer of the wood pellets on behalf of the requesting company that takes charge of practical affairs, such as negotiations with the overseas supplier and the transportation of the wood pelpellets. However, such practical affairs are merely a trade company’s performance of obligations under a contract between the parties in order for the supplier to safely deliver the wood pelpellets without any need to use new products in the import of the wood pelpellets, and thus, the domestic supplier does not be deemed the importer of the wood pelpelpellets. Such practical affairs are merely those that the “person other than the importer” delegated by the importer pursuant to the contract between the parties concerned can be deemed as a matter of course. However, the disposition agency appears to have asserted as above in the statement of the Supreme Court Decision 202Du8442 Decided April 11, 2003. However, the above decision is completely in the name of the reporting person, and there is no relation with the importation of the wood pelpelpel, and thus, it cannot be viewed as a matter of a taxpayer’s application.

(D) A claimant corporation: (a) received wood pellets prior to the import declaration; (b) filed an import declaration prior to the import declaration; and (c) filed an import declaration prior to the import declaration; and (c) received the instant timber pellets pursuant to Article 19(1)1(c) of the Customs Act, which is the criteria for determining importers under the Customs Act, in order to clarify that the applicant corporation is an importer, taking into account the customs practice that considers the transaction type or form as the relationship in which many interested parties are involved in the imported goods; and (c) made clear the fact of such receipt, such as entering into a bill of lading for the purpose of ownership transfer and a bill of lading transfer agreement for the purpose of ownership of the wood pellets prior to the import declaration; and (d) conducted the import declaration and customs clearance procedure as the importer of the timber pellets; and (b) pursuant to Article 2 of the B/L transfer agreement entered into between the claimant corporation and the supplier company (B/L confirmation that the above imported non-import goods are assigned/transfer as follows).

(E) Even in light of the method of transfer of ownership of movable property under the Civil Act, it is apparent that the claimant corporation properly takes over the pellets, and there is no doubt as to the fact that there was an agreement on real rights between the claimant corporation and the domestic supplier on the transfer of ownership of the pellets. Furthermore, the Civil Act recognizes the transfer of possession of the pelpellets solely by a contract between the parties, in addition to delivery through the transfer of physical possession, and the transfer of possession of the pelpellets, if the domestic supplier actually takes possession of the pelpellets at the time of the conclusion of the contract, the transfer of the said bill of lading is deemed to have taken over the pelpelpel in the manner of possession, and if the domestic supplier has not yet received the pelpellets from the carrier, the transfer of the pelpelpel in the manner of transfer of the pelpelpel.

(f) Although the disposition agency has a problem of the validity of the bill of lading transfer contract under Articles 4 (As to transfer of risks) and 5 ( as to all duties related to import clearance) of the bill of lading transfer contract, it is always possible for the applicant corporation to receive support for transportation and customs clearance through the domestic supplier even after the transfer of ownership. Since the above provisions are inserted to clarify the risk burden and responsibility for the above provisions, it cannot be denied the validity of the transfer of ownership prior to the import declaration. In other words, it can be confirmed that the burden of all the risks and responsibility arising from the transportation of the goods to the transporter of the goods with the delegation from the owner of the goods is a contract in such a form as much as possible by the agreement between the parties concerned. This can be confirmed in that the contents of Article 4 are related to “all rights and responsibilities relating to the supply of the goods.” The above contents of Article 4 are to be interpreted in order to confirm all rights and responsibilities related to the supply of the goods (ownership) while the ownership of the goods itself has already been transferred.

(2) If the claimant corporation is not a taxpayer of the import value-added tax according to the opinion of the disposition agency, the claimant corporation has reported and paid the import value-added tax that should not be reported and paid, which must be refunded as a matter of course.

(A) In accordance with the agency’s opinion, a domestic supplier, who is not the claimant, is liable to pay the imported value-added tax, or the agency, without any correction for the trading company, is merely liable to pay the import value-added tax, and the applicant is entitled to receive the import value-added tax erroneously reported and paid by the claimant corporation. If the applicant pays the tax amount despite the fact that the taxpayer is not the taxpayer, it is merely a deduction or refund of the amount that can be returned in any form.

(B) In addition, if the claim is based on the claim of the disposition agency, the claimant corporation is not a taxpayer, and there is no additional tax payable. Therefore, the additional tax cannot be imposed on the claimant corporation on the premise that there is an additional tax payable. Therefore, the disposition imposing the additional tax in

(3) Since no unlawful act exists in the refund of the import value-added tax of this case, an unfair under-reported additional tax may not be imposed.

(A) Even if the claimant corporation received a value-added tax refund in the position of the importer of wood pellets, such a transaction structure corresponds to the substance of the revenue of wood pellets and constitutes a reasonable structure concluded under the agreement of the parties. The claimant corporation clarified the objective importer's status under the Customs Act through the "acquisition of the goods prior to the import declaration," which is a transaction permitted by the Customs Act, as the importer of wood pellets, and also satisfies the formal requirements required by the Customs Act by proceeding the import declaration in the name of the claimant corporation. Therefore, the claimant corporation is limited to the reduction of tax burden by making transactions that can receive a refund of the imported value-added tax through legitimate means permitted by the law as the importer of the goods used for its business. There is no unlawful act in this process.

(B) The claimant corporation and the domestic supplier drafted a bill of lading transfer contract for the purpose of taking over the wood pellets prior to the import declaration. This is prepared under the agreement of the parties in order to clarify the purpose and the type of transfer of the ownership of the wood pellets and the status of the importer of the wood pellets in the customs practice centering on the form of the latter. Since the bill of lading transfer contract cannot be deemed as false because there is no false or forged document among the documents prepared in relation to the import and refund of the wood pellets, it cannot be deemed that there was "affirmative concealment". Furthermore, the claimant corporation submitted a bill of lading transfer contract as well as the bill of lading transfer contract in the process of the import declaration of this case (customs clearance) and submitted the bill of lading as they were delivered, and there is no circumstance that makes it impossible or significantly difficult for the tax authorities to impose and collect taxes on the grounds that all the documents to be entered are true.

(C) Although the agency asserts that there was an unlawful act on the ground that the claimant corporation used the terms and conditions of DU, which are not the terms and conditions of DP, which are not the terms and conditions of the contract used by the existing developers, it is merely a fixed transaction condition in the area of the sales contract for the goods as stipulated in Article 2010. In other words, the terms and conditions of DU/DP are not affected by the effect of revenue, the person to whom the ownership of the goods belongs, the timing of transfer of ownership, etc., and the said terms and conditions of transactions also state that the said terms and conditions of transactions do not deal with the effects of transfer of the ownership of the goods or breach of the contract. Furthermore, even if the existing tax practice was conducted under DP conditions between the parties to the contract, the agency determined that it is possible for the purchaser to receive the import tax invoice in the name of the purchaser [the document-2015-Annex-2023 ( November 25, 2015)]. In other words, even if DP conditions are conducted, whether the importer has ownership or not.

(4) The claimant corporation did not have an awareness of the unlawful act. It was objectively clear that the applicant corporation was an importer, and there was no intention to receive a refund by unlawful means of tax payment. Moreover, the current Restriction of Special Taxation Act does not include wood pellets supplied in Korea with power generation roads by improving unreasonable taxation due to such a tax exemption system. In other words, the applicant corporation is entitled to receive a refund of value-added tax regardless of what import structure has been withdrawn under the current law. Furthermore, the applicant corporation sought advice from a customs service corporation as an expert, received a wood pellets and received a refund of imported value-added tax in accordance with its advice and questioning by the National Tax Service, and in particular, the applicant corporation received the status of the importer from the tax authority upon receiving a request for correction of the imported value-added tax.

(5) Since the applicant corporation received the import tax return issued by the head of the customs office as an importer under the Customs Act and the Value-Added Tax Act, since it satisfies the formal requirements required by the Customs Act and filed an import declaration on wood pellets with an importer in a legitimate position before the import declaration, it is improper to impose additional tax on such person. Furthermore, even according to the language and text itself, Article 60(3) of the Value-Added Tax Act is only an additional tax provision related to the receipt of the tax invoice related to the supply of goods or services subject to value-added tax, and there is no room for applying the same structure as prescribed by Article 60(3) of the Value-Added Tax Act (limited to the supply of goods, and the import of goods is not subject to value-added tax). In relation to Article 10(3) of the Punishment of Tax Evaders Act, the Seoul High Court Decision 2016No2022 decided Nov. 10, 2016 that the Punishment of Tax Evaders Act strictly regulates the supply of goods and the import of goods, thus, the act of receiving goods cannot be punished without Article 10(3).

(b) Opinions of disposition agencies;

(1) The actual importer of wood pellets is not a claimant but a domestic supplier, and thus it is difficult to accept the claim note.

(A) Examining the developments leading up to the purchase of wood pellets, the requesting corporation selected a domestic supplier through an international tendering procedure to avoid imposing penalty surcharges upon nonperformance pursuant to the implementation of the OOO system in 2012, and then supplied a wood pelpel in return for an international tendering procedure. However, the bid was an international tendering procedure, but most of the quantities were supplied by the domestic supplier.

(B) In the case of DP conditions (Devered Duty Pid: Customs delivery conditions), the applicant mainly engaged in competitive bidding and DU conditions (Devered Duty UNid): Provided, That DP conditions and DU conditions were traded in parallel with DP conditions in order to ensure the quantity in consideration of the situation in which small and medium enterprises participate.

(C) In the case of DP conditions, the ownership of the pellets produced by the domestic supplier in the OO, etc. is transferred to the requesting corporation after the domestic supplier purchased the pellets produced in the OO, etc. and cleared through customs (import surtax, customs duty, etc.) directly from the foreign trader. In the event that the domestic supplier directly cleareds and supplies the pelpellets to the requesting corporation, the domestic supplier is unable to obtain input tax deduction pursuant to Article 106(1)12 of the Restriction of Special Taxation Act and Article 39(1)7 of the Value-Added Tax Act. However, in the case of DU conditions, the supply contract between the requesting corporation and the domestic supplier is practically a domestic supply contract, and it is necessary to add the conditions for international trade transactions. However, even though the first announcement was made, the applicant corporation may be entitled to receive input tax deduction at the time of the purchase of the pelpelpel.

(D) DP or DU merely provides a condition as to who will assume the burden of import value-added tax, customs duties, etc. arising from trading business, and as such, it does not differ from the major contents of the contract with the overseas trading agency except the entity subject to the burden of expenses, such as import value-added tax, customs duties, etc., to enter into a contract with the domestic warehouse, to issue a letter of credit, domestic transportation, to the domestic warehouse, to enter into the contract with the domestic warehouse, to carry pelpelpelpelpelpel, and the time of transfer of risks, etc., so the applicant corporation and the domestic supplier of wood would not change the substance of the contract between the applicant corporation and the domestic supplier of wood pelpelpel, regardless of the fact that the substance of the contract between the applicant corporation and the domestic supplier of wood pelpellets does not change the conditions of DP or DU.

(E) Examining the contract, import declaration, etc. entered into with the domestic supplier, (1) the foreign supplier and the domestic supplier enter into a direct negotiation and (2) the domestic supplier enter into a contract, (3) the domestic supplier enter into a contract with the shipping company and the intermediary, and the domestic supplier enter into and depart from the domestic warehouse, and (4) the domestic supplier enters into a contract with the shipping company and the intermediary, and the domestic supplier enter into and depart from the domestic warehouse, and (5) the domestic supplier takes the burden of transporting the pelpelpel in accordance with the schedule of the delivery by the requesting entity and supplying the pelpelpel in accordance with the schedule of the delivery by the chemical headquarters. It is clear that the domestic supplier is not the actual importer of the wood pelpel, but the domestic supplier is the domestic supplier.

(2) On the condition of DU, the requesting corporation purchased timber pellets and entered into an import agency contract by no later than May 2014 as an incidental contract, and even though the requesting corporation entered into a purchase contract on the condition of DU that it pays customs duties, the requesting corporation is a domestic supplier under the bill of lading, and the requesting corporation is a domestic supplier under the bill of lading, and it obtains the status of "person who entrusted the import of wood pelpellets" under Article 19 of the Customs Act by concluding a formal import agency contract for the purpose of changing the taxpayer to a requesting corporation.

(A) Despite the conclusion of an import agency contract, the details of the consignment service under the import agency contract are pursuant to the DoU, which is a condition under the purchase contract (i.e., matters not specified in the import agency contract, but the DoU is irrelevant to the import entrustment on the condition of the purchase contract), and there was no fact that it was claimed and settled separately from the original bid price of wood pelpellets, the import agency contract is not for entrusting the import to the domestic supplier, but for replacing the taxpayer under the Customs Act.

(B) A claimant corporation changed the method of transaction into a bill of lading acquisition agreement, not an import agency contract after June 2014, but it did not change the substance of transaction. However, it was required by a domestic supplier’s demand (in the case of a supplier, the bill of lading acquisition agreement, which reflects the total amount of the price of the goods on the income) to increase the external appearance, and even after the request of a domestic supplier, it cannot be deemed that the import agency contract or the bill of lading acquisition agreement was actually an import agency contract with no substance, as it is practically possible to choose and change if requested by a domestic supplier, and thus, the actual

(3) Although the claimant corporation entered into a purchase contract of the DU conditions, the consignee cannot be a taxpayer under the Customs Act because the consignee is a domestic supplier under the bill of lading. Thus, the consignee entered into a formal bill of lading transfer agreement with the purpose of changing the taxpayer to a claim corporation, and acquired the status of the transferee prior to the import declaration of wood pellets in Article 19 of the Customs Act.

(A) If a bill of lading is transferred, the original bill of lading itself should take effect as the cargo was transferred, and the applicant corporation received most copies of the bill of lading from the domestic supplier, and the domestic supplier performed the import business without changing the terms and conditions of the transaction. Since the applicant corporation directly presented the bill of lading to the shipping company, etc., there is no fact that the receipt of the bill of lading was made, the bill of lading transfer contract is merely a formal document for establishing the basis imported under the name of the applicant corporation.

(B) If the claimant corporation actually takes over a bill of lading, the same effect as the receipt of the wood pellets shall take place, but even after the receipt of the bill of lading, the bill of lading transfer contract is a false contract that does not take effect at all since all risks have not yet been transferred to the claimant corporation even after the receipt of the bill of lading, and the domestic supplier held all rights to the wood pelpellets, and the ownership of the wood pellets is still confirmed through a bill of lading transfer contract by the domestic supplier. In addition, payment for the bill of lading transfer is made at the time of completion of quality inspection and measurement after the delivery of the timber pelpellets, not at the time of the receipt of the

(C) The claimant corporation asserts that the time of transfer of the ownership of the wood pellets is the time of acquisition of the bill of lading prior to customs clearance, and that it is natural for the domestic supplier to bear the risk and expenses even after the transfer of the bill of lading, but the content of the risk and the cost burden cannot be justified solely on the ground that the contract was entered into under the condition of DU because all of DU and DP are identical to that of DU.

Ultimately, insofar as the conditions of international trade in wood pellets purchase contract have been added to the conditions of international trade, it should have been traded on the condition of DP that there was no problem in the timing of ownership transfer, but the substance of the transaction was distorted by entering into a false import agency contract and a bill of lading transfer contract with the aim of deducting the import value-added tax on the condition of DU.

(4) A claim corporation, in the form of an importer through a false bill of lading transfer agreement, received an import tax invoice and thereby unjustly deducted the value-added tax. This constitutes tax evasion due to fraud or other wrongful act.

(5) Article 60(3)2 of the Value-Added Tax Act provides that where a tax invoice, etc. is issued without being supplied with goods or services, two percent of the value of supply shall be added to the amount of tax payable. The applicant corporation is not an importer but issued an import tax invoice from the head of a customs office. This constitutes a case where a tax invoice is issued without being supplied with goods, and it is difficult to accept

3. Hearing and determination

A. Key issue

① Whether the actual importer of the instant wood pellets is a supplier that has transferred a bill of lading is a requesting corporation that received a bill of lading.

(2) Whether an applicant corporation received a bill of lading from a domestic supplier and received a refund of import value-added tax is subject to unfair under-reported penalty taxes.

(3) Whether the penalty tax shall be applied to unfaithful tax invoices

B. Relevant statutes

(1) Article 3 of the Value-Added Tax Act / [taxpayer] Any of the following individuals, corporations (including the State, local governments, and local government associations), unincorporated associations, foundations, or other organizations shall be liable to pay the value-added tax pursuant to this Act:

1. An entrepreneur;

2. A person who imports goods.

Article 35 (Tax Invoice) (1) When the head of a customs office collects value-added tax on imported goods (including cases where the payment of value-added tax is deferred under Article 50-2), he/she shall issue a tax invoice for such imported goods to the importer, as prescribed by Presidential Decree.

Article 38 (Mutual Aid Purchase Tax Amount) (1) The input tax amount to be deducted from the sales tax amount means the amount in the following subparagraphs:

2. Value-added tax amount on imports of goods used or imported by the businessman for his own business.

(1) Notwithstanding Article 38, the following input tax amounts shall not be deducted from the output tax amount:

7. An input tax amount related to tax-free business, etc. (including an input tax amount related to investment for tax-free business, etc.) and the land prescribed by Presidential Decree;

Article 50 [Return and Payment for Import of Goods] Where a taxpayer referred to in subparagraph 2 of Article 3 reports and pays customs duties on the import of goods to the head of a customs office in accordance with the Customs Act, the value-added tax on the import of the goods shall also be returned and paid.

Article 60 [Additional Tax] (3) Where an entrepreneur falls under any of the following subparagraphs, two percent of the value of supply shall be added to the payable tax amount or deducted from the refundable tax amount:

2. Where a tax invoice, etc. is issued without being supplied with goods or services;

(2) A person who falls under any of the following subparagraphs shall be liable for duty payment:

1. In cases of goods on which an import declaration is filed: The owner of goods who imports the relevant goods (referring to any of the following persons if such owner is unidentifiable; hereafter the same shall apply in this Article): Provided, That where customs duties paid or to be paid on goods on which the import declaration is accepted or on goods shipped out upon approval for shipment before an import declaration is accepted under Article 252 fall short of the amount of customs duties payable, and the domicile and residence of the owner of the relevant goods are unidentifiable or a person who files the import declaration fails to identify the owner, both the person who files

(a) Where goods are imported by an import firm for its customers under entrustment: A person who entrusted the import of the relevant goods;

(b) If goods are not imported by an import firm for its customers under entrustment: A consignee entered in a commercial document prescribed by Presidential Decree;

(c) Where imported goods are transferred before an import declaration is filed: The transferee;

(3) Article 106 of the Restriction of Special Taxation Act [Exemption, etc. from Value-Added Tax] (1) The supply of goods or services falling under any of the following subparagraphs shall be exempted from value-added tax:

12. Timber pellets among forest products under subparagraph 7 of Article 2 of the Creation and Management of Forest Resources Act.

(4) [Issuance of Bill of Lading] (1) A carrier shall deliver, at the request of a consignor, a bill of lading in one or more copies after receipt of the cargo.

Article 853 (Matters to be Stated in Bill of Lading) (1) A bill of lading shall contain the following matters and shall write its name and seal or sign thereon:

10. Number of copies if several bills of lading have been issued.

Article 854 [Effect of Statement in Bill of Lading] (1) In cases where a bill of lading has been issued pursuant to Article 853 (1), it shall be presumed that a contract of carriage of a general goods has been concluded between a carrier and a consignor and receipt or loading of cargo as stated in a bill of lading

(2) A carrier shall be deemed to have received or loaded the cargo as stated in a bill of lading and shall take the responsibility as a carrier as stated in a bill of lading to a holder who has acquired a bill of lading of paragraph (1) in good faith.

Article 856 (Delivery of Copy) Any charterer or consignor who has received a bill of lading shall, upon request of the issuer, put his name and seal or signature on the copy of the bill of lading and deliver it.

Article 857 [Multiple Copies of Bill of Lading and Delivery of Cargo at Port of Unloading] (1) Even if a holder of one of multiple copies of a bill of lading requests delivery of cargo at the port of unloading, a shipmaster shall not refuse such delivery.

(2) When a holder of one of the multiple copies of a bill of lading has taken over the cargo under paragraph (1), other copies of a bill of lading shall become void.

(5) Article 47-3 of the Framework Act on National Taxes [Additional Taxes for Underreporting or overreporting] (1) Where a taxpayer has filed a return of tax base of national tax under tax-related Acts by the statutory deadline for filing a return, and the amount to be paid is less than the amount to be returned (hereafter referred to as "underreporting" in this Article) or the amount to be refunded is more than the amount to be returned (hereafter referred to as "excess return" in this Article), the amount calculated by applying the calculation method classified as follows to the aggregate of the underreported tax and overreported tax amount to be paid and the amount to be refunded (where there is an additional tax under this Act and tax-related Acts and the interest to be paid in addition to the amount

1. In cases of underreporting or overreporting due to an unlawful act: The total of the following amounts:

(a) An amount equivalent to 40/100 (60/100 in cases of under-reported tax amount due to an unlawful act in international trade) of the under-reported tax amount due to an unlawful act;

(6) Article 12-2 of the Enforcement Decree of the Framework Act on National Taxes / [type of fraudulent acts, etc.] (1) “Fraud or other unlawful acts prescribed by Presidential Decree” in Article 26-2(1)1 of the Act means any act falling under any subparagraph of Article 3(6) of the Punishment of Tax Evaders Act

(7) "Fraud or any other unlawful act" in Article 3 (1) of the Punishment of Tax Evaders Act means any active act falling under any of the following subparagraphs, which makes the imposition and collection of taxes impossible or remarkably difficult:

1. A false bookkeeping, such as double bookkeeping;

2. Preparation and receipt of false evidence or false documents;

3. Destruction of books and records;

4. Concealment of property, or fabrication or concealment of income, profit, act or transaction;

5. Not preparing or keeping books intentionally, or fabrication of bills, tax invoices, a sum table of bills, or a sum table of tax invoices;

6. Operation of facilities for enterprise resource planning under subparagraph 1 of Article 5-2 of the Restriction of Special Taxation Act or fabrication of electronic tax invoices;

7. Other acts by a deceptive scheme or unlawful acts.

C. Facts and determination

(1) The process of the instant investigation is as follows.

(A) While investigating a requesting corporation on suspicion of violation of the Act on the Sustainable Use of Timber and the Customs Act, the OO requested the Investigation Agency on December 5, 2016 to file an accusation against the requesting corporation as a violation of the Punishment of Tax Evaders Act on the ground that “The requesting corporation formally acquired the bill of lading from a domestic supplier despite having been supplied with pelletss through the domestic supplier, and subsequently evaded the tax by means of receiving the bill of lading formally from the domestic supplier, such as importing the bill of lading to the customs office as if it was directly imported, and deducting the import value-added tax paid.”

(B) On the end of 2016, the applicant filed a revised return and paid the import value-added tax (10%) with the Prosecutor’s Office, etc., stating that “The reduction of the import value-added tax at the time of import of wood pellets as an input tax may not be deemed a legitimate tax treatment.” The applicant filed a revised return and paid the import value-added tax, which was refunded from the second to the first half of 2013,

(C) During the period from February 24, 2017 to May 25, 2017, the investigating authorities conducted an investigation into the applicant corporation, and imposed an unfair under-reported additional tax and incomplete additional tax, in addition to the revised return and payment on the refund of the imported value-added tax, by which the applicant corporation filed an accusation with the prosecutor on May 18, 2017, and the prosecutor prosecuted the applicant corporation on May 25, 2017.

(2) According to the review materials submitted by the agency, the following facts are revealed.

(A) Examining the main contents of the bill of lading transfer contract presented as a sample by the agency, “the transferee of the bill of lading of Article 3 shall bear the customs duties, import surtax, and customs clearance fees required at the time of customs clearance. Even after the transfer of the bill of lading of Article 4, all the rights and responsibilities for the supply of the above goods shall, in principle, be transferred at the time of delivery at the place designated by the bill of lading transferee. The transferor of the bill of lading of Article 5 shall take all measures to complete import clearance and all administrative responsibilities arising from non-performance

(B) When a claimant corporation reports value-added tax, the disposition agency reported and deducted the import tax invoice issued by the customs collector as input tax amount in relation to the importation of wood pellets. However, when filing a corporate tax return, it argues that the transaction was recognized as a tax-free purchase transaction with the domestic supplier, and that the general invoice was received and reported as a cost, and presented a tax-free invoice.

(C) In light of the main contents of the questionnaire’s answer collected from a person in charge of the delivery of wood pellets from an OO, one of the domestic suppliers, the person in charge of the delivery is confirmed to have recognized the following (1) through (4).

(1) Negotiations in negotiations with local exporters of timber pellets, (2) payment to local exporters, (3) payment of freight charges from exporting countries to domestic ports, loading and unloading expenses, and domestic freight charges from port of arrival to power plants shall be borne by OO.

④ 무역거래조건을 DDP에서 DDU로 바꾼 이유는 청구법인이 입찰조건을 바꿨기 때문이다.

(5) A transfer contract prior to import clearance shall be prepared.

6) If a principal bank pays wood pellets to the principal bank, the bank send a bill of lading to us by mail. If we imprint their seal impression on the bill of lading and send it to the crowdfunding company by mail, us send the bill of lading received from us to the shipping company, she send the bill of lading to her company, her company send the bill of lading received from us to her company by issuing a delivery order, and her sending the cargo delivery order to us by her company to her company, she is found to have a spellet to the bonded warehouse company with it.

7. The original bill of lading sent to crowdfunding companies is the original bill of lading attached to the bill of lading transfer contract is a copy of the original copy.

(8) Article 14 of the timber pellets sales contract provides that "the ownership and risk of wood pellets shall be transferred after being loaded in each power plant of a requesting corporation after being loaded in such a power plant", and (9) the liability for civil petitions in the event of the occurrence of liability and dust on the loss of the wood pellets in the course of transportation, and (0) theOO shall provide the requesting corporation with compensation for delay at the latest. The calculation standard for the number of days of delay shall not be until the time of the transfer of the bill of lading, but until the time of the arrival of the power plant.

(11) The fact that things not stated in a bill of lading transfer contract are the final amount of goods, but the price is determined according to the result of analysis at each power plant of the requesting corporation.

(12) Even if wood pellets was transported to the power plant of the requesting corporation, there is a difference in the amount exceeding the tax amount, and the return shall not be paid for the items that have been disposed of once, and the return shall be paid from the requesting corporation and the return shall be issued for the items that have no excess as a result of the analysis except for the items that have been disposed of once.

(13) The Investigation Agency confirmed that “The customs office, in accordance with the bill of lading transfer contract submitted by the Requesting Corporation, deemed the owner at the time of import as the Requesting Corporation and issued the import tax invoice to the Requesting Corporation, but the actual time of transfer of ownership appears to be the time of the final discharge at each power plant of the Requesting Corporation as stated above.”

44. The inquiry of the investigating agency, “The ownership of which is transferred at the time of transfer of a bill of lading under the Commercial Act, is normal, what is the circumstances in which the bill of lading was prepared in which the form and content are different from that of the bill of lading,” was responded to “I know about it and well-known whether the bill of lading was legal review.”

(3) The applicant firm presented a public notice of tender, a bill of lading transfer contract, and a certificate of import declaration, through which each sampling was presented;

① All of the instant timber pellets were imported to be consumed directly for development fuels by the requesting corporation; ② the first public notice was given on the premise that they were imported of wood pellets in a foreign country from the time when the first public notice was given; ③ the said public notice was stated in the purpose of being used for development fuels; ④ the quality and quantity of the wood pellets, as well as the final purpose guidance, and ⑤ the fact of taking over the instant timber pellets in accordance with Article 19(1)1 (c) of the Customs Act, which is the standard for determining importers under the Customs Act, in order to clarify that the importer is an importer, in consideration of the customs practice important in transaction appearance or form. ⑤ Furthermore, the fact of taking over the instant timber pelpellets in a bill of lading and the bill of lading transfer contract entered into a customs procedure as the importer of the instant timber pellets before the import declaration was made. As such, not only the bill of lading transfer contract but also the bill of lading transfer contract were submitted in the process of import clearance, but also the matters to be entered on the certificate of import declaration.

(4) In full view of the above facts and relevant laws and regulations, first of all, the issue ① is the claim that the applicant takes over the wood pellets through the bill of lading transfer contract prior to the import declaration of the wood pellets, and paid customs duties and value-added tax to the importer. However, if the domestic supplier directly negotiates with the exporter and paid the import price, the domestic supplier entered into a contract with the exporter and the importer, entered into the contract with the shipping company and the domestic warehouse after entry into the port, the domestic supplier entered into the contract with the domestic warehouse, the domestic supplier, and the selection of the shipping company. The applicant corporation's delivery of the wood pelpelpellets and the delivery of the wood pelpellets to the domestic supplier's delivery schedule was confirmed by the domestic supplier's burden on the domestic supplier's purchase and sale of the wood pelpellets in light of all risks and quality decrease in the wood pelpelpellets, and the domestic supplier's purchase and sale contract and the actual cost of the gold pelpelpel, not the domestic supplier's purchase and sale contract.

Next, according to the OO investigation report, the claimant corporation received most copies of the bill of lading, and did not receive the shipment shipment by presenting the bill of lading to the crowdfunding company or the carrier. As seen in the key ①, the actual importer of the instant wood pellets, despite being a domestic supplier, was prepared a document different from the substance of the transaction that is the transfer contract of the bill of lading and received the import tax invoice by filing a import declaration to the customs office. Such act constitutes fraud or other fraudulent acts under Article 3(6)2 of the Punishment of Tax Evaders Act, and even if the importer is not an actual importer, it is difficult to accept the request for the issuance of the import tax invoice from the customs office because it constitutes a case where the tax invoice was issued without the supply of goods or services.

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.