실물거래를 수반한 매입세금계산서인지 여부 (별정통신사업)[국승]
Whether it is a purchase tax invoice accompanied by real transactions (special category telecommunications business)
The transfer of the business by the non-party company to the plaintiff company does not constitute the supply of goods as a taxable transaction under the Value-Added Tax Act, or it cannot be deemed that there was an actual transaction exceeding KRW 200 million, which
Article 6 (Supply of Goods)
[Seoul High Court Decision 2006Nu28484, August 28, 2007]
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant's disposition to correct the value-added tax of KRW 297,882,350 against the plaintiff on April 12, 2005 shall be revoked.
The court's explanation concerning this case is the same as the reasoning of the judgment of the court of first instance, and thus, it refers to Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.
Suwon District Court 2006Guhap287 ( October 25, 2006)
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition to rectify value-added tax of KRW 27,882,350 against the Plaintiff on April 12, 2005 is revoked.
1. Details of the disposition;
A. The Plaintiff Company is a corporation that operates a special category telecommunications business on January 5, 2004. The Plaintiff Company received the tax invoice on January 6, 2004 (total supply price of KRW 2,015,683,692; hereinafter “instant tax invoice”) and the tax invoice on May 10, 2004 and two tax invoices (total supply price of KRW 350,000,000,000, hereinafter “instant tax invoice”) on June 30, 2004 to purchase facilities, equipment, etc. from the company ○○ Industry Development (hereinafter “the representative director at the time”), and filed a return on the input tax amount for the period of one year in 2004.
Date of Preparation
Category
Value of supply (cost)
Total (won)
January 6, 2004
X-cellel exchange equipment other than exclorceors
1,384,306,692
2,015,683,692
“”
Customer DB Program other than customer DB program
349,930,000
“”
Linked Link outside
200,379,000
“”
Offices and equipment (book)
81,050,000
May 10, 2004
goodwill (including customers, agencies)
280,000,000
350,000,000
June 30, 2004
goodwill (including customers, agencies)
70,000,000
B. The head of ○○○ Tax Office notified the Defendant of the taxation data that there is a suspicion of processing each of the instant tax invoices. The Defendant deemed that only KRW 200 million out of the supply value of the instant business license is a real transaction, and thus, recognized and deducted the input tax amount as an input tax amount. The entire supply value of the instant tax invoice for facilities and equipment and the remainder of the supply value of the instant business license tax invoice is deemed not to have been actually traded, and thus, issued the instant disposition against the Plaintiff Company on April 12, 2005 without deducting the input tax amount as an input tax amount.
(In fact that there is no dispute, Gap1 interest, Eul evidence 1, Eul evidence 7-1, Eul evidence 7-2, Eul evidence 8-1, and the purport of the whole pleadings.
2. Whether the disposition is lawful;
A. The plaintiff's assertion
The instant disposition is unlawful on the following grounds.
(1) Although each of the instant tax invoices is not the actual transaction items but the input tax amount should be deducted, the instant disposition denied the input tax deduction.
(2) Even if the Plaintiff Company’s transfer of business including all assets and goodwill from Nonparty Company, if the Defendant recognized KRW 200 million of the supply price of the instant business title tax invoice as the input tax amount, the entire supply price of the instant tax invoice for facilities and equipment and the remaining supply price of the instant business title tax invoice should be deducted as the input tax amount. However, the instant disposition denied input tax deduction.
B. Relevant statutes
○ Value-Added Tax Act
Article 6 (Supply of Goods)
(6) Any of the following subparagraphs shall not be deemed the supply of goods:
2. Transfer of business as prescribed by the Presidential Decree: Provided, That this shall not apply in case where an entrepreneur delivers a tax invoice under Article 16, and as prescribed by the Presidential Decree.
○ Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930, Feb. 9, 2006)
(2) For the purpose of the main sentence of Article 6 (6) 2 of the Act, the term “day prescribed by the Presidential Decree” means comprehensively succeeding to all rights and obligations with respect to the business to each place of business (including the case of division meeting the requirements under Article 46 (1) of the Corporate Tax Act, but excluding the case where a general taxable person transfers the business to a simplified taxable person). In this case, even if a general taxable person succeeds to the business without including those falling under any of the following subparagraphs among the rights and obligations with respect to the business, it shall be deemed that the relevant
1. The amount receivable;
2. A document concerning accounts payable;
3. Land, buildings, etc. not directly related to the relevant business as prescribed by the Ordinance of the Ministry of Finance and Economy.
(3) For the purpose of the proviso of Article 6 (6) 2 of the Act, the term “cases as prescribed by the Presidential Decree” means the case where the tax amount collected by the transferor of business under Article 15 of the Act is returned and paid under Article 18 or 19 of the Act.
C. Determination
In light of the purport of the facts stated in Gap 4, 5, Eul 2's evidence and 2, the non-party 2, the representative director of the plaintiff company, acquired the non-party 2's business from the non-party 2, the representative director of the non-party 1 to conduct the specific telecommunications business, and changed the name of the non-party 4 to the ○○ Industrial Development Co., Ltd. on August 9, 2003, the non-party 2, which included the non-party 2's sales revenue from the non-party 1's account transfer of the non-party 2's business, and the non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 3's non-party 2's non-party 2's non-party 2's non-party 2's non-party
Therefore, the non-party company's transfer of its business to the Plaintiff company does not constitute the supply of goods, which are taxable transactions under the Value-Added Tax Act, or it cannot be deemed that there was a real transaction exceeding KRW 200 million, which recognized the Defendant to deduct the input tax amount. Thus, the disposition of
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.