[부가가치세부과처분취소청구사건][하집1984(2),617]
Whether an additional tax under Article 22(1) of the Value-Added Tax Act may be imposed on a real entrepreneur who has registered his/her business in disguised manner with the nominal owner (negative)
The additional tax under Article 22 (1) of the Value-Added Tax Act has the nature of administrative punishment as to the failure of the entrepreneur to perform the duty of registration by seeking the evasion of the value-added tax. Therefore, even if the real entrepreneur is confirmed after issuing the registration certificate after the issuance of the registration certificate to the nominal entrepreneur, it cannot be deemed as impeding the smooth operation of the value-added tax by seeking a disguised business operator’s name for the evasion of the value-added tax, unlike the case of failure to apply for the registration from the beginning
Article 17 (2) 5 of the Value-Added Tax Act, Article 22 (1) of the Value-Added Tax Act
Plaintiff
Head of the tax office
The disposition of imposition of value-added tax for the second term portion in 1977, which the Defendant imposed on the Plaintiff on December 18, 1981, of KRW 806,941, KRW 1,873,121, and KRW 941,815 for the second term portion in 1981 shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
The facts that the defendant issued the disposition of this case against the plaintiff on December 18, 1981 include Gap evidence 2, Gap evidence 3, Gap evidence 4-1, 8, 9, Gap evidence 7-2, 3, 4, Eul evidence 1, 2, 9, Eul evidence 10, 12-1, 2, 7 evidence 18, 13-2, Eul evidence 14-3, Eul evidence 14-14-2 (excluding the part which is not trusted after the above evidence 7-17 and 18-18-2), and the purport that the plaintiff's business registration certificate under the provisions of Article 17-1 of the Value-Added Tax Act was not delivered to the plaintiff on the ground that the plaintiff's business registration certificate under the provisions of Article 17-1 of the Value-Added Tax Act was not established within the time limit of 5,000,000
However, the plaintiff's legal representative asserts that the above disposition is unlawful, so the value-added tax shall be imposed on the supply of goods or services, and the import of goods. Article 6 (5) of the Value-Added Tax Act provides that the truster or the principal directly supplies or is supplied with goods in the case of sale on consignment or by an agent. Article 2 (1) of the same Act provides that the truster or the principal shall be the person who independently supplies goods or services, and Article 5 (1) of the same Act provides that the new entrepreneur shall register the business with the Government within 20 days from the date of commencement of the business under the conditions as prescribed by the Presidential Decree, since Article 7 (1) of the Enforcement Decree of the same Act provides that the actual entrepreneur who wishes to register his business under the name of the original entrepreneur under the name of the latter is liable to pay the value-added tax, and the date of commencement of the business or establishment of the place of business under the name of the latter is not liable to pay the value-added tax, and the actual entrepreneur shall submit the tax invoice under the name of the original entrepreneur under the name of the latter.
Therefore, the defendant's objection disposition imposing additional tax on the plaintiff who did not make a business registration as a real business operator (However, according to each evidence of this case, in determining the value-added tax for the same taxable year as the disposition of this case, the plaintiff's business registration was made and the amount of tax calculated by deducting the input tax from the same amount can be recognized as illegal) is illegal. Thus, the plaintiff's claim for objection is justified, and the litigation cost is assessed against the losing party.
Judges Kim Jae-chul (Presiding Judge) Kim Jong-chul's disease