Changwon District Court 2014Guhap401

The general under-reported penalty tax that is not an illegal under-reported penalty tax shall be imposed;

It is insufficient to recognize that the entity that actually supplies scrap iron constitutes a false tax invoice prepared differently from the fact, as well as that it is difficult to recognize good faith and negligence, and that it would result in the reduction of national tax revenue. Therefore, the imposition of an unfair under-reported penalty tax is illegal.

Article 16 of the former Value-Added Tax Act and the tax amount paid under Article 17

2015Nu1028 Disposition to revoke the imposition of value-added tax

△△△△ Corporation

○ Head of tax office

Changwon District Court Decision 2014Guhap401 Decided December 5, 2014

2015.23

o October 07, 2015

1.The judgment of the first instance, including a claim for exchange change in the trial, shall be modified as follows:

A. On February 1, 2013, the Defendant’s imposition of penalty tax for failure to report value-added tax for the second period of 201 on the Plaintiff on February 1, 2011, exceeding KRW 000,000, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance court is revoked. The defendant revoked the disposition of imposition of value-added tax for the second period of February 1, 2013, imposition of KRW 000 on additional tax for non-issuance of tax invoices, etc., imposition of KRW 000 on additional tax for non-issuance of tax invoices, etc., imposition of KRW 000 for non-payment of additional tax for non-payment, imposition of KRW 000 for non-payment of penalty tax for non-payment, imposition of KRW 00 for non-payment of corporate tax for the second period of February 7, 2013, and imposition of KRW 00 for non-payment of corporate tax for the second period of February 1, 2013 (the plaintiff revised the claim of value-added tax for the second period of February 1, 2013 in exchange).

1. Details of the disposition;

A. From October 15, 2004, the Plaintiff is a corporation that operated the wholesale and retail business of scrap metal on the ground of ○○○○○○ as it became a corporation.

B. In the second taxable period of the value-added tax in 201, the Plaintiff was issued three copies of the purchase account statement of KRW 000,000, total value of supply from △△△△△△, which was registered as a business operator of the second taxable period of the value-added tax (the total tax invoice of KRW 000,000, November 30, 201; KRW 000,000, December 17, 201; hereinafter referred to as “first tax invoice”).

C. The Plaintiff received three copies of purchase tax invoices of KRW 00 (the total tax invoices of KRW 000 on August 31, 201, KRW 000 on September 30, 201, KRW 000 on October 31, 201, and KRW 000 on October 31, 201; and KRW 200 on October 31, 201; hereinafter referred to as “the instant tax invoices”) from Kim Jong-chul, which are called “○○ resource” during the second taxable period of the value added tax in 201. The Plaintiff received three copies of the purchase tax invoices of KRW 00 (the total tax invoices of the instant tax invoices).

D. After that, the Plaintiff filed a return on value-added tax for the second period of 201, deducting the input tax amount under each of the instant tax invoices, from the output tax amount.

E. However, as a result of the tax investigation, the head of ○○ Tax Office identified the △△△△△ as a disguised business operator who issued false tax invoices without real transactions, and notified the Defendant of the taxation data on the Plaintiff of △△△△△△. Meanwhile, the Defendant’s affiliated survey institution identified the results of the tax investigation as a disguised business operator, and notified the Defendant of the taxation

F. Accordingly, on February 1, 2013, the Defendant reported each of the tax invoices of this case as false tax invoices, and did not recognize the deduction of the above input tax amount, and on February 1, 2013, 201, 000 won of the principal tax of the value-added tax for the second period of 2011 (hereinafter “instant imposition disposition of the value-added tax”), value-added tax (= KRW 000 of the additional tax to be issued + KRW 000 of the additional tax for the failure to file a return, such as submission of the aggregate tax invoice + KRW 000 of the additional tax for the failure to file a return, + KRW 00 of the additional tax for the failure to file a return (hereinafter “additional tax for failure to file a return of this case”) + KRW 000 of the additional tax for the failure to file a return of this case (hereinafter “each of the instant dispositions”).

G. On August 13, 2013, the Plaintiff filed an appeal to revoke each of the instant dispositions with the Tax Tribunal on August 13, 2013, but the appeal was dismissed on December 2, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, 3, Gap evidence 3, 4, Gap evidence 5-1, 2, 3, Gap evidence 14, Gap evidence 16-1, 2, 3, and Eul evidence 1-1, 2-2, 3, and Eul evidence 1-2, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) 원고는 ◎◎◎◎스틸 주식회사(이하 '◎◎◎◎스틸'이라 한다)의 직납업체로서 ○○상사로부터 2011. 11. 17.부터 2011. 12. 17.까지 고철 000톤을 매입하여 직납방식(자사의 구좌를 통하여 중간상인으로 하여금 중간 경유를 생략한 채 제강사에 직접 납품하도록 하는 방식)으로 위 고철을 ◎◎◎◎스틸에 납품하였다. 또한 원고는 ○○자원으로부터 2011. 8. 15.부터 2011. 10. 29.까지 고철을 매입하여 현장매출 방식(공급업체로부터 공급받은 철스크랩을 자사가 보유한 기계장치를 통하여 제강사가 곧바로 원료화 할 수 있도록 가공하여 납품하는 방식)으로 ○○자원과 원고 차량을 동원하여 위 고철을 ◎◎◎◎스틸에 납품하였다. 따라서 원고는 ○○상사, ○○자원과 정상적인 고철거래를 하고 이 사건 각 세금계산서를 교부받았으므로, 이 사건 각 세금계산서는 사실과 다른 세금계산서에 해당하지 않는다.

2) Even if each of the instant tax invoices was issued differently from the facts on the grounds that ○○○○○○ Company’s △△△△△△ and Kim△△△ was the disguised business operator, the Plaintiff was not aware of the fact that △△△△△, and the Plaintiff was the disguised business operator. In addition, the Plaintiff was not aware of the fact that △△△△△△△△△△, and all of the cares necessary for transactions, including identifying the place of business

3) Even if each of the tax invoices of this case constitutes a false tax invoice, and the Plaintiff’s good faith and negligence is not recognized, the Plaintiff actually paid the amount equivalent to the input tax amount deducted under each of the tax invoices of this case to △△△△△ and Kim △△△△, and the Plaintiff did not have any awareness that obtaining the deduction of the input tax amount would result in a decrease in the State’s tax revenue, and thus, the imposition of additional tax for insincere return and the imposition of additional tax for unfaithful payment is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to whether each of the instant tax invoices is false or not

A) Relevant legal principles

Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 2011) 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 different from the facts. In such cases, the meaning that the requisite entries of a tax invoice are different from the facts refers to a case where the requisite entries of a tax invoice do not coincide with the actual supplier, the supplier, the supplier, and the timing of the supply of the goods or services, notwithstanding the formal descriptions of the transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Furthermore, the burden of proving that a tax invoice received in a certain transaction constitutes a tax invoice different from the fact that the input tax amount is denied (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008).

B) The first tax invoice of this case

In full view of the following circumstances, it is reasonable to view that the first tax invoice of this case constitutes a false tax invoice prepared differently from the facts by the actual supplier of scrap metal, taking into account the respective descriptions of Gap evidence 21-4, 5, 6, 23-5, 7, 14, Eul evidence 2, 4, 5-1, and Eul evidence 5-1 through 4, Eul evidence 10, and Eul evidence 11-1, and the following facts are revealed, it is reasonable to view that the first tax invoice of this case constitutes a false tax invoice prepared differently from the facts. Gap evidence 6, 7, Gap evidence 8-1 through 64, Gap evidence 9, 10, Gap evidence 11-1 through 23, and Gap evidence 13-13.

① 정△△는 2011. 10. 25.까지는 울산 ××군 ××면 ××리 ○○○에 사업장 소재지를 두었다가 그 이후 ××시 ××동 ○○○-○ 토지로 사업장 소재지를 이전한 것으로 사업자등록이 되어 있다. 세무공무원의 현장조사 결과, 위 ××리 ○○○ 토지로 진입하는 도로는 협소하여 대형 고철운반차량이 통과할 수 없고, 위 사업장에는 고철을 적재하거나 계근대를 설치할 장소도 없었다. 또한 원고가 ◎◎◎◎스틸에 직납한 물품은 생철B, 중량A인데, 위 ××동 ○○○-○에 적재된 고철은 더스트(흙이 많이 묻은 고철) 등 저가 고철이고 원고가 실제 거래하였다고 주장하는 물품인 생철은 거의 확인되지 아니하였다.

② In a tax investigation, the Plaintiff, the head of ○○○ Company, was in charge of the Plaintiff’s business, who was supplied with scrap metal without entering into a supply contract, and was treated as being supplied by ○○○○ Company’s accounting staff (e.g., 00), and then entered the same type of scrap metal in the same transport vehicle at ○○ Company and ○○ Industries Company.” The Plaintiff’s accounting staff at ○○ Company was in charge of the same kind of scrap metal in the same transport vehicle at ○○ Company and ○○○ Company. The Plaintiff’s accounting staff at ○○ Company was in charge of the instant ○○ Company’s accounting business, and the said employee was in charge of the instant ○○○ Company’s accounting business, and was in charge of the instant ○○○ Company’s accounting business.”

③ In a tax investigation, the chief executive officer of the Plaintiff, the headBB also stated that “the level of 80% of the scrap metal purchased from ○○○○ company is estimated to be the commercial paper and its measurement place. △△△△△△△ was aware of the purchase of scrap metal from nearby ○○○ Co., Ltd... In view of the fact that ○○○○○○ was a delivery of scrap metal actually generated from △△△△△△△, and it appears that ○○ was her phone called at us. The reason is that ○○ Co., Ltd. and ○○○ Co., Ltd. were the same products as those of the scrap metal supplied to ○○○ Co., Ltd. and the instant ○○ Co., Ltd., which

④ On June 22, 2011, ○○○ Company, which was registered as a business operator of △△△△ on its business, was about KRW 000 for six months after its registration, and the amount of the report on purchase for the same period is over KRW 000, and the amount of the report on purchase for the same period was over KRW 00,000, and was closed on April 17, 2012, since it was not over one year after its opening business without paying taxes at all.

⑤ When the tax investigation was conducted, the pertinent △△△△△ stated, it discarded evidentiary data related to the scrap metal business, and, in the police investigation, issued a tax invoice on the non-data that needs to be operated, and received in return for the value-added tax, in return for the payment of the relevant value-added tax. The pertinent △△△△△ was merely the representative in the name of the pertinent △△△△△△, and was also the actual business operator of the Do△△△△△△△△△△△.

【○○○○○○ Company’s △△△△△ in the instant case of violation of the Punishment of Tax Evaders Act by the Busan District Court Decision 2012Kadan9521 on DoD, and stated that “○○ Company’s workplace was a place of business that was unable to enter 25 tons truck, and it was essential to keep the place of business in the scrap metal business, and registered its business as a part of the guidance of ○○○ Company.” At the direction of DoD, it deleted data on the computer prior to the tax investigation.”

C) The second tax invoice of this case

In full view of the following circumstances, it is reasonable to view that the tax invoice 2 of this case constitutes a false tax invoice prepared differently from the fact by the actual supplier of scrap metal, taking into account the respective descriptions in the evidence Nos. 3, 4, and 6-1, 2, 3, 8, 9, and 11 of the evidence Nos. 6-2, and the whole purport of the pleadings. The mere descriptions in the evidence No. 17, 18-1 through 43, 19, 20-1 through 16, and 22-3 of the evidence No. 17, 17, 18-1 through 16, and 22-2 of this case are not interfered with the above recognition.

① On June 29, 2010, the ○○ Resource was closed on December 31, 2011, while failing to pay value-added tax equivalent to KRW 000, which was imposed on the ○○ Resource in the name of its representative, as the place of business 】 (i) the Si 】 (ii) 】 (iii) 】 (iv) 】 (v) 】 (v) 】 ○○ road as the place of business 】 (v) 】 (v) 】 ○○ road as the wholesale and retail business; and (ii) ○○ road as the representative ○○ road, was closed on December 31, 201. The reported amount of purchase was KRW 00,000, while the reported amount of purchase was 00,000,000, which was reported amount of purchase for the first half year in 2011, was lower than the reported amount of purchase for the second period in 2011. In light of the above circumstances of ○○ resource as the short period of business closure.

② The representative of Kim Jong-chul, the representative of ○○ Resources opening business, was merely engaged in interesting business around 199 prior to the opening of ○○ Resources opening business, and there was no previous career in engaging in the wholesale and retail business, and there is no financial ability to distribute scrap metal in large volume.

③ The ○○ Resource deposited in cash immediately after the date of the deposit, and it is difficult to readily understand that the business entity ordinarily operates in cash withdraws the entire amount of the revenue deposited in the transaction account at all times. This is a circumstance to suspect that the actual supplier is separate.

④ Meanwhile, in the case of violation of the Punishment of Tax Evaders Act, ○○ Resource Kim Jong-tae was convicted on April 25, 2014 on the following facts: (a) on the part of Busan District Court 2013 Gohap**2, the EE supplied scrap metal to the sales office, including the Plaintiff; (b) on the part of the representative of the ○○ Resource in the name of the ○○○○○○○○○○○○, Kim Jong-tae was sentenced to a judgment of conviction on April 25, 2014 on the part of the Plaintiff: (c) on the part of the fact that the ○○○○○○○○ was not supplied with scrap metal in the said sales office; and (d) on the part of the Busan High Court 2014No*6, Oct. 22, 2014,

D) Sub-determination

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination as to whether the Plaintiff is bona fide or without fault

A) Relevant legal principles

The actual supplier and the supplier on a tax invoice are not entitled to deduct the input tax amount, unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice and that there was no negligence on the part of the supplier. Here, the supplier was unaware of the disguised name, and the burden of proving that there was no negligence on the part of the supplier (see, e.g., Supreme Court Decision 2011Du26695, Mar. 29, 2012). In light of the aforementioned legal principles, the person who asserts the input tax amount

B) The first tax invoice of this case

According to Gap evidence Nos. 21-1 and 2-2, the ○○○○ District Prosecutor’s Office issued a tax invoice to the effect that "the plaintiff was supplied without being supplied with scrap metal from ○○ commercial company, etc." on August 28, 2013, and received the tax invoice to the effect that "the plaintiff violated the Punishment of Tax Evaders Act by being issued a tax invoice in violation of the Punishment of Tax Evaders Act." However, considering the following circumstances revealed by adding the whole purport of the pleadings to each of the statements in Eul evidence Nos. 10 and 11, the above facts alone are insufficient to deem that the plaintiff was unaware of the fact that △△△△ was not the actual supplier, and that there was no negligence on the part of the actual supplier, and there is no other evidence to support this.

① At the time of concluding a supply contract with ○○ Company, the head of the Plaintiff’s business division, the Plaintiff’s business division, did not verify the identification card of △△△△△, and did not separately confirm the purchasing place of the scrap metal, etc. even though the Plaintiff was only loaded with only 15 tons of raw materials when visiting the place of business of ○○ Company.

② 원고는 ○○상사로부터 고철을 공급받아 ◎◎◎◎스틸에 납품하는 과정에서도 고철의 계측이나 상차지의 확인을 한 적이 없다.

③ The Plaintiff, while considering that ○○○○ Company was a representative other than the actual representative of ○○ Company, was purchased from the female employee of ○○○ Company in the name of ○○○ Company, without entering into a supply contract with ○○○○○○ Company, was in a situation where it could be suspected that ○○ Company was a disguised business operator. However, the Plaintiff did not sufficiently confirm the circumstances.

④ The headB, the representative director of the Plaintiff, was aware that most of the scrap metal supplied under the name of the ○○○ Company was supplied in △△ethyl.

⑤ From October 15, 2004, the Plaintiff, who run a wholesale and retail business, etc. of scrap metal, seems to have known or could have known the actual status of transactions in data existing widely in the domestic scrap metal industry.

C) The second tax invoice of this case

According to the statements in Eul evidence Nos. 8 and 11, the representative director of the plaintiff, stated that "B, at the time of investigation into the violation of the Punishment of Tax Evaders Act, the location of ○○ Resource Business was in the vicinity of the plaintiff's business establishment, and Kim Jong-chul visited the plaintiff's business establishment on Aug. 2, 2008 and started transactions." It is not sufficient to recognize that the plaintiff confirmed the registration certificate of ○○ Resources and the identity of ○○ Manpower's operator on the basis of each of the statements in the above facts and evidence Nos. 14, 15, and 17, although it is recognized that the above facts and the statement in the above evidence Nos. 14, 15, and 17 were false. Even if such facts are recognized, considering all the following circumstances, it is insufficient to deem that the plaintiff was not aware of the actual supplier and there was no negligence on the part of the plaintiff, and there is no other evidence to prove otherwise.

① The headB, the representative director of the Plaintiff, alleged that the transaction was commenced in accordance with the proposal of Kim Jong-young, who visited the Plaintiff’s workplace on August 2008, in the vicinity of the Plaintiff’s business site (the whole-time x the whole-time x the area x the area x the area x the area x the area x the area x the area as the area x ○○○○○), but the headB, who is the Plaintiff’s representative director, did not submit any data to prove that the Plaintiff’s business registration certificate or the representative’s personal information was verified at the time of the commencement of the transaction. Furthermore, in light of the fact that the time of the registration of the business was made with the trade name of the ○○○ Resources on June 29, 2010, as revealed in the case of violation of the Punishment of Tax Evaders against Kim Jong-dong, it is difficult to believe that the headB and the statement of

② In the process of receiving scrap metal from ○○ Resources, the Plaintiff did not verify whether the scrap metal was loaded.

③ The Plaintiff purchased scrap metal equivalent to KRW 000 on February 2, 2010 and KRW 000 on January 1, 201, while purchasing scrap metal equivalent to KRW 3-4 times as near 201 on February 201, the Plaintiff purchased scrap metal equivalent to KRW 00 on the ground that it did not appear to have sufficiently confirmed that the Plaintiff could have any doubt about the rapid increase of ○○ Resources.

④ As seen earlier, the Plaintiff, who run a wholesale and retail business from October 15, 2004, appears to have known or could have known the actual status of transactions in the domestic scrap metal industry.

D) Sub-determination

Therefore, the plaintiff's assertion on this part is without merit.

3) Whether the imposition of penalty tax against the nonperformance of the report of this case is legitimate

A) Relevant legal principles

Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same) defines an amount equivalent to 40/100 of the amount calculated by multiplying an amount of tax to be paid by the ratio of the amount equivalent to the underreported tax base to the tax base by an unlawful means, in cases where a taxpayer under-reported the tax base by an "unfair means," as well as the amount to be deducted from the amount of tax to be paid. In addition, Article 47-2(2) of the former Framework Act on National Taxes defines the meaning of the "unfair method" as "the method prescribed by Presidential Decree as a violation of the duty to report the tax base or amount of national tax, based on the concealment or disguise of all or part of the fact that serves as the basis for calculating the tax base or amount of national tax, and Article 27-3(2)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 201201) provides that a taxpayer may receive a false or other fraudulent method.

In light of the language, structure, etc. of relevant provisions such as Article 47-3(2)1 of the former Framework Act on National Taxes, even if a taxpayer received a false certification and underreporting the tax base, if the taxpayer did not know that there was a false certification, it shall not be deemed that it was a case of underreporting the tax base by unjust means. Moreover, if a taxpayer received a different tax invoice from a supplier on the relevant tax invoice, and the taxpayer did not know that the actual supplier was false due to gross negligence, it shall not be deemed that the taxpayer was unaware of the fact. In addition, in order for the taxpayer to constitute “in cases of underreporting the tax base by unjust means” under Article 47-3(2)1 of the former Framework Act on National Taxes, the taxpayer should be aware that the tax base and tax amount of value-added tax were to be deducted or refunded, excluding the amount of tax paid on the tax invoice, or that the taxpayer would be entitled to a reduction in the taxpayer’s input tax revenue by filing a tax return or a request for correction by means of refund, etc. (see, e., Supreme Court Decision 21015Du14.).

On the other hand, whether a disposition is lawful in a lawsuit seeking revocation of a tax disposition is determined depending on whether it exceeds a legitimate tax amount. The parties may submit objective tax bases and materials supporting the tax amount until the closing of arguments in the fact-finding court, and when calculating the legitimate tax amount to be imposed lawfully based on such materials, only the part exceeding the legitimate tax amount shall be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).

B) In light of the above legal principles, the Plaintiff appears to have been actually supplied with scrap metal at the supplied amount and price as stated in each tax invoice of this case, and there is no evidence to deem that the purchase price paid by the Plaintiff was particularly lower than the market price. Considering these facts, the circumstances alleged by the Defendant or the evidence submitted by the Defendant alone is insufficient to acknowledge that the Plaintiff was aware that the Plaintiff would have been subject to the deduction of the input tax amount due to evasion of the Plaintiff’s liability for value-added tax payment under each of the tax invoices of this case, thereby bringing about a decrease in national tax revenues. There is no evidence to find otherwise.

Therefore, the Plaintiff’s general under-reported penalty tax under Article 47-3(1) of the former Framework Act on National Taxes should be imposed, which is not an unfair under-reported penalty tax under Article 47-3(2) of the same Act. As such, the portion exceeding the amount where a general under-reported penalty tax was imposed, not an illegal under-reported penalty tax, among the disposition imposing penalty tax due to nonperformance of report in the instant case, is unlawful. If a general under-reported penalty tax is imposed, the fact that the amount of penalty tax due to nonperformance of report in the instant case is 00 does not conflict between the parties, and thus, the portion exceeding the above amount

4) Determination as to the legality of the imposition of penalty tax in bad faith for payment in the instant case

A) Relevant legal principles

Articles 47-5(1) and 48(1) of the former Framework Act on National Taxes stipulate that where a taxpayer fails to pay national taxes by the due date under the tax-related Acts without justifiable grounds, etc., or the paid amount falls short of the payable amount, an additional tax shall be imposed. Meanwhile, in order to facilitate the exercise of taxation rights and the realization of tax claims, where a taxpayer violates various obligations, such as a tax return and tax payment, as prescribed by the Act without justifiable grounds, and where a taxpayer violates various obligations, such as a tax return and tax payment, which are imposed under the tax-related Acts, it is unreasonable to expect the taxpayer to fulfill such obligations (see, e.g., Supreme Court Decision 2004Du930, Nov. 25, 2005).

B) Determination

In light of the above legal principles, it is reasonable to view that the Plaintiff knew or did not know the fact that each of the tax invoices of this case was false, as seen earlier, and therefore, it is difficult to deem that there was a justifiable ground for the Plaintiff’s failure to perform the liability for value-added tax payment.

Therefore, the imposition of penalty tax against nonperformance of payment in this case is legitimate, and this part of the plaintiff's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim, including the claim that was changed in exchange at the trial within the above scope of recognition, is justified, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance that differs in part from this conclusion is unfair, it is so decided as above (the lawsuit that the defendant withdrawn from the exchange of the claim that was made at the trial on February 1, 2013 by the plaintiff on February 1, 2011 and the judgment of the court of first instance became null and void).