Incheon District Court-2017-Gu 52409 ( March 31, 2018)

Cho Jae-2016-China 4257 (Law No. 13, 2017)

Since it is not enough to recognize that the purchase tax invoice was due to the processing transaction, the disposition of this case is unlawful.

It is not enough to recognize that the purchase tax invoice was based on the processing transaction and constitutes a false tax invoice, and there is no other evidence to acknowledge it. Thus, the dispositions of this case Nos. 2 and 3 should be revoked as unlawful.

Article 39 of the Value-Added Tax Act

Seoul High Court-2018-Nu64261 ( December 04, 2018)

30 30 30 80

○ Head of tax office

November 13, 2018

December 4, 2018

1. The defendant's appeal and the plaintiff's incidental appeal are all dismissed.

2. The costs of the appeal shall be borne by the Defendant, and by the incidental appeal, by the Plaintiff.

1. Purport of claim

On April 11, 2016, the Defendant revoked each disposition of imposition of value-added tax of KRW 399,400 (including additional tax), value-added tax of KRW 249,893,600 (including additional tax) and value-added tax of KRW 39,589,030 (including additional tax) for the second term portion for the year 2014, and value-added tax of KRW 39,589,030 for the first term portion for the year 2015.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

3. Purport of incidental appeal;

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's imposition of value-added tax of 39,400 won (including additional tax) for the second period of 2 years, 2013 against the plaintiff on April 11, 2016 shall be revoked.

1. Quotation of judgment of the first instance;

The court's explanation on this case is consistent with the reasoning of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, it shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ Happed on April 1, 2016, "No. 13, 2016." on April 11, 2016, No. 3 of the judgment of the first instance court.

○ On 10th of the first instance judgment, the following shall be added to the fifth instance judgment:

(1) The Plaintiff is a business proprietor who actually runs the business of attracting subscribers to the Internet, TV, wireless telephone, etc., and even based on the result of the Defendant’s criminal investigation (Evidence No. 2) in 2014, at least 30 million won during the second period of 2014, the remainder of 7 companies, other than the purchaser of this case, from among 8 companies at the purchaser, have been identified as a normal business entity. As such, since the Plaintiff’s ordinary purchase transaction is proven to be a normal transaction, there is a need to clarify any objective circumstance distinct from other normal purchase transaction in order to enable it to be proved to be a false transaction different from the normal purchase transaction. However, with respect to the fact that the transaction with the purchaser of this case is false, there is no objective circumstance to recognize it, other than the aforementioned statement data.

○ The last 10th sentence of the first instance court’s decision was submitted, and the following is added:

(1) The Plaintiff asserted that the Plaintiff reversed the statement at the time of the tax investigation by concerns over the risk of criminal punishment due to the purchase tax invoice of this case. However, even if the purchase tax invoice of this case is deemed to be genuine, the Defendant reversed the statement of the purchase tax invoice of this case out of the sales amount recognized as a processing transaction at the time of the tax investigation, and thus, it is difficult to readily dismiss the credibility of the above reversal statement)

○ The following shall be added to the 11th sentence of the first instance court. 13th sentence.

[실제로 오◎승이 김◇철을 상대로 하여 인천지방법원 2017가단*****호로 제기한 대여금 청구소송에서 위 2,000만 원 및 500만 원의 변제사실이 그대로 인정된 바 있고 (갑4호증), 한편 황●훈은 이전에 오◎승이 대표로 있던 '이토AA'란 업체와의 영업관계 등으로 오◎승을 알고 있었을 뿐만 아니라 오◎승의 동생인 오◆진과의 업무관계도 있어, 오◎승이 어려움을 겪고 있던 김◇철로부터의 채권추심을 돕게 된 것이라는 취지로 진술하고 있으므로(갑8호증), 위 각 금원이 오◎승에게 김◇철의 변제금으로 입금된 사실을 인정할 수 있다고 할 것이다]

○ In accordance with Section 12 of the judgment of the first instance court, the following is added:

【Inasmuch as the above settlement statement was prepared in detail for each individual transaction and converted into and stored in a picture file in which data cannot be processed (each of subparagraphs A1 and 12 of the evidence Nos. 11 and 27) and its credibility is high, it is difficult to view that the purchase tax invoice of this case based on the settlement statement prepared in detail, including the recovery of fees, is a processing transaction.】

○ In the first instance court decision No. 12, the following shall be added to the first instance court decision:

(5) The plaintiff entered into a business consignment agreement with the purchaser of this case, confirmed the business registration certificate, a corporate seal impression certificate, a business establishment lease agreement, etc., and received the performance guarantee insurance policy for the guarantee of liability for damages under the telecommunications business contract from the purchaser of this case. Since the above entrustment contract for the business was written in detail such as the scope of business entrustment, fees, management of the re-trustee company, etc., it can be said that the plaintiff fulfilled the duty of considerable care for the opposite contractual parties (Evidence A through A14).

○ Part 5 of the Decision of the first instance court on the 12th and the 5th and the following are added:

[In light of the details of the account transactions in the IBK Bank from February 27, 2014 to June 20, 2016 (Evidence A13) by the Plaintiff, it can be presumed that a specific person has continuously disbursed certain amount of personnel expenses to recruit Internet subscribers in the instant purchasing agency, and in fact, Kim Ge-young, who has worked at the instant purchasing agency, provided the Plaintiff with the recruitment of Internet subscribers (Evidence A9)]

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and all appeals by the defendant and the plaintiff are dismissed as they are without merit.