Article 21 of the Value-Added Tax Act [Determination and Correction]

2. The costs of lawsuit shall be borne by the Plaintiff.

A. From August 31, 1992, the Plaintiff operated the retail business of ○○○○ in the name of ○○○○, Seoul, ○12 Dong ○6-4, ○6-4, and the Plaintiff received tax invoices from ○○○○ Co., Ltd. (hereinafter referred to as “○○○○”) for the total amount of 104,270,069 won for the purchase of gold bullion from 104,270,000 won for the first half year, 201, 14,681,104 won for the second half year, 202, 202, 202, 208, 49, 206, 2036, 205, 2036, 205, 201, 306, 205, 205, 306, 205, 206, 2005.

B. On February 1, 2007, the Defendant issued a tax invoice issued by the Plaintiff from ○○○, on the ground that all of the instant tax invoices were false tax invoices for which no real transaction exists, and notified the Plaintiff of the correction and notification of value-added tax as stated in the Plaintiff’s claim (hereinafter “instant tax disposition”).

C. On June 27, 2007, the Plaintiff appealed to the National Tax Tribunal, but was dismissed on September 28, 2007.

[Ground of Recognition] Facts without dispute, Gap 1, 14, 15, 15, Eul 1 through 7 (including these numbers), the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

○○○ is a so-called data form that issues a processed tax invoice upon receiving a certain fee without a real transaction. However, since the Plaintiff actually traded the instant tax invoice between the Plaintiff, each of the instant dispositions, based on the premise that the instant tax invoice transaction is a processed transaction, is unlawful.

(b) Related statutes;

[Valued Tax]

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter

1. The high-quality tax amount for goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

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;

Article 21 (Settlement and Correction)

(1) The Commissioner of the National Tax Service or the Commissioner of the National Tax Service of the competent regional tax office having jurisdiction over the place of business shall determine or correct the tax base and amount of value-added tax paid or refunded during the relevant taxable period

3. Where, in the final tax return, the list of the total tax invoice by buyer or the list of the total tax invoice by customer or the list of the total tax invoice by customer submitted is not entered or entered differently from the fact.

(c) Fact of recognition;

1) Although ○○○ is the representative of business registration’s name, the actual representative was lighting○○ (from January 16, 2001 to July 2, 2002) and Kim○ (from July 2, 2002 to July 2, 2002).

2) As a result of the Seoul Regional Tax Service’s investigation on data on ○○○○’s sales revenue amounting to KRW 127,081,081,127,397 (2,762 companies, sales tax invoices 24,852) out of the total sales revenue amount of KRW 257,79,00,00 from the first half of the year 2001 to the first half of the year 2004, 00, 127,081,127,397 (24,852) was processed tax invoice, and 62,732,92,178 won was the processed credit card sales slip (73.6% of the processed sales ratio). Of the sales tax invoice issued, KRW 47,951,00,000,000, an employee of ○○○○ was disposed of in the name of the transaction partner of ○○○, or received the remainder of the processed sales transaction from 3%.

3) At the time of investigating data on ○○○○○’s employee affiliated with the Seoul Regional Tax Service, Kim○ confirmed the instant tax invoice as a processing transaction without real transaction.

4) ○○○ and ○○○ were subject to criminal punishment on the grounds that he actually issued processed sales tax invoices while operating the ○○○○○○○○ and the instant tax invoices were included in the facts constituting the crime of the final conviction judgment against the Seoul Western District Court Decision 2004Gohap368, 2005Gohap368, 2005Gohap2, 42, 49 (Joint) Seoul Western District Court (Seoul Western District Court Decision 2006No62, 2006Do7681), 2006Do7681).

5) The Plaintiff: (a) from its own account to ○○○○○; (b) on September 10, 2002, KRW 1,049,90 on September 18, 2002; (c) KRW 5,148,500 on November 18, 2002; (d) KRW 3,082,70 on November 20, 2002; and (e) KRW 12,147,100 on February 10, 203; and (e) on account transfer, the Plaintiff released KRW 12,86,000 on cash or check as indicated in the separate sheet. Moreover, it is unclear whether cash or check was paid to ○○○○○.

6) From June 2001 to June 2004, the Plaintiff paid the processing fee of KRW 800 to KRW 1,200 and KRW 1800 to ○○○○ engaged in gold industry with the trade name of ○○○○○dong in Seoul, ○○-gu, and received the processing of KRW 1800 to ○○○, etc. Around the same period, nine gold and nine gold and other ○○○○○ engaged in a gold business, including ○○○, processed a total of KRW 2,325gs of net gold for the same period.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 2, 3, 7, 8, 9, Eul evidence Nos. 8 through 11 (including paper numbers), the purport of the whole pleadings.

D. Determination

1) The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority, and the defendant must prove that the tax invoice is not accompanied by real transactions, based on direct evidence or all the circumstances. However, if the defendant proves that the tax invoice is not false and that it is not accompanied by real transactions, it is necessary to prove that it is consistent with his/her own assertion in view of the position in which it is easy to present evidence and materials related to the plaintiff, who is the taxpayer disputing the illegality of the defendant's disposition, who is the taxpayer.

In addition, even if a criminal trial is not bound by the fact-finding in a criminal trial, the facts that have been established as the criminal trial for the same factual basis are sufficiently binding evidence. Therefore, in light of other evidence submitted in the administrative trial, the facts inconsistent with this cannot be acknowledged unless there are special circumstances where it is deemed difficult to adopt a criminal trial for the determination of facts in light of other evidence (see Supreme Court Decisions 97Da24276, Sept. 30, 1997; 98Du10424, Nov. 26, 199).

2) On the other hand, as recognized above, ○○○○○ issued the instant tax invoice without real transaction to the Plaintiff. As acknowledged earlier, the Plaintiff transferred 12,147,100 won in total from ○○○○ Account to ○○○○○○○○○○○ account, including sponsoring fees, to ○○○○○. Moreover, the Plaintiff withdrawn from the said account by cash or check as indicated in the separate sheet, but the amount of cash or check withdrawn from ○○○ account before and after the date of the transaction on the instant tax invoice differs from the amount of the supply price on the instant tax invoice, and there is no evidence to acknowledge that the amount was actually paid as purchase price, and even if the Plaintiff transferred ○○○○○○○○○ KRW 5,00 from the actual account, ○○○○○ KRW 7,147,100, a total of the purchase price on the instant tax invoice to ○○○○○○○ account was no more than the amount of the purchase price on the instant tax invoice.

3) Therefore, the tax invoice of this case received by the Plaintiff is received without real transaction. Accordingly, the Defendant’s correction of the Plaintiff’s value-added tax return and its notification should be lawful. The Plaintiff’s objection to this is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.