Article 76 (5) (main sentence) of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006; hereinafter the same) provides that “In case where a corporation (excluding such corporation as prescribed by the Presidential Decree) is supplied goods or services with an entrepreneur prescribed by the Presidential Decree in connection with its business and fails to receive evidential documents provided for in any subparagraph of Article 116 (2), the chief of the district tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount to the corporate tax, except for the case where the provisions of the proviso of the same paragraph apply.” The main sentence of Article 116 (2) provides that “where a corporation is supplied with goods or services by an entrepreneur prescribed by the Presidential Decree and pays the price, it shall receive and keep evidential documents falling under any of the following subparagraphs at the time of receipt of the tax invoice” under subparagraph 2 of the former Value-Added Tax Act (amended by Act No. 8141 of Dec. 30, 2006).

In light of the language, legislative intent, etc. of the above provisions, a corporation that is supplied with goods or services in relation to the business must receive the evidential documents stipulated in each subparagraph of Article 116(2) of the former Corporate Tax Act (hereinafter “legal evidential documents”) from the “person who actually conducted a transaction of supplying goods or services” (see, e.g., Supreme Court Decisions 96Da48930, 48947, Mar. 28, 1997; 2002Do4520, Jan. 10, 2003); and where a corporation fails to receive the legal evidential documents from “person who actually conducted a transaction of supplying goods or services,” it constitutes subject to additional tax under Article 16(2) of the Act, and it does not change even if the corporation received the legal evidential documents from a person who was not “person who conducted a transaction of supplying goods or services,” who is not “the person who actually conducted a transaction of supplying goods or services.”

According to the reasoning of the judgment of the court of first instance cited by the court below, ① the Plaintiff traded the instant goods from the No. 1 and No. 2004 Co., Ltd. (hereinafter “S.”). ② In order to prevent the Plaintiff’s affiliated companies from being designated as a management item as the annual sales amount of less than three billion won, the Plaintiff received the instant tax invoice from the Plaintiff with the content of supplying the goods, among which the Plaintiff received the instant tax invoice from the business entity, which is a KOSDAQ-listed company (hereinafter “S.”). ③ Accordingly, the Plaintiff cooperates in withdrawing the sales amount of the Vietnam by inserting the Vietnam in the middle of the instant transaction by inserting it on a document, and ③ accordingly, the tax invoice was prepared and issued from the Vietnam-listed company to the Plaintiff, and the Plaintiff received the instant tax invoice with the content of supplying the goods by the Vietnam-listed company to the Plaintiff.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff received not a tax invoice from a seller, etc., who is a “person who actually engaged in the instant transaction of supplying goods,” but only received the instant tax invoice from a ber, who is not related to the instant transaction, and thus, constitutes the subject of penalty tax under the legal provisions of this case.

Nevertheless, the court below held that the disposition of this case, which imposed an additional tax on the plaintiff by applying the legal provision of this case, was unlawful on the ground that although the plaintiff received the tax invoice of this case in the name of the ber, which was included in the middle documents, it cannot be seen as the same as the case where the plaintiff did not receive the legal documents of this case from the ber, although it received the tax invoice of this case in the name of the ber, which was contained in the middle documents. In so doing, the court below erred by misapprehending the legal principles on the imposition of additional tax as prescribed by the legal provision of this case, which affected the conclusion of the judgment

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)