Seocho-2016- Busan District Court-0805 (Law No. 16.30, 2016)

a tax invoice issued in the name of the nominal lender shall be deemed to constitute a false tax invoice.

It is insufficient to recognize that a tax invoice issued in the name of a nominal name name constitutes a false tax invoice and was not negligent in not knowing that it constitutes a false tax invoice, and the imposition of an unfair under-reported additional tax is illegal.

Article 39 of the Value-Added Tax Act

2016Guhap22606 Disposition of revocation of Disposition of Imposition of Value-Added Tax

○○ethyl Co., Ltd.

△△△ Director

8.08.18

October 20, 2017

1. On October 1, 2015, the Defendant’s imposition of value-added tax for the first term of 2012 exceeds KRW 799,116,66 of the imposition of value-added tax for the first term of 2012, the amount exceeding KRW 79,116,66 of the imposition of value-added tax for the second term of 2012, the amount exceeding KRW 796,260,134 of the imposition of value-added tax for the second term of 2012, and the amount exceeding KRW 259,086,930 of the imposition of value-added tax for the first term of 2013, and the amount exceeding KRW 215,523,387 of the imposition of

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The imposition of value-added tax and corporate tax on October 1, 2015 by the Defendant against the Plaintiff shall be revoked, respectively.

1. Details of the disposition;

A. From June 30, 2004, the Plaintiff is a company that runs the scrap metal wholesale business from Busan Gangseo-gu x ○○ road.

B. The Plaintiff purchased scrap metal equivalent to KRW 11,375,669,660 (hereinafter “instant dispute transaction amount”) of the total value of supply from “△△△△△△△△ (representative this representative, hereinafter “instant dispute trading office”) during the period from 1st to 1st, 2013, which is the taxable period of value-added tax, and received a tax invoice corresponding to the said dispute transaction amount from the key trading office (hereinafter “instant tax invoice”) and deducted it as an input tax amount when filing a return on value-added tax for the first and second period of 2012 and the first period of 2013.

C. On October 1, 2015, the Defendant: (a) conducted a tax investigation on the key traders; and (b) determined that the real representative of the key traders is Kim-tae, who is not this ○○○○○○; (c) filed a complaint against the Plaintiff on the suspicion of violating the Punishment of Tax Evaders Act; and (d) conducted a tax investigation on the Plaintiff according to the result of the said investigation; and (c) determined the instant tax invoice as a false tax invoice issued in the name of this ○○○○, which is not the actual supplier; and (d) determined that the instant tax invoice was a false tax invoice issued in the name of

No.

Business year

Items of Taxation

Processing Trade Amount (won)

Amount of tax (source)

1

1, 2012

Value-added Tax

4,927,252,450

960,271,200 (including additional tax 500,809,363)

2

2012 Second Period

〃 4

4,996,298,860

946,149,100 (including additional taxes 446,519,228)

3

1, 2013

〃 4

1,452,118,350

259,086,938 (including additional tax 113,875,121)

4

2012

Corporate Tax

-

218,317,960

5

2013

〃 4

-

31,946,600

Total

11,375,669,660

2,415,771,790

D. On November 24, 2015, the Plaintiff appealed against the instant disposition, but was dismissed. On February 17, 2016, the Plaintiff filed an appeal with the Tax Tribunal, but the said appeal was dismissed on May 30, 2016.

[Ground of recognition] Facts without dispute, Gap's entry in Gap's Evidence Nos. 1 through 7, 55, 56, 57, 58, 59, 60, 61, 64, 66, Eul's Evidence Nos. 1 through 5, and 8 (each number is included; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As long as the Plaintiff actually purchased and supplied scrap metals from the key trading office, even if the Plaintiff entered the name of the representative, other than the essential entry of the tax invoice, it cannot be deemed that the instant tax invoice constitutes a false tax invoice, i.e., a false representation.

2) Even if the instant tax invoice constitutes a false tax invoice, the business registration certificate and passbook of the key transaction office, the identification card, name, and the registration certificate of the said company, and the electronic tax invoice was issued by the key transaction office, and the business place of the key transaction office also visited the key transaction office. The Plaintiff was unaware of the name of the key transaction office, and there was no negligence on the part of the Plaintiff. Accordingly, the input tax amount on the instant tax invoice should be deducted in entirety.

3) No additional tax shall be imposed on the Plaintiff on the ground that the Plaintiff has justifiable grounds for deducting the input tax amount under the instant tax invoice. In particular, since the Plaintiff cannot be deemed to have underreported the value-added tax due to fraud or other unlawful acts (hereinafter “unlawful acts”), the additional tax for unlawful underreporting (40%) should be revoked.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

(c) Fact of recognition;

1) The Plaintiff’s representative representative director from around 1997 to Busan Gangseo-gu 】 158 (x Dong x Dong x 158) operated the scrap metal wholesale business in the trade name of “Seoul Metropolitan City, Do,” and the Plaintiff was established at the same place as on June 30, 2004 for the purpose of the scrap iron wholesale business.

2) 김□□은 쟁점거래처의 실제 운영자로서, 이◇◇ 명의로 쟁점거래처를 운영하면서 박AA과 함께 무자료로 구입하는 고철에 대하여 폭탄업체인 'BBB'과 'CCC'를 설립하여 폭탄업체 명의의 세입계산서를 발급받아 매입공제를 받는 방법으로 부가가치세를 포탈하였다는 범죄사실과, 2011. 10. 25.경부터 2012. 3. 15.경까지 박AA과 함께 '♡♡스틸'이라는 상호로 고철매매업체를 운영하면서 재화나 용역의 공급 없이 김DD 명의로 허위 세금계산서를 발급하거나 수취하고, 거래 상대방으로부터 공급가액의 10%에 해당하는 금액을 수수료로 지급받아 분배하기로 공모하여 원고 등에게 이 사건 세금계산서를 포함한 허위의 세금계산서를 발급하였다는 범죄사실로 기소되어[부산지방법원 2013고합670, 756(병합), 844(병합)] 2014. 4. 25. 징역 5년 및 벌금 2,200,000,000원을 선고받았고, 이에 김□□이 사실오인 및 양형부당을 이유로 항소(부산고등법원 2014노321)하였으나, 부산고등법원은 양형부당 주장만 받아 들여 원심판결을 파기하고 김□□에게 징역 4년 및 벌금 1,400,000,000원을 선고하였고, 2014. 10. 23. 위 판결은 그대로 확정되었다.

3) The key trading office opened a new business around December 26, 201, and according to the business registration certificate of the key trading office, the location of the location of the ‘commencing thought area 】 193 】 】 】 】 】 】 】 the place in which the key trading office was used to run a high iron rail and retail business 】 the Gangseo-gu 】 Dong 】 】 】 】 】 】 】 】 (hereinafter referred to as the “Golma) (hereinafter referred to as the “place”).

4) 원고는 쟁점거래처와 고철 매매를 하기 이전에도 김□□이 실제로 운영하던 '♡♡스틸'(대표자 김DD)과 2011. 10. 28.경부터 2012. 3. 15.경 '♡♡스틸'이 폐업할 무렵까지 고철 거래를 하였는데, 2013. 3. 9.경 위 '♡♡스틸'과의 거래경위에 대하여 조사를 받으면서 "♡♡스틸의 사업장소재지와 하차장(대저마당과 동일)이 다른 이유를 ♡♡스틸 관리책임자 김□□에게 물어본 결과, 대표자 김DD은 김□□과 잘 아는 선・후배관계이자 이웃이고, 하차장은 김□□의 하차장을 사용한다고 하였다. 김□□이 원고의 사무실로 찾아와 거래를 하고 싶다는 의사를 밝혀 평소 강서구 일대에서는 김□□하면 주위에서 중상인으로서는 고철수집능력이 있다는 소문이 있었다."라는 내용의 확인서를 제출하기도 하였다.

5) Although the Plaintiff’s representative director, knife knife knife knife knife had not been supplied with scrap metal equivalent to 11,375,669,660 won, the Plaintiff submitted a list of total tax invoices stating false fact as if he were supplied with scrap metal, and did not receive purchase tax invoices despite being supplied with scrap metal as above. A purchaser’s tax invoices stating false fact that he submitted tax invoices for each purchaser, which received value-added tax input tax deduction, and evaded value-added tax 1,137,566,966,96 won, was accused (No. 87641 of the Busan Busan District Prosecutors’ Office 2015), but the Busan District Prosecutors’ Office issued a disposition without suspicion on the ground that the Plaintiff had been aware of the fact that he lent the name of knife knife knife had been operating △△ in the name of the Plaintiff.

[Reasons for Recognition] Facts without dispute, Gap's statements as to Gap's 13 through 18, 28 through 33, 54, 59, 63, 64, Eul's statements as to evidence, 3, 4, 5, 7, and 8, and the purport of the whole pleadings

D. Determination

1) Determination on the first argument - Whether a false tax invoice is applicable

A) Article 39(1)2 of the Value-Added Tax Act provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are entered differently from the facts. In such a case, the meaning that it is different from the fact refers to a case where the necessary entries of a tax invoice do not coincide with those of the person who actually supplied or received the goods or services, regardless of the formal entries of the transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

An input tax amount may be deducted from the output tax amount of a person who receives the supply of goods or services on the basis of the fact that the person was unaware of the fact that the person was not the person who actually supplied goods or services and was unaware of the fact that the person was not the person who received the supply of goods or services. Thus, in a case where the person who received the supply was aware of such fact and received a tax invoice different from the fact, the said input tax amount may not be deducted from the output tax amount of the person who received the supply (see, e.g., Supreme Court Decisions 90Nu73, Apr. 27, 199; 201

B) In light of the relevant legal principles, it is difficult to see that the facts that △△△ borrowed the name of △△△△ and registered as the representative of the key trading office are under dispute between the parties concerned, and that the name of the trading office in the “trade name” column of 7,64, Eul evidence No. 8, and the name of the trading office in the “name” column of this case is recognized as having been stated respectively in the “trade name of the trading office” column of this case, and that the “name” column of this case constitutes a tax invoice with different descriptions from the name of the business operator who provides the necessary entry, and further, it is difficult to view that some of the necessary entries of the tax invoice under Article 75 subparag. 2 of the Enforcement Decree of the Value-Added Tax Act were entered differently from the fact, but some of the necessary entries of the tax invoice were entered differently from the fact, but it is confirmed that the transaction was made by considering the remaining requisite entries or voluntary entries entered in the tax invoice

2) The second argument - The plaintiff's good faith and negligence

A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the other tax invoice in the name of the tax invoice, and that the person who received the tax invoice was not negligent in not knowing the above fact of misrepresentation, the person who asserts the deduction or refund of the input tax amount must prove the fact that the said person was not negligent (see, e.g., Supreme Court Decisions 2002Du2277, Jun. 28, 2002; 2012Du20618, Dec. 11, 2014).

B) In light of the relevant legal principles, in full view of the following circumstances acknowledged based on the overall purport of the pleadings as a whole on the evidence and the statements in the evidence Nos. 7, 9, and 10 admitted as mentioned above, it is insufficient to acknowledge that the Plaintiff was unaware of, or was not negligent in, the fact that the tax invoice of this case constitutes a false tax invoice issued in the name of △△△, the nominal name, and there is no other evidence to acknowledge it. Accordingly, the Plaintiff’s assertion on this part is without merit.

① The key trading office registered a school-affiliated place of business as the location of the school-affiliated place of business. However, the actual business was conducted at the Grandma, all of the scrap metal, etc. purchased by the key trading office was transported to the Grandma, and Kim Jong-chul, the actual operator of the key trading office, appears to have had a container office at the said Grandma. Even if the Plaintiff confirmed the school-affiliated place of business at the key trading office, it was determined that the above school-affiliated place of business was not in the form of a normal place of business.

② 나아가 원고가 작성한 확인서(갑 제63호증)의 기재에 의하면, 원고는 김□□이 쟁점거래처를 운영하기 이전에 실제로 운영하였던 '♡♡스틸'과 고철 거래를 하면서도 위 '♡♡스틸'의 사업장소재지와 실제 사업장(대저마당)이 상이한 사실을 알고 있었던 것으로 보이는바, 위 '♡♡스틸'이 폐업한 이후 쟁점거래처와 고철 거래를 시작하면서 등록된 사업장소재지가 아닌 대저마당에서 실제 사업이 이루어지고 있음을 알게 된 이상(갑 제34, 35호증), 원고로서는 쟁점거래처의 실제 운영자가 누구인지에 대하여 특히 주의를 기울일 필요가 있었을 뿐만 아니라, 쟁점거래처의 운영자가 이◇◇이 아닌 김□□이라는 점을 충분히 인지하고 있었다고 봄이 상당하다.

③ 원고는 이◇◇과 김□□이 원고의 사무실로 직접 찾아와서 고철 거래를 제안하였다고 진술하거나(갑 제34호증), 이◇◇과 직접 연락을 하면서 쟁점거래처와 고철 거래를 하였다는 취지로 진술하였으나(갑 제35호증), ㉠ 이◇◇은 "원고와 전화를 한 적이 한 번도 없다. 김□□이 잠수를 탄 2013. 2.경 이후에 김□□에 대하여 서로 알아보기 위해 전화를 한 것 밖에는 없다. 원고와 거래를 시작한 사람은 김□□이었고, 원고도 김□□이 실사장이라는 것을 알고 있을 것이다"라고 진술한 점, ㉡ 쟁점거래처의 실제 운영자인 김□□도 "이◇◇은 단순히 명의만 빌려주고 개인 일을 하였다. 고철운영 및 영업에 관여한 것은 전혀 없다. ♡♡스틸을 운영하면서도 명의상 대표자인 김DD을 원고의 대표인 박◎◎에게 인사를 시킨 적이 있다. 국세청에서 서로 얼굴도 모르는 대표들 간의 거래는 인정하지 않고, 국세청 조사를 받을 땐 명함을 주고 받았는지, 서로 통화를 하였는지, 얼굴을 서로 아는지 등도 확인을 한다. 원고의 대표 박◎◎이 김DD의 얼굴을 한번 보자고 해서 데리고 간 것이다. 박◎◎도 김□□이 실소유자라는 것을 알고 있었다"라는 취지로 진술한 점, ㉢ 원고는 김□□과 동일한 고철 거래를 하면서 ♡♡스틸 명의의 세금계산서를 발급받기도 하고, △△스틸 명의의 세금계산서를 발급받기도 한 점 등에 비추어 보면, 원고는 쟁점거래처의 실제 운영자가 김□□이라는 사실을 알고 있었을 것으로 봄이 상당하다.

④ The business registration certificate is merely a certificate proving a simple business fact, and does not recognize the fulfillment of the qualification or requirement to operate a business based on the certificate (see, e.g., Supreme Court Decision 2003Do6934, Jul. 15, 2005). Thus, it is difficult to deem that the business registration certificate was confirmed or the money was remitted to the account of a nominal supplier, solely on the ground that the actual operator of the key transaction office fulfilled its duty of care as to who is the actual

⑤ On February 2013, the Plaintiff argued to the effect that, on the suspicion that ○○○ KRW 100 million was acquired by deceptioning KRW 100 million in advance, the representative of the key trading office of this case, which was the representative of the main transaction office of this case, and Kim Jong-chul, presented to the Plaintiff a photograph of the final appeal stored in his mobile phone, and that the above photograph of the final appeal was believed to be the actual photograph and paid KRW 100 million to the Plaintiff (Evidence No. 52), as alleged by the Plaintiff, if the actual representative of the key trading office was known to be this case, it would be difficult to readily obtain in light of general common common common sense to transfer advance payment to ○○○○, which reaches KRW 100,000,000,000,000 to KRW 10,000,000,000,0000,000,000 won, and the Plaintiff’s average amount of 100,000,000 won.

⑥ 원고는 이 사건 거래가 이루어지기 직전인 2011. 12. 26.경 설립되어, 원고와 고철 거래를 한 적이 없는 이◇◇이 대표자로 되어 있는 쟁점거래처와 비교적 단기간에 걸쳐 110억 원 이상의 고철 거래를 하였는바, 원고는 쟁점거래처와 고철 거래를 하기 이전부터 김□□이 실제로 운영하는 ♡♡스틸과 고철 거래를 계속 하였던 점, 쟁점거래처가 등록된 사업장소재지가 아닌 김□□이 개인적으로 사용・관리하는 대저마당을 이용하여 고철 매매업을 영위한다는 사정을 알고 있었던 점, 위 ⑤항 기재와 같이 원고가 김□□에게 선급금으로 고철 매매대금 1억 원을 지급한 것으로 보이는 점 등을 종합하여 보면, 원고는 쟁점거래처의 실질 운영자가 김□□이라는 사정을 알고 있었으므로 위와 같이 쟁점거래처와 단기간에 거액의 고철 매매를 한 것으로 보인다.

3) Determination on the third argument - Whether each disposition imposing additional tax is legitimate or not.

A) Illegal underreported penalty tax

(1) In order for a taxpayer to constitute “in cases where the amount of the value-added tax, etc. is underreported or overreported due to an unlawful act under Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter the same) to constitute “in cases where the amount of the tax payable of the value-added tax, etc. is overreported or the amount of the tax refundable is overreported,” there should be awareness that in addition to the perception that the taxpayer is entitled to receive the deduction or refund of the amount of the input tax under a false tax invoice, the person who issued a false tax invoice should either declare and pay the tax base and the amount of the value-added tax, excluding the amount of the output tax on the relevant tax invoice, or filing a request for correction after filing a return or payment on the entire amount of the output tax on the relevant tax invoice, thereby evading the taxpayer’s liability to pay the value-added tax, thereby bringing about a decrease in national tax revenue (see, e.g.

(2) In light of the relevant legal principles as seen earlier, the following circumstances are comprehensively taken into account: (a) the Plaintiff was actually supplied with scrap metal equivalent to the input tax amount on the instant tax invoice, namely, the Plaintiff appears to have paid the input tax amount, including value-added tax; and (b) the key transaction office appears to have reported sales under the instant tax invoice normally; (c) even if the key transaction office did not pay the output tax, the Plaintiff appears to have believed that the key transaction office would return and pay the input tax amount normally and would have paid the input tax amount by adding the input tax amount to the sales price; (d) the evidence presented by the Defendant alone was insufficient to acknowledge that the Plaintiff reported and paid the tax base and tax amount of value-added tax excluding the output tax on the relevant tax invoice, or filed and paid a request for correction by filing a request for correction by means of refund, etc.; and (e) there was no evidence to acknowledge that the Plaintiff would have caused a decrease in the national tax revenue. Accordingly, there was no other unlawful tax underreporting part of the instant tax disposition.

(3) As to the scope of revocation, the imposition of an unfair under-reported additional tax shall be made by the general public.

As a result of the court’s examination, where the requirements for imposing penalty tax for underreporting are satisfied even if the imposition of penalty tax for underreporting are not satisfied, the court should cancel only the portion exceeding the general amount of penalty tax for underreporting (see, e.g., Supreme Court Decision 2016Du3535, Jul. 14, 2016). Article 47-3(1) of the former Framework Act on National Taxes provides that, where a taxpayer has filed a return on the tax base of national tax under tax-related Acts by the statutory due date of return and the taxpayer has filed a return on less than the amount to be paid, the amount equivalent to 10/100 of the amount to be paid for underreporting and the amount to be refunded should be the penalty tax for 10/100 of the total of the amount to be paid for underreporting and the amount to be imposed for underreporting 20% of the amount to be imposed for underreporting 30% of the amount to be imposed for underreporting 2018, 2017Du281817, 297, 197, 18197,2, 27, 197,207,208.

After all, the penalty tax for underreporting that should be revoked is ① KRW 161,154,534 for the first term of 2012 (214,872,712 - General Underreporting and child delivery tax 53,718,178), ② Penalty tax for underreporting KRW 149,88,966 for the second term of 2012 (19,851,954 for the second term of 2012 - General Underreporting and child delivery tax 49,962,988), ③ 43,563,51 for the first term of 2013 (58,084,734 for unfair underreporting) (14,521,183) for the first term of 2013.

B) Other additional tax parts

(1) Article 48(1) of the Framework Act on National Taxes provides that where penalty taxes are imposed under this Act or other tax-related Acts and subordinate statutes, if a taxpayer has justifiable grounds for non-performance of his/her obligations, such penalty taxes shall not be imposed. Under the tax law, where a taxpayer violates various obligations, such as a tax return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an administrative sanction is imposed under the conditions as prescribed by individual tax-related Acts. Such a sanction cannot be imposed in cases where a taxpayer has justifiable grounds for not being able to reasonably recognize his/her obligations or expect the performance of such obligations to the party concerned, such as where it is unreasonable for the taxpayer to have been unaware of his/her obligations (see, e.g., Supreme Court Decisions 95Nu3596, Feb. 9, 196; 200Du4054, Apr. 29, 2002).

(2) In light of the aforementioned relevant legal principles, there is no evidence to prove that there was a special circumstance to exempt the Plaintiff from additional tax, and as seen earlier, insofar as the Plaintiff did not know, or did not know, that the instant tax invoice was a false tax invoice, it is difficult to deem that there was a justifiable reason to exempt the Plaintiff from additional tax, excluding the unfair underreporting additional tax, among the instant disposition, insofar as the Plaintiff did not know, or did not know, that it was a false tax invoice.

4) Sub-committee

Therefore, among the imposition of value-added tax of KRW 960,271,200 for the first quarter of 2012, the part exceeding KRW 79,166,666 (=960,271,200 - 161,154,534), and the part exceeding KRW 796,260,134 in the imposition of value-added tax for the second quarter of 2012 (=946,149,100 - 149,100 - 149,88,96,938 - 259,523,387 won in the imposition of value-added tax for the first quarter of 2013 - The imposition of value-added tax for the first quarter of 2013 should be revoked within the scope of each of the above imposition of corporate tax and the remaining part exceeding the amount of the corporate tax should be revoked. Thus, each of the above imposition disposition should be revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.