Changwon District Court-2016-Gu Partnership-51519 ( December 06, 2016)

There are sufficient circumstances to suspect that the other party is a disguised business operator, but the other party is not aware of the fact that he/she is a disguised business operator.

A person who is supplied only where there is no negligence on the part of the other party's unaware of the fact of misrepresentation in the name of the other party to the transaction, shall be liable to deduct the input tax amount, or where there are sufficient circumstances to suspect that the other party is a disguised business, but the other party is negligent

Article 38 of the Value-Added Tax Act

Article 39 of the Value-Added Tax Act

(C) The revocation of the disposition imposing value-added tax

주식회사 ★★

▲▲세무서장

Changwon District Court Decision 2016Guhap51519 Decided December 6, 2016

September 6, 2017

October 18, 2017

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The disposition of imposition of value-added tax of KRW 13,752,490 on September 1, 2015 by the Defendant against the Plaintiff on September 1, 2015 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of the disposition;

A. The Plaintiff, a company engaged in scrap processing and wholesale business, is operating a △ branch in the Gyeongnam-gun of Gyeongnam-gun at the Gyeongdoblum Mari, Gyeongnam-gun.

B. In 2014, the Plaintiff submitted to the Defendant three copies of the purchase tax invoice issued from △△△△ (Business Operator: Business Operator) during the first taxable period of the value-added tax in 194 (hereinafter “instant tax invoice”) and filed a value-added tax return by deducting the input tax amount stated in the instant tax invoice from the output tax amount.

다. 피고는 ■■세무서장으로부터 △△스틸이 자료상이라는 세무조사 결과를 통보받고, 2015. 9. 1. 원고가 실물거래 없이 △△스틸로부터 이 사건 세금계산서를 수취하였다는 이유로 그 매입세액을 매출세액에서 공제하지 않고 원고에게 2014년 제1기 부가가치세 13,752,490원을 추가로 납부할 것을 경정・고지하였다(이하 '이 사건 처분'이라한다).

D. The Plaintiff dissatisfied with the instant disposition and filed an objection against the Defendant on October 7, 2015, but the objection was dismissed on October 12, 2015, and the Tax Tribunal filed an appeal with the Tax Tribunal on December 22, 2015. However, the Tax Tribunal dismissed the appeal on March 11, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, 25, 26, Gap evidence 2, 3, Eul evidence 1, 2 and 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Although the Defendant initially issued the instant disposition on the ground that “the instant tax invoice was received without real transaction,” it added the reason that “the actual transaction was conducted by the supplier of the instant tax invoice, but the actual supplier is different from the supplier of the instant tax invoice,” which is not allowed due to the addition or modification of the reason for disposition.

2) The Plaintiff was normally engaged in real transactions with △△△△, and thus, the instant tax invoice does not correspond to “illegal tax invoice.” Even if △△△△, a supplier of the instant tax invoice, is not an actual supplier, the Plaintiff was unaware of such fact, and was not negligent in not knowing such fact, and thus, the Plaintiff may be entitled to deduct the input tax amount of the instant tax invoice. Accordingly, the Defendant’s disposition

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the assertion on the addition and change of the grounds for disposition

The Defendant’s initial reason for disposition is that the instant tax invoice was received without a real transaction, and the additional reason for disposition is different from the actual supplier and the supplier of the instant tax invoice. The aforementioned reason for disposition is based on the same factual basis, since the place where the Plaintiff actually supplied scrap metal is not △△, the input tax amount of the instant tax invoice received from △△△ was not subject to deduction. However, it is only different from the legal assessment on the reason that it is not subject to deduction, and thus the addition or modification of the reason for disposition is allowed. This part of the Plaintiff’s argument is without merit.

2) Whether the entity is a actual supplier of scrap metal

을 제2호증의 기재, 당심 증인 김BB의 증언 및 변론 전체의 취지에 의하여 인정되는 아래와 같은 사정을 종합하여 보면, 원고가 △△스틸로부터 고철을 실제 공급받았다고 할 수 없으므로(△△스틸이 실물거래 없이 세금계산서를 발행하였다는 ■■세무서장의 고발에 대하여 수사기관이 무혐의 처분을 내렸다고 하여 달리 볼 것은 아니다), 원고의 이 부분 주장은 이유 없다.

① △△스틸은 인적・물적 설비를 갖춘 사업장을 갖추고 있지 않았다. △△스틸의 사업장 소재지인 ▽▽시 ▼▼면 ☆☆로 ○○○○번안길 ○○○-○에는 △△스틸 외에도 CC스틸, DD자원, EE자원이 고철업으로 사업자등록이 되어 있다가 2014. 4.경 세무공무원의 현장조사 결과 사업장의 실체가 없다고 판단되어 2013. 12. 31.자로 모두 폐업 처리되었다.

② At the time of the tax investigation, △△△△ was not well aware of the details of transactions, including the purchase, transportation, guidance, and payment of scrap metal related to the instant tax invoice, and there was no contact between the parties who were requested to submit the transaction documents and the parties who did not comply with the request.

③ KimB, who directly transported or arranged the scrap metal in the name of △△ethyl, stated that the person who requested the carriage to himself by this court is not an △△△△ business operator, but an operator of a low-car on his name, instead of a person who requested the carriage to himself.

④ △△△ was a sales amounting to KRW 817,503,00 (supply price) including the instant scrap metal transaction at the first time in 2014. However, since the opening of the business on August 1, 2010, △△△△ was engaged in transactions equivalent to the average of KRW 150,000,000 (supply price) for the first time in 2012, sales was reduced by 10,000 won during the second period in 2012, and there was no actual record of purchase and sales in 2013, and there was no actual record of purchase during the first period in 2014, and thus, it did not meet the above conditions for transactions.

⑤ When the transaction amount has been deposited from the customer, including the Plaintiff, the Plaintiff shows a typical behavior as a material, such as immediately withdrawing the transaction amount.

3) Whether the Plaintiff is a trading party with good faith and negligence

A person who receives goods or services may deduct an input tax amount even if he/she was unaware of the fact that the person who was entered in the tax invoice was not a person who actually supplied goods or services but was unaware of the fact that the supplier was not a person who actually supplied goods or services. However, since a person who is supplied goods or services is not a person who is a disguised business operator is not obligated to actively investigate whether the other party is a person who is a disguised business operator, there are sufficient circumstances to suspect a disguised business operator based on the facts revealed in the process of collecting data to determine whether the other party is a person eligible for a transaction. However, the other party’s failure to know of the fact that he/she is a disguised business operator should be deemed to be negligent (see,

In full view of the following circumstances, Gap evidence Nos. 1, 4, and 7 (including each number), part of testimony and pleading by the witness F of the party examination witness, the plaintiff did not know that the name of the supplier of the tax invoice of this case is different from that of the actual supplier and did not know that there was negligence. Thus, the plaintiff's allegation in this part is with merit.

① The Plaintiff is a company that collects scrap metal and delivers it to a large company. As such, it seems that the Plaintiff could have sufficiently known the current status and risk of transactions on data widely spreaded to the large company. However, at the time of commencing transactions with △△ethyl, the Plaintiff made considerable efforts to verify whether the Plaintiff is operating a normal scrap metal sales business, such as receiving a copy of passbooks in the name of the representative, which shall directly deposit the business registration certificate and the transaction amount. Although the instant scrap metal transaction did not visit the place of business, the Plaintiff did not directly transport and sell scrap scrap generated from by-products to the Plaintiff, rather than selling the scrap scrap at the place of business. In light of the characteristics of the transaction, the Plaintiff did not need to visit the place of business of △△△ethyl and check and verify whether the Plaintiff was actually in possession of the scrap scrap, which had been sold with the place of business.

② The Plaintiff supplied scrap metal to the Plaintiff as a supplier is 8 times in total. The Plaintiff taken up 5 parts of the goods stored with the Plaintiff. The Plaintiff printed out a measurement certificate stating the date, vehicle number, transaction partner, name, and total weight every time it takes over scrap metal, and delivered it to △△△△, while it received a corresponding tax invoice from △△△, and kept it together with relevant materials.

③ In addition to △△△, the Plaintiff traded scrap metal with GGSethyl, HH resources, II steel, J Steel, KM industry, LL resources, and MM resources. In light of the trading unit price or the market interruption price, the Plaintiff cannot be deemed to have lower the trading unit price of scrap metal purchased from △△△. There was no other circumstance suggesting that all the transaction prices, including value-added tax, were normally transferred to the account in the name of AAA, and that the transaction between the Plaintiff and △△ was abnormal transaction.

④ Even though the Plaintiff knew or could have known the fact of △△ethyl name, it seems that there was no motive to engage in a transaction until the Plaintiff is at risk of double burden of value-added tax because the relevant input tax deduction was denied in the future.

⑤ The Plaintiff asserted to the effect that, at the time of being supplied with the instant scrap metal from △△ was directly supplied with the instant scrap metal in transit to the scrap metal transport vehicle, and that the Plaintiff testified as the witness of the Party FF. However, in light of the general form of the scrap metal transaction, the Plaintiff’s direct transfer of the scrap metal to the scrap metal transport vehicle by the supplier of the said scrap metal directly appears to have been on the spot, and thus, it is difficult to believe the entire delivery of the scrap metal. However, it does not affect the judgment of the Plaintiff’s good faith and negligence, which is directly transported the scrap metal, and thus, it does not interfere with the recognition.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.