Seoul Administrative Court 2007Guhap12309 ( September 25, 2008)

Seoul High Court Decision 2006-0146 ( December 21, 2006)

Whether the transaction constitutes a false tax invoice concerning gold bullion transaction

It is difficult to conclude that the supply of goods subject to value-added tax is not a nominal transaction, which takes place only on the pretext of delivery of gold bullion and the appearance of payment of gold bullion for the purpose of disguised transactions.

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. Each disposition of the Defendant imposed value-added tax of KRW 2,379,368,960 in 2004 against the Plaintiff on September 1, 2005, and KRW 325,095,420 in 204, and each disposition of refusing refund of KRW 1,56,754,613 in 2004 shall be revoked.

3. The defendant's appeal is dismissed.

4. The total costs of the suit shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of KRW 2,379,368,960 in 2004 against the Plaintiff on September 1, 2005, and of KRW 325,095,420 in 204 in 2004, each disposition rejecting refund of KRW 1,56,754,613 in 2004, and imposition of KRW 749,389,530 in 204 in corporate tax shall be revoked.

2. Purport of appeal

The text of this case is as follows.

Defendant: The part against the Defendant among the judgment of the first instance court is revoked, and the Plaintiff’s claim against that part is dismissed.

1. Quotation of judgments of the first instance;

From the judgment of the court of first instance, the second d. 2 of this case's second d. 2 of this case's "No. 1 of this case's "No. 1 of this case's 7,8 (c)" was accepted as it is, however, the "No. 2 of this case's "No. 1 of this case's "No. 1 of this case's "No. 1 of this case's "No. 1 of this case's "No. 1 of this case's "No. 2 of this case's "No. 1 of this case's "No. 1 of this case's "No. 2 of this case's "No. 1 of this case's "No. 2 of this case's "No. 1 of this case's "No. 1 of this case's "No. 1 of this case's "No. 1 of this case's "No. 1 of this case's "No. 2 of this case's "No. 2 of this case' export declaration of this case'. 2 of this case'

A. Whether a disposition imposing value-added tax and a disposition rejecting refund is legitimate

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 based on all contractual or legal grounds." In light of the characteristics of value-added tax 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 85Du286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001). In such a case, whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act is determined by comprehensively taking account of all the circumstances, such as the purpose and circumstances of each transaction, how and how the transaction is to vest in, and the subject of accrual of profits, and payment relationship between the two parties."

In light of the above legal principles, in the case of this case, the Plaintiff purchased and exported all gold bullion from nik for export, and received a tax invoice on the transaction of this case after full payment of the price, as alleged by the Defendant, the entire transaction of this case was conducted within a short period of time until the import and export of the gold bullion. The Plaintiff purchased gold bullion exempted from value-added tax at the interim stage and then supplied them to the person who is not recommended for tax exemption, and then prepared and issued a tax invoice, and did not pay the amount equivalent to value-added tax, and exported the gold bullion as it was purchased without processing by the Plaintiff, and the export price was lower than the domestic market price or did not receive a certificate of division for customs refund. Thus, it is difficult to conclude that the supply of goods is not a nominal transaction that only received or delivered gold bullion for the purpose of disguised trade, or that the supplier of this case received the transaction of this case as a result of the transaction of this case does not constitute "value-added tax invoice" and it is difficult to view it as constituting a "tax invoice different from the actual transaction fact.

B. Whether the disposition imposing corporate tax is lawful

Meanwhile, Articles 76 (5) and 116 (2) 2 of the Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006) provide that "the chief of the district tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount to the corporate tax 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, 2006) provides that "if an entrepreneur registered as a taxpayer supplies goods, a tax invoice stating the registration number, name or title, the registration number of the supplier, the value of supply, value-added tax amount, etc. shall be delivered to the person who receives

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.

C. Sub-committee

Therefore, the instant disposition that did not deduct input tax amount on the premise that the instant tax invoice falls under a “illegal tax invoice that was prepared differently from the actual one,” or that was made by applying the provision of penalty tax not received as evidence is unlawful.

3.In conclusion

Therefore, the judgment of the court of first instance is unfair on the grounds that part of this conclusion is different, and the part against the plaintiff in the judgment of the court of first instance which accepted the plaintiff's appeal and revoked the part against the plaintiff in the judgment of the court of first instance on September 1, 2005, and the defendant revoked the imposition of value-added tax of KRW 2,379,368,960 for the plaintiff on September 1, 2004, and KRW 325,095,420 for the second time value-added tax of KRW 204 for the second time of 2004 and the rejection of refund of KRW 1,56,754,613 for the second time value-added tax