Cho High-2013-Seoul Government-1464 (28. 2013)

That the input tax amount on a false tax invoice shall not be included in the input tax amount to be deducted.

The input tax amount on a tax invoice different from the fact that the actual purchaser is not an input tax amount to be deducted.

Article 32 of the Value-Added Tax Act

Article 38 of the Value-Added Tax Act

Seoul Administrative Court-2013-Gu Partnership-2550

AA

aa

2014.03.14

2014.04.22

1. AA’s claims are dismissed.

2. Litigation Costs shall be borne by AA.

Aa revoke the imposition of value-added tax of KRW 34,328,430 (including additional tax of KRW 15,866,170) on December 3, 2012 made by AA on December 3, 2012.

1. Details of the disposition;

A. AA received a tax invoice in the first taxable period of the value-added tax in 2010, consisting of a supplier corporation BB (hereinafter referred to as “bb”), supply price of 184,790,000 won (hereinafter referred to as “instant tax invoice”) from a company that operates a telecommunications line sales agency, and filed a return by deducting the input tax amount under the instant tax invoice at the time of the pertinent taxable period at the time of the value-added tax return.

B. From August 29, 2012 to October 19, 2012, the director of the ○○ Regional Tax Office: (a) conducted an integrated investigation of the corporate tax of AA with respect to the actual service of AA; (b) deemed that the actual service was received from cC operated by BB; and (c) notified AA of the taxation data by deeming that the instant tax invoice was received in the name of bbbb; and (a) accordingly, (c) on December 13, 2012, the head of the ○○ Regional Tax Office deducted the input tax amount under the instant tax invoice and notified AA of the correction of the amount of KRW 34,328,430 (including additional tax amount of KRW 15,86,170) for the first time of value-added tax (hereinafter referred to as the “instant disposition”).

C. AA was dissatisfied with the instant disposition and requested to the Tax Tribunal on February 25, 2013, but the said claim was dismissed on June 28, 2013.

Facts that there is no dispute over recognition, Gap's 1, 4, Eul's 1, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

(a) AA’s assertion

① Since AA was provided by BB with services from BB to the bank account in the name of BB, i.e., deposit of service charges, etc. in the bank account in the name of BB, the tax invoice of this case does not constitute a false tax invoice, and ② even if BB is not an actual supplier, AAA is not aware of such fact, and was not negligent in not knowing such fact, and thus, it should be deemed that the input tax deduction can be made under the tax invoice of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the instant tax invoice constitutes a false tax invoice

A tax invoice shall be issued from an entrepreneur who supplies goods or services pursuant to the Value-Added Tax Act, and a person liable to pay value-added tax shall be deemed to be a person who actually receives goods or services or who actually trades goods or services to a person who is supplied with such goods or services, not from an entrepreneur who forms a nominal legal relationship with another entrepreneur (see, e.g., Supreme Court Decisions 2002Do4520, Jan. 10, 2003; 2007Do10502, Jan. 28, 2010).

In full view of the above evidence, Gap evidence, Eul evidence Nos. 6, Eul evidence No. 2, and Eul evidence No. 8, the purport of the whole arguments is as follows: (a) BB, which provided Internet subscription attraction service, was engaged in the above business in the name of "ccccc"; (b) prepared and delivered the tax invoice of this case in the name of bb to AA in order to reduce a large amount of tax revenue; and (b) above BB, which was investigated by full processing of all sales and purchases, can be acknowledged that it was accused of the fact that the tax invoice of this case in the name

According to the above facts, the tax invoice of this case is entered falsely by the supplier.

Since it is obvious that it is applicable, the argument of AA against this is not acceptable.

(2) Whether AA is bona fide or without fault on a nominal representation

The actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the fact that the supplier was unaware of the nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

In light of the above legal principles, the above evidence and the statements in Gap evidence Nos. 2, 3, 5, and 7 stated that "AA was introduced as the representative of the cCB by itself, i.e., the following circumstances acknowledged by adding the whole purport of the arguments, i.e., the complaint (Evidence No. 7) prepared by the CCC, the representative director of the AA, to file a complaint against BB; and (2) at the time the AA paid fees to BB, "B may make it possible for the BB to pay taxes to the principal because it is a ccc, and thus, I would like to make a transaction under the name of the cc, and thus, I would not be able to confirm that the above AA was an already closed business entity after transferring fees to the dd, and there was no other evidence that BB was transferred under the name of the cB and no other evidence that the BB did not have been submitted to the account under the name of the bA, i.e., the transfer of the tax invoice under the name of the bB.

3. Conclusion

Thus, AA’s claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.

Relevant statutes

▣ 구 부가가치세법(2013. 6. 7. 법률 제11873호로 개정되기 전의 것)

Article 16 (Tax Invoice)

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

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 referred to in subparagraphs 1 through 4.

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

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