Cho High Court Decision 2012 Deputy0909 (Law No. 112, 04.30)

No tax invoice shall be recognized that it constitutes a tax invoice different from the fact, and that it was not aware of the same fact or was not negligent.

The place of business of a customer constitutes a tax invoice different from the fact that the actual supplier is not equipped with the facilities, such as a fraternity, open room, transportation vehicle, etc. for the wholesale business, and thus constitutes a tax invoice different from the fact that the principal supplier was wired to the representative of the customer. However, it is difficult to deem that this fact alone was not aware of the fact of false name and was not negligent.

Article 17 of the Value-Added Tax Act

2012 disposition of revocation of imposition of value-added tax

AA Corporation

Head of the tax office

March 28, 2013

May 2, 2013

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of value-added tax of 000 won for the first term of November 1, 2010 and value-added tax of 000 won for the second term of 2010 against the Plaintiff on November 1, 201 shall be revoked in all.

1. Details of the disposition;

A. The plaintiff is a company established for the purpose of the scrap metal processing and sales business, and the OOOO-dong 000 OOOO-dong 000 apartments (hereinafter referred to as "the plaintiff's branch") are 000 apartments.

B. In January 2010, the Plaintiff branch received each tax invoice of KRW 000,000 in supply value from BB steel during the tax period of value added tax (hereinafter “first tax invoice of this case”), and 9 copies of the tax invoice of KRW 000,000 in total of supply value from FM steel during the tax period of value added tax for the second half of 2010 (hereinafter “second tax invoice of this case,” and each of the tax invoices of this case, including the first and second tax invoices of this case, filed a value added tax return for the pertinent tax period with the Defendant by deducting the input tax amount according to each of the respective tax invoices of this case.

C. On the ground that each of the instant tax invoices was written differently from the fact on November 1, 2011, the Defendant decided not to deduct the input tax amount from the output tax amount, and subsequently corrected and notified the Plaintiff’s branch of the Plaintiff of the value-added tax of KRW 000 in 2010, and KRW 000 in value-added tax of KRW 200 in 2010 in each of the instant dispositions (hereinafter “instant disposition”).

D. On January 27, 2012, the Plaintiff, who was dissatisfied with the instant disposition, brought an appeal with the Tax Tribunal for adjudication, and was dismissed on April 30, 2012.

[Based on Recognition] The non-contentious facts, Gap evidence 1, evidence 1, 2, 2, and 6 evidence 1 to 9, evidence 7, and Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff branch actually purchased scrap metal from BB steel and FF steel, and accordingly received each of the instant tax invoices, so each of the instant tax invoices cannot be deemed to constitute a false tax invoice, and even if BB steel and FF steel are nominal, the Plaintiff branch did not know it and did not know it, and thus, the instant disposition was unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether each of the tax invoices of this case is false

The meaning that entries in the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services, or the price and timing thereof, regardless of the formal entries in the transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

A) The first tax invoice of this case

The plaintiff's supply of scrap metal to the plaintiff shall be deemed to be a third party, not BB Steel, in full view of the following facts, which can be recognized by comprehensively taking account of the evidence Nos. 2-1 and 2, as well as the entire purport of the pleadings. Therefore, it is reasonable to deem that the tax invoice of this case delivered by the plaintiff from BB Steel constitutes a false tax invoice which is different from the fact that the actual supplier of the scrap metal was entered into a disguised transaction without a real transaction (the plaintiff does not indicate who actually supplied the plaintiff's branch is a third party) unless the defendant expresses who actually supplied the scrap metal to the plaintiff's branch, but the tax invoice of this case is not deemed to be a false tax invoice, and as long as it is recognized that the BB steel, expressed as a supplier under the tax invoice No. 1, did not actually supply the plaintiff's branch, it does not change to the fact that the supplier of the scrap metal was a false tax invoice).

① In 1987, the representative CC of BB Steel did not have the same business capacity as that of the same kind, and the OO Ri 000 of the 201-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si was registered as the location of the workplace, and the fence was left alone in the form of loan, but the container stuff, which appears to have been installed in the form, was " disposal", and the gate was not equipped with basic facilities, equipment, etc. such as those for the transportation of scrap iron.

② On May 10, 2010, BB steel began and closed on December 31, 2010, it issued a tax invoice in an amount equivalent to KRW 000 in total, including, but not limited to, the purchase details of scrap metal until December 31, 2010.

(3) In the process of surveying the BB steel, the competentCC asserted that the purchased scrap metal was succeeded to the DB steel from the DB steel, but the DB steel did not stand to the BB steel in the DB steel.

B) The second tax invoice of this case

As evidence Nos. 13-1 through 8, evidence Nos. 3-1, evidence Nos. 2 and 4, and evidence Nos. 6 through 11 (including each number), each entry can be acknowledged by comprehensively considering the following facts, and the supply of scrap metal to the plaintiff shall be deemed to be a non-B steel product, not a BB steel. Thus, it is reasonable to view that the tax invoice Nos. 2 of this case delivered by the plaintiff from BB steel constitutes a false tax invoice different from the fact that the actual supplier of the scrap metal was prepared by disguised transaction without real transactions.

④ The FMM started on October 1, 1998, and moved the place of business to 0000, Ulsan-gu OOOdong on February 14, 2005. Since the latter half of 2009, the management has deteriorated, the FMM failed to pay rent for the above place of business from August 2009, and from November 2009, it was practically unable to operate a normal business. From March 2, 2010 to March 2, 2010, the FMM was subject to compulsory sale by creditors by creditors.

⑤ The FMM issued a tax invoice in an amount equivalent to KRW 000 in total in 2010, but the purchase amount is less than KRW 000, and, in particular, the Plaintiff’s branch issued a tax invoice in KRW 000 on the second half of 2010, while the purchase amount is no more than all.

④ From November 2, 2010 to December 21, 2010, between the vehicle transporting scrap metal corresponding to the portion of the tax invoice issued in this case to GG manufacturing Co., Ltd., the vehicle No. 000 in Busan, the first unit of which is the vehicle No. 000, from among the vehicle transporting the scrap metal corresponding to the portion of the tax invoice No. 2 to HG manufacturing Co., Ltd. is owned by the representative Kim II of H transportation. Although H transportation issued a tax invoice related to the above transportation on the FG steel, in the case of EE steel, it did not have issued a tax invoice of KRW 00 in relation to the transportation cost of February 2, 2010, while the vehicle No. 0000, the other unit of the vehicle No. 0000, which was the representative of EEM, did not have any fact of issuing

7) The sales price of scrap metal corresponding to the second tax invoice issued in this case was deposited in the Busan Bank account (Account Number 000) of the FF Steel Representative KimO, and was withdrawn immediately after being transferred to the corporate bank account of KimO, HOO, HOO, and HOOO, and the phone calls of the former part and the EEM office were used at the time of transfer.

8) The KimOO was indicted on charges of issuing tax invoices under the Value-Added Tax Act on 120 occasions between April 2, 2010 and December 31, 2010 and of issuing the goods and services on 120 occasions, and of issuing the tax invoices under the Value-Added Tax Act, on November 9, 2012, Ulsan District Court 201Mo688, and 1191 (merged). The above judgment became final and conclusive at that time.

9) In relation to the instant case, KimO stated that, upon undergoing an investigation by an investigative agency on April 2010, 2010, the leO, the actual operator of the EEM, would issue a false tax invoice as if the FF steel were supplied.

2) Whether the Plaintiff is bona fide and without fault

The actual supplier and the supplier on the tax invoice may not deduct or refund the input tax amount unless there are special circumstances that the supplier was unaware of the fact that the supplier was unaware of the name of the invoice, and that there was no negligence on the part of the supplier, and that the supplier was not aware of the above fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Although each of the tax invoices in this case is different from the fact, the Plaintiff branch did not know of the fact that each of the tax invoices in this case was conducted in relation to each of the tax invoices in this case, the Plaintiff branch visited the business of the FF Steel and OO Steel, which was the other party to the transaction, and confirmed that the Plaintiff was a normal entrepreneur upon receiving the copy of the business registration certificate, and the copy of the passbook, etc., the Plaintiff branch did not have any other knowledge of the fact that the Plaintiff did not know of the entire entries in the No. 4 through No. 11 (including each number), and the Plaintiff branch office did not have any other knowledge of the above facts.

A) The first tax invoice of this case

① On May 16, 2010, 2010, 2000 won was commenced from May 26, 2010, when the period between the Plaintiff’s branch office and May 26, 2010, even though the 1987 green age, and there was no business history of the same kind of type of product, and the period between May 26, 2010, was 00 won.

(2) The places of business of the OO Steel did not have any equipment, such as strings for solid steel wholesale business, field strings, and transportation vehicles.

B) The second tax invoice of this case

① The Plaintiff branch purchased a considerable amount of scrap metal from the FMM in 2008 and 2009. However, from March 201, 2010, the FF steel did not engage in the transaction from around November 201, 2010 in connection with the tax invoice 2 of this case. ② FF steel did not actually engage in a normal business from around November 2009, and from March 201, it did not have any basic facilities at all at the place of business due to the sale of transported vehicles, and ③ scrap metal corresponding to the portion for which the tax invoice 2 of this case was issued was transferred to the place of business of EE scrap.

3) Sub-decisions

Therefore, each of the tax invoices of this case constitutes a false tax invoice, and it cannot be recognized that the plaintiff was not aware of such fact or was not aware of such fact, and the disposition of this case by the defendant is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.