Cho High Court Decision 201Do0028 ( October 14, 2011)

It shall be deemed that it has taken over several times a day from the customer, and it shall be viewed as a false tax invoice.

The transportation of a large quantity as much as possible at one time in order to have less transportation costs from the collection of scrap metal is in accordance with the empirical rule, but the transportation of a large quantity is in accordance with the fact that it takes over a small amount of waste, or takes over a small amount of waste over several occasions a day from the customer, and thus, it is deemed that the transaction was conducted in a disguised manner after it took over the operation from another customer in accordance with the empirical rule

Article 17 (Payable Tax Amount)

2011Guhap21263 Revocation of Disposition of Imposition of Value-Added Tax

XX Metal Co., Ltd.

Head of Eastern Tax Office

November 30, 2011

December 21, 2011

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of value-added tax of KRW 144,461,430 for the first period of October 1, 2010 and value-added tax of KRW 214,208,030 for the second period of 209 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. On August 20, 1997, the Plaintiff is a juristic person established for the purpose of wholesale of scrap iron, non-ferrous iron, etc., and mainly purchases scrap iron, non-ferrous iron, etc. from the water surface, etc. and supplies them to manufacturers of the products. The business place is located in Dongdaemun-gu Seoul Metropolitan Government 000-202, Dongdaemun-gu 00-17, and the place of business was installed in Songyang-dong, Nam-dong, Namdong-gu, Seoul Metropolitan Government 000-17 on July 3, 2008.

B. The head of the tax office of the Gu government confirmed that the Plaintiff issued a false tax invoice as stated below (hereinafter “instant tax invoice”) without real transactions from ○○○ Resources, △△ Resources, and △ Metal (hereinafter “Transaction of this case”), and notified the Defendant of the taxation data.

[The following table omitted]

C. Accordingly, on October 1, 2010, the Defendant accused the Plaintiff’s representative director against the charge of violating the Punishment of Tax Evaders Act, and notified the Plaintiff of the correction of KRW 14,461,430 for the first term portion of value-added tax in 2009 and KRW 214,208,030 for the second term portion of value-added tax in 2009 (hereinafter “instant disposition”), and on the same day, notified the Plaintiff of the correction of KRW 754,553,40 for the business year of 209 (hereinafter “instant disposition”).

D. On February 21, 201, the prosecutor of the Seoul Northern District Prosecutors’ Office issued a non-prosecution disposition (hereinafter “non-prosecution disposition”) on the grounds that there is no evidence to prove that the above leap has received false tax invoices from the business partner of the instant case, considering the Plaintiff’s business registration certificate, the entire certificate of registered matters, the list of business customers in this case, the written objection, the statement of the staff of the Central Tax Office, etc.

E. On November 24, 2010, the Plaintiff filed an appeal against the instant disposition with the Tax Tribunal on the instant disposition and the instant disposition of corporate tax. On April 14, 2011, the Tax Tribunal revoked the instant disposition on the ground that the Plaintiff’s purchase amount under the instant tax invoice is reasonable under the Corporate Tax Act, by comprehensively taking into account the following: (a) the Plaintiff’s measurement certificate and payment evidence presented as real transaction evidence; (b) the Plaintiff’s actual transaction with the instant transaction partner; (c) the Plaintiff’s accusation with the Defendant’s employee; (d) the statement of the Defendant’s employee; and (e) the Central Regional Tax Office’s investigator’s investigation office’s employee’s employees, and (e) the Central Regional Tax Office’s investigation office’s employee’s Y’s Y (hereinafter referred to as “P comprehensive metal”) conducted a real transaction with the instant transaction partner; or (e) the Plaintiff’s actual transaction with the instant transaction partner was revoked on the ground that the purchase amount under the instant tax invoice is reasonable under the corporate tax act’s loss.

[Ground for Recognition: The absence of dispute, Gap evidence 1-2, Gap evidence 2-4, Eul evidence 1-1-2, Eul evidence 2-2, Eul evidence 2-1-4, the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Even though the tax invoice of this case is not a tax invoice that states the necessary entry of the supplier, etc. differently from the fact, the plaintiff did not know that the tax invoice of this case was issued differently from the fact without any negligence, but the disposition of this case by the defendant is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Evidential documents of the issuance and issuance date of the instant tax invoice and related transactions

The Plaintiff received the instant tax invoice from the transaction partner as follows, and related to the instant tax invoice, including transaction date, name, delivery date, vehicle number, storage time, weight, supply value, etc., and financial data on payment, and with the order of the transaction partner representative and the business registration certificate.

[The following table omitted]

2) To investigate the customer of this case by the Director of the Office of Government Tax Office

A) From April 12, 2010 to May 23, 201 of the same year, the head of the Gu’s government tax office conducted a field investigation on the ○○ resource site located in the 000 Guamri, and at the same time, there was a book, chair, etc. in the above workplace. At the same time, the building owner of the above workplace leased a warehouse of about KRW 2 million and KRW 60,000,00 to the ○○ resource, but only once the owner of the ○○ resource leased the warehouse of KRW 2 million and KRW 60,000,000 to the ○○ resource, but it was only once the owner of the ○○ resource, the owner of the ○○ resource, or the said employees entered the said warehouse, and there was no time to find out the warehouse or enter the said warehouse, and since it was not paid monthly taxes around March 2009, ○ was in violation of the Act on the Punishment of Rape, etc.

B) On September 17, 2009, the head of the tax office of the Gu's government office did not conduct on-site verification on the place of business of △△ resource, which is 000, Dong 000, and processed the same day ex officio. From April 12, 2010 to June 22 of the same year, 2010, the lessor of the above place of business conducted a field investigation on the above place of business. At the time, the lessor of the above place of business, stated that he moved in the above place of business on April 20, 2009, but moved out around July 8 of the same year, while he did not present seven savings accounts for the sales price deposit and the accounts for the accounts for the sales price deposit, and did not present other books and documents, and there was no evidence from the head of the Gu's office of government office on domestic wholesale business to December 12, 193.

C) Around May 2010, the head of the Gu’s government office conducted an on-site investigation into the △△ metal business establishment located in 100-11 on a daily profit-making day in Yangju-si. At the time, the building manager entered into a lease agreement on the above △ Metal business establishment on July 6, 2009, and stated that the CE, a business owner of △△ Metal, had no vehicle transporting waste resources visited the above business establishment, and that the E, etc. removed containers for three months after the vehicle was installed, and the family members of the E returned to the taxi driving and construction market due to lack of business funds and business ability as an elementary school, and died on December 30, 2009.

3) Details of transactions by customers of the instant case

The details of purchase and sales of the Customer of this case are as follows.

[○○ Resources: Purchase - One million won - Sales - 2.85 billion won for the plaintiff et al.】

【○○ Resources: No purchase, sales - 1.777,9170,00 won for the plaintiff, etc.】

[△△ metal: No purchase, sale - 4.19 billion won for the plaintiff, etc.]

4) The form of payment regarding the instant tax invoice

The Plaintiff: (a) when transported the end-of-life movement to the place of business of XX comprehensive metal in the Gui-si, the Plaintiff issued a tax invoice on the same day after measuring the weight of the waste consent at the guidance room; and (b) around that time, remitted the amount to the account of the instant transaction partner; (c) upon deposit from the Plaintiff, the instant transaction partner either withdrawn in cash or transferred the amount to another account at a rate not exceeding KRW 20 million from the date of deposit; and (d) the amount transferred to another account was immediately withdrawn in cash.

5) Results of the tax investigation on XX comprehensive metal

The director of the Central Regional Tax Office of China, from July 20, 2010 to September 20, 20 of the same year, conducted an integrated investigation into the corporation for the M comprehensive metal, and confirmed whether the XX comprehensive metal is identical to the business operator and the representative of the business operator of the instant transaction party, and confirmed that the transaction amount was directly remitted to the deposit passbook under the name of the instant transaction party, and determined that the business operator constitutes a bona fide transaction partner who fulfilled his duty of

[Ground for Recognition: Gap's evidence 3, 7 through 12, 16 through 21, 25 through 30, Gap's evidence 4-1 through 4, Gap's evidence 5-1, 2, Gap evidence 6-1 through 3, Gap's evidence 13-1 through 29, Gap's evidence 14-1 through 19, Gap's evidence 15-1 through 16, 22-1 through 27, Gap's evidence 23-1 through 17, Gap's evidence 24-1 through 17, Gap's evidence 31-1 through 13, Gap's evidence 32-1 through 9, Gap's evidence 10-1 through 10, Gap's evidence 23-2, Eul's evidence 14-1 through 4, Gap's evidence 7-1 to 7, evidence 5-2, evidence 7-1 through 5-4, each of subparagraphs 7-1 through 7-3

D. Determination

1) The burden of proving that 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 it is a nominal transaction without actual delivery or transfer of goods (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). Generally, in a lawsuit seeking revocation of tax imposition, the burden of proving the fact of taxation is the person liable to impose the burden. However, if the facts alleged in light of the empirical rule in the specific litigation process are revealed, unless the other party proves the fact that the facts in question are not eligible for the application of the empirical rule, it cannot be readily concluded that the pertinent taxation disposition is an unlawful disposition that fails to meet the taxation requirement (see, e.g., Supreme Court Decision 2009Du6568, Sept. 24, 2009).

In addition, 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 and the supplier on a tax invoice are not negligent in not knowing the fact of misrepresentation of the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount should prove that the supplier was not negligent in not knowing the fact of misrepresentation of the name (see Supreme Court Decision 2002Du2277, Jun. 28, 2002).

2) In light of the following circumstances, i.e., the transaction partner of this case, which issued the tax invoice of this case from 209 to 30 billion won, although it appears that there was no possibility of purchasing the tax invoice of this case from 207 transaction partners, i.e., the first and second transaction partners, and 40 billion won, and there is no evidence suggesting that both NN, M, and E, which are registered as the business owner of this case, had no economic ability to operate the business partner of this case. 3. The transaction partner of this case was released in cash or transferred money from 20 million won to 40,000,000 won if it was deposited by the Plaintiff to 30,000,0000,000 won from 47,000,0000,0000,000 won and 47,000,000,000 won from 20,000,000 won.

Therefore, special circumstances should be demonstrated that the Plaintiff did not know the disguised fact in the name of the instant tax invoice and did not have any negligence. In light of the type of operation of the instant transaction partner and the power of its representative, the type of transaction between the Plaintiff and the instant transaction partner, the details of the transport of the consent, etc., the Plaintiff’s representative director was subject to the disposition of non-prosecution in this case. The Plaintiff’s representative director determined that the Plaintiff’s leap was not a disposition of non-prosecution in this case, and that there was no negligence on the part of the Plaintiff that the Plaintiff was unaware of the tax invoice issued by the instant transaction partner, and the evidence submitted by the Plaintiff

3) Therefore, the Defendant’s disposition based on the premise that the instant tax invoice is a tax invoice different from the fact is lawful, and the Plaintiff’s above assertion is therefore groundless.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.