Article 21 (Rectification of former Value-Added Tax Act)

2. 40% of the total litigation costs is assessed against the Plaintiff, and the remainder 60% is assessed against the Defendant, respectively.

The Defendant’s disposition of imposition of KRW 18,586,390 for the business year 200, KRW 25,085,960 for the business year 200, KRW 25,00 for the second period of 200, KRW 12,54,00 for the second period of 200, KRW 9,358,250 for the first period of 200, KRW 7,67,310 for the second period of 201, and KRW 9,358,250 for the second period of 201, and KRW 7,67,310 for the second period of 201 for the second period of 201.

The first instance court dismissed the Plaintiff’s claim, and the first instance court accepted the Plaintiff’s appeal and revoked the judgment of the first instance court and accepted the Plaintiff’s claim in full. The Defendant’s appeal is dismissed with respect to the part against the Defendant seeking the revocation of the disposition imposing corporate tax and value-added tax as to the part against the Defendant seeking the revocation of the disposition imposing corporate tax as to each of the above dispositions and then reversed the part against the Defendant seeking the revocation of the disposition imposing value-added tax. Accordingly, the part seeking the revocation of the disposition imposing corporate tax among the Plaintiff’s claim was finalized in favor of the Plaintiff

Therefore, only the part of the claim of this case seeking revocation of the disposition imposing value-added tax is subject to this Court's judgment.

2. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence Nos. 1, 1, 2, 2-1 through 5, 4-8, 9, 11, 5-7, 8, 11, and 6-5, 7-3, 8-4, 6, 16-1, 12, 21-1, 21-1, 2-1, 1-3, 2-1, 2-1, 2-2, and 2-1, 1-1, 1-3, 2-2.

A. The Plaintiff, a company established for the purpose of manufacturing and selling ○ drugs, and prevention of pollution preventive facilities, etc., shall include the supply value of KRW 172,70,00,00 in the tax invoice of KRW 172,70,00 in the deductible expenses of the corporate tax base for each corresponding year (hereinafter collectively referred to as the “instant tax invoice”) in the aggregate of the supply value prepared and received from ○○ Industry (representative Kim ○), established for the purpose of manufacturing machinery, gold-type, steel structure, etc. (hereinafter referred to as the “representative”). The Plaintiff deducted the total value of KRW 17,270,00 in the deductible expenses of the corporate tax base for each corresponding year from the input tax amount for each corresponding year, and reported and paid the Defendant the tax base and tax amount for the second period of 200, 201,

나. 피고는 2003.10.6. 원고에게, 동대구세무서장으로부터 이 사건 세금꼐산서는 실물거래 없이 작성･교부된 가공의 세금계산서라고 통보받았음을 이유로, 이 사건 세금계산서에 관한 부가가치세 상당의 매입세액을 불공제하여 산출한 부가가치세액에 가산세를 합한 금액에서 원고가 위와 같이 자진납부한 세액을 공제한 금액으로서 2000년 제2기분 부가가치세 12,544,000원, 2001년 제1기분 부가가치세 9,358,250원 및 2001년 제2기분 부가가치세 7,677,310원을 각 경정･고지하였다(이하 이 사건 처분이라고 한다)

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was awarded a contract for construction of wastewater and air preventive facilities from ○○ Trade, ○○ Salt, ○○ Construction, and ○○ ○○○ Construction, and the construction of the steel structure, which is part of which, in its business registration, had been conducted by giving a subcontract for the construction of the steel structure to the requesting industry that was substantially operated by Kim ○○ Construction, which is its representative. Accordingly, the instant tax invoice was deemed unlawful in the instant disposition that the Plaintiff paid the above subcontract price to ○○ Industry and received it from the requesting industry, but it was deemed as the processing tax invoice. Although the entire tax invoice of the instant case cannot be deemed as a real transaction, the instant disposition that the Plaintiff received a subcontract from ○○ Construction, which is objectively apparent from ○○○, and objectively apparent from ○○ industry, should be deducted as the input tax amount, and thus, the instant disposition was unlawful within the scope of the instant disposition, and even if the Plaintiff did not know the fact that the Plaintiff did not know of the instant tax invoice or the instant tax invoice even if the instant tax invoice was actually supplied.

(b) Related statutes;

Article 17 (Payable Tax Amount)

Article 21 (Rectification of former Value-Added Tax Act)

(c) Fact of recognition;

The following facts are acknowledged in full view of the parties' evidence Nos. 3, 4-3, 7-4, 6, 2-1, 3-2, 3-1, 10, 11-1, 15, 16-1, 2-3, 7-4, 6, 21-2, 3-2, 3-3, 4-1, 5, and 7-1, 2, 3, 8-1, 10, 11-1, 2, 3, 15, 16-1, 2, 3-2, 3-3, and 3-1, and 16-1, 3-1, and 16-1, 3-1, and the results of the fact inquiry by the court of first instance to the head of the tax office at the same time.

(1) On October 25, 200, the Plaintiff submitted to the Defendant a tax invoice of KRW 38,50,000 (the total value of KRW 35,00,000 + value-added tax + KRW 3,500,000) out of the tax invoice of this case, each of the aggregate of KRW 1,000, KRW 270, KRW 1,000 (the total value-added tax amount of KRW 3,50,00, KRW 205, KRW 200, KRW 205, KRW 1,000, KRW 205, KRW 205, KRW 200, KRW 205, KRW 200, KRW 1,000, KRW 205, KRW 205, KRW 4,000, KRW 205, KRW 5,0000, KRW 205, KRW 205,305, etc., of the tax invoice of this case

(2) 동대구세무서장은 2002.9.경 ○○산업에 대한 세무조사 결과 대표자인 김○주가 이 사건 세금계산서를 포함하여 2000년 제2기분부터 2001년 제2기분까지 부가가치세 예정 및 확정신고를 하면서 제출한 매출세금꼐산서 합계 39장 등이 모두 실물거래 없이 작정･ 교부된 가공의 세금계산서로 조사되자, 2002.9.23. ○○산업의 대표자인 김○주가 2000.9.20.부터 2002.4.22.까지 사이에 실물거래 없이 이 사건 세금계산서를 포함한 허위의 세금계산서 39매 공급가액 합계 653,217,000원 상당을 교부하여 거래상대방으로 하여금 부가가치세 매입세액을 부당공제 받게 하였음을 이유로 김○주를 대구지방검찰청에 조세범처벌법위반 혐의로 고발하였고, 2002.10.1. ○○산업이 동대구세무서장에게 이미 신고한 부가가치세 2000년 제2기분 및 2001년 제1, 2기분의 각 부과처분을 0원으로 경정하였다.

(3) 김○주는 조세범처벌법위반 혐의로 수사기관에서 조사를 받을 당시 자신이 ○○산업의 대표자로서 사업자등록일부터 폐업일 무렵까지 ○○산업을 운영하면서 실제로 제조 및 기계부품 제조업 등의 사업을 영위한 적이 없어 실물거래로 인한 세금계산서를 발행한 적이 없고, 이 사건 세금계산서를 포함한 39매를 허위의 세금계산서를 실물거래 없이 각 거래처에 교부하였다고 수사기관에서 진술하였으며, 그 후 2001.1.경부터 2002.1.일자불상경까지 실제로 재화 또는 용역을 공급한 사실이 없으면서도 마치 실제로 각 세금계산서에 기재된 공급가액 상당의 재화 또는 용역을 공급한 것처럼 기재한 ○○산업 명의의 허위의 세금계산서를 가공매입자료를 필요로 하는 사람에게 대가를 받고 판매하는 방법으로 이 사건 세금계산서를 포함한 허위의 매출세금꼐산서 39장 공급가액 합계액 663,214,780원을 교부하였다는 공소사실로 기소되어, 2003.1.23. 대구지방법원 2002고단8902호 조세범처벌법위반 사건에서 위 범죄사실이유죄로 인정되어 징역 8월, 집행유예 1년의 형에 처한다는 판결을 선고받았고, 위 판결은 그 무렵 확정되었다.

(4) However, in the registration of the business of the ○ industry, the representative is Kim ○, but in fact, Kim ○, his father, who is his father, was a bad credit holder, and was an enterprise that had registered and operated the business in the name of the infant on September 26, 200.

D. Determination

(1) In a lawsuit seeking revocation on the grounds of illegality of taxation, the tax authority bears the burden of proving the legality of disposition and the existence of the requirement of taxation. The burden of proving the input tax amount deducted in calculating the value-added tax is, in principle, the tax authority. However, barring any special circumstance where a business operator and a supplier under a tax invoice enter all or part of the necessary entry items under Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 7007 of Dec. 30, 2003) differently from the fact, the input tax amount cannot be deducted or refunded unless there is any negligence on the part of the person who was supplied with the information that he was unaware of the fact that the person was unaware of the above nominal name (see, e.g., Supreme Court Decisions 94Nu13206, Mar. 10, 1995; 202Du2777, Jun. 28, 2002).

(2) Regarding the instant case, as seen earlier, there is no evidence to acknowledge that there is no negligence on the part of the Plaintiff on the part of the actual supplier and of the supplier on the tax invoice, since it is apparent that the instant tax invoice constitutes another tax invoice.

Rather, according to the evidence Nos. 3, 4-2 through 9, 13, 14-5, 21-1, 2, and 29-1, 21-2, 14-1, 2, 14-2, 2, 14-2, 3, 4-1, 7 of the first instance trial witness Kim Il-young, Kim Il-young's testimony before remand, 30-1, 7 of the first instance trial court's fact finding that the plaintiff was awarded a contract for construction of 0, 40 , 00 , 00 , 7 of the first instance trial court's fact that the construction of steel structures and air preventive facilities, which are some of the above 0 , was ordered to be implemented by Kim Jong-young, 00 , 7 of the first instance trial court's construction work price, and 9 of the first instance court's construction price that the plaintiff was ordered to issue 00 ,000 ,000 ,05 of the other construction price.

(3) Therefore, since the input tax amount based on the instant tax invoice cannot be deducted or refundable, the instant disposition based on such premise is lawful.

4. Conclusion

Therefore, the part seeking revocation of the disposition of value-added tax, which is premised on the illegality of the disposition of this case, among the plaintiff's claim, shall be dismissed as it is without merit. Since the part seeking revocation of the disposition of value-added tax in the judgment of the court of first instance is legitimate, the plaintiff's appeal is dismissed as it is so decided as per Disposition (this part of the judgment of the court of first instance concerning the claim for revocation of the disposition of imposing value-added tax, which became final and conclusive by the dismissal of appeal, did not pass a trial as to the cost of lawsuit as to the part seeking revocation