Value-added tax paid by a business operator supplied with copper scrap, etc. pursuant to the special provisions on payment by the purchaser shall be deducted by the supplier.

The fact that the amount of value-added tax paid by the business operator supplied with copper scrap, etc. pursuant to the special provisions on the payment of purchaser shall be deducted from the amount of tax or added to the amount to be refunded.

Article 106-9 (8) of the Restriction of Special Taxation Act

2017Guhap63116 Demanding revocation of Refund of Value-Added Tax

OO

O Head of tax office

oly 17, 2017

oly 31, 2017

1. A value-added tax of 20O.O.O. for the first time, 2015 that the Defendant had against the Plaintiff;

The rejection disposition taken to seek a refund shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is engaged in wholesale and retail business, such as scrap iron and scrap scrap, with the trade name of “AAAA” at OO-O-O in O-dong O-O. The Plaintiff reported and paid the value-added tax for the first quarter of 2015 in relation to the said place of business.

B. In 200O.O.O. Plaintiff issued the processing tax invoice to the transaction partner during the first taxable period in 2015 (hereinafter “instant transaction”), the Defendant corrected all of the input tax amount, the input tax amount, and the value-added tax OO(the amount less than 10 won out of the tax amount is included; hereinafter the same shall apply) paid by the Plaintiff as described in the above paragraph (a) as zero won, and imposed and notified an OO of the additional tax in good faith on the tax invoice (hereinafter “instant disposition”).

C. The Plaintiff filed a claim for correction to the effect that, if the instant transaction is the most recent transaction to the Defendant, the amount of tax equivalent to the value-added tax already paid by the Plaintiff should be refunded to the Plaintiff (i.e., the value-added tax amount paid - the additional tax amount for failure to perform the tax invoice - the amount of tax for failure to perform the tax invoice; hereinafter referred to as “market tax amount”). However, the Defendant issued a disposition rejecting the Plaintiff’s claim for correction (hereinafter referred to as the “instant rejection disposition”).

D. The Plaintiff filed an administrative appeal with the Intellectual Property Tribunal for the revocation of the instant disposition on the grounds that the instant disposition was not the most recent transaction, and the revocation of the disposition on the grounds that the instant disposition was not the most recent transaction. However, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on the grounds that the instant disposition on the grounds that the instant disposition on the transaction constitutes the most recent transaction (hereinafter referred to as “the first administrative appeal”).

E. In addition, the Plaintiff filed an administrative appeal with the Tax Tribunal for the revocation of the instant rejection disposition on the grounds as described in Paragraph (c) above, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on the grounds that the Plaintiff did not have any infringement of rights or interests due to the instant rejection disposition (hereinafter referred to as “after-sale administrative appeal”) inasmuch as Article 106-9(2) of the Restriction of Special Taxation Act provides that the person who actually paid the value-added tax for which the Plaintiff seeks to return is the purchaser who is not the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 4 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

Since the value-added tax paid by the purchaser pursuant to the special case of payment by the purchaser under Article 106-9 of the Restriction of Special Taxation Act should be deducted from the payable tax amount by the purchaser, the disposition of this case rejecting the Plaintiff’s request for correction on the ground that the person who actually paid the value-added tax on the issues

3. Determination as to the defendant's defense prior to the merits

(a) a defense that the infringement of rights or interests was not caused;

1) The defendant is not the actual payer of the value-added tax for which the plaintiff seeks return, but the plaintiff's purchaser. Thus, the plaintiff cannot be viewed as a person whose rights or interests have been infringed due to the disposition of refusal of this case, and therefore, the lawsuit

2) The main sentence of Article 45-2(1) of the former Framework Act on National Taxes stipulates a tax base return by the statutory due date of return.

In any of the following cases, the withdrawing person may request the head of the competent tax office to determine or correct the tax base and amount of national tax for which the initial return or revised return was filed within five years after the statutory due date of return elapses, and subparagraph 1 of Article 1 provides that "if the tax base and amount of tax recorded in the return of tax base (where any determination or correction is made pursuant to tax-related Acts, referring to the tax base and amount of tax after such determination or correction is made) exceed those to be

3) Examining the case, the Plaintiff filed each tax base return on the value-added tax for the first term of January 2015 within the statutory due date of return stipulated under the Value-Added Tax Act, and filed a request for correction of the tax base and amount on the tax base and amount on the tax base filed within the period of filing a request for correction under Article 45-2(1) of the Framework Act on National Taxes. The fact that the Defendant rendered the instant refusal disposition rejecting the Plaintiff’s request for correction is either disputed between the parties or as seen earlier, and therefore, the Plaintiff is deemed to be the person entitled to the request for correction under Article 45-2(1) of the Framework Act on National Taxes, and thus, the Plaintiff

(b) Defenses that they did not go through legitimate pre-trial procedures;

1) The Defendant did not institute an administrative litigation within the legitimate filing period even though the Plaintiff received a dismissal decision from the Tax Tribunal in the preceding administrative appeal, and again rejected the instant case.

A subsequent administrative appeal seeking the revocation of disposition, which received a decision of dismissal, and the lawsuit of this case was filed, which asserts that the lawsuit of this case is unlawful as it re-claims the contents already finalized by the Do of the filing period.

2) A lawsuit claiming illegality of a taxpayer’s taxation disposition itself and the former Framework Act on National Taxes (hereinafter “former Framework Act”).

12. According to Article 45-2 (1) 1 of the Act on 20. 20, a lawsuit disputing the illegality of the disposition of rejection after filing a request for correction of the amount of excess tax of the original disposition is different from the subject matter of the lawsuit, and in light of the language and text of the provision on a request for correction of reduction and the purport of the system on a request for correction of reduction, etc., a taxpayer who has filed the tax base return within the statutory due date of return may file a request for correction of reduction within five years after the statutory due date of return expires, regardless of whether the tax base and tax amount after correction of the tax authority exceeds the tax base and tax amount to be reported under the tax-related Acts on the subsequent disposition of correction of increase (see, e.g., Supreme Court Decision 2007Du10792, Oct. 29, 2009).

3) According to the purport of evidence Nos. 1, 2, and 4, the Plaintiff filed an administrative appeal with the Tax Tribunal for the revocation of the instant disposition and the preliminary appeal for the refund of value-added tax, on the grounds that the instant transaction was not the most fictitious transaction. However, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim without determining the conjunctive claim by 20O.O.O.O.O.O.O., and the Plaintiff filed an administrative appeal for the revocation of the instant disposition, but the Tax Tribunal rejected the Plaintiff’s claim by 20O.O.O.O.O., the Plaintiff filed an administrative appeal with the Tax Tribunal for the revocation of the instant disposition.

4) Examining the facts, although a ruling on a request for adjudgment under the Framework Act on National Taxes is rendered, the same disposition cannot be filed again (Article 55(9) and (1) of the former Framework Act on National Taxes, unlike the preceding administrative appeals, the Plaintiff did not dispute the fact that the transaction in this case is the most recent administrative appeal and this case, and (2) the subject matter of the lawsuit differs, the Plaintiff’s conjunctive assertion seeking the refund of the amount of duty at issue in the preceding administrative appeal has never been determined, and (3) the Tax Tribunal could not review and determine the illegality of the instant refusal disposition which was not achieved at the time of the request in the course of the preceding administrative appeal, it cannot be deemed that the request for a tax appeal against a request for revocation of a request for adjudgment was a duplicate claim against the tax appeal disputing the tax imposition disposition.

5) Meanwhile, in a case where a ruling authority rejected a legitimate administrative appeal, even though the claim was lawful, it shall be deemed to have gone through a lawful administrative appeal procedure. On the grounds as seen in the above A., the Tax Tribunal dismissed the subsequent administrative appeal on the ground that there is no benefit of protection of rights.

6) Therefore, even if the time limit for filing a lawsuit against the preceding administrative appeal has expired, the plaintiff can file a lawsuit against the rejection disposition of this case on the ground of other illegal grounds, and the defendant's defense prior to this part that the plaintiff did not go through the preceding trial unless the plaintiff files a petition for a legitimate administrative appeal after 20O.O.O.O.O.O., within 90 days from the date of becoming aware that the instant rejection disposition of this case (20O.O.O.

4. Determination of legality of a disposition

(a) Relevant statutes, etc.;

Article 106-9(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter the same) provides that a business operator who intends to supply or to import copper scrap, etc. (hereinafter referred to as "business operator of copper scrap, etc.") shall open an account for copper scrap, etc., as prescribed by Presidential Decree. Paragraph (2) of the same Article provides that the value-added tax shall not be collected from a person to whom the business operator of copper scrap, etc. is supplied, notwithstanding Article 31 of the Value-Added Tax Act. The main sentence of paragraph (3) of the same Article provides that when the business operator of copper scrap, etc. is supplied from another business operator of copper scrap, etc., the value-added tax shall be paid to the supplier of copper scrap, etc., and the amount of value-added tax shall be paid to the purchaser of such scrap, etc. under Article 106-9(3) of the Enforcement Decree of the Restriction of Special Taxation Act.

B. Determination

The main issue of the instant case is whether the Plaintiff’s claim for correction was made to the effect that the Plaintiff, the seller, can be recognized as the amount of the value-added tax paid by the purchaser. In light of the following circumstances, which are acknowledged by adding up the evidence and the purport of the entire arguments as seen earlier, the Plaintiff’s claim for correction that the purchaser would deduct the amount of the value-added tax paid by the purchaser from the amount of the already paid tax, in revising the tax base and the amount of the output tax

(1) The value-added tax shall be levied on the value-added generated at each stage of production and distribution.

As a tax, a person liable to pay value-added tax under the Value-Added Tax Act is an entrepreneur who supplies goods or services (Article 3 of the Value-Added Tax Act); however, a person who is supplied with a business is liable to collect value-added tax (Article 31 of the Value-Added Tax Act); and a person who calculates the amount of tax payable by deducting the input tax amount from the output tax amount (Article 37 of the Value

(2) However, since the amendment of the Restriction of Special Taxation Act on May 10, 2013, the special provisions on the payment of value-added taxes by the purchaser in the transaction of copper scrap scrap, etc. were newly established in order to prevent the evasion of the output tax of value-added taxes. Before the introduction of the special provision on the payment of value-added taxes, the special provisions on the payment of the purchaser under the former Restriction of Special Taxation Act provide for the exception of direct payment of value-added taxes in order to prevent tax evasion and achieve the purpose of tax collection convenience, etc., the special provisions on the payment of the purchaser under the special provisions on the payment of value-added taxes are interpreted as providing for the exception of direct payment of value-added taxes in lieu of the payment of value-added taxes by the supplier of specific taxable items (old scrap, etc.) by collecting the value-added tax from the purchaser.

(3) The deduction or refund of value-added tax paid by the purchaser pursuant to the special provisions on the payment by the purchaser.

Article 106-9(8) of the former Restriction of Special Taxation Act provides that the amount of value-added tax paid by the supplier of copper scrap, etc. shall be either deducted from the amount of tax payable by the supplier of copper scrap, etc. or added to the refundable amount of tax. Article 48-6(1) of the former Enforcement Rule of the Restriction of Special Taxation provides that the amount of value-added tax paid by the purchaser may be refunded to the relevant supplier within the scope of the amount of value-added tax paid by the purchaser. This is interpreted to mean that the amount of value-added tax paid by the supplier of copper scrap, etc. shall be deemed paid by the supplier of copper scrap, etc., and it shall be construed that the amount of value-added tax should be deducted from the amount of tax or deducted from the amount of tax to be refunded. In calculating the final amount of tax payable by the purchaser, there is no ground for not deducting the amount of value-added tax paid by the purchaser as the already paid amount of tax.

6. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per the disposition.

(c)