early 208west0284 (2008.05)

No person may claim processing sales in the increased or corrected disposition due to the non-deduction of the input tax amount.

The argument that the tax base is calculated by a false report on sales is not an illegal ground for a disposition of increase due to a failure to deduct the input tax amount, and that the sales should be legally reported and confirmed, so long as the sales declaration transaction is confirmed, the argument that the tax base should be deducted from the tax base cannot be accepted.

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

1. The plaintiff's claim is dismissed.

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

On October 12, 2007, the Defendant confirmed that value-added tax for the first term of 2001 was 9,397,900 won, value-added tax for the second term of 2001 7,623,830 won, value-added tax for the second term of 2002 7,358,30 won, value-added tax for the second term of 2002 7,358,30 won, value-added tax for the first term of 203 5,840,940 won, value-added tax for the second term of 203 5,715,7190 won, value-added tax for the second term of 203 5,903,940 won, value-added tax for the first term of 204 5,132,80, value-added tax for the second term of 205, 205, 2068, 2005 won.

1. Circumstances of the disposition;

가. 원고는 1993. 2. 22.부터 2007. 9. 30.까지 서울 중구 ☆☆동 48-3 ★★상가 28호에서 '○○○'이라는 상호로 의류도매업을 영위하던 사업자이다.

B. The Seoul regional tax office, from January 16, 2007 to April 19, 2007, conducted a survey on the data related to the group price, and found that △△△△△△△△△△, including the Plaintiff, issued a false tax invoice for total supply price of 219,849,00,000, in the name of each company in order that △△△△△△△, which reported about 1,223 companies' tax returns and acted on behalf of the head of the flag office, filed a value added tax return on the said 1,223 companies.

C. The Plaintiff: (a) deducted the input tax amount on the purchase tax invoice of KRW 391,080,000 (hereinafter “the purchase tax invoice of this case”) issued by both △△△△, from the output tax amount for each taxable period; and (b) deducted the input tax amount of KRW 391,080,000 from the output tax amount for each taxable period.

D. The Defendant, on October 12, 2007, did not deduct the other input tax amount, on the ground that the purchase tax invoice of this case was a false tax invoice, and issued a disposition of this case, which corrected and notified value-added tax as stated in the purport of the claim.

【Ground for Recognition: Facts without dispute, entry of Gap 1 and 5 evidence, purport of the whole pleadings】

2. Determination on this safety defense

The defendant asserts that the lawsuit of this case is unlawful because it did not observe the period of filing the lawsuit, but the plaintiff's claim is confirmed to be invalid of the disposition of this case, and the lawsuit seeking confirmation of invalidation does not be subject to the limitation on the period of filing the lawsuit stipulated in Article 20 of the Administrative Litigation Act.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Grounds for appeal against this principle

Article 21(1)3 of the former Value-Added Tax Act (amended by Act No. 8826, Dec. 31, 2007; hereinafter "the Value-Added Tax Act") provides that the tax authority shall determine or rectify the tax base, etc. of value-added tax by investigation if the items entered in the final return of value-added tax are differently entered from the facts in the list of the total tax invoice submitted when filing a final return of value-added tax, and Article 21(2) of the Value-Added Tax Act provides that the tax authority shall determine or correct the tax base, etc. of value-added tax by investigation. According to Article 21(2) of the Value-Added Tax Act, where the

Although it was true that the purchase tax invoice of this case was prepared falsely, the corresponding sales tax invoice was also prepared by each tax accounting agent, and it is true that it was confirmed as a result of the investigation by the Seoul Regional Tax Office. Thus, the defendant should have confirmed a new tax base by conducting a field investigation or conducting at least the estimated tax investigation without being biased on the false sales tax invoice submitted by the plaintiff. Nevertheless, the defendant determined the tax base based on the sales tax invoice clearly false, and accordingly, issued the disposition of this case. This violated the principle of base taxation.

(2) Violation of the principle of equity in taxation; and

The Defendant imposed value-added tax only for three taxable periods on the merchants who filed a revised return among the merchants in the same place as the Plaintiff, but imposed value-added tax on the Plaintiff only for the sole reason that the revised return was not filed. This goes against the principle of equity in taxation.

B. Determination

(1) Whether the underlying taxation principles are violated or not

Article 17(2) of the Value-Added Tax Act provides that the input tax amount shall not be deducted from the output tax amount even if the taxpayer actually received the goods or services, in cases where the input tax invoice under Article 16 of the Value-Added Tax Act is not issued, or all or some of the items required for the issued tax invoice are not entered, or where the input tax amount is entered differently from the fact. As to the output tax amount, it is reasonable to deem that there was an actual sales as long as the taxpayer voluntarily reported such sales, and even if there was no actual domestic sales, the portion reported by the taxpayer as the sales in the value-added tax, which is the tax return method, is finalized (if the sales tax amount is overreported, the taxpayer should request a correction of the amount of tax, etc.) and the portion reported as the sales amount should not be deducted from the total sales amount under the principle of equity (see Supreme Court Decision 2004Du9197, Nov. 10, 2005).

In other words, that the tax base is calculated by a false sales declaration, the reason why the tax base is asserted in the procedure such as a request for reduction or correction for that part, and that it is not an illegal reason for a disposition of increase or correction due to a failure to deduct an input tax amount. Thus, even if the Plaintiff already reported sales from 1st to 1st 2006 and confirmed legally, it cannot be accepted even if the Plaintiff asserts that the sales declaration transaction should be deducted from the tax base as the processing transaction later.

Above all, according to the statement of evidence Nos. 8, the employees of the accounting office of balknium found the merchants first at the time of the return of value-added tax on commercial merchants, received the actual sales data, and received the purchase data, and received the performance data, and then issued or received a false tax invoice in response thereto. Thus, it is difficult to view that the sales tax invoice, etc. submitted by the Plaintiff is all false. Therefore, the Defendant cannot be said to have the duty to re-determination the sales revenue by means of a preliminary investigation stipulated under the Value-Added Tax Act

(2) Whether it is against the principle of equity in taxation

In full view of the purport of the argument in Gap evidence No. 4, the defendant sent a guide to the effect that in a case where the Do governor △△△△ case related to the tax invoice issued by both △△△△△△△ was urged the merchants to file a revised tax return on the value-added tax from the first half of 2005 to the first half of 2006, it may be taxed on the whole of the relevant taxable period. The plaintiff also received the above guide, but the plaintiff did not file a revised tax return, unlike other merchants.

However, the above taxation by the defendant is very weak, while human resources of the tax authorities have taken into account the shortage of human resources at the same time to correct the revised tax for three taxable periods, and it does not seem to have waived taxation for the remaining taxable periods.

It is recognized that the merchants, who reported the revised tax return due to the above taxation by the Defendant, received the benefit of the deadline for the amount of the corrected tax for the remaining taxable periods, unlike the Plaintiff. However, in light of the Plaintiff’s opportunity to receive the benefit of the deadline for the amount of the corrected tax for the remaining taxable periods in response to the revised tax return, but the Plaintiff was at a disadvantage compared to other merchants as a result of the Plaintiff’s failure to comply with the notification of the revised tax return, it is difficult to view the instant disposition solely on the basis

(3) Whether the invalidation is void or not

Even if the instant disposition was issued according to the tax base established by some false sales tax invoices or was somewhat inconsistent with the equity of taxation, it cannot be deemed as serious and obvious as it would be null and void as a matter of course. Therefore, the Plaintiff’s assertion that the instant disposition is null and void cannot be accepted.

4. Conclusion

Inasmuch as the plaintiff's claim is groundless, it is dismissed.