Cho High Court Decision 2010Nu0810 (2010.05.04)

Whether a processed tax invoice related to the purchase of scrap metal has been received;

In light of the fact that the purchaser stated that there was no goods to be supplied with recyclables, etc., and that the actual operator did not engage in a transaction with the Plaintiff, it seems that the purchaser received a processed tax invoice that is not a real transaction.

2010Guhap2775 Disposition to revoke the imposition of value-added tax

△-gu Co., Ltd.

O Head of tax office

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of value-added tax of KRW 37,316,860 for the first term of December 1, 2008 against the Plaintiff on December 1, 2009 and the disposition of notification of change in income amount of KRW 231,742,50 for the first term of December 11, 2009 shall be revoked, respectively.

1. Details of the disposition;

A. On February 1, 2007, the Plaintiff Company was established with the trade name "AAAAA," which was "AAAA," and its trade name was changed on June 12, 2008 to the current Plaintiff. The Plaintiff Company is engaged in the manufacturing, manufacturing, wholesale, retail, and export business of non-reveniable scrap metal and scrap metal as waste resources.

B. The Plaintiff, upon issuing the value-added tax for the first period of March 28, 2008, deducted the input tax amount from the output tax amount under two copies of purchase tax invoices issued by BBB (hereinafter “BB”). On March 5, 2008, the instant tax invoice states that ① item graduateers, distribution board, supply price of 26,41,00 won, tax amount of 2,641,100 won, total of 29,052,100 won, and ② item B supply price of 184,264,000 won, total of 18,426,40,400 won, and total of 202,690,40,400 won, and the Director of the Regional Tax Office of the Regional Tax Office of the RB shall conduct a tax investigation with respect to BB, and notify the Defendant of the instant tax invoice without delay at around 209.

D. Accordingly, on December 1, 2009, the Defendant issued a notice of change in income amount of KRW 231,742,50 (the above 29,052,100 + the above 202,690 won + the above 202,690 won) to the Plaintiff on December 25, 201, 2008, and issued a notice of change in income amount of KRW 37,316,860 on December 25, 2009, including value added tax, to the supply value of the instant tax invoice. On December 11, 2009, the Defendant disposed of the amount, including value added tax, to the supply value of the instant tax invoice, as recognized by the Plaintiff’s representative director at the relevant time, and received a notice of change in income amount of KRW 231,742,50 on February 25, 2010.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3, and Eul 1

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

A. The plaintiff's assertion

"(1) The instant tax invoice cannot be deemed as false because: (a) on March 5, 2008, and March 28, 2008, the 42 tons of recyclables, such as schoolers, power distribution boards, and Dongs, were supplied with the purchase price based on the purchase tax invoice; and (b) on March 5, 2008, the instant tax invoice cannot be deemed as false tax invoice; and (c) the instant tax invoice was introduced by KimE, which is an employee of BBB, who deals with recycling materials in the trade name called “DDD”, and the FB’s employee registration certificate, copy of the passbook, and seal was confirmed, and transferred the purchase price to the financial account in the name of BBBB; (d) even if the supplier was not actually a goods or service, the instant tax invoice was not known to the Plaintiff, and thus, even if each of the instant tax invoice was not known to the Plaintiff, the instant tax invoice cannot be deemed as unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) BB was established on January 2, 2008 and closed on August 31, 2008, and the BB’s business registration certificate is indicated respectively as the representative HoH, the location of the location of the location and the JJ-si, KK-dong 785-14, the type of business-type non-ferrous metal vessel wholesale retail, but the actual operator is SongLL.

(2) Around 2008, LL leased commercial stores located in Busan MMMMMMMMMMMM 158-2 to BB office, but did not own or rent any place for storage of recyclable resources. The LL did not own basic facilities or equipment for the operation of the scrap metal business, cargo vehicles for the transportation of scrap metal, etc., and did not employ any other employees than one accounting clerk.

(3) Part 3 of the measurement certificate relating to the instant tax invoice is written on March 5, 2008: ① Vehicle No. 2424, Customer BBB, School 19,920kg, Gross weight 11,10kg, net weight 8,810kg, ② Vehicle No. 2424, Customer BB, Power Distribution Board No. 23,200kg, net weight 19,920kg, net weight 3,280kg, ③ Vehicle No. 2424 on March 28, 2008, business owner BB, name BB, gross weight 46,840kg, public vehicle weight 17,120kg, net weight 29,720kg.

(4) On March 6, 2008, the Plaintiff transferred KRW 25,530,00 on the financial account under the name of BB, KRW 3,522,100 on the same month, KRW 200,000 on the 28th day of the same month, KRW 231,742,50 on the 8th day of April of the same year, + KRW 25,530,000 on the 3,522,100 + KRW 200,000 on the 2,690,40,000 on the 200,000 on the 30,000 on the 16,50,500,000 on the 10,000 on the 30,000 on the 10,000 on the 300,000 on the 300,000 on the 300,000 on the 200 O.

(5) On July 28, 2008, the Plaintiff exported TPPPPPP TPP located in China to China, 98,040 g "(5)", "(6) the Director of the Regional Tax Office, around April 2009, shall determine the disguised processing sales of BB in January 2008, as KRW 9,540,000,000, and the disguised processing purchases as KRW 2,089,000,00,000. At that time, the Plaintiff complained of Hah’s representative of BBB and SongL, which was actually operated by BB, to investigation authorities.

"(7) On the last day of April 27, 2009, the ZZ (hereinafter "BB") did not purchase the ZZ from May 16, 2008 to the ZB", but falsely reported that he purchased the amount equivalent to KRW 2,089,116,00 from GangnamY et al. 321 to deduct the input tax amount of the value-added tax, and that the FF only purchased two copies of the sales tax invoice in the name of the ZB from the ZB, and that it did not have any direct transaction with the Plaintiff." [The grounds for recognition] The fact that there is no dispute, Gap 2,3,5, 5, 6, 9, Eul, 3,4, 4, 5, 6, 7, and the submission of each of the financial transaction information orders to this court, response to each of the aforementioned orders, and the purport of the entire pleadings and arguments.

D. Determination

(1) Determination on the imposition of value-added tax

(A) Whether the instant tax invoice constitutes a false tax invoice

1) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries in the tax invoice refer to cases where the contents of the tax invoice do not coincide with those of the person who actually supplied or is supplied with the goods or services, regardless of the formal entries in the transaction agreement, etc. made between the parties to the goods or services.

2) As to the instant case, the following circumstances acknowledged by the public health team, the above recognition, witness V, KimE, and LeeF’s testimony and the purport of the entire pleadings, i.e., (i) BBB did not purchase recyclables, etc. at all, and without being equipped with the basic facilities installed for running the business, such as the high-ste system or the high-ste system, etc., the Plaintiff and any other persons including the Plaintiff did not supply recyclables, etc. at all, and (ii) BBB’s actual operator’s speech and advice made a transaction with the Plaintiff; (iii) the Plaintiff asserted that the Plaintiff purchased the instant tax invoice from the EB, which is an employee of the BB, and received the instant tax invoice from the EB, but it is difficult for the BBB to view that it was difficult for the BBBB to purchase the tax invoice from the 20th day to be recycled, and (iv) it was difficult for the Plaintiff to purchase the tax invoice by entering it in the 20th day, as otherwise alleged by the Plaintiff.

(B) Whether the Plaintiff is bona fide and without fault

1) An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the person who received another tax invoice did not know the fact of misrepresentation of the name of the supplier, and that the person who received the tax invoice was not negligent in not knowing the fact of misrepresentation of the name as above (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Furthermore, a person who asserts the deduction or refund of an input tax amount must prove the fact that there is no negligence by the supplier on the part of the supplier, in light of the developments leading up to the issuance and issuance of the tax invoice, the price of the goods or services provided, the specific route and process of the supply of the goods or services, and the identity of the actual supplier in the name of the tax invoice, if there is sufficient circumstance to doubt whether the beneficiary is not the data, it is difficult to view that the beneficiary was not negligent in the actual name of the supplier.

2) As to the instant case, the following circumstances are acknowledged by the purport of the entire testimony and pleadings of the Health Team, the above facts of recognition, Eul evidence No. 8, witness V, EU, EU, and KimE, namely, ① whether the Plaintiff was the actual BBB employee of the BB, or whether the transport vehicle (vehicle number, driver, etc.) was the vehicle registered in BB, its location, its business facilities, etc., and ② the Plaintiff did not know of the fact that the main items were not entered in the tax invoice in advance while trading with the international metal business, the new business entity, and the international metal business entity of January 2, 2008, and the main parts were not entered in the tax invoice, but the Plaintiff did not receive the tax invoice under the name of BB from August 18, 2008, but did not know of the fact that the Plaintiff was the representative of BBB, etc. at the time of the instant transaction.

(2) Determination on the notice of change in the amount of income

(A) If a taxpayer asserts that some of the expenses reported by the taxpayer are not actual expenses, the tax authority must prove that the other party to the tax payment is false to the extent that the use of the expenses claimed by the taxpayer and the other party to the tax payment are not the expenses to be borne by the taxpayer. If the taxpayer asserts that there was another expense disbursement equivalent to the same amount, it is necessary for the taxpayer to prove that it is easy for the taxpayer to present all the data, such as the account books and evidence on the specific expenses, concerning the existence and amount of the reported expenses and other expenses (see, e.g., Supreme Court Decision 2004Du14168, Jun. 10, 2005), Article 67 of the Corporate Tax Act, and Article 106(1)1 proviso of the Enforcement Decree of the Corporate Tax Act provide that "in determining or correcting the corporate tax base, the amount included in the calculation of the income but it is unclear to be reverted to the representative." This representative recognition system under the Corporate Tax Act provides that it should be acknowledged as a bonus to prevent such an act under tax law from being committed.

(B) First, with respect to whether the Plaintiff actually purchased the recycling equipment equivalent to the value of the instant tax invoice, as seen earlier, the Plaintiff cannot be deemed to have actually purchased the recycling equipment equivalent to the value of the instant tax invoice from BB, as seen earlier, and it is insufficient to recognize that the Plaintiff was actually supplied the recycling equipment equivalent to the value of the instant tax invoice by any person other than the FF or BBB, and there is no other evidence to deem otherwise that the Plaintiff was supplied with the recycling equipment equivalent to the value of the instant tax invoice, and thus, the said purchase price should be excluded from deductible expenses in calculating the corporate tax base for the year 2008.

(C) In addition, there is no evidence to prove that the non-deductible amount was not leaked out of the private company. Thus, it is legitimate to dispose of the amount including value added tax in the supply value of the tax invoice of this case as the plaintiff's representative director and the doorCC recognized the amount of value added tax, and accordingly to notify the change in the income amount.

(3) Sub-decisions

Therefore, each of the dispositions of this case is legitimate, and the plaintiff's assertion disputing this is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.