Seoul High Court 2007Nu16853 (Law No. 24, 2008)

Whether the transaction constitutes a false tax invoice different from the fact related to gold bullion

A series of transaction processes until gold bullion, etc. are imported and exported within one to two days, and even if there is a transaction of a so-called wide coal supplier at the middle stage, it is difficult to deem that the tax invoice in this case constitutes a different tax invoice from the actual supplier.

The contents of the decision shall be the same as attached.

The part on imposition of value-added tax is reversed, and that part of the case is remanded to Seoul High Court.

The defendant's appeal is dismissed.

We examine the grounds of appeal.

1. Plaintiff’s ground of appeal

In the imposition of value-added tax, the burden of proving that a tax invoice received in the course of a certain transaction constitutes a "tax invoice different from the fact prescribed in Article 17 (2) 1-2 of the Value-Added Tax Act, where the deduction of the input tax amount is denied on the ground that the specific transaction is a nominal transaction without actual delivery or transfer of goods (see, e.g., Supreme Court Decisions 92Nu2431, Sept. 22, 1992; 2005Du16406, Apr. 14, 2006). According to the reasoning of the lower judgment and the record, the Plaintiff purchased the tax invoice through 78 times from August 21, 2003 to December 11, 2004 from the Hong Kong, Inc., ○○○, Inc., Ltd., ○○○, Inc., ○○○, Inc., ○○○○, etc., to receive the price of gold bullion from each other on the date of purchase.

Therefore, even if a series of transaction processes until the gold bullion, etc. is imported and exported, as shown in the records, are conducted within 1-2 days, and the transaction of the so-called company's trade, i.e., gold bullion exempted from value-added tax, was purchased and supplied to a person who did not obtain a recommendation for tax exemption, and the tax invoice was prepared and issued, and the amount equivalent to value-added tax was not paid, as long as it cannot be readily concluded that the transaction of this case, one of the series of transaction processes, is merely a nominal transaction for the purpose of disguised the so-called trade into actual transaction, it is difficult to deem that the tax invoice of this case received through the transaction of this case constitutes a "tax invoice different from the fact entered differently from the actual supplier on the invoice."

On the other hand, the court below determined that the disposition of this case imposing value-added tax on the premise that the tax invoice of this case constitutes "unlawful tax invoice" was lawful. In so determining, the court below erred by misapprehending the legal principles on "supply of goods" and "tax invoice different from the facts", which affected the conclusion of the judgment. It is obvious that the ground of appeal pointing this out has merit.

2. As to the Defendant’s ground of appeal

Articles 76 (5) and 116 (2) 2 of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006) provide that "in case where a corporation is supplied goods by a businessman in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act, the chief of the district tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount to the corporate tax," and Article 16 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006) provides that "where an entrepreneur registered as a taxpayer supplies goods, he shall deliver a tax invoice stating the registration number and name of the supplier, the registration number of the recipient, the value of supply, value-added tax amount, etc. to

As seen earlier, so long as the instant tax invoice received pursuant to Article 16 of the former Value-Added Tax Act cannot be deemed to be a lawful tax invoice, the instant tax invoice cannot be deemed to be a legitimate tax invoice. Thus, the disposition imposing the corporate tax of this case on the premise that the instant tax invoice is a “unlawful tax invoice” is illegal.

The judgment of the court below on the same conclusion is just, and there is no error in the misapprehension of legal principles as to the relevant provisions of the Corporate Tax Act that affected the decision.

3. Conclusion

Therefore, the part of the judgment below on the imposition of value-added tax is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices