National High Court Decision 1996Du2163 ( October 26, 1996)

Addition

Dismissal

The tax invoice received by the requesting corporation falls under a different tax invoice from the fact, and since the requesting corporation is not a bona fide party, the initial disposition is legitimate.

Article 17 of the Value-Added Tax Act

I dismiss the appeal.

1. Facts and outline of disposition;

In the construction of a building with a 6,007 square meters of underground 4 stories (hereinafter referred to as "sub-building") on the 990.78 square meters of the OOOOO site in Seoul Special Metropolitan City, the applicant completed the construction contract with the OO integrated construction company located in the Gwanak-gu Seoul Special Metropolitan City, Seoul Special Metropolitan City OOOOOOOOO(hereinafter referred to as "non-claimed corporation") after obtaining a construction permit on January 15, 91.

The applicant corporation received a tax invoice in the attached Form (hereinafter referred to as "market tax invoice") from the non-applicant corporation in relation to the construction of the building at issue and deducted the tax amount as the input tax amount.

The disposition agency, as a licensing business operator, deemed the issue tax invoice as a tax invoice different from the actual tax invoice of the building at issue, not the actual contractor of the building at issue, and issued a revised notice to the requesting corporation of KRW 519,837,650 (3.105,867,880, 91/1 period portion, KRW 69,708,670, KRW 91/2 period portion, KRW 69,708,670, KRW 92/1 period portion, KRW 180,786, KRW 130, KRW 92/2 period portion, KRW 163,474,970).

The applicant filed a request for a trial on April 18, 96.6.22.

2. Claims by the requesting corporation;

A. The key tax invoice is not a false tax invoice

In order to construct the building at issue, the applicant corporation has concluded a contract for construction work contract of the building at a fixed level with the construction cost of KRW 1,605,340,000 and the second construction cost of February 2, 92 and KRW 3,124,220,000 in the construction cost of the building at issue and received a completion inspection from the OO office in September 92.

Pursuant to the construction progress from February 8, 91 to November 17, 92, the applicant corporation paid 2,197,880,676,60,000 won to the non-claim corporation in the face of 11 times with a cash check of 2,197,880,985 won with a cash check of 14 times, including the total construction cost (including value-added tax) 4,874,480,985 won, including the additional construction cost in addition to the primary and secondary construction cost, and received a tax invoice from the non-claim corporation.

The OOO, a director of the technical department of the non-claimed building, completed a report to the OO-gu office as an agent at the site of the construction site of the building at issue, and the OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

In addition, when examining financial data on the payment of the new construction work of this building, it is confirmed that the applicant corporation has no cash payment and all of the cash payment process can trace all the distribution process of the fund by cashier's checks, check-out tickets, and check-out bills, and that all the amount of 2,676,60,000 won paid by the applicant corporation in the bill of payment was paid as the construction work price by the non-claiming corporation, and the subcontractor who received a bill endorsed by the non-claiming corporation is confirmed to have issued a tax invoice to the non-claiming corporation.

In full view of the above facts, since a trader with the claimant corporation is a non-party corporation as a party to the contract, the key issue tax invoice is a normal tax invoice other than a factual transaction.

(b) The requesting corporation is a bona fide trading party;

The claimant corporation considers that the transaction party is a non-claim corporation for the same reason as above, but even if the non-claim corporation lends its name to the non-claimer OO, the claim corporation is not related to the claim corporation, and only is a bona fide victim.

Article 6-2-1, 21 of the Value-Added Tax Basic Rule 6-2-1, 21 provides that "where a business operator confirms the business registration certificate of a transaction partner and issues or receives a tax invoice for a transaction, even if the transaction partner is determined as a bona fide party due to the investigation by the related agency, the transaction partner shall not be subject to disadvantageous disposition, such as correction or punishment under the Punishment of Tax Evaders Act, if the transaction partner can be regarded as a bona fide party." Thus, even if the transaction partner conducted the act of the name lending, it is the fact that the requesting corporation could not know at all, even if it was given the name lending, and

The claimant corporation purchased and possessed the 990.78 square meters of the OOOOO site in the Seoul Special Metropolitan City, OOOOOOOO site for the purpose of new construction of SOOOOOO site, which is the target business. However, as the land excess profit tax was newly constructed, it is urgent to impose the soil tax unless the building is constructed, and thus, it became difficult to promptly construct the building, and thus, it became difficult to seek advice from experts who are at risk of construction.

Therefore, it has long been aware that OOO, other than the applicant's children, who were employed as a managing director for several hundred years as retirement age, has been employed in the construction company, and it has been employed as a one-class architectural engineer, the applicant filed a request for advice on the construction of a building with OOO, and OOO currently worked as a director outside the claim, and a corporation outside the claim is a company with the highest order of contract in the top group.

In addition, there was no doubt as to the construction of a large-scale building at the time of being employed by the Ministry of Justice, with the knowledge that the OOO's 's 'OOO's 's 's 'OOO' had been retired for a long period of time after being recognized of good faith, credit, and real ability at the time of being employed in the 10th century, and that the OO's 'OO' had a good faith and credit, and that there was no experience in constructing a large number of large buildings at the time of being employed

In the article on August 31, 92, an OOO 92.8.31, which is a tax specialty, the company's business registration certificate for non-claimed corporation was also inspected normally, and the non-claimed corporation was also introduced as a substitute corporation for the company's business, and the value-added tax and corporate tax were normally reported, and at the time of the normal declaration of the name, the fact that the company was unaware of the name rental business operator was not known at the competent tax office and at the time of the normal declaration of the company's corporate

Therefore, in full view of these facts, the requesting corporation is a trading party acting in good faith and a victim.

3. Opinions of the Commissioner of the National Tax Service;

The issue tax invoice of the requesting corporation is a normal transaction tax invoice other than the actual tax invoice, and even if the requesting corporation is a nominal rental business operator, the requesting corporation is a bona fide transaction party and thus, the non-deduction of the input tax amount is unjust.

(1) The fact that the applicant corporation is confirmed at the competent tax office of the corporation other than the claimed corporation, which claimed that it is a normal transaction party, and only the name rental business operator who issues tax invoices shall be deemed to be a nominal rental business operator without actual transaction and makes a request to cancel the registration of business operator on December 19, 92 and to cancel the permission on the construction book

② Even though the construction period of the key building was long and the construction contract amount was 4.8 billion won, the claimant corporation did not make efforts to grasp the substance of the beneficiary only by having known that it was located in Odong for one year and seven months in the contract for a non-claim corporation, the beneficiary under the contract, and that the disposition agency was confirmed in accordance with the letter of answer against the representative of the claimant corporation at the time of the instant investigation;

③ Even though the contract amount for construction works of the building at issue is 4.8 billion won, the guarantee for construction works at the construction contract was made only by the non-corporate director at the site of a non-corporate entity, who is not a corporation, and there is no security or guarantee insurance certificate, etc. related to the warranty of defects and the final interest of bills issued by the requesting corporation at the cost of construction is the personal OO;

④ According to the computerized data on OO, other than the claims, presented by the agency, there is no earned income for 91 years belonging to the agency, and since the amount of earned income for 92 years that was received from a corporation other than the claims is 6,400,000 won, it does not seem that OOO was the site manager of a corporation other than the claims;

(5) When investigating the subcontractor of the building in question, the disposition agency was an OOO in the process of investigating the subcontractor of the building in question, and the receipt of money and endorsement was made by OO, and the subcontractor was not aware of the fact that the contractor was aware of the OO only as an individual business operator without being aware of the fact, etc.

In light of the above various circumstances, the new construction of the building at issue is only a contract form, but the contractor is a corporation outside the claim, and the building at issue was newly constructed under an agreement or implied consent between the requesting corporation and the contractor other than the contractor, and the non-claimed corporation only lent the name to the non-claimed OO and actually executed by the non-claimed OO. Thus, the tax invoice received by the requesting corporation is not a normal transaction but also a tax invoice different from the fact that the claim corporation is not a bona fide transaction party, and it seems that the requesting corporation cannot be deemed a bona fide transaction party. Therefore, it is determined that the requesting corporation did not err in the initial disposition that deducts input tax amount by deeming the tax invoice received from the non-

4. Hearing and determination

A. The dispute over this case’s appeal is to determine whether the disposition of non-deduction of the input tax amount is legitimate by deeming the issue tax invoice as a false tax invoice.

B. Article 17 (1) of the Value-Added Tax Act provides that the amount of tax payable by an entrepreneur shall be the amount which deducts the input tax amount from the output tax amount, and the tax invoice under paragraph (2) provides that where the whole or part of the necessary entry items (the registration number, name or title, the registration number, the price of supply and the value-added tax amount by the supplier, and the date of preparation) are not entered in the

In this regard, in general rules 6-2-1, 21 of the Value-Added Tax Act (amended by a bona fide business operator who trades with a nominal master) the business operator confirmed the business registration certificate of the trading partner and issued or received a tax invoice based on the transaction, even if the trading partner is judged as a nominal master business operator due to the investigation by the related agency, when the transaction partner can be seen as a bona fide business operator, he shall not be subject to disadvantageous disposition such as punishment under

C. The claimant asserts that the actual contractor of the construction of the building at issue is a corporation other than the claim, and the OOO was an employee of the corporation other than the claim and was responsible for the construction site. However, the bill’s interest paid by the claimant corporation as the construction cost was stated as OOO after the non-claimed corporation, and if the OOO was an employee of the non-claimed corporation and the person in charge of the construction site, it is not reasonable to file an objection to the bill, and the non-claimOOO was the actual contractor of the new construction of the building at issue. In addition, if the receiver such as the subcontractor requests an objection to the bill, it is deemed that the contractor was the non-claim corporation and the non-claimed corporation knew that the non-claimed corporation was an employee of the construction site.

In addition, even if a non-claim corporation lends its name to an non-claim corporation, the claimant corporation is a bona fide party who did not know the fact, and thus the non-deductible of the input tax amount is deemed to be improper. However, when considering the contract for construction of the building at issue between the claimant corporation and the non-claim corporation, if the non-claim corporation believe that the non-claim corporation is a director of the corporation other than the claim claim, the contract for construction of the building at issue between the claim corporation and the non-claim corporation is entered as a guarantor, it does not fit social norms to conclude the contract with the director of the claim corporation as a guarantor, and rather, the contract for construction of such contract is concluded with the beneficiary corporation as the non-claim corporation, but the actual construction is responsible for the non-claim.

The representative director of the applicant corporation was aware of the fact that the corporation other than the applicant is located in the Odong in the question and answer with the investigator(s) of the agency(s) and stated that the non-claim corporation's seal impression (certification) and other related documents were not received at the time of preparation of the contract, and that the non-claim corporation's execution capacity should not be considered, and that the non-claim corporation's performance capacity should be entrusted to the non-claim corporation when there is any defect in the building at issue. This statement seems to be possible under the circumstance that the contractor is identified as the non-claim corporation's actual executor of the building at issue as non-claimO.

At the time of this request for a trial, the applicant corporation provides a reply to request the verification of the on-site agent of the construction company (construction 5850-705, 95.3.2) by the head of the OO head of the OO, an OO certificate issued by the non-claimed corporation on April 18, 91, an income tax completion certificate for Class A earned income issued by the director of the OO of the 91.4.18, and a construction engineer's career certificate issued by the director of the Korea Construction Technology Association of Korea on Jan. 19, 96. However, the representative director of the applicant corporation stated that all the documents were not issued after the contract date for the construction of the building at issue between the applicant corporation and the non-claimed corporation (91.2.8) and the contract date for the construction of the new building at issue (91.2.8) and that the income tax completion certificate for Class A earned income issued by the director of the OO is not for the purpose of conclusion of the contract, but for the contract.

D. In full view of the above facts, the actual contractor of the construction of the building at issue is an OO and the applicant corporation is deemed to have been aware of the fact, so the disposition agency did not err otherwise in regarding the issue tax invoice as a tax invoice different from the fact, and thus, the input tax amount should not be deducted otherwise.

E. Therefore, the appeal is without merit, and it is so decided as per Disposition in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.

Key Tax Invoice

Provided, That this shall not apply: Won

on or before 891 March 2791, 201 6.176, 17040, 70407, 60407, 60407, 60407, 60407, 60407, 60407, 60407, 60407, 60407, 60406306306,30407, 630406, 60407, 29407, 290406, 6307, 60406, 6307, 60406, 60406, 63006, 6304, 2906, 2791, 291, 2904, 2006, 63006,6306306,6304,