Seoul High Court Decision 2006-0016 (207.03.09)

Whether it constitutes a disguised export solely for the purpose of receiving a refund in connection with gold bullion transactions

It is not sufficient to recognize that there is no evidence to view that there was a contestation with the actual operators of a gas coal company, and that gold bullion was exported abroad for the purpose of refund of value-added tax by abusing the zero tax rate system and the input tax deduction without intention to export goods normally.

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

1. The part of the judgment of the first instance against the plaintiff shall be revoked.

2. The Defendant’s imposition of value-added tax of KRW 1,322,612,10 I for the first period of 2004 against the Plaintiff on October 1, 2005, and each disposition of KRW 29,301,00 for the second period of 204 against the Plaintiff, and each disposition of refusing to refund KRW 147,495,00 for the second period of 204 against the Plaintiff is revoked.

3. The defendant's appeal is dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

[Claim]

The defendant's imposition of value-added tax of 1,322,612,10 won for the first period of 2004 against the plaintiff on October 1, 2005, value-added tax of 2004, value-added tax of 29,301,00 won for the second period of 204, and the imposition of 248,856,960 won for the second period of 2004, and each rejection of refund of value-added tax of 147,495,00 won for the second period of 204 shall be revoked.

【Purpose of Appeal】

It is so ordered as per Disposition.

: Revocation of the failure of the judgment of the first instance court, and rejection of the plaintiff's claim corresponding to the one.

1. Details of the disposition;

A. The plaintiff is a company established on December 26, 2003 for the purpose of running the current and precious metals wholesale and retail business, and purchased and exported the gold bullion of 780 km through nine times from March 5, 2004 to September 17, 2004 (hereinafter referred to as "the gold bullion of this case"), and the seller is a seller's "Seoul Special Metropolitan City, Gun and Gun (hereinafter referred to as the "Seoul Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City

B. On October 1, 2005, the Defendant: (a) rendered a decision that the purchase tax invoice issued by the Plaintiff from the ASEAN of △△△△ in which all or part of the necessary entries are entered differently from the facts; (b) issued by the Plaintiff under Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 8826, Dec. 31, 2007); and (c) imposed an additional tax of KRW 338,838,74,115, which is the input tax amount from ASEAN of △△△△ in 2004; and (d) imposed an additional tax of KRW 1,322,612,10 on KRW 1,322,610; and (e) imposed an additional tax of KRW 147,495,00 on KRW 29,300; and (e) imposed an additional tax of KRW 200,000 on the Plaintiff’s supply price for each of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 5-1 through 6, Gap evidence 7-2, Eul evidence 1-1, 2, Eul evidence 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, in fact, purchased the instant gold bullion normally from the ASEAN of △△, was issued the instant tax invoice, and exported the instant gold bullion thereafter. In addition, the Plaintiff did not conspired with the importer, domestic company, and overseas exporter in order to unlawfully refund the value-added tax, and even if the Plaintiff participated in the distribution process of the household gold bullion, the Plaintiff was not aware of such breadth, and it was entirely impossible for the Plaintiff to find out how the gold bullion is distributed to the Plaintiff’s immediately preceding purchaser, and whether the gold bullion was distributed in any way to the ASEAN of △△△△, the Plaintiff’s immediately preceding purchaser, and whether the gold bullion was distributed to the Plaintiff. Therefore, the instant tax invoice was a false tax invoice or the Plaintiff was aware or could have known of the fact.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) Under Article 11(1)1 of the Value-Added Tax Act, the zero tax rate shall apply to the supply of goods for export and Article 11(1)1 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005), and Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005), gold bullion supplied to a gold collector who has received tax-free shop purchaser's recommendation for tax-free gold bullion, and gold bullion supplied to a gold refiner who has received tax-free shop purchaser's recommendation for tax-free gold bullion importer's tax-free gold bullion import with the tax-free shop's recommendation for tax-free gold bullion import from July 1, 2003 to June 30, 205. After importing the gold bullion's zero tax-free tax exemption system between the companies located in Seoul and then distributing the gold bullion through various stages of the value-added tax exemption system, the so-free company's and sells the gold.

2) The substantial part of the instant gold bullion purchased by the Plaintiff is a tax-free gold imported by the importer from a foreign company and converted into a tax-free gold at the distribution stage, which was exported through the Plaintiff through the 5-9 phase from the importer. The Plaintiff exported all of the instant gold bullion on the date of purchase.

3) The Plaintiff purchased the gold bullion in this case on the credit from the Dog Art in Hong Kong, and exported the gold bullion in full to the Gold K K Co. Ltd (hereinafter “AGT”) located in Hong Kong. The export price began to transfer the gold bullion received after the sale was made to the GGT in order from the Plaintiff, thereby resulting in the former phase distribution company in the order of the importing company. The transfer of the purchase price was promptly made within 4-5 hours from the time the Plaintiff received the export price to the point of payment, to the extent that each stage of payment is settled in full.

4) The instant gold bullion purchased by the Plaintiff from the △△△ Group is deemed to have taken over the said gold bullion from the Plaintiff’s employee, who is the Plaintiff’s employee, in the office of the △△ Group, at the request of the Plaintiff for transportation, and carried out export transportation by proxy.

5) 한편 ★★쥬얼리, ○○○, ●●금은, ◎◎무역, ◇◇골드, ◆◆☖☖☖ 둥 이 사건 금지금을 그 유통 중에 과세금으로 전환한 폭탄업체들은 모두 자신들이 매입한 금지금을 매입가액보다 낮은 공급가액(다만 여기에 부가가치세액을 더한 액수, 즉 공급대가는 매입가액보다 높다)에 매출한 후 폐업해 버림으로써 부가가치세 납부의무를 이행 하지 않았다.

6) The export price of the instant gold bullion was lower than the domestic market price and the international market price, but was higher than the Plaintiff’s input price.

[Reasons for Recognition] Facts without dispute, Gap evidence 4-1 to 9, Gap evidence 6-1, 2, 9, 10, 11, Gap evidence 8, Eul evidence 9-2, Eul evidence 3 through 54 (including each number), and the purport of the whole theory of changes.

D. Determination

1) As to whether the instant tax invoice constitutes / Whether it constitutes a different tax invoice from the facts

Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the delivery or transfer of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the fact that value-added tax has characteristics as multi-stage transaction tax, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of authority to use and consume goods, regardless of the existence of actual profits (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001; 9Du9247, Mar. 13, 2001). In such a case, the issue of whether a specific transaction among a series of transactions constitutes the supply of goods under the Value-Added Tax Act shall be determined on the grounds that the taxation authority declares the supply of goods under Article 29(2)14).2 of the Value-Added Tax Act.

In light of the above legal principles, L, in the instant case, gold bullion was actually traded from the importer to the exporter (it cannot be deemed that there was no transactional relationship even if the transportation route of gold bullion was partially omitted), and the Plaintiff purchased the instant gold bullion from Dot from March 5, 2004 to September 17, 2004, and received them on the date of purchase, and received them, and then received tax invoices from the supplier of this case. Since the instant gold bullion was exported to ACT in Hong Kong, as alleged by the Defendant, it is difficult to conclude that the instant gold bullion was imported and exported within a short period of time, as long as the instant gold bullion was purchased at the intermediate stage, and then the Plaintiff purchased the gold bullion exempted from value-added tax, and then prepared and delivered an amount equivalent to the value-added tax, and the Plaintiff did not receive the tax invoice for the instant gold bullion, and it is difficult to conclude that the instant gold bullion was actually supplied or received under the name of the supplier, without being supplied with a false domestic tax invoice or under the name of the Plaintiff.

이에 대하여 피고는 원고가 폭탄업체와 통모하여 폭탄업체의 부가가치세 포탈에 가담하였음을 전제로, 피고는 원고의 환급신청에 대하여 손해배상채권으로서 상계할 수 있다거나, 그 환급신청 자체가 불법적이라거나, 이 사건 매입세금계산서는 그 목적이 불법이어서 사실과 다른 세금계산서에 해당한다고 주장하므로 살피건대, 위 각 증거들에 의하면 원고의 실제 운영자인 황♤♤이 김▼▼ 등과 같은 날 홍콩으로 출국 하여 AGT의 책임자를 만난 사실, 김▼▼이 이 사건 금지금의 일부를 수입한 것으로 보이는 ♡♡상사의 대표이사이고, 이 사건 각 폭탄업체들의 전단계 거래자인 ☖☖☖하우스, ☗☗☗인터내셔날, ♉♉글로벌의 주주인 사실, ☆☆아트의 명의상 대표 한♈♈이 위 폭탄업체들 중 ●●금은 및 ◎◎무역의 폭탄영업에 공모하였다는 범죄사실로 징역 2년 6월에 집행유예 4년, 벌금 116억 원을 선고받아 확정된 사실은 각 인정되나, 그와 같은 사정만으로는 원고가 김▼▼ 및 다른 폭탄업체 실운영자들과 이 사건 금지금에 관하여 폭탄영업을 공모하였다고 보기 어렵고, 달리 이를 인정할 증거가 없으므로, 피고의 위 주장은 나머지 점에 관하여 더 나아가 살펴볼 필요 없이 이유 없다.

In other words, the defendant argues that the plaintiff's taking the gold bullion of this case out of Korea is merely a formal disguised export for the purpose of the illegal acquisition of national tax classes by a method of converting the tax-free gold bullion into the taxation amount by abusing the zero-rate system and the input tax deduction for the exporters rather than normal goods export. However, the plaintiff's act of abusing the zero-rate system should not be allowed to benefit from the input tax deduction, but it is difficult to view that the plaintiff's act of abusing the zero-rate system as being a public offering with the actual operators of the wide coal industry is difficult. Further, each of the above evidence alone is insufficient to recognize that the plaintiff carried the gold bullion of this case out of Korea only for the purpose of refunding the value-added tax by abusing the zero-rate system and the input tax deduction without the intention to export the goods normally, and there is no other evidence to support it. Thus,

2) As to the portion of the additional tax received without corporate tax evidence

Meanwhile, according to Articles 76(5) and 116(2)2 of the Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), “the chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount in cases where a corporation is supplied goods by an entrepreneur in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act,” and Article 16(1) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 206) provides that when a private entrepreneur registered as a taxpayer supplies goods, he/she shall deliver the nes number and name or name of the entrepreneur, the nes number and value of the supplier, and the tax invoice stating the same.

However, as seen earlier, so long as the instant transaction cannot be readily concluded that it is not a supply of goods subject to value-added tax, the instant tax invoice received thereby cannot be readily concluded that it is not a legitimate tax invoice under Article 16 of the former Value-Added Tax Act.

E. Sub-committee

Therefore, the disposition of this case that did not deduct input tax amount or applied the provision of additional tax payment without evidence is unlawful on the premise that the tax invoice of this case constitutes a "tax invoice different from that of the actual transaction" prepared by the supplier.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted for all reasons, and since the judgment of the court of first instance is unfair for different conclusions, the plaintiff's appeal is accepted and the part against the plaintiff in the judgment of the court of first instance is revoked. The defendant's imposition of value-added tax 1,322,612,10 won for the first term portion in 2004 against the plaintiff on October 1, 2005, and value-added tax 29,301,00 for the second term portion in 204, and the refusal of refund of value-added tax 147,495,00 for the second term portion in 204 is revoked, and the defendant's appeal is dismissed for reasons. It is so decided as per Disposition.