Seoul Administrative Court 2008Guhap9768 ( October 15, 2008)

Whether there was no export of gold products or whether the relevant evidence is false

There is no evidence to deem that there was a tax evasion by the prosecution on the suspicion of the evasion of value-added tax, and there is no evidence to regard that the export-related documents were forged without the export of gold products, and that gold gals were prepared by false documents related to the export or exported at prices lower than domestic market prices. As such, there is insufficient specific evidence to deem that gold gals were exported at a price lower than domestic market prices, the rejection of export

The contents of the decision shall be the same as attached.

Article 21 (Rectification of Value-Added Tax Act)

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposition of value-added tax amounting to KRW 9,211,530 for the second period of 2006 against the Plaintiff on May 7, 2007 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's appeal is dismissed.

1. Quotation of judgment of the first instance;

This court's reasoning is as follows, except for adding the following judgments to the new argument made by the defendant in the nature of the legitimacy, and thus, it is identical to the entry in the reasoning of the judgment of the court of the first instance (3. conclusion second part of the judgment), and Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. Defendant’s principal

In addition, in addition to the circumstances alleged earlier, the Defendant asserts that the Defendant: (a) was guilty of having practically led the export of the instant gold bullion; (b) was guilty of having issued a false tax invoice in relation to the gold bullion transaction of ○○○, Inc., the representative director; and (c) the Plaintiff exported the instant gold bullion at a price lower than that of the domestic wholesale market; and (b) further, the Defendant asserted that the instant disposition was lawful, on the other hand, that the Plaintiff sold the entire amount of the gold bullion purchased by the Plaintiff as tax-free gold bullion to domestic waters, sold the entire amount of the gold bullion purchased by the Plaintiff as tax-free, and then written the appearance as if it were exported to Japan.

B. Determination

However, even after the process of the request for the delivery of documents to the Seoul Central District Prosecutors' Office on January 23, 2009, ○○○○ filed a charge of evading the first term and second term value-added tax in 2005 with respect to export transaction. However, on February 16, 2009, the Seoul Central District Prosecutors' Office was found to have been subject to a disposition of evading the first term and second term value-added tax in relation to the export transaction. On February 16, 2009, the allegation that the above disposition of this case is lawful due to the following facts: (a) there is no evidence that ○○○ had been issued a charge of evading the first term and second term value-added tax; and (b) there is no evidence that the gold bars, as argued by the Defendant, had forged export-related documents as if they were actually exported, or that there was no evidence that the Plaintiff exported the gold bullion at a price lower than the domestic price of gold bullion.

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reason that it is reasonable, and the judgment of the court of first instance is just, and the defendant's appeal is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2008Guhap9768, May 26, 2009]

1. The Defendant’s imposition of value-added tax of KRW 59,211,530 against the Plaintiff on May 7, 2007 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On December 7, 2006, the Plaintiff: (a) purchased tax-free gold bullion 25km from ○○○○ City (hereinafter referred to as “○○○○ City”) on 477,325,000 won; and (b) entrusted the 18K gold ju (hereinafter referred to as “○○○”) who is a gold industry operator with 281 metal 281; (c) on December 15, 2006, the Plaintiff filed a final tax return on 200,231,273.60; (d) on the basis that the Plaintiff exported it to ○○○○○○○○○ and a limited liability company (hereinafter referred to as “one company”) which is a precious metal selling company in Japan, and entered it in the final tax return on 200,360,736,74,767,767,75,700 and 207,706,75,7636,75,75, etc. of value-added tax on December 15, 200.

[Contents of Report on Value-Added Tax] Na 300 Na 3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u300 gross u300 gross u300 gross u3000 gross u300 gross u3000 gross u3000 fishery u300

Tax Base and Sales Amount

Purchase Tax Amount

Tax amount payable

zero tax rate (other)

Amount of tax

Amount of tax invoice received (general purchase)

Amount of tax

479,728,659

0

480,488,400

292,250

-292,250

[Contents of Report on Corporate Tax] Na 300 Na 3000 gross u3000 gross u3000 gross u33000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 gross u3000 u300 gross u300 gross u300 u300 u300 u300 u300 u300 gross u3000 u300 n

Revenue amount

Tax Base

Tax amount payable

479,728,659

-1,924,837

0

B. On May 7, 2007, the Defendant denied the fact that the Plaintiff exported to the Japanese company, converted the Plaintiff’s sales revenue into 667,437,69 won in accordance with the gross profit ratio of precious metal wholesale business (28.01%) and excluded the application of the zero-rate tax, and made a correction and disposition of the value-added tax as stated below on May 7, 2007, and added the remaining 187,709,040 won after deducting the sales initially reported from the estimated sales revenue to the gross income, and made a correction and disposition of the corporate tax as stated below.

[The details of the first correction of value-added tax] physical u 300 physical u u3000 n u3000 n u3000 n u3000 n u3000 u3000 n u3000 u300 n u3000 u300 u300 n u3000 n u3300 u300 n u300 u300 u300 n u300 n u300 u300 n u300 n u300 n u300 u300 n

Tax Base

Sales amount

Purchase Tax Amount

Vehicle reduction meters

Tax amount already paid

Additional Tax

Amount of tax notified after deduction

Reporting

479,728,659

0

292,250

-292,250

-292,250

0

-

Correction

667,437,69

66,743,769

292,250

66,451,519

0

15,391,111

81,842,630

Amount of increase or decrease

187,709,040

66,743,769

0

66,743,769

-292,250

15,391,111

81,842,630

[The details of the first correction of the corporate tax] 【 【300 【300 【300 【3000 【3000 executeu 3000 executeu3000 executeu3000 executeu3000 executeu u3000 executeu3000 executeu300 executeu300 executeu3000 executeu33000 executeu3000 executeu300 executeu3000 executeu300 executeu300 executeu300 executeu300 executeu300 executeu300 executeu300 us 3000 executeu300 executeu300 us

Tax Base

Tax Rate

calculated tax amount

Additional Tax

Total final tax amount

Amount of tax notified after deduction

147,986,656

25%

24,996,664

5,261,796

30,258,460

30,258,460

C. On June 27, 2007, the plaintiff filed a request for a trial with the National Tax Tribunal. On December 20, 2007, the National Tax Tribunal rendered a decision to estimate the plaintiff's sales by applying the sales profit ratio of the pertinent type of business and to correct the tax base and tax amount based on the estimation. Accordingly, the defendant changed the initial sales profit ratio of precious metal wholesale business (28.01%) to the total sales profit ratio of gold bullion wholesale business (0.63%) to the total sales profit ratio of gold bullion wholesale business (0.63%). On January 25, 2008, the plaintiff's sales revenue was converted to 483,534,000 won, and then the value-added tax was reduced to 22,631,100 won (and less than 10 won) as stated in the second correction of the value-added tax, while the defendant made a final decision to reduce the amount of the value-added tax to 30,258,460 won through the correction of the value-added tax.

[Detailed correction of Value-Added Tax] 【300 【300 【3000 【3000 【3000 【3000 【3000 executeu3000 executeu3000 executeu3000 executeu3000 executeu33000 executeu300 executeu300 executeu3000 executeu33000 executeu3000 executeu300 executeu3000 executeu3000 executeu300 executeu300 executeu300 executeu300 executeu300 us 3000 us

Tax Base

Sales amount

Purchase Tax Amount

Vehicle reduction meters

Tax amount already paid

Additional Tax

Amount of tax notified after deduction

First Correction

667,437,69

66,743,769

292,250

66,451,519

81,842,630

15,391,111

-

2. Second Correction

483,534,668

48,353,466

292,250

48,061,216

81,842,630

11,150,308

-22,631,106

Amount of increase or decrease

-183,903,031

-18,390,303

0

-18,390,303

0

-4,240,803

-22,631,106

[Basis] Facts without dispute, Gap evidence 31, 33, Gap evidence 37 through Gap evidence 39, Eul evidence 1-1 to Eul evidence 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

After purchasing the tax-free gold bullion from ○○○ City, the Plaintiff actually exported it to the Japanese company through ○○○○○ Si, and then practically exported it to the Japanese company. This can be seen by examining various documentary evidence, such as the commercial register of the Japanese company, various contracts, commercial invoices, air waybills, etc. written between the Plaintiff and the Japanese company. Accordingly, the Plaintiff’s disposition of this case, which was imposed by estimation on the Japanese company, on the premise that the Plaintiff did not export the Japanese company, was unlawful.

(2) The defendant's assertion

○○○, the representative director of the Plaintiff, was unable to know the fact of exporting 18K gold bullion to the Japanese company, and the process of acquiring the Plaintiff’s stocks is unclear; the fact that ○○ was accused of tax evasion in connection with the business of the same trade; the Plaintiff’s source of funds settled in the course of purchasing gold bullion from ○○○ City is unclear; the Plaintiff was in charge of the processing of gold bullion; however, it is reversed the Plaintiff’s statement on the ○○○ △ △ △△, but it is difficult to view that the Plaintiff was not subject to the imposition of the Value-Added Tax Act by considering the following facts: (a) the Plaintiff’s 18 K gold bullion was lawful during the process of processing gold bullion as 18 K gold bullion; (b) the Plaintiff’s 18 K gold bullion was exported; and (c) the relationship between the Plaintiff and the transporter was unclear; and (d) the Plaintiff’s payment of the said gold bullion was made by the Plaintiff under the premise that the Plaintiff was not subject to the imposition of the Value-Added Tax Act.

(b) Related statutes;

Article 11 (Application of Zero Tax Act)

Article 21 (Determination and Correction of the former Value-Added Tax Act)

Article 24 (Scope of Exportation of the former Value-Added Tax Act)

Article 69 (Method of Estimation and Revision)

Article 106-3 (Special Taxation of Value-Added Tax on Gold Metal Trade)

Article 106-4 (Approval, Alteration, and Withdrawal, etc. of Gold Metal Trade)

Article 106-5 (Delivery of Tax Invoice for Gold Metal Trade and Method of Return, etc.)

Article 106-6 (Business Entity Subject to Security for Tax Payment)

Article 106-8 (Time and Procedure, etc. for Offering Security for Tax Payment)

Article 16 (Ground Taxation for Framework Act on National Taxes)

(c) Fact of recognition;

(1) The plaintiff's purchase at the present and its later progress

(A) On September 11, 2006, the Plaintiff filed an application with the Defendant to approve the transaction of tax-free grade with the monthly average required quantity at 25 km. On September 20, 2006, the Plaintiff notified the Defendant that 56,761,100 won should be offered as security for tax payment at the same time as he received the written approval for tax-free trade (Evidence A) from the Defendant on September 20, 2006, and on September 22, 2006, deposited the above 56,761,10 won to the Seoul Central District Court.

(B) On December 7, 2006, the Plaintiff prepared a sales contract (Evidence No. 13) with a purport to purchase tax-free gold bullion 25 km from ○○○○ Brokerage Co., Ltd. (hereinafter referred to as “○○○○○○○ Brokerage”) for 477,325,000 won (hereinafter referred to as “the gold bullion of this case”). On the other hand, the Plaintiff acquired the gold bullion of this case through ○○ Korea upon request from ○○○○○○ Korea, and deposited KRW 47,539,796, including fees for the purchase price and ○○○○○○○ Brokerage on the same day, and received the divisional certificate (Evidence No. 20) with respect to the gold bullion of this case from ○○○○ City.

(C) On December 15, 2006, the Plaintiff entered into a cargo transport agreement with Japan on December 15, 2006 on which the export declaration was filed along with commercial invoice (A. 23 evidence) and with the export declaration completion certificate (A. 24 evidence) from the Incheon Airport Customs Office. On the other hand, the Plaintiff entered the cargo transport agreement with 18 K Twit 281 (hereinafter “the instant title”) from the cargo transport company, a cargo transport company, and 18 K Twit 281 (hereinafter “the instant title”). Accordingly, the air waybill (A. 25 evidence) issued by the ○○ Press, which entered the instant title in the air waybill, into a cargo transport agreement with a Japanese company on December 16, 2006, which entered the air waybill into the air waybill with a Japanese company on December 16, 2006, which dealt with the air waybill by the air transport company at the bottom of this case’s signature.

(D) On the other hand, the Plaintiff received a total of 61,50,000 UN on January 4, 2007, 280,000 ( Won 481,935,350 won in Won), including 263,952,000,000 UN ( Won 263,983,350 won in Won) on January 9, 2007, and the above amount was immediately deposited in the account under the name of the Plaintiff, and immediately deposited in cash on the day when it was deposited in the account under the name of the Plaintiff.

(2) The reasons why ○○○ became the representative director of the Plaintiff, etc.

(A) The Plaintiff was the representative director of the Plaintiff, but on September 20, 2006, ○○○ was the representative director of the Plaintiff. On September 20, 2006, she: (a) prepared a share transfer/acquisition contract (Evidence A No. 35-1) to acquire KRW 900,000,000 of the Plaintiff’s shares, and acquired the Plaintiff’s shares; and (b) thereafter, he was appointed as the representative director through the Plaintiff’s board of directors held as of September 29, 2006. In addition, on October 11, 2006, she reported securities transaction tax with KRW 45,00,000,000, total tax base, calculation details, and tax amount paid at KRW 225,00,00.

(B) Meanwhile, in relation to the process of acquiring the Plaintiff’s shares from Yellow ○ as seen above, the right of ○○ has lent approximately KRW 60 million to Yellow ○ in personal in the course of the tax investigation, which subsequently led to the Plaintiff’s acquisition of the Plaintiff’s shares as a repayment of the above borrowed amount due to the failure of Yellow ○ to pay the said borrowed amount.

(3) A company's management, etc. after an authorized ○○ was appointed as a representative director

(A) Around 1985 to about 10 years from 1995, an authorized ○○ has no record of operating a company except for a person operating an beauty room. In this regard, the right ○○ stated that he was temporarily employed under his cooperation on the condition that he would pay KRW 100,000 per day upon introducing Kim ○○-ro, while recognizing that he was in the course of tax investigation that he was in a place other than a door on his gold bullion export business.

(B) In addition, while making a transaction with a Japanese company during the course of tax investigation, ○○○ was written in the currency with the representative director of the Japanese company through Kim○, there was no direct contact with the Japanese company. In addition, the Plaintiff stated to the effect that the affairs related to the export of the instant title were handled in substance by the affairs related to the export of the instant title, such as the developments leading up to concluding a transaction relationship with ○○ juice and ○○ Press, the profits earned by the Plaintiff from exporting the instant title to the Japanese company, the detailed contents of the contract made between the Plaintiff and the Japanese company, and the details computed by the export value of the instant title.

(C) Meanwhile, as a person who had been engaged in the precious metal manufacturing business from around 1999 and was on around 2002, the Kim ○○○ case was employed by the representative director of the precious metal manufacturing company (main ○○○○ case) and in relation to the investigation of the relevant offenses in the transaction order column for the paper tax secretary, he was accused of tax evasion during the period from April 1, 2005 to June 30, 2005 by the tax office having jurisdiction over the same police station.

(D) According to the Plaintiff’s comprehensive inquiry on earned income data (No. 10 evidence), it is confirmed that there was no employee employed by the Plaintiff as a regular employee around 2006 and around 2006.

(4) A transaction with ○○○○ and ○○△ ice

(A) In the course of the tax investigation, ○○○○ stated that the deposit related to the housing rental business was lent to another person with respect to the source of the fund for purchasing the instant gold bullion from ○○○○ place, and that the deposit was collected, and then stored in 2 abstin, and used KRW 477,325,000 among them for the purpose of purchasing the said gold bullion.

(B) On the other hand, according to the 'the answer and the business trip confirmation report on the tax-free gold bullion trading prepared by the defendant (the "the report of this case" No. 6-1, hereinafter), the housing of ○○○○-133, Seoul, ○○○○-dong, ○○○○-133, which was located in the underground space of neighboring buildings, was accused of the fact that Ha○○○○○, a representative director, was an executive officer of Ha○○○, and the current Ha○○○ was missing after delinquency of rent, etc., and he was able to process the factory with three employees while operating the factory on behalf of the factory, and paid some rent, etc. as the price.

(C) In addition, according to the instant report, Kim Jong-dong only keeps the documents related to the Plaintiff in the course of the tax investigation for the year 2006, while presenting a contract for the processing of gold bullion 20 km from the Plaintiff. Meanwhile, it stated that the Plaintiff and ○○ju, who was provided with gold bullion 20 km and processed 200 gold bullion 20 g, was first engaged in a transactional relationship with the Plaintiff at the time, but he did not have been separately requested by the Plaintiff. Further, it stated that he received KRW 2 million for the processing of gold bullion after completion of the processing of gold bullion 33 and 4, and received KRW 2 million for the first time, and stated that he reversed his statement, such as accepting KRW 2 million later.

[Based on Recognition] A’s without dispute, Gap’s evidence 1, Eul’s evidence 5 through 8, Eul’s evidence 10 through 20, Gap’s evidence 22-1 through 3, Gap’s evidence 23 through 25, Gap’s evidence 27-1 through Gap’s evidence 29, Gap’s evidence 35-2, Gap’s evidence 39 through 41, Gap’s evidence 43-1, Eul’s evidence 6-1, 4, 5, Eul’s evidence 7 through 11-2, Eul’s evidence 16-2, Eul’s evidence 19 through 20-3, the court’s fact-finding date on ○○○○ Twits Co., Ltd., the whole purport of oral pleadings, and the purport of oral pleadings

D. Determination

The burden of proving whether there was a transaction, such as the supply of goods or services, which is a taxation requirement under the Value-Added Tax Act, or the supply value, which is a tax base, is, in principle, the tax authorities (see, e.g., Supreme Court Decision 92Nu2431, Sept. 22,

Therefore, in this case, even if the Plaintiff did not export the instant title to the Japanese company, it is difficult for the Plaintiff to find that the Plaintiff had been actually engaged in the export of the instant gold bullion trade as if it had been exported to obtain zero-rate tax rate, and that the Plaintiff exported the instant title to the Japanese company as if it had been in fact before the date of entry into an export contract with the Japanese company, and there was no other specific evidence that the Plaintiff had been in fact engaged in the export of the instant gold bullion trade with the Japanese company, including the Plaintiff’s certificate No. 2) and its order (Evidence No. 9), and its tax invoice (Evidence No. 21) and its tax invoice (Evidence No. 22-4) were prepared between the Plaintiff and the Japanese company for the sales of gold bullion No. 706, Sep. 11, 2006, the Plaintiff was not obligated to obtain an export declaration certificate and its actual amount of gold bullion No. 970, Jun. 26, 2006.

Therefore, the disposition of this case is unlawful and the plaintiff's assertion pointing this out is with merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is reasonable, and it is so decided as per Disposition by the assent of all participating Justices.