beta
Title
this issue constitutes a false tax invoice which is not prepared in falsity without real transactions.
Summary
It is reasonable to view that the issue of the tax invoice constitutes a false tax invoice without real transaction, in light of various evidence documents submitted in the administrative litigation even though the tax invoice was rendered and confirmed not guilty due to lack of evidence in the criminal trial.
Related statutes
Tax amount under Article 17 of the former Value-Added Tax Act
Cases
2016Guhap7050 Such revocation as Value-Added Tax, etc.
Plaintiff
Hyo
Defendant
○ Head of tax office
Conclusion of Pleadings
August 25, 2017
Imposition of Judgment
September 22, 2016
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s revocation of each disposition of KRW 00,000,000 (including additional taxes) on December 17, 2015 against the Plaintiff on December 17, 2015 and global income tax of KRW 00,00,000 (including additional taxes) for the year 2012.
Reasons
1. Details of the disposition;
A. The Plaintiff is a business entity wholesaleing precious metal, such as gold, silver, and bail, with the trade name “AA” in the Seoul ○○○○○○○○○○○○○○○, which received a tax invoice of KRW 00,000,000 in total of the supply values as listed in the following table from BB during the first taxable period of 2012 (Seoul ○○ Co., Ltd.; hereinafter “B”).
Date of Supply
Items
Quantity(g)
Unit price (unit price)
Value of supply (cost)
Amount of tax (source)
February 3, 2012
은그래뉼
10,000
1,178
11,780,000
1,178,000
February 6, 2012
은그래뉼
50,000
1,170
58,500,000
5,850,000
February 7, 2012
은그래뉼
50,000
1,168
58,500,000
5,850,000
February 13, 2012
은그래뉼
30,000
1,192
35,760,000
3,576,000
March 5, 2012
은그래뉼
30,000
1,190
35,700,000
3,570,000
Total
200,140,000
20,014,000
B. From July 27, 2015 to November 26, 2015, the Defendant denied the Plaintiff’s input tax deduction and necessary expenses deduction on the grounds that the tax invoice is a tax invoice different from the fact, by conducting an investigation by item of value-added tax and investigation by tax offense against the Plaintiff. On December 17, 2015, the Defendant issued a revised and notified the Plaintiff of KRW 00,000,000 (including additional tax) and global income tax for the year 2012 (hereinafter “instant disposition”).
C. On February 29, 2016, the Plaintiff filed an appeal with the Tax Tribunal on February 29, 2016, but the Tax Tribunal dismissed the appeal on May 4, 2016.
[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, 3 and Eul evidence 1 (including each number)
2. Whether the instant disposition is lawful
A. Summary of the plaintiff's assertion
원고와 BB 사이에 은 그래뉼 거래는 실물거래로서 정상적인 거래였으므로 쟁점 세금계산서는 사실과 다른 세금계산서가 아니다. 따라서 쟁점 세금계산서가 사실과 다른 세금계산서라는 전제에서 이루어진 이 사건 처분은 위법하다.
(b) Fact of recognition;
1) The issuance and receipt of tax invoices by company as of the date of trading issues are as follows.
○, February 3, 200
AA
◄
10,000g
BB
◄
50,000g
CC
◄
50,000g
D
◉◉
◄
40,000g
○, February 6, 200
○
◄
30,000g
BB
◄
30,000g
CC
◄
30,000g
D
AA
◄
50,000g
50,000g
50,000g
○, February 7, 200
AA
◄
50,000g
BB
◄
50,000g
CC
◄
50,000g
D
○ ○ 2.13.
○
◄
40,000g
BB
◄
90,000g
CC
◄
50,000g
D
AA
◄
30,000g
40,000g
Doz.
◄
20,000g
○○ on March 5, 200
Do Governor
◄
30,000g
BB
◄
30,000g
CC
◄
30,000g
D
AA
◄
30,000g
30,000g
30,000g
○
◄
50,000g
50,000g
50,000g
Maternus
◄
40,000g
40,000g
40,000g
Doz.
◄
50,000g
50,000g
50,000g
2) The amount and time of each company’s entry as of the date of the trading at issue are as follows:
Classification
Plaintiff (AA)
BB
CC
D
d February 3, 200
00,000,000
? ?
(16:37:43)
00,000,000
? ?
(16:42:05)
00,000,000
? ?
(16:49:14)
00,000,000
“12.2.6
00,000,000
? ?
(16:42:39)
00,000,000
? ?
(16:46:14)
00,000,000
? ?
(16:49:02)
00,000,000
“12.2.7
00,000,000
? ?
(15:55:36)
00,000,000
? ?
(15:59:18)
00,000,000
? ?
(16:11:04)
00,000,000
“12.2.13.
00,000,000
? ?
(16:22:08)
00,000,000
? ?
(16:26:58)
00,000,000
? ?
(16:30:06)
00,000,000
“12.3.5
00,000,000
? ?
(16:06:38)
00,000,000
? ?
(16:12:15)
00,000,000
? ?
(16:16:14)
00,000,000
guidance.
00,000,000
00,000,000
00,000,000
00,000,000
3) At the time of the first half of 2012, D is a trade-related company that did not pay a tax amount of KRW 00 billion and discontinued its business after the purchase was caused by sales of KRW 00 billion. At the time of the first half of 2012, ○○ was a trade-related company that did not pay a tax amount of KRW 000,000,000. At the time, ○○, the president of D's branch office, was sentenced to a judgment of conviction of KRW 20,000,000,000,000 for one year and six months as a result of criminal facts, such as the issuance of false tax invoices in spite of the fact that ○ issued a false tax invoice, and became final and conclusive (Seoul Western District Court Decision 2013Da217,344, 429 (Consolidated), Seoul High Court Decision 2014No1753)).
4) The Defendant was sentenced to a suspended sentence of three years and a fine of 0 billion won (Seoul Southern District Court Decision 2014Gohap172, Seoul Southern District Court Decision 2014No2004, Seoul High Court Decision 2015Do4562, supra) due to criminal facts, such as the issuance of false tax invoices, even though ○○○ was not supplied to BB as of the date of the transaction at issue, which is the representative ofCC.
5) BB의 대표자인 신○○는 2012년 제1기 및 제2기에 은 그래뉼을 공급하거나 공급받은 사실이 없음에도 00억 원 상당의 허위세금계산서를 발행하거나 발행받았다는 범죄사실로 징역 1년 6월에 집행유예 3년 및 벌금 0억 원의 유죄판결이 선고되었으나, 쟁점 거래일 당시 AA에 은 그래뉼을 공급한 사실이 없음에도 허위의 쟁점 세금계산서를 발행하였다는 공소사실 부분에 대하여는 무죄판결이 선고되어 확정되었는데, 그 무죄 이유는 '거래가 허위거래일 수도 있다는 의심이 들기는 하나 유죄의 증거가 부족하다'는 것이었다(서울남부지방법원 2014고합322 판결, 서울고등법원 2015노316 판결, 대법원 2015도4678 판결).
6) As regards BB, the following facts are recognized:
A) BB was established on January 13, 1995 for the purpose of various housing, commercial facilities, building development projects, such as business facilities, and real estate leasing business, etc. On November 18, 201, the trade name was changed to ELA and added non-ferrous metal wholesale and electrical shop wholesale to the purpose business. On December 2012, 2012, BB changed the trade name to BB and added sales business to the purpose business.
B) Around July 2011, 201, new ○○ does not have engaged in precious metal-related business, such as her, until assisting in the process of melting her melting her melting by entering a stock company.
C) After acquiring BB, from November 201, 201, new ○○ began trading from the point of entry into force. Only in 2012, sales amounting to KRW 8.55 billion on the tax invoice, purchase amounting to KRW 8.5 billion and KRW 8.51 billion on the tax invoice.
D) BB did not have an employee other than ○○, and B did not have any facilities or equipment necessary for measurement, did not keep inventory, and was engaged in credit transactions without collateral, even though it was a large amount of transactions.
E) BB discontinued its business on February 1, 2013, and discontinued its business ex officio on October 2013.
[Reasons for Recognition] Uncontentious Facts, Gap evidence Nos. 5, 7, Eul evidence Nos. 2, 3, 7, and 8 (including each number), the witness's witness's witness's witness's testimony, the purport of the whole pleadings
C. Determination
1) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the fact is that the ownership of income, profit, property, act or transaction subject to taxation is nominal, and if there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable to pay taxes in accordance with Article 14(1) of the Framework Act on National Taxes, which provides that the requisite entries in the tax invoice refer to cases where the contents of the requisite entries in the tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied, or the person to whom the goods or service is actually supplied, and the price and time of the transaction, regardless of the formal entries in the transaction contract, etc. made between the parties to the goods or service, and that the tax invoice submitted by the person liable to pay value
In a case where the issue is whether it is an actual purchase or the content of the tax invoice, and it is proved that the transaction with the supplier as stated in the tax invoice alleged by the taxpayer is a false one, a taxpayer who is easy to present data such as books and evidence regarding the actual transaction with the supplier as stated in the tax invoice should prove it (see Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 96Nu617, Dec. 10, 1996);
See, e.g., Supreme Court Decision 2007Du1439 Decided August 20, 2009.
In addition, in light of the various evidence submitted in the tax trial, where it is deemed difficult to adopt a factual judgment of the relevant criminal case as it is, it may be rejected (see Supreme Court Decision 95Nu3398 delivered on October 13, 1995).
2) In full view of the following circumstances acknowledged earlier in light of the aforementioned legal principles, it is reasonable to view that the issue tax invoice constitutes a tax invoice different from the fact that a false tax invoice was prepared without real transactions, in light of the aforementioned legal principles, comprehensively taking into account the following circumstances revealed by the descriptions of Gap evidence 6, Eul evidence 6, and Eul evidence 6, the witness’s witness’s partial testimony and the entire purport
가) 쟁점 거래일 당시 세금계산서의 발행 및 수취 경위와 금융거래내역에 의하면, DD, CC, BB, 원고 순으로 은 그래뉼이 순차 매입된 것으로 보인다. 그런데 DD은 매입사실이 없는 폭탄업체이자 자료상이고, CC도 자료상으로서 쟁점 거래일 당시 DD과 CC 사이에 거래 및 CC와 BB 사이에 거래는 모두 가공거래로 확정되었다. 그럼에도 BB의 대표인 신○○는 이 법원에서 원고에게 공급한 은 그래뉼은 CC로부터 매입한 것이라고 증언하고 있는바 이를 믿기 어렵고, BB가 다른 매입처를 통해 은 그래뉼을 매입하여 원고에게 공급하였다고 인정할 증거도 없다.
B) As of the date of the transaction at issue, the payment of the price to Plaintiffs, BB,CC, and D had been made by means of receiving the sales price first, and paying the purchase price with the sales price. It appears that DD, a company with a large amount of carbon, has been completed in and out of 10 minutes, and as a result, was deposited in cash with the Plaintiff at the first purchase price. However, it appears that a typical data transaction method appears to have been made by means of payment.
C) The representative of BB, ○○, was convicted of having issued or received a false tax invoice equivalent to KRW 0 billion at the time of the issuance of the tax invoice at issue. While trading a large amount of money to reach KRW 00 billion only for the year 2012 that has not yet commenced, BB appears to be a material material in light of the fact that all credit transactions were conducted.
3) 따라서 쟁점 세금계산서가 실물거래 없이 허위로 작성되었다는 점이 과세관청에 의하여 상당한 정도로 증명되었다고 봄이 타당하므로 공급자와 거래를 실제로 하였다는 점을 납세의무자인 원고가 입증할 필요가 있다. 그런데 다음과 같은 이유로 원고가 주장하는 사정들만으로는 원고와 BB 사이에 은 그래뉼을 실제로 거래하였다고 인정하기에 부족하고, 달리 이를 인정할만한 증거가 없다.
(A) Even if a tax invoice is issued between the Plaintiff and BB, and the transaction amount was transferred by account transfer, it is highly likely to be a documentary evidence method to pretend the data transaction as a normal transaction.
(B) The Plaintiff’s receipt and payment in 2012, which was made public, is the item, quantity, unit price, etc., and it is difficult to believe that some of the facts of trade (the supply price of 80,920,000 on March 29, 2012, which was purchased from the LoyalMM, was omitted, and the value of 10,000,000 won was omitted.
(C) It is difficult to believe that the fact that the Plaintiff and the new ○○○○○ made a real transaction and the testimony of the witness ○○○ is inconsistent with the facts acknowledged earlier.
(D) As to the facts charged that new ○○ issued a false tax invoice without supplying AA, even if the judgment of innocence became final and conclusive due to lack of evidence, it does not mean that the judgment of innocence was not proven to the extent of conviction, and it does not mean the absence of the charge, and thus, it is insufficient to support the Plaintiff and BB that they traded real goods.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.