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(영문) 서울행정법원 2013. 03. 29. 선고 2012구합9307 판결
사실과 다른 세금계산서에 해당하고, 원고는 이를 알았거나 알지 못한 데에 과실이 있으므로, 이 사건 처분은 적법함[국승]
Case Number of the previous trial

Early High Court Decision 201No. 0414 ( December 09, 2011)

Title

The disposition of this case is legitimate, since the plaintiff knew or was negligent in not knowing it.

Summary

As the representative of the Plaintiff had been aware of the supply structure and distribution route of the closed consent, the actual condition of transactions on the data, and the risk of the transaction for a long time, the Plaintiff did not verify the transport route of the closed consent supplied by the Plaintiff, the payment details of the transportation cost, and the payment details of the purchase price. The Plaintiff’s failure to verify or manage the name, etc. of the driver who caused the closure of the operation was aware or was negligent

Related statutes

Article 17 of the Value-Added Tax Act

Cases

2012 disposition of revocation of the imposition of value-added tax

Plaintiff

AABS Co., Ltd.

Defendant

O Head of tax office

Conclusion of Pleadings

March 8, 2013

Imposition of Judgment

March 29, 2013

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

(1) The Defendant’s imposition of KRW 000 of value-added tax for 1 June 1, 2010 and KRW 000 of value-added tax for 2008 and KRW 000 of value-added tax for 2008 on 13 November 2012, and KRW 000 of value-added tax for 100 and KRW 000 of value-added tax for 208 on 2008 shall be revoked.

Reasons

1. Details of the disposition;

A. On January 2, 2008, the Plaintiff was established as investment in the largestCC, the representative director of BB metal, and its ancillary DoD in order to supply winter lines, waste metal, etc. to BB metal industry Co., Ltd. (hereinafter “B metal”), and is also using BB metal and its business places located in BB metal and 000 OOdong in Seoul OOdong.

B. The Plaintiff received tax invoices of KRW 315 (hereinafter referred to as "each of the tax invoices of this case") from the EE resources of limited companies (hereinafter referred to as "E"), FFps Co., Ltd. (hereinafter referred to as "F"), and GGY Co., Ltd. (hereinafter referred to as "GG") in 208, and from the 2nd VAT taxable period, after deducting the input tax amount under each of the tax invoices of this case, and reported and paid the amount of the 1st and 2nd VAT to the Defendant by deducting the input tax amount under each of the tax invoices of this case.

(The following table omitted):

C. On June 1, 2010, the Seoul Regional Tax Office reported EE, F, and GG as a disguised business owner who issued a false tax invoice, and notified the Defendant of the taxation data. Accordingly, on June 1, 2010, the Defendant respectively corrected and notified the Plaintiff of KRW 1 value-added tax of KRW 00, additional tax of KRW 00, and KRW 000, and additional tax of KRW 00,00, respectively.

D. The Plaintiff appealed and filed a request for review on August 13, 2010, and received a decision of dismissal from the Board of Audit and Inspection on December 9, 201.

E. On November 13, 2012, the Defendant revoked the Plaintiff’s additional tax portion ex officio, and notified the Plaintiff of the imposition of KRW 000,00, and KRW 000,00,00,00,00,00,00,00,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000

[Grounds for Recognition] The non-strifed facts, Gap evidence 1, 2, 3, and Eul evidence 4, 14, and 15 (including household numbers), and the purport of the whole pleadings

2. The legality of the instant disposition

A. The parties' assertion

(1) Plaintiff

(A) The Plaintiff purchased closeddongs equivalent to the supply value of each of the instant tax invoices from F and GG, and remitted the price to the account of each of the instant companies, and each of the instant tax invoices does not constitute a false tax invoice.

(B) Even if they fall under E, F, and G, and the Plaintiff was unaware of it at the time of the transaction, and the Plaintiff was unaware of it at the time of the transaction. In addition, the Plaintiff did not know of the fact that it was a false tax invoice because the Plaintiff did not know of the transaction, by checking the business registration certificate, corporate registration certificate, corporate certificate, corporate account copy, etc. before initiating the transaction, and indicating the vehicle number, name, weight and net weight of the vehicle, measurement date, measurement date, etc. in the course of the transaction.

(2) Defendant

The EE, F, and G are disguised suppliers established for the purpose of issuing false tax invoices, and the Plaintiff was supplied with closed Dongs from other enterprisers, and each of the instant tax invoices constitutes a false tax invoice. In addition, considering the fact that the route and details of transport, etc. of the closure agreement were not verified, the Plaintiff was aware of the fact that it was a false tax invoice, or was negligent in not knowing it.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to whether a tax invoice constitutes a false tax invoice

(A) In principle, the burden of proving that a tax invoice received in the course of a specific transaction constitutes a tax invoice different from the fact provided by Article 17(2)1-2 of the Value-Added Tax Act, for which the deduction of an input tax amount is denied on the ground that the specific transaction is a nominal transaction without actual delivery or transfer of goods (see Supreme Court Decision 2008Du9737, Dec. 11, 2008). In general, in a lawsuit seeking revocation of tax imposition, the burden of proving the fact of taxation requirements lies on the imposing authority. However, if it is found that the facts alleged in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the other party is an illegal disposition that fails to prove the fact that the facts in question are not eligible for the application of the empirical rule, unless it proves that the pertinent taxation disposition do not meet the taxation requirements (see Supreme Court Decision 2006Nu6604, Feb. 22, 2007).

(b) As to the tax invoice with EE as a supplier:

According to the following facts, it is reasonable to view that the evidence Nos. 4, 19, and 19, the evidence Nos. 1, 2, 3, 5, and 17, and 22 (including household numbers), and that the testimony of the witness Hah is incorporated by the J Resource Limited Liability Company (hereinafter referred to as the "JJ") on the ground of the witness Hah's testimony, under the pretext of securing the quantities, and that Hah purchased Hah from small-scale high-scale high-water, and directly supplied B metal, and issued a false tax invoice as if they are supplied to BB metal through J, E, and through the Plaintiff, and that Ha E is a false tax invoice for the supplier.

(1) EE is a corporation established on April 16, 2008 for the purpose of selling waste Dongs, etc., and Cho K, the representative director of which, shall hold 100% of equity.

② On May 20, 2010, Article II, the representative of J, was convicted of violation of the Act on the Punishment, etc. of Specific Crimes, and the Seoul High Court (2010No1442) maintained the conviction on August 2, 2010, and the above judgment became final and conclusive around 59 times, on the following grounds: “The Seoul Central District Court (2010No1442) maintained the conviction on August 2, 2010.”

③ Hah was convicted of violating the Punishment of Tax Evaders Act, on March 3, 2011, that “Hah was engaged in purchasing waste Dong, etc., while working as the Plaintiff’s office.” From the Seoul Central District Court (2010dan7404) on the basis of the facts stated that “Hah conspireds with Cho II to supply goods or services, and provided O on 9 occasions over 99 occasions from May 13, 2008 to July 18, 2008, with false tax invoice as if it were to supply 00 won goods.” Hah appealed appealed appealed, and Seoul Central District Court (201No964) provided the Plaintiff with false tax invoice on July 13, 201, and the Plaintiff, who was its subsidiary, supplied BB metal and its subsidiaries, supplied them to the Plaintiff with false tax invoice on the ground that the Plaintiff was not subject to tax investigation, and that the Plaintiff actually supplied the Hah Dongdong on the ground that the Plaintiff supplied the Hadong's tax invoice on 2008.

(4) The Director of the Regional Tax Office of Gwangju Regional Tax Office judged that the tax investigation was conducted twice on the first and second half of 2008 and EE was data.

⑤ According to the above tax investigation, in the EE's workplace on July 29, 2008 (OOOdong 000 in Gunsan-si), there are one office with container gambling on the site of 114 square meters, while the office is left alone in the state of closing the door, and on the site of the site, there was no three household appliances, and there was no miscellaneous household, and there was no miscellaneous household.

6. On June 17, 2005, KK, the representative of EE, stated that it was a person who received the decision on credit recovery support from the Korea Asset Management Corporation, and that it borrowed 200 million won around the business fund to establish E, but failed to submit any supporting material.

7. On Nov. 6, 2008, ChoK stated in the tax investigation that "J II, the representative of the J, supervised all the operations, such as the closure order and supply of the headquarters, and he, upon the request of Section II, transferred the proceeds to the five accounts of the JJ, and the closed Dong that he purchased was no longer than once. Since the supply to the plaintiff was dealt with by Section II, he made a statement that "on his own contact with the plaintiff, or did not know about the transport, measurement, and sales, and that "on April 6, 2009, he made specific transactions at 3-40,000 or more at the location of the workplace of ChoH and OO business."

8 KK deposited money from the Plaintiff on or following the day or following the date of receipt of the payment from the Plaintiff, and deposited money in cash, or by dividing it into five accounts of J. The money deposited from the Plaintiff was deposited in the form of KRW 1 won, while the J was deposited in the form of KRW 000, KRW 000, and KRW 000.

9. The Plaintiff did not have a field yard to store waste Dongs, etc., and the volume purchased by the Plaintiff was immediately stored in BB metal surging points.

① On June 2, 2009, H stated in the investigation of the Plaintiff that “it was hard to view that the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the e and the f

11. On July 25, 2008, Cho II departed from China, and HH paid 000 won to Cho II around that time. Article II again entered Korea, and H said, from March 5, 2010 to August 8 of the same month, Joh said that it would throw away the Section II at the coffee shop located in Sinti City and “I will go back without entering China.”

(12) The plaintiff has received in advance the tax invoices in which the items, quantities, the unit price, the supply price and the tax amount column were recorded, and when the quantities were entered, the plaintiff sent them to EE after measuring them at the center of the B metal, indicating the items, quantities, the unit price, the supply price and the tax amount in the tax invoice.

(13) EE reported and paid value-added tax as stated in the initial table below, and the tax authorities considered it as a processing transaction, and the tax authorities corrected the output tax and the purchase tax amount as stated in the item in the correction column. On the other hand, J, a major purchaser of EE, has never reported and paid value-added tax.

(c) As to a tax invoice with F as a supplier:

According to the following facts that are recognized by comprehensively considering the descriptions of Gap evidence 9-1, 2, 11-2, 5, 6, and 7 (including household numbers), and the testimony of Song LL, and the whole purport of the pleadings, it is reasonable to see that the NP directly supplies the closed Dong purchased from tax collection, and that the tax invoice of which the F is the supplier is different from the facts.

(1) F is a corporation established for the collection, sale, and export of metal scoops, and the AL is its representative.

② From June 15, 2009 to August 24, 2009, the head of Pyeongtaek-si Tax Office determined that “the NM’s NM’s NM directly supplied the waste dong collected from the tax collection to the Plaintiff or BB metal, and that “F prepares a false tax invoice as if it supplied the waste dong to the Plaintiff.”

③ Ntrade: (a) from July 2008 to August 21, 2008, issued 119 tax invoices of 000 won to FF; (b) there was no sales place other than F; and (c) there was no data on purchase. ParkM left China on October 4, 2008 immediately after FF withdrawn the waste rates received from F in cash, and entered China on October 4, 2008; and (b) there was no value-added tax amount until the date of the imposition of 00 won for the second estimated sales amount in 2008, and 000 won for the amount of output tax. The head of the Ansan Tax Office conducted a tax investigation on Ntrade; (c) purchased dongs from the high-metallic metal powder factories across the country; and (d) filed a false tax invoice in the future; and (e) filed a charge against NNM and MM Punishment Act as a violation of the National Tax Act.

④ During the above tax investigation on March 27, 2009, Song L stated that “F had no storage and knew of the storage because it did not have any storage and no direct collection of the goods,” and that “F had no storage and no storage facilities to load the quantity,” and that F had no choice but to bring the waste into BB metal directly, in the tax investigation on F on July 28, 2009. The number and transport of vehicles was entirely borne by NN trade, and the vessel did not know of the fact that the vessel was not aware of the fact that “F had storage and storage in Pyeongtaek”. While Song L reversed this court’s statement that “F had a storage in Pyeongtaek,” it did not provide any explanation that could be understood as to the statement in the above tax investigation.

⑤ On June 2, 2009, in the tax investigation conducted with the Plaintiff on July 2, 2009, he was at the night at the time of visiting the FF’s workplace from around 10 times to around 10, 2008, but did not seem to have been at the night-run waste operation, such as scoo. When the president of the NF is in the position of the NM, there is only one vehicle for waste operation such as scrap, and “MM was contacted around July 2008, and was requested to reduce the amount at the time of scrap supplied under the name of F. LL. The statement was made that there was no such request.

6. The Plaintiff received in advance the tax invoices in which the products, quantities, the unit price, the supply price, and the tax amount column were entered, and when the quantities were entered, the Plaintiff sent them to F after measuring them at the center of the B metal, indicating the items, quantities, the unit price, the supply price and the tax amount on the tax invoice.

7) F reported and paid value-added tax as indicated in the first table below, and the tax authorities considered this as a processing transaction and corrected the output tax amount and the input tax amount as stated in the revised column.

(D) As to the tax invoice with GG as a supplier

According to the following facts, it is reasonable to view that Gap evidence 14-1, Eul evidence 5, 10, 11, and 13, each evidence of witnesses H, and YP's testimony are different from the facts, as the whole is considered to have been supplied by the actual supplier other than GG, and tax invoices with GG as the supplier.

① GG은 2008. 9. 30. 비철금속 무역을 위해 설립된 법인이고, 서QQ이 대표자이다.

(2) The Central and Medium Regional Tax Office determined GG as data from a tax investigation conducted from February 17, 2009 to April 13 of the same year.

③ 위 세무조사 결과에 의하면, GG의 사업장은 '시흥시 OOO동 0000 OOO 0000호 사무실'이다. 임대인인 이RR는 2008. 9.말 서QQ 및 성명불상자 1인과 임대차계약을 체결하였는데, 2009. 1.부터 차임을 지급받지 못하였다. 위 사무실 외에 야적장은 없었다.

④ 서QQ은 폐비철 관련 사업을 운영하거나, 이에 종사한 적이 없고, 보유재산도 없었다.

⑤ GG의 유일한 직원인 임PP은 2009. 3. 10. 위 세무조사에서 2008. 10. 21. 입사하여 원고의 김SS 부장으로부터 일자별 계량확인서를 팩스로 받아 세금계산서를 발행해 보내주었다. 서QQ은 3개월 동안 10회 정도 사무실에 출근하였다. 다른 직원은 본 적이 없고, 운반기사라는 정TT 이사와 통화는 한 적이 있으나, 비철을 운반하는 것은 본 적이 없다. GG에 야적장은 없었고, 물건을 원고에게 보내기 위하여 싣는 것도 본 적 없다 고 진술하였고, 이 법원에서 같은 내용을 진술하였다.

6) On June 1, 2009, Cho H visited the Plaintiff’s place of business around October 2008, but there was no field room. He stated that he was unaware of who was paying the transportation route and transportation cost of the purchased quantity.

⑦ 서QQ은 원고로부터 대금을 송금받으면 당일이나 그 다음날 이를 모두 현금으로 인출하였고, 2008. 12. 30. 중국으로 출국하여 사실상 폐업하였다.

(8) Even if new and outstanding input tax invoices were issued for three months from October 1, 2008 to December 29, 2008, the input tax amount of 000 won was not reported.

9. The GG reported and paid value-added tax as stated in the initial table below, and the tax authorities considered it as a processing transaction and corrected the output tax amount and the input tax amount as stated in the correction column.

(E) As to the Plaintiff’s assertion against F and GG

The plaintiff, and (1) The defendant asserted that the actual entrepreneur to whom income, earnings, calculation belongs, etc. belongs, and (2) that the N Trade, etc. directly supplied to the plaintiff the waste dong that was collected from tax collection world is ordinarily permitted for reduction of transportation costs and transaction volume, so the existence of the gyp or guidance center can not be the basis for determining whether it is a disguised trade, and that the gyp or guidance center exists between the plaintiff, F and GG is not the evidence of measurement (Evidence 10-2, 3, 4, 15-2) and the deposit details (Evidence 10-5, 6, 15-4, 15-4, 15-7, 15-7, 15-7, 15-7, 15-7, 3, 15-7, 15-7, and 18-7, 18-7, 3, 18-7, 18-7, 18-7, 10-7, and 18.7.

(2) As to good faith and negligence

(A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the other tax invoice, and the person who received the other tax invoice shall prove that there is no negligence on the part of the person who alleged the deduction or refund of the input tax amount (Article 202Du2277, Jun. 28, 2002).

(B) As to whether the Plaintiff was unaware of the name of the supplier of each of the instant tax invoices and was not negligent in not knowing the name of the supplier, each of the indications in the health stand, Gap evidence Nos. 1, 4, 5 and 6, and evidence Nos. 18, Eul evidence Nos. 4, 8, 12, and 21 (including the family serial number) are insufficient to recognize it, and there is no other evidence to support it. Rather, considering the following circumstances recognized by considering the overall purport of the arguments as a whole, and witness Cho H testimony testimony, it is reasonable to deem that the Plaintiff was aware of each of the instant tax invoices, if the Plaintiff knew of, or paid attention to, the fact.

① The largestCC, the representative director of BB metal, established the Plaintiff to supply waste shields to BB metal, and was in exclusive charge of the purchase-related affairs to H H, which is a high school and a new high school.

② The largestCC had been operating BB metal before the Plaintiff was established, and the annual sales of BB metal in 2008 exceeded 00 won, and it seems that it had been well aware of the supply structure and distribution channel of the waste consent, the general transaction form or method of the industry, and the actual conditions and risks of transaction on the data. Nevertheless, the largestCC only purchased it to ChoH, and it did not confirm the identity of each transaction party such as EE, the register of the corporation and the register of the corporation, and the payment of national tax and local tax, and the closure and closure of business.

③ E, F, and G were the Plaintiff’s primary purchasing, and the transaction period with the Plaintiff was “E from April 25, 2008 to July 18, 2008, and F from July 2008 to September 30, 2008, and GG from October 1, 2008 to December 29, 2008, and during this period, there were circumstances to doubt whether the Plaintiff was a disguised enterpriser.

④ The Plaintiff did not verify the transportation route of the closed transport agreement, the details of the payment of the transportation cost, and the details of the payment of the purchase price. In addition, the Plaintiff did not verify the name of the driver who caused the closed transport, and entered only 4 forms in the vehicle number. The Plaintiff merely heard the horses of the driver and confirmed the supply site.

5. The tax invoices entered between E and F in each of the tax invoices in the instant case as suppliers are those in which BB metal is measured by being closed, and the value of supply, amount of tax, etc. arising therefrom are written voluntarily and received. E or F did not provide for the value of supply, etc. determined by the employees of B metal.

6) The Plaintiff asserts that the Plaintiff met not only the business registration, the name of its representative, and the copy of the corporate passbook through Cho H, but also the register of the corporation, the entire national tax and local tax, and the temporary closure of business through the National Tax Service. However, there is no evidence to acknowledge that the Plaintiff was a company copy of the corporate register of EE, etc., the national tax and local tax, and the temporary closure of business. The instant business registration certificate is merely a certificate issued by the head of the competent district tax office to the head of the competent district tax office in order to identify the taxpayer of value-added tax and secure taxation data, and is merely a certificate issued by the business operator to the head of the competent district tax office, and is not recognized that the business operator satisfies the qualification or requirement to operate the business (see, e.g., Supreme Court Decision 2003Do6934, Jul. 15, 2005). It is difficult to deem that the Plaintiff made efforts to verify the supplier.

(3) Sub-decisions

Each tax invoice of this case constitutes a tax invoice different from the facts, and the plaintiff knew or was negligent, so the disposition of this case is legitimate.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

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