Busan District Court 201Guhap4481 (Law No. 19, 2012)

Cho High Court Decision 201Da1582 (No. 23, 2011)

The instant tax invoice is presumed to be a processing tax invoice issued without actual transaction.

The disposition of value-added tax, etc. of this case is legitimate on the premise that the tax invoice of this case is a processing tax invoice issued without actual transaction. Even if the tax invoice of this case is a different tax invoice between the actual supplier and the supplier on the tax invoice, the Plaintiff cannot be deemed to have been unaware of the fact of the above fact of the

Article 17 of the Value-Added Tax Act

2012Nu782 Revocation, etc. of the imposition disposition of value-added tax

XX Co., Ltd

Head of North Busan District Tax Office

Busan District Court Decision 201Guhap4481 Decided January 19, 2012

October 31, 2012

December 26, 2012

1. The plaintiff's appeal is all dismissed.

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

The judgment of the first instance court is revoked. The defendant's imposition of value-added tax of KRW 000 on January 5, 201 against the plaintiff on the second half year of 2009, the imposition of KRW 000 on January 5, 201, and the imposition of KRW 000 on the corporate tax of KRW 2009 on January 5, 201, and ③ the imposition of KRW 000 on the earned income of KRW 200 on August 12, 2011 as stated in the petition's claim are revoked (the imposition date of the value-added tax and the corporate tax on January 12, 201 appears to be a clear clerical error on January 5, 201).

1. Details of the disposition;

A. The Plaintiff, a corporation for the manufacture and wholesale of non-metallic metals, filed a tax invoice on November 25, 2009 (tax amount of KRW 000), one tax invoice (tax amount of KRW 000) issued on December 8, 2009, and one tax invoice (tax amount of KRW 000) issued on December 8, 2009 (hereinafter “instant tax invoice 2”), and filed a tax return for the amount of value-added tax calculated by deducting KRW 000 from the total amount of the input tax amount and the corporate tax included in the deductible expenses.

B. As a result of the investigation conducted on the data on the scrap metal from April 5, 2010 to June 11, 2010, the head of the racing tax office notified the Defendant that the said input tax amount should be deducted from the actual transaction, and that the said tax amount should be excluded from the deductible expenses, and that the said amount should be corrected and notified to the Defendant in order to correct and notify the taxes for the second period of 2009 and the corporate tax for 2009.

C. Accordingly, on January 5, 201, the Defendant rendered a disposition imposing the Plaintiff the value-added tax of KRW 000 for 2009 and KRW 000 for corporate tax of KRW 2009 (hereinafter “instant disposition”). On April 7, 2011, the Plaintiff filed an appeal with the Tax Tribunal seeking revocation of the instant disposition, including the value-added tax, but was dismissed on June 23, 201.

D. Meanwhile, around August 2011, the Defendant issued a disposition that notifies the Plaintiff of withholding tax of KRW 000,000 earned income tax in 2010, which was August 8, 2011 (hereinafter “instant earned income tax disposition”).

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1, 5 through 7 (including each number), Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Whether the part seeking revocation of the disposition of earned income tax in the instant lawsuit is legitimate

The reasoning for this part of this Court is that the reasoning for the judgment of the court of first instance is the same as that for the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of

3. Whether the disposition of value-added tax of this case is legitimate

A. The plaintiff's assertion

1) Inasmuch as the Plaintiff actually purchased and received a tax invoice from XX scrap metal, the Plaintiff’s tax invoice received from XX scrap metal does not constitute a processing tax invoice that was received without a real transaction.

2) In light of the fact that the Plaintiff, who issued the tax invoice, mispercing that the Plaintiff is a bona fide trading party who did not know of the fact of misrepresentation of the name of the Plaintiff in question, based on the following: (a) the Plaintiff received a copy of the BB’s business registration certificate and driver’s license at the time of the transaction; (b) the Plaintiff was a valid business registrant as a result of inquiry of the Plaintiff’s business registration certificate regarding the BB’s business registration certificate on the website; and (c) the Plaintiff had no other way to verify the

3) Therefore, the disposition of the instant value-added tax, etc. is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) According to the results of the investigation of racing tax and the on-site investigation conducted by its employees from April 5, 2010 to June 11, 2010, it was no facility for the operation of an office or a fence, etc., as the place of business of the relevant scrap metal, the establishment of the relevant scrap metal, is left away from the site, and there is no facility for the operation of the relevant business, such as the office or fence, even around the area.

2) XX scrap metal was opened on May 18, 2009 and closed on April 26, 2010. On the second quarter of 2009, when issuing the instant tax invoice, the purchase amount is not more than KRW 000, but all the tax invoices that served as the basis for calculating the purchase amount were investigated as the processed tax invoice received from the National Tax Service without actual transaction.

3) XX scrap metal was withdrawn in cash or in substitution at all times from the customer on the deposit date.

4) On November 25, 2009, the Plaintiff transferred 000 won to the NA’s account in the name of thisB, and 000 won to the NA’s account in the name of thisB on December 8, 2009, respectively, and was withdrawn in full on the deposit date of the money deposited by the Plaintiff.

5) The head of the racing and the head of the tax office filed a complaint under Article 10(3) of the Punishment of Tax Evaders Act against BB, a business operator under the name of XX scrap metal, and Jeong, an actual business operator, on the basis of the determination that XX scrap metal is 10% data.

6) Around April 2009, this B made a statement to the effect that, upon request from the police, the police lent its name and registered its business as a trade name on May 18, 2009 and received approximately KRW 000 in return, and that he was not involved in the work of XX scrap metal.

[Ground of Recognition] Facts without dispute, Gap evidence 4, 6 and Eul evidence 3 to 6 (including each number)

D. Determination

1) Determination as to whether a processed tax invoice is included

Generally, in a lawsuit seeking the revocation of a tax imposition disposition, the burden of proving the facts of taxation requirements should be borne by the imposing authority. However, if it is revealed that the facts of taxation requirements are presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that failed to meet the taxation requirements, unless it proves that the pertinent facts at issue were not eligible for the application of the empirical rule (see Supreme Court Decision 2009Du6568, Sept. 24, 2009).

In light of the above legal principles, the instant tax invoice in light of the empirical rule is presumed to be a processing tax invoice issued without actual transaction between the Plaintiff and the Plaintiff and the Plaintiff’s representative of the first instance court, or merely because it is difficult to believe that the instant tax invoice in light of the empirical rule is not eligible for the application of the empirical rule, considering the following circumstances acknowledged by comprehensively considering the purport of the entire pleadings in the instant facts.

① In light of the fact that: (a) only a sales tax invoice was issued in a short period after business registration; and (b) no business facility was installed at the place of business, the processing tax invoice seems to be issued.

② Following the issuance of a tax invoice, XX scrap metal has immediately withdrawn the money remitted to the other party to the transaction. In light of the fact that it is difficult for an enterprise operating a normal business to deem that the said money was immediately withdrawn at all times, and that the said money was immediately withdrawn on the date of deposit, there is a possibility that the said money was returned to the Plaintiff.

③ In reality, it is necessary for companies collecting and selling scrap metal, such as the Plaintiff, to collect purchase tax invoices to deduct input tax amounts due to frequent cases where purchase tax invoices are not issued in the process of collecting scrap metal.

2) Determination as to whether the Plaintiff was unaware of his/her name without negligence

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 he/she was unaware of the fact that he/she was unaware of the name of the tax invoice, and that the person who was provided with the tax invoice was not negligent in not aware of the fact that he/she was not aware of the fact that he/she was unaware of the said name, the person who asserted the deduction or refund of the input tax amount must prove it (see Supreme Court Decision 2002Du227

In light of the following circumstances, it is difficult to recognize that the Plaintiff was unaware of the fact that the Plaintiff was unaware of the name of the Party A, solely based on the results of the written evidence Nos. 3-1 through 6, 8 and the Plaintiff’s personal examination of the representative of the first instance court, in light of the following circumstances, comprehensively considering the written evidence Nos. 4, 4, 6, and 7-2 and 3 of the evidence Nos. 7-3 as well as the testimony of the Party B witness of the Party B.

④ In the pre-assessment review on the disposition of the value-added tax in this case, leCC, the representative of the Plaintiff, stated that the Plaintiff received a driver’s license from B at the time of the instant disposition and provided comparison with the actual face with the actual face. However, this B stated that the police was not involved in the work of x scrap metal and in the conversations with the staff of the North Asia, and that the Plaintiff was gathered.

⑤ When the court of first instance examines the party concerned, leCC stated that the supplier of the closed Dong and the driver’s license did not comparison it, which is inconsistent with the Plaintiff’s statements made in the pre-assessment review.

6. It is difficult to see that the photographs of these two people are similar to those of these two people in comparison with those of these two motor vehicle driver's license books.

3) Therefore, the instant disposition, including the value-added tax, is lawful on the premise that the instant tax invoice is a processing tax invoice issued without a real transaction. Even if the instant tax invoice is a different tax invoice between the actual supplier and the supplier on the tax invoice, the Plaintiff cannot be deemed to have been unaware of the fact of false name without any negligence. Therefore, the Plaintiff’s assertion seems to be unreasonable.

4. Conclusion

Therefore, the part of the lawsuit of this case seeking revocation of the imposition disposition of wage and salary income tax of this case is dismissed as it is unlawful, and all of the remaining claims of the plaintiff are dismissed as it is without merit, and the judgment of the court of first instance is just in this conclusion, and all of the plaintiff's appeal is dismissed as it is so decided as per Disposition.