Article 24 (Scope of Export)

Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the delivery or transfer of goods is a delivery or transfer of goods on all contractual or legal grounds." In light of the characteristics of value-added tax as multi-stage transaction tax, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of authority to use and consume goods, regardless of the existence of actual profits (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001; 9Du9247, Mar. 13, 2001; 201; 30.2.6.2. Determination of whether a specific transaction among a series of transactions constitutes the supply of goods as provided for in the Value-Added Tax Act should be made by taking into account all the circumstances such as the purpose and attitude of each transaction, ownership, and payment subject, and payment relationship.

According to the facts duly established by the court below and the record, the plaintiff purchased the gold bullion of this case from two business operators, including ○, Co., Ltd. (hereinafter "the supplier of this case") from August 11, 2003 to September 17, 2004, and received the gold bullion of this case on the date of purchase, and received all of the price (hereinafter "the transaction of this case"), and received 48 tax invoices under this case from the supplier of this case (hereinafter "the tax invoice of this case"). The plaintiff can find the fact that the gold bullion of this case was processed as gold bullion of 24 km or 22 km, or exported them to Hong Kong import. Examining these facts and records in light of the aforementioned legal principles, it is difficult to conclude that the supplier of this case purchased value-added tax at a series of interim transactions from the import and export of the gold bullion of this case, and then constitutes a disguised tax invoice of this case, and thus, it is hard to conclude that the supplier of this case constitutes a taxpayer of gold bullion of this case, which is not subject to value-added tax exemption.

Nevertheless, the lower court determined that the instant tax invoice constituted a disguised tax invoice on the ground that the instant transaction was merely a disguised transaction on the ground that the transaction was included in the entire transaction of the instant case, in which the so-called wide carbon company was opened. In so doing, the lower court erred by misapprehending the legal doctrine on the supply of goods and disguised tax invoices and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

[Seoul High Court 2007Nu29248 (208.02)]

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

A. On April 3, 2003, the Plaintiff is a company established for the purpose of present, precious metal manufacturing, wholesale business, etc. with ○○-dong 243-1, Seoul, ○○-dong, ○○-gu, Seoul, 2003

B. The Plaintiff reported the value-added tax for the second period of 203 as shown in the attached tax invoice No. 1. 36, and the purchase tax invoice for the gold bullion amounting to KRW 10,627,481,000 (referring to gold with a net level of at least 995/1,000 in the status of raw materials, such as gold ingot and dudide; hereinafter referred to as "gold bullion") received from a stock company (hereinafter referred to as "stock") as shown in the attached tax invoice No. 1. 36, and 2, the Plaintiff reported the purchase tax invoice for the first period of 2004, and the amount equivalent to KRW 3,733,532,000 in total, and KRW 9, ③ the purchase tax invoice for the amount of KRW 147,870,00 in total, and KRW 260 in total,00 in each of the above input tax invoice received from each of the above ○○○ (hereinafter referred to as "the above tax invoice").

C. However, the director of the Seoul Regional Tax Office decided that each of the tax invoices of this case does not coincide with the actual seller of gold bullion and the delivery agent of the tax invoice. On September 1, 2005, the defendant notified the defendant of the fact that on September 1, 2005, the defendant did not deduct the input tax amount as to each of the tax invoices of this case for the second period of 2003, the value-added tax of 1,574,238,050 for the second period of 204, the value-added tax of 1,574,238,050 for the second period of 204, the value-added tax of 1,574,238,050 for the second period of 204, the value-added tax of 502,122,710, the second period of 2,962,570 for the second period of 204, and imposed the corporate tax and additional tax for each business year of 2003,406.7.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 and 2, Gap evidence 3-1 through 5, Gap evidence 4 through 24, 39, 30, and Gap evidence 31-1 and 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff is not simply a company supplied for the export of gold bullion, but mainly engaged in the manufacturing business of precious metals at the early stage, and engaged in the export and processing business of the precious metal (gold spons) so as to make it difficult for the business due to the business depression, and it was merely engaged in the export of gold bullion. The plaintiff was normally purchased gold bullion from the 00 ○○oid and then received each of the tax invoices of this case.

In addition, all purchased gold was exported to the importing company of "sunit hyp h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h, Lt h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h, which

(b) Related statutes;

(Supply of Goods)

(Scope of Export)

(c) Fact of recognition;

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to the statements in Gap's evidence of Nos. 32 through 62, 78, and Eul's evidence of No. 2 through 6,8 through 14, and 16 (including evidence with a serial number):

(1) A general form, etc. of an irregular gold bullion transaction for the purpose of tax evasion

(A) According to Article 24(2)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 30, 2002; Presidential Decree No. 17827, Jul. 1, 2003); since gold bullion was not an exception, a gold bullion dealer, etc. may be subject to zero-rate tax rate even if the gold bullion was supplied to gold bullion wholesalers on the basis of the export documents after obtaining a written confirmation of purchase from the head of foreign exchange bank; and the former Restriction of Special Taxation Act (amended by Presidential Decree No. 6762, Jul. 1, 2003; Presidential Decree No. 17829, Jul. 1, 2002; Presidential Decree No. 200350, Jul. 1, 200).

(B) Such abuse of the value-added tax rate or tax exemption system, thereby importing gold bullion and distributing it as zero-rate or tax exemption through multiple stages wholesalers, is converted to the so-called so-called so-called "large Carbon Business" (the company with no economic ability, but with the intention of evading tax, is called "large Carbon Business" because it has discontinued its business with the knowledge of tax burden and discontinued its business), and exports the value-added tax collected by "large Carbon Business" through multiple stages wholesalers, and the so-called "large Carbon Business" in the form of "large Carbon Business," which was refunded the unpaid value-added tax exemption system from around 202 to the precious metal business located in Seoul, especially from around 2002. It is further detailed about the form of "large Carbon Business," which was implemented under the value-added tax exemption system, as follows.

1) On credit, gold bullion is distributed through the stages of 'foreign enterprises' ? importer ? tax-free wholesale ? tax-free wholesale ? tax-free wholesale ? taxation-free wholesale ? taxation-free wholesale ? ? export ? foreign enterprises. The transaction price is paid in sequence from the export company to the import company in the reverse direction, but in particular, the taxable wholesalers issue tax invoices / d tax invoices only when they issue specific persons or specific companies' instructions and do not actually trade or transport gold bullion.

2) After purchasing gold bullion as a tax-free gold and selling it as a tax-free gold, "exploiting company" sells gold bullion with a price lower than the purchase price by withdrawing, concealing, and closing its profit within a short period. However, since the value-added tax added to the value-added tax is higher than the purchase price, and the value-added tax collected by adding the value-added tax is not paid, the difference between the purchase price and the purchase price is expected to be gained. Meanwhile, the value-added tax collected by the "exploiting company" is successively transferred by the method of deducting the input tax by using the tax invoice delivered by the immediately preceding stage company. Accordingly, the exporter's refund from the country after exporting the zero-rate tax rate is a source which is a substantial portion of the value-added tax not paid by the "exploiting company". The ultimate profit is that the domestic company involved in the "exploiting business" is distributed to the domestic company in the form of "exploiting and paying the difference between the export price and the domestic company."

(iii)"Exposure business" shall distribute to the greatest extent possible amount of gold bullions within a short period in order to maximize profits, and shall prevent disputes, loss of proceeds, etc. among the participating companies that may arise therefrom, ① shall operate both the exporting company and the importing company simultaneously, ② shall place the former company directly with the latter (referring to the person who prepares for the first gold bullion from the outside of the carbon business network), ② shall place the former company in direct transactions with the latter, ③ shall determine the volume, unit price, and margin of transactions at each stage of transactions, ④ shall be conducted in a very short time from the former company to the exporting company, ④ shall be transported immediately from the latter to the latter, to the latter (it shall not be a formal transport for the purpose of normal trade even if transportation is conducted at each stage of transactions).

(C) If the head of the competent tax office deems it necessary to preserve the value-added tax as a result of the amendment of the Restriction of Special Taxation Act by Act No. 7322 on December 31, 2004 to prevent tax evasion by the above method, the security system was newly established and implemented on April 1, 2005 that allows gold bullion wholesalers, etc. to request for the provision of security (Article 106-3(11)). Since 2004, gold bullion import volume 268 tons, export volume 23 tons, and export volume 233 tons were reduced to 56 tons of import volume and 19 tons of export volume in 205 that the aforementioned system was implemented.

(2) The details of establishment of the Plaintiff

(A) Park Jong-woo, the representative director of the Plaintiff, was an 1969 student in 19, graduated from ○○ High School, served in the Japanese sales office and the ○○ Commercial Management Division, etc., and from around 1993, he/she served as a business employee in ○○○, ○○, ○○, ○○, and ○○○○, a gold bullion-related business entity, as a gold bullion business entity, and became the representative director of the Plaintiff on April 3, 2003.

(B) According to the Plaintiff’s established capital amounting to 300,000,000 won and the statement of stock change, 105,000 won out of 10,000 won, 75,000 won, 00 won, 00,000 won, 00 won, 00 won, 00 won, 30,000 won, 00,000 won, 00,000 won, which was 0,000, 000 won, was paid to 0,000 won, and 0,000 won, 0,000 won, which was 0, 00 won, was 10,00,000 won, and 0,00 won, 00,00 won, which was 0,00 won, was 10,00,00 won, and 00,00 won, 00,00 won, which was 10,000.

(C) According to each lease contract (No. 62 No. 62-2) submitted by the Plaintiff, the Plaintiff’s office charged approximately KRW 20 of 5,00,000 on a deposit basis with ○○○-dong, Seoul, ○○-dong, 243-○-dong, 240,000 on a deposit basis.

(D) In addition to each of the instant tax invoices, the Plaintiff received money from the Plaintiff over several occasions between ○○ Fund and the instant tax invoices as indicated in the following table:

Table Omission of the Table

In other words, the plaintiff asserts that he himself 24 km or 22 km processing process was conducted, and submitted Gap evidence No. 78 (written request, acceptance certificate, fact-finding confirmation source, and fact-processing details) as evidence related thereto. However, in the case of 193 pages processing confirmation center, the name seal of the representative director of the corporation ○○○○ ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju, under which the name seal of the representative director of the corporation 1021 is affixed, respectively. (2) in the case of a record processing request for the last 1021, the subsequent change between the supplier and the supplied person. (3) In the case of a recording processing principal document for 146 pages, the name seal of the owner, 000, 300 ju ju ju ju 1 ju ju ju ju ju ju ju ju ju ju ju 26, and 126 ju ju ju ju ju ju ju ju ju 26.

(3) Specific details of the instant gold bullion transaction

(A) As indicated below, all gold bullion in each of the tax invoices of this case were imported by the importing company and distributed as tax-free gold, and were converted into tax-free gold, and thereafter, it was transferred to the Plaintiff via the tax-free gold sheet of two to three stages. The Plaintiff processed it with 24K or 22 K gold Sunyph (til November 2003) or the status of gold bullion (after December 2003) in Hong Kong as it was in the status of the gold bullion (after December 2003).

Table Omission of the Table

(B) Of total 48 trades indicated in each of the instant tax invoices, 12 times are completed on December 2, 2003; 9 times are completed on March 3, 2004; and 3 times are completed on September 2004 when the scheduled reporting period of value-added tax for the first time in 2004 expires.

(C) The plaintiff, "Asia gold HK, Ltd", is the name of the Republic of Korea, and its location is the apartment complex of the housing price, and the above representative avoided the passage of the National Tax Service's staff, with face-to-face reasons for not being able to obtain.

(D) At the time of the above tax investigation or in the court of first instance, the heading ○○○○○○○○○○○○○, the representative director of the said ○○○○○○○○○○○○○○○○○○○○○, the Plaintiff stated that the Plaintiff purchased the gold bullion, and that the Plaintiff’s employee brought gold bullion to the Plaintiff, or that the Plaintiff’s employee received gold bullion at the purchasing place. Meanwhile, when the Plaintiff takes out the gold bullion or gold bullion to Hong Kong, the Plaintiff requested transportation to the ○○○○○○○○, five times in total 30 times, and the remainder 25 times was carried out by the Plaintiff’s officers and employees, such as the said ○○○○○○ and ○○○○○○○○○○○. In that case, the Plaintiff returned to the next day

(E) There are cases where gold bullion transport chain ○○S or ○○ Ss are made out of transport lines. However, according to this, it is extremely short time that gold bullion has been transported through various wholesalers from Incheon Airport bonded warehouse, and even as shown below, it is also stated that gold bullion has already been delivered from 'exploitan' to 'exploitan' before it was taken out from 'exploitan', and that it was delivered from 'exploitan' to 'exploitan' before it was taken out from 'exploitan', and that it is also stated that it was delivered from 'exploitan'

Table Omission of the Table

(F) The gold bullion that the Plaintiff carried out to Hong Kong on December 16, 2003 was imported on December 15, 2003, and was confirmed to have been re-imported on the 22th of the same month after the said shipping.

(G) The price reported by the Plaintiff while shipping gold bullion to Hong Kong was always lower than the import price of the gold bullion at all times, and was lower than the supply price (the supply price + the value-added tax) that the Plaintiff paid at the time of purchasing the gold bullion, but was higher than the supply price out of the said supply price.

(h) If ○○○○○○○○○○○○○○○○○ remitted the purchase price to a business entity that is the purchaser, it was immediately remitted in sequential order up to the first tax-free wholesale business entity. In most cases, the Plaintiff, upon ○○○○○○ or ○○○○○○○○○○, remitted the money in the name of ○○○○○○○○○○○○○○○, and subsequently, remitted only part of the purchase price on the same day, and then remitted the money in the name of ○○○○○○○○○○○○○○○○○○○○○○, and then, remitted the money in the name of the export price.

(i) The Plaintiff’s ○○○○ Fund, which is the purchaser of the gold bullion, shall be traded only with a specific customer, and it has been changed from each other every 1 to 12 months. The ○○ Fund, the representative director of the ○○ Fund, was due to the credibility of the reasons for the transaction between the specific customer at the time of the tax investigation on the ○○ Fund, and the fact that the settlement of the price is completed prior to the receipt and transfer of the gold bullion, is conducting a transaction with the credit between the transaction parties. However, the reasons for changing the transaction party from time to time are contradictory to the above, and the reason for changing the transaction party is for changing the transaction party. In addition, the ○○ Fund stated that it is not necessary to record the contact information because the contact information of the transaction party is suggesting at the time of the above tax investigation, but it did not memory only some of the contact information of the companies that are designated as the transaction parties of the ○○ Fund, and it was found that the contact information or memory of the companies recently designated as the major purchasing party.

(j) The tax investigation of ○○○ Fund was conducted from March 14, 2007 to December 17, 2007 (in conclusion, the ○○○ Fund was suspended from indictment due to the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) at the Seoul Central District Prosecutors’ Office on April 17, 2008). From among the enterprises that are being the clients of ○○ Fund, eight enterprises including ○○○○ Fund closed the business during the said investigation period.

D. Determination

Generally, even if there is no direct evidence of the facts requiring taxation, if it can be inferred of the existence of the fact requiring taxation in light of the empirical rule based on the indirect factual basis, etc., even though the burden of proof regarding the facts requiring taxation exists, it shall be deemed that there exists such proof. Therefore, insofar as an indirect fact can be acknowledged in light of the empirical rule in the specific litigation process, unless it is proven that the other party to the disposition imposing taxation is not subject to the empirical rule, or that there are special circumstances that may preclude the application of the empirical rule as above in the pertinent case, it cannot be readily concluded that the pertinent taxation disposition is unlawful (see Supreme Court Decision 2006Du6383, Sept. 22, 2006) and Article 6(1), Article 7(1) and Article 16(1) of the Value-Added Tax Act, and that a person who actually supplied or supplied goods or services constitutes an entrepreneur who did not know of the fact requiring taxation, or who did not know of the fact that he actually supplied or provided goods or services, constitutes a tax invoice or service under the name of the supplier.

In this case, the following circumstances, i.e., (i) the Plaintiff had been engaged in the gold bullion wholesale business at the time of its establishment; (ii) the Plaintiff had been involved in the distribution process of gold bullion; (iii) the price of gold bullion exported to the Plaintiff was lower than the import price of gold bullion; and (iv) the Plaintiff could not avoid losses without refund of value-added tax; (iii) the Plaintiff had been transported to the Plaintiff through various wholesale business entities, even if it appears that the Plaintiff had been actually carried out of the Incheon Airport bonded warehouse for the purpose of supplying gold bullion, and even if it was difficult to find that the Plaintiff had been actually carried out of the Hong Kong, it was difficult to find that the Plaintiff had been actually carried out of the gold bullion, because the Plaintiff had been actually carried out of the gold bullion wholesale business at the time of its establishment.

Therefore, the disposition of this case based on the premise that each of the tax invoices of this case falls under the category of the 'listed tax invoice' is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.