Cho High Court Decision 201J 4726 ( December 23, 2011)

Addition

Dismissal

The claimant filed an objection on June 9, 201 with the lapse of the time limit for objection against the notice of rejection of the request to the purchaser-issued (115 days). This part of the claim is illegal as the time limit for objection has expired.

Article 1206-4 of the Restriction of Special Taxation Act

1. On February 14, 2011, the head of the OO head of the tax office shall reject the rejection of the request for a tax invoice issued by the purchaser.

2. A disposition rejecting a request for correction filed by the director of the OO on April 4, 2011 is dismissed.

1. Summary of disposition;

A. From January 26, 2007, the claimant entered into a contract with OOOOOO's wholesale and retail business under the trade name of OOOOOO, and entered into an agreement with OOO (hereinafter "Co-owners") to purchase the unused equipment Amph 4 valve (hereinafter "Co-purchase") on five occasions during the period of September 20, 201 through October 11, 201; however, the claimant paid the price of OO (price) five times during the period of time, but filed an application with the purchaser-issued on February 1, 201, while the tax invoice was not issued on the grounds of non-determined of supply value. On February 24, 2011, the claimant received the supply price after receiving the OO purchase tax invoice (hereinafter "Co-owners").

B. On the application of a purchaser-issued tax invoice, the disposition authority rendered notification of rejection on February 14, 201, deeming that three months elapsed from the time of supply for the goods to the date of application for confirmation of transaction. The key tax invoice was issued after the lapse of the taxable period, and thus, rejected a request for correction on April 4, 201, deeming that the input tax amount

C. The claimant appealed and filed an appeal on October 4, 201 after filing an objection on June 9, 201.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) The date of removal of machinery and equipment was October 21, 2010, but the final measurement was finalized at a measurement certification office, and the date of the final measurement was November 1, 2010. Therefore, this day is regarded as the time of supply, and the tax invoice applied for the issuance of a purchaser-issued tax invoice is legitimate, since three months have not elapsed since it was applied to the purchaser-issued tax invoice on January 24, 201.

(2) The key tax invoice is that the key transaction partner inevitably received after the statutory due date of return by sending it to the applicant by special mail during the proceeding, and thus, the input tax amount should be refunded.

(b) Opinions of disposition agencies;

The receipt of the purchase tax invoice due to the supply of goods shall be issued at the time of delivery of the goods or within the taxable period, but the claimant's application for the deduction of the input tax amount from the output tax amount after receiving the dispute tax invoice on February 24, 2011 when the taxable period of the value-added tax expires is not possible to deduct the input tax amount pursuant to Article 17 (2) 2 of the Value-Added Tax Act and Article 60 (2) 3 of the Enforcement Decree

3. Hearing and determination

A. Key issue

(1) Whether the claimant's refusal of the purchaser-issued's request was legitimate

(2) The propriety of the disposition rejecting the input tax amount, deeming the issue tax invoice as a tax invoice not issued within the taxable period to which the date of supply belongs

(b) Related Acts and subordinate statutes;

(1) Framework Act on National Taxes

Article 55(2)(1) A person whose rights or interests have been infringed upon by being subject to an illegal or unfair disposition or by failing to be subject to a necessary disposition under this Act or other tax-related Acts may request for the examination or adjudgment under the provisions of this Chapter for the cancellation or modification of the disposition, or for the necessary disposition.

Article 66 (Raising Objections) (1) Any objection shall be made to the director of the regional tax office having jurisdiction over the place of tax payment, or to the director of the regional tax office having jurisdiction over the place of tax payment through the director of the regional tax office

(6) The provisions of Articles 61 (1), (3) and (4), 62 (2), 63, the proviso to Article 64 (1), and Article 64 (2), and Articles 65 and 65-2 shall apply mutatis mutandis to raising any objection: Provided, That the 90 days referred to in Article 65 (2) shall be 30 days.

Article 68 (Period of Request for Disposition) (1) A request for adjudication shall be filed within 90 days from the date (when a notice of disposition is received, the date of receipt) on which the relevant disposition is known.

(2) Article 61 (2) shall apply mutatis mutandis to the period for request in cases of a request for judgment after filing an objection.

(2) Value-Added Tax Act

Article 9(B)(1) The time when goods are supplied shall be the time prescribed in the following subparagraphs:

1. Where moving goods is required: The time when the goods are delivered;

2. Where moving goods is not required: The time when the goods are made available; and

3. Where subparagraphs 1 and 2 are not applicable: The time when the supply of goods is decided.

(2) The time when services are supplied shall be the time when services are supplied or goods, facilities or rights are used.

(3) Where an entrepreneur receives all or part of the price for goods or services before the time provided for in paragraph (1) or (2) and at the same time issues a tax invoice under Article 16 or a receipt under Article 32 with respect to such price, the time when such issuance is made shall be deemed the time of supply for the goods or services, respectively.

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, a tax invoice stating the following matters (hereinafter referred to as "tax invoice") shall be issued to the person who receives the supply, as prescribed by Presidential Decree, at the time prescribed in Article 9 (where Presidential Decree prescribes otherwise, referring to the time prescribed otherwise by Presidential Decree, referring to the time prescribed otherwise). In such cases, where any ground prescribed by Presidential Decree, such as error or correction, arises after the issuance of the tax invoice, a tax invoice may be revised and issued, as prescribed by Presidential Decree

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation;

5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.

Article 17(2) The following input tax amounts shall not be deducted from the output tax amount:

1. An input tax amount where a list of total tax invoices by customer is not submitted under Article 20 (1) and (2), or an input tax amount on the portion not entered or differently entered from the fact, where the whole or part of the registration numbers or supply values by transaction parties is not entered or differently entered from the fact, from among the entries on the list of total tax invoices by customer submitted: Provided, That the input tax amount in such cases prescribed by Presidential Decree shall

2. An input tax amount, in cases where a tax invoice under Article 16 (1), (2), (4) and (5) is not issued, or where the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as "necessary entry items") are not entered or differently entered from the fact on the issued tax invoice: Provided, That the input tax amount in cases prescribed by Presidential Decree shall be excluded;

3. An input tax amount for payments not directly related to the business.

4. An input tax amount on the purchase, lease and maintenance of nonbusiness small automobiles;

5. An input tax amount related to the disbursement of entertainment expenses and expenses similar thereto prescribed by Presidential Decree.

6. An input tax amount related to the business of supplying goods or services exempt from value-added tax (including an input tax amount related to investment) and an input tax amount related to the land prescribed by

7. An input tax amount before the registration under Article 5 (1) or (2): Provided, That those prescribed by Presidential Decree shall be excluded.

(3) Enforcement Decree of Value-Added Tax

Article 54 (Special Cases for Issuance of Hyspit Tax Invoice) (1) Where an entrepreneur falls under any of the following subparagraphs, a tax invoice may be issued by the tenth day of the month following the month in which goods or services are supplied pursuant to Article 16 (1) of the Act

1. Where a tax invoice is issued as of the date on which the last day of the month concerned is prepared, adding up the value of supply for the calendar month by transaction party;

2. Where a tax invoice is issued as of the last day of a period fixed by an entrepreneur within one calendar month for each customer, including the total amount of supply for such period fixed voluntarily by the entrepreneur;

3. Where a tax invoice is issued as of the date on which an actual transaction is confirmed based on related documentary evidence, etc. and the relevant transaction date is prepared.

(2) "Cases prescribed by Presidential Decree" in the proviso to Article 17 (2) 2 of the Act means any of the following cases:

1. Where a business operator who has applied for business registration pursuant to Article 7 (1) is issued with a resident registration number of the relevant business operator or his/her representative for a transaction until the date of issuance of business registration certificate under Article 7

2. Where the fact of transaction is confirmed in view of the fact that part of necessary entries in a tax invoice issued under Article 16 of the Act is mistakenly entered, but the relevant tax invoice is deemed other necessary entries or discretionary entries in the relevant tax invoice;

3. A tax invoice issued after the time of supply for goods or services is supplied within the taxable period to which the time of supply belongs;

4. Where the fact that an electronic tax invoice issued under Article 16 (2) of the Act has not been transmitted to the Commissioner of the National Tax Service is verified;

5. Where a tax invoice, other than an electronic tax invoice under Article 16 (2) of the Act, is issued in the taxable period whereto the time of supply for goods or services belongs, and the transactions are confirmed also;

(4) Restriction of Special Taxation Act

(1) Notwithstanding Article 16 of the Value-Added Tax Act, where an entrepreneur registered as a taxpayer and prescribed by Presidential Decree fails to issue a tax invoice at the time of issuance of the tax invoice under Article 16 of the Value-Added Tax Act, the person provided with the goods or services may issue a tax invoice (hereinafter referred to as "issued tax invoice") after obtaining confirmation from the head of the competent tax office, as prescribed by Presidential Decree.

(2) The value-added tax amount entered in a purchaser-issued tax invoice issued under paragraph (1) shall be deemed the input tax amount eligible for deduction under Articles 17 (1) and 26 (3) of the Value-Added Tax Act, as prescribed by Presidential Decree

(3) In addition to paragraphs (1) and (2), the objects and methods of issuing purchaser-issued tax invoices, and other necessary matters shall be prescribed by Presidential Decree.

(5) Enforcement Decree of the Restriction of Special Taxation Act

(1) "Business operator prescribed by Presidential Decree" in Article 126-4 (1) of the Act means a business operator liable to issue a tax invoice under Article 16 of the Value-Added Tax Act (excluding a simplified taxable person under Article 25 (1) of the Value-Added Tax Act, and including a business operator liable to issue a tax invoice under Article 79-2 (3) and (4) of the Enforcement Decree of the Value-Added Tax Act).

(2) A person who intends to issue a purchaser-issued tax invoice pursuant to Article 126-4 (1) of the Act (hereafter referred to as "applicant" in this Article) shall file an application for confirmation of the fact of transaction prescribed by Ordinance of the Ministry of Strategy and Finance, along with documents proving objectively the fact of transaction, with the head of the competent tax office having jurisdiction over the applicant within three months from the date of

(3) The proceeds from supply in each transaction subject to an application for confirmation of transactions under paragraph (2) shall be at least 100,000 won.

(4) Where the personal information of the supplier of goods or services (hereafter referred to as "supplier" in this Article) is inaccurate or defects exist in the methods stated in the application form, the head of the competent tax office in receipt of the application under paragraph (2) may request the correction thereof within seven days from the date of application.

(5) Where an applicant fails to comply with the request for correction within the period under paragraph (4) or falls under any of the following subparagraphs, the head of the competent tax office having jurisdiction over the applicant shall decide to refuse the confirmation

1. When it is obvious that the period of application under paragraph (2) has expired; and

2. Where it is evident that transactions have been made with the unregistered business operators or the temporary or permanent closure business operators at the time of transactions.

(6) The head of the competent tax office having jurisdiction over the applicant shall send the application and submitted evidential documents to the head of the competent tax office within seven days from the date the application for confirmation of fact of transaction is submitted (where an amendment is requested, the date the amendment is made) with respect to the application for refusal of confirmation under

(7) The head of the competent tax office who has received an application under paragraph (6) shall examine the applicant's application and the evidential materials submitted and confirm whether the relevant transactions are made. In such cases, the applicant shall bear the burden of proof on the existence and details

(8) The head of the competent tax office of a supplier shall confirm whether the transactions are made by the end of the month following the date of application and notify the following persons to the supplier and the head of the competent tax office: Provided, That where there are extenuating circumstances prescribed by Ordinance of the Ministry of Strategy and Finance, such as failure, temporary absence, etc. of

1. Where transactions are confirmed: Notification of the fact of transactions, including business registration number, preparation date, value-added tax amount, etc., of the supplier and the recipient;

2. Where the fact of transactions is not confirmed: Notification of a failure to confirm the fact of transactions.

(9) The head of the competent tax office shall notify the applicant of the result of confirmation immediately after receiving the notification under paragraph (8) from the supplier.

(10) An applicant in receipt of a notice of confirmation of facts of transactions under paragraph (8) 1 from the head of the competent tax office shall issue a purchaser-issued tax invoice as of the date of transaction confirmed by the head of the competent tax office of the supplier and deliver it to the supplier: Provided, That when the applicant and supplier receive a notice under paragraph (8)

(11) Where an applicant who has issued a purchaser-issued tax invoice pursuant to paragraph (10) submits a preliminary return under Article 18 of the Value-Added Tax Act, a final return under Article 19 of the same Act, or a list of total tax invoices prescribed by Ordinance of the Ministry of Strategy and Finance at the time of filing a request for correction under Article 45-2 (1) of the Framework Act on National Taxes, the input tax amount entered in the purchaser-issued tax invoice may be deducted as an input tax amount from the output tax amount or the payable tax amount

C. Facts and determination

(1) According to this case’s review data submitted by the agency, the following facts are revealed.

(A) During the period of September 20, 2010 through October 11, 2010, the claimant entered into a contract to purchase the OO 00,000 won (cost for supply) on five occasions during the dispute trading and the unused 4 valve, but the claimant filed an application with the purchaser-issued for correction during the period of not receiving a tax invoice on the grounds of confirmation of the value of supply due to the occurrence of a difference between the contractual amount and the actual amount, and the difference between the contractual amount entered into between the key transaction entity and the transaction entity, and the disposition authority received the key tax invoice from the key transaction entity and received the request for correction, and notified the rejection by deeming that three months have elapsed from the time of supply of the goods until the date of application for confirmation of the transaction, and rejected the request for correction

(b) The fact that the contract was concluded with the claimant shall be confirmed by the contract submitted by the claimant as follows:

- - Future -

- Cases of selling OOE 4/V disused equipment

- on September 18, 2010, for sale as OO enterprises (1,00 tons), 50 per cent if 50 tons or mothers;

- Amount:O0,000 won, O00,000 won (as of September 20) remaining O0,000 won per day before the acquisition of equipment

(C) On November 1, 2010, the claimant filed an application for a purchaser-issued tax invoice with the agency on February 1, 201, on the transaction date. However, on the grounds that three months have elapsed from the transaction date to the application date for confirmation of the transaction of goods, it is confirmed that the applicant received the notification of refusal to confirm the transaction from the agency on the transaction date on the grounds that three months have elapsed from the transaction date to the transaction confirmation application date.

(D) On March 10, 201, the claimant filed an application for rectification on March 10, 201, along with the issue tax invoices received from the main trading office. However, the agency confirmed that the submitted tax invoice was received after the taxable period ( February 1, 201), and the claimant’s application for rectification is subject to the non-taxation of input tax pursuant to Articles 16 and 17(1)3 of the Enforcement Decree of the Value-Added Tax Act.

(E) On January 24, 2011, the key transaction office reported the value-added tax for the second period of 2010 afterOO of the tax base OO-purchase tax amount, but filed a revised return on February 23, 201, including the key tax invoice, by the National Tax Service’s integrated management system.

(F) The fact that the claimant sent OO on September 20, 2010 to the main trading office on September 28, 2010 is verified by financial evidence. The fact that the claimant sent OOO on September 29, 2010 to the main trading office on October 11, 2010 is verified by financial evidence.

(G) The fact that the key trading office transferred the amount to the claimant is merely 747.4 tons, and the key trading office is obligated to return OO of the profit derived from the claimant. The fact that the main trading office has a duty to return OO of the profit derived from the claimant, and that the amount already paid has a difference between 1,00 tons of the solid metal quantity contracted with the key trading office and 747.4 tons of the amount actually measured, or that the claimant filed a lawsuit against the key trading office in the course of filing a complaint against the key trading office ( November 201).

(2) We examine issues and issues.

(A) On October 21, 2010, the date the claimant removed machinery and equipment, but the quantity to be finally measured is determined by the measurement and certification office. Since the date the final measurement was made on November 1, 2010, the date of the final measurement is deemed to be the time of supply, the claimant’s tax invoice filed an application for the purchaser-issued tax invoice on January 24, 201, and three months have not elapsed since the date the machinery and equipment was removed.

(B) However, Article 55(1) of the Framework Act on National Taxes provides that “Any person whose rights or interests have been infringed upon by being subject to an unlawful or unreasonable disposition or by failing to undergo a necessary disposition as a disposition under this Act or other tax-related Acts may file a request for review or a request for a trial to revoke or modify the relevant disposition, or for a necessary disposition under this Chapter.” Article 68(1) of the same Act provides that a request for a trial shall be filed within 90 days from the date (if a notice of disposition is received, the date of receipt) on which he/she becomes aware of the relevant disposition. In such case, upon filing an application for a request with the disposition agency on February 14, 2011, the disposition agency notified the rejection on the ground that three months have elapsed from the time of supply of the goods to the date of application for confirmation of the fact of transaction was filed, and the claimant filed an objection on June 9, 201 (15 days) against the notice of rejection to the purchaser. Therefore, this part of the request for review is unlawful.

(3) We examine the issues ②

(A) The claimant asserts that the issue tax invoice is inevitably received after the statutory due date of return by sending it to the applicant by special mail during the proceeding of the lawsuit.

(B) However, in light of the fact that the claimant was supplied with scrap metal from the key trading place and did not receive a normal tax invoice, or applied for the purchaser-issued tax invoice within the trading period, it was confirmed that the issue tax invoice was issued after the trading period, and that the claimant and the key trading place were in litigation proceeding because the supply price is unclear, it is determined that there was no error in the disposition imposing tax by deeming the issue tax invoice as a false tax invoice.

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes, because the petition for a trial has no merit as a result of the trial.