Seoul High Court 2008Nu5430 (No. 22, 2008)

National High Court Decision 2006No2486 (Law No. 22, 2008)

The scope of the application of the Additional Tax for Receiving Documentary Evidence

The additional tax to receive the documentary evidence of disbursement shall be applied when the documentary evidence of disbursement is not received despite the actual transaction, and it shall not be applied to the case where the documentary evidence of disbursement is prepared without the actual transaction or where it is received differently from the actual transaction contents.

The contents of the decision shall be the same as attached.

The part of the judgment below on imposition of value-added tax is reversed, and that part of the case is remanded to Seoul High Court.

The defendant's appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Plaintiff’s ground of appeal

Article 1(1)1 of the Value-Added Tax Act provides for "the supply of goods subject to value-added tax" and Article 6(1) provides that "the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the characteristics of value-added tax as multi-stage transaction tax, "Do or transfer, which is stipulated in Article 6(1) of the Value-Added Tax Act, includes all acts of causing the transfer of the right to use and consume goods, regardless of the existence of actual profits (see, e.g., Supreme Court Decisions 9Du9247, Mar. 13, 2001; 85Nu286, Sept. 24, 1985). In this case, the issue of whether a specific transaction among a series of transactions constitutes the supply of goods as stipulated in the Value-Added Tax Act shall be determined based on the purpose and circumstance of each transaction party, the ownership of profits, and the denial of the payment relationship between the two parties.

원심이 적법하게 확정한 사실 및 기록에 의하면, 원고는 2003. 4.경부터 2004. 12.경 까지 사이에 주식회사 골든@@@ 등 11개 회사(이하 '이 사건 공급자들'이라 한다)로부터 합계 5,325kg 상당의 금지금(이하 '이 사건 금지금'이라 한다)을 외상으로 매입하고 이 사건 금지금을 인도(이하 '이 사건 거래'라 한다)받은 다음 이 사건 공급자들로부터 이 사건 거래에 따른 세금계산서 186장(이하 '이 사건 세금계산서'라 한다)을 각 교부받은 사실, 원고는 이 사건 금지금을 매입한 당일 홍콩 소재 수입상에게 대부분 수출한 사실을 각 알 수 있는바, 이러한 사실 및 기록에 나타나는 여러 사정을 앞서 본 법리에 비추어 살펴보면, 이 사건 금지금이 수입되어 수출되기까지의 일련의 전체거래(이하 '이 사건 전체거래'라 한다)가 대부분 하루에 이루어지고, 그 중간 단계에 부가가치세가 면제되는 금지금을 매입한 다음 면세추천 받지 아니한 자에게 부가가치세 과세대상이 되는 금지금으로 공급하면서 세금계산서를 작성ㆍ교부하고 그 부가가치세 상당액을 납부하지 않는 이른바 폭탄업체가 존재하고 있는 점 등의 사정만으로는 이 사건 전체거래 중의 하나인 이 사건 거래가 명목상의 거래로서 부가가치세 과세대상이 되는 재화의 공급이 아니라고 단정하기는 어렵다 할 것이다.

Nevertheless, the court below held that the tax invoice of this case constitutes a different tax invoice from the fact on the ground that the transaction of this case was merely a nominal transaction without supplying goods, on the ground that the transaction of this case was a single transaction included in the entire transaction of this case where the so-called wide coal company was opened. Such judgment below erred by misapprehending the legal principles on the "supply of goods" and "tax invoice different from the fact", which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

2. As to the Defendant’s ground of appeal

According to Articles 76(5) and 116(2)2 of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), Article 76(5) of the same Act (amended by Act No. 8141 of Dec. 30, 2006), and Article 116(2)2 of the same Act, the chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount 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. Article 16 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006) provides that where an entrepreneur registered as a taxpayer supplies goods, he shall issue a tax invoice stating

As seen earlier, so long as the instant transaction cannot be deemed to be a supply of goods subject to value-added tax, it is reasonable to view that the instant tax invoice received accordingly is a legitimate tax invoice under Article 16 of the former Value-Added Tax Act. As to the disposition imposing corporate tax by deeming the instant tax invoice as a "illegal tax invoice" and applying the provisions on additional tax for which evidence is not received, the lower court’s determination that it is unlawful on the ground that the provision on additional tax for which evidence is not applied cannot be applied to the actual nominal transaction under the disguised transaction is inappropriate, but its conclusion is just, and contrary to the allegations in the grounds of appeal, there is no error of misapprehending the legal principles on the provisions on additional tax

3. Conclusion

Therefore, the part of the judgment below imposing value-added tax is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.