Cho Jae-chul2010 to 2676 (Law No. 19, 2012)

It cannot be readily concluded that the use of manufacturing facilities by another corporation is not the sales of the relevant corporation.

It is difficult to readily conclude that the private legal effect of the supply contract of ready-mixed between the relevant corporation and the other corporation is immediately attributed to the other corporation solely on the ground that the pertinent corporation did not prepare a consignment production contract, etc. for such production, even though it did not pay a separate fee or fee for the production of ready-mixed using the manufacturing facility of another corporation.

Article 14 of the Framework Act on National Taxes

2011 disposition of revocation of imposition of value-added tax, etc.

XX One other than a limited partnership company

Director of the Tax Office

November 29, 2011

February 2, 2012

1. On June 1, 2010, the Defendant’s imposition of each corporate tax and value-added tax as set out in paragraph (1) of the attached Form 1 against Plaintiff XX limited partnership company and the imposition of each value-added tax as set out in paragraph (2) of the attached Table 1 against Plaintiff OO industry limited partnership company shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. Plaintiff XX limited partnership (from the following to the Plaintiff) is a company established on November 23, 1989 and manufacturing and selling private or government-managed ready-mixeds from 000-0 of the Songcheon-si, Songcheon-si, which is established on August 17, 1991, and Plaintiff OOO industry limited company (from the next 'Plaintiff OO industry') is established on August 17, 1991 and manufactures and sells private or government-managed ready-mixeds from OOri 000-0 of the Songcheon-si, Songcheon-si.

B. On July 6, 2010, the Director of the Ministry of Knowledge Economy issued a disposition of suspension of indication for the violation of Article 21(1) of the Industrial Standardization Act, Article 28 of the Enforcement Decree of the same Act, and Article 1(f) of the same Act, and six months of suspension of sales on the ground that the Plaintiff-O industry, “the certified person,” on the ground that the products of another certified person are disguised products of another certified person.”

C. Based on the above facts, the Defendant conducted a tax investigation on the Plaintiffs from 2004 to 2008, and confirmed the fact that the Plaintiff’s O industry sold the products produced at the Plaintiff XX factory as if they were produced, then released the Plaintiffs’ revenue amount and purchase amount based on the Plaintiffs’ average power consumption amount prepared for the same type of business as the Plaintiffs, and on June 1, 2010, notified the Plaintiff of the tax base for the imposition of value-added tax from 2004 to 208 (from 2004 to 2004 to 204 to 2008 of the disposition of imposition of value-added tax, including the purchase cost and the corresponding purchase cost and the corresponding tax base for the above imposition of value-added tax (from 204 to 204 to 204 to 208 of the disposition of imposition of value-added tax) as the result of the imposition of value-added tax on the Plaintiff from 204 to 204 to 208 of the disposition of imposition of value-added tax.

D. The Plaintiffs appealed against the instant disposition and filed an appeal with the Tax Tribunal.

[Ground of recognition] Facts without dispute, Gap evidence 1 to Gap evidence 5, Gap evidence 13, Gap evidence 28, Eul evidence 1 to Eul evidence 4 (including the number of branches), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

1) The PlaintiffO industry is a legal entity with a human and physical organization separate from the Plaintiff XX, supplied ready-mixed pursuant to a valid ready-mixed supply contract with the other party, and was paid the sales proceeds of ready-mixed. Thus, the sales proceeds of this case belong to the PlaintiffO industry. Nevertheless, the disposition imposing the corporate tax of this case and the disposition imposing the value-added tax on the Plaintiff XX on the Plaintiff under the premise that the sales proceeds of this case belong to the Plaintiff XX is unlawful. As long as the sales proceeds of this case belong to the PlaintiffO industry, the disposition imposing the value-added tax on the PlaintiffO industry is unlawful, and as long as the sales proceeds of this case belong to the PlaintiffO industry, the input tax amount on the tax invoice related to the purchase of the corresponding

2) Of the instant dispositions, the imposition of corporate tax for the business year 2004 against the Plaintiff and the imposition of tax for the first and second period of 2004 against the Plaintiffs was made after the lapse of five years from the exclusion period of imposition, and is unlawful.

B. Relevant statutes

Attached Form 3 is as shown in the relevant statutes.

(c) Fact of recognition;

1) The amount of Plaintiff XX’s investment is 400,00,000 won investors are ParkA (63% of the share ratio), rightB (20% of the share ratio), ParkCC (10%) and KimD (7% of the share ratio). The amount of Plaintiff’s OO industry’s investment is 200,000,000 won is EE (41% of the share ratio), ParkA (22% of the share ratio), ParkB (20% of the share ratio), ParkCC (10% of the share ratio), ParkF (7% of the share ratio).

2) From 2004 to 2008, Plaintiff XX 15 to 10 to less than 15 to less than 20, PlaintiffO industry separately employed 8 executives and employees, withheld and paid labor income tax on the above executives and employees, and reported and paid insurance premiums, such as employment insurance and industrial accident insurance.

3) Plaintiff XX is equipped with manufacturing equipment such as ready-mixed manufacturing equipment, ready-mixed transport vehicle, etc. at the place of business located in XX 294-1 in the Songcheon-si 294-1, and PlaintiffO industry is each equipped with manufacturing equipment of the above ready-mixed at the place of business located in the 00-0-0 place of business located in the Songcheon-si Ori-si 00-0 in the

4) From around 2004 to 2008, Plaintiff OO industry produced ready-mixed using Plaintiff XX’s above ready-mixed manufacturing facilities at its workplace. Some of them were produced using the above ready-mixed manufacturing facilities at its own workplace. Since the two companies did not clarify their classification, it was impossible for Plaintiff OO industry to accurately compute the quantity of ready-mixed produced by using its manufacturing facilities. The officers and employees of Plaintiff OO industry worked in most of Plaintiff XX’s workplace, and worked in Plaintiff OO industry’s workplace only when Plaintiff OO industry produces ready-mixed by using PlaintiffO industry’s manufacturing facilities.

5) Around 2004, Plaintiff OO industry received cement from Nonparty △△ Industrial Co., Ltd., and received tax invoices from Nonparty △△ Industrial Co., Ltd. during the instant taxable period, and paid a large amount of ready-mixed raw materials, such as cement and aggregate, and received the tax invoices. As above, the raw materials provided as above were kept in storage of the raw materials purchased by Plaintiff XX from the warehouse located at Plaintiff XX’s workplace, without distinguishing them from the raw materials purchased by Plaintiff XX.

6) Upon receipt of an order from the other party to the transaction for the supply of ready-mixed, the Plaintiff’s OO industry: (a) input the raw materials stored in the Plaintiff’s warehouse into the manufacturing facilities of ready-mixed; (b) made the date of shipment of ready-mixed with the Plaintiff’s customer, on-site name, size, transport vehicle number, departure time, supply volume, etc.; and (c) made the supply using the Plaintiff’s own or the Plaintiff’s ready-mixed transport vehicle; and (d) made a transaction of supplying ready-mixed in the way of receiving the supply price after issuing the tax invoice.

7) On August 2004, Plaintiff OO industry: (a) supplied ready-mixeds with a total of nine square meters of ready-mixeds on August 16, 2004 and August 29, 2004; (b) issued a tax invoice on August 31, 2004; and (c) received KRW 461,785 from the above company for the instant taxable period; and (b) traded ready-mixeds with the end of the instant taxable period; (c) most of the owners of ready-mixeds did not know that the ready-mixeds supplied by Plaintiff OO industry were produced using the Plaintiff’s manufacturing facilities.

8) The PlaintiffO industry reported and paid corporate tax and value-added tax on the proceeds from the sale of ready-mixed, including the sales of this case during the instant taxable period.

9) Meanwhile, PlaintiffO industry did not pay separate fees or usage fees to Plaintiff XX for the production of ready-mixeds using Plaintiff XX’s manufacturing facilities, and the Plaintiffs did not prepare the above production contract and consignment contract for the aforementioned production.

10) The Defendant issued a false tax invoice as if he actually manufactured ready-mixed, even though he manufactured and supplied ready-mixed in XX, and the Plaintiff accused the Plaintiffs as a violation of the Punishment of Tax Evaders Act on the grounds that they failed to issue a tax invoice even though they manufactured ready-mixed. On December 14, 2010, the Cheongju District District Public Prosecutor's Office issued a non-prosecution disposition against the Plaintiffs on the ground that the Cheongju District Public Prosecutor's Office did not issue a false tax invoice.

[Ground of recognition] Facts without dispute, Gap's 5thm through Gap's 27thm, Gap's 29 through Gap's 85, Eul's 5 to Eul's 11 (including various numbers), witness newGG and Park H's testimony and the purport of the whole pleadings

D. Determination

1) Review of relevant legislation

A) Article 14 of the Framework Act on National Taxes provides that if the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and there is another person to whom such income, profit, property, act or transaction belongs, the tax law shall apply to the person to whom such income, profit, act or transaction belongs, and the provisions on the calculation of tax base shall apply according to the substance regardless of the name or form of the income, profit, act or transaction, and where it is deemed that the benefit of the tax law is to be unduly received through indirect method through a third party or through two or more acts or transactions, the relevant party shall be deemed to have made a direct transaction, or that the tax law shall apply to such an

B) In addition, Article 4 of the Corporate Tax Act provides that where the corporation to which all or part of the revenues generated from assets or business legally accrue and the corporation to which the revenue actually accrues are different, this Act shall apply to the corporation to which the revenue actually accrues, and the provisions on the calculation of the amount of taxable income of the corporate tax shall apply to the calculation of the amount of taxable income, notwithstanding the name or form of the income

C) Meanwhile, when a taxpayer initially engages in economic activities, one of the several legal relations may be selected in order to achieve the same economic purpose, and the tax authority shall respect the legal relations chosen by the parties, except in extenuating circumstances.

2) As to Plaintiff XX’s claim

A) Comprehensively taking into account the facts acknowledged earlier and the purport of the entire pleadings, ① there is a special relationship with some investors operating the same kind of business as well as the composition of the Plaintiff, but the Plaintiff’s OO industry is operated on its own account with separate human resources and physical facilities from the Plaintiff, ② the Plaintiff’s O industry is ordered to supply ready-mixed to the other party during the pertinent taxable period, and the supplier was supplied with tax invoices as well as the supplier was known to the other party. The owner of ready-mixed was entitled to input tax deduction as a tax invoice issued by the Plaintiff’s O industry. ③ The effect of the contract on the supply of ready-mixed industry concluded with the Plaintiff is attributable to the Plaintiff’s employer for the improvement of the manufacturing and supply efficiency of the Plaintiff’s products, and the effect of the contract on the manufacture and supply of ready-mixed industry is attributable to the Plaintiff’s products supplied by the other party to the contract, even if the Plaintiff’s products supplied by the other party to the contract on the manufacture and supply of the Plaintiff’s products can be seen as affecting the effect of the contract on the supply of the Plaintiff’s O industry.

B) Therefore, the Defendant’s imposition of corporate tax and the imposition of value-added tax against Plaintiff XX on the premise that the instant sales amount belong to Plaintiff XX is unlawful.

3) As to the imposition of value-added tax on the Plaintiff’s O industry

In full view of the following circumstances, i.e., ① PlaintiffO industry purchased cement and aggregate raw materials from △△ Industries Co., Ltd., and paid the price by issuing a tax invoice; ② produced ready-mixed using the raw materials purchased as above; ② The sales amount of this case belongs to PlaintiffO industry, as seen in light of the fact that PlaintiffO industry belongs to PlaintiffO industry, the tax invoice that PlaintiffO industry purchased and received ready-mixed raw materials is consistent with the fact. The sales amount of this case is different from the fact that PlaintiffO industry purchases ready-mixed raw materials, and the tax invoice that PlaintiffO industry purchases and receives is different from the fact that the tax invoice that PlaintiffO industry purchases and receives ready-mixed raw materials on the premise that the sales amount of this case belongs to XX, and imposition of value-added tax on PlaintiffO industry by non-deduction of input tax amount is also illegal.

4) Sub-committee

Therefore, the Defendant’s disposition of this case based on the premise that the sales amount of this case belongs to the Plaintiff XX is unlawful without having to determine the remainder.

3. Conclusion

Therefore, since the plaintiffs' claims are well-grounded, it is decided as per Disposition by admitting all of them.