This part of the tax invoice is different from the fact, because the supplier is different from the person who is issued on the tax invoice.

Whether or not the actual supplier has supplied scrap metal constitutes a tax invoice different from the fact that the supplier is different from the name of the name of the issuer on the tax invoice.

Article 16 (Tax Invoice)

2017Guhap6697 Disposition to revoke the imposition of value-added tax

○○○○○○○

○ Head of tax office

November 22, 2018

January 24, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of value-added tax of KRW 276,531,90 for the first term of December 15, 2016, the second term of 2012, the second term of 2012, the second term of 129,331,640 for the second term of 2013, the first term of 93,014,810 for the second term of 2013, and the second term of 2013,29,520 for the second term of 2013 is revoked.

1. Details of the disposition;

A. The Plaintiff, a business operator running the scrap metal wholesale business at the ○○○○○○○-gun ○○○○○○○○-gun ○○○○○○○, operated the business by directly paying the scrap metal from the purchaser as an instructor without having a separate open-air box.

B. The Plaintiff reported value-added tax from the first quarter of the year 2012 to the second quarter of the year 2013. From the output tax amount, the sum of the supply values received from ○○○○○ Industries and Stock Companies (hereinafter “the instant purchase headquarters”) and the purchase tax invoices received from ○○○○○○○ (hereinafter “the instant purchase headquarters”) as follows was deducted as the input tax amount.

C. Whether the Plaintiff received the tax invoice, etc. of this case from the director of ○○ Regional Tax Office, etc.

Upon receipt of tax data, the Defendant: (a) conducted an investigation into the portion of value-added tax on the Plaintiff from September 26, 2016 to October 31, 2016 on the part of the Value-Added Tax for the first period from September 2016 to October 2016; (b) as a result, where the instant tax invoice entails real transaction, but is different from the nominal supplier, the tax invoice received from the Plaintiff from the ○ Resources constitutes "transaction with the closed-down supplier"; and (c) on December 13, 2016, the Plaintiff denied the deduction of the input tax amount pursuant to the instant tax invoice and the tax invoice received from the ○ Resources, and issued a revised and notified the Plaintiff of the total value-added tax amount of KRW 52,495,890 (hereinafter referred to as "the instant disposition").

D. On March 8, 2017, the Plaintiff filed an appeal seeking revocation of the instant disposition with the Tax Tribunal. On June 13, 2017, the Tax Tribunal rendered a decision to deduct the supply value on the tax invoice received by the Plaintiff from the output tax amount from the output tax amount, correct the relevant tax amount, and dismiss the remainder of the Plaintiff’s claim.

E. On June 27, 2017, the Defendant notified the Plaintiff of the instant disposition by reducing the amount of KRW 105,332,830 to KRW 93,01,014,820, among the instant disposition. Accordingly, the remaining tax amount of the instant disposition is as follows.

Facts without any dispute arising in recognition, Gap's 1, 3, 5, Eul's 1 through 3 (including branch numbers if there is a ground for recognition), and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant tax invoice does not correspond to “illegal tax invoice,” but, even if the actual supplier and the nominal issuer of the tax invoice are different, the Plaintiff was unaware of such fact and was not aware of such fact, and thus, constitutes a trader with good faith and negligence. Therefore, the instant disposition that did not deduct the value of supply under the instant tax invoice from the output tax amount of the Plaintiff on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 17(2)2 of the Value-Added Tax Act, where the input tax deduction for a tax invoice received in the course of a transaction is denied, refers to a case where the necessary entries in the tax invoice do not coincide with the person who actually supplies or is supplied with the goods or services, the price, and the timing of the transaction, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the transaction concerning the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Thus, even if the transaction of supplying the goods, etc. actually exists, the supplier constitutes a “tax invoice different from the one who is issued the tax invoice.”

On the other hand, barring any special circumstance, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless he/she was aware of the fact that the supplier was unaware of the name of the tax invoice, and there is no negligence on the part of the supplier that he/she was unaware of the fact that he/she was unaware of the name of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

2) Whether the instant tax invoice is “other tax invoice different from the fact”

A) A tax invoice received from ○○ ethyl

In light of the overall purport of the statements and arguments of evidence Nos. 4-1, 2, 7, 8, and 9 of the evidence No. 4-1, 2, 7, 8, and 9, it is recognized that the actual business operator of ○○ is Kim○ and Lee, the representative of the tax invoice, is a person who lends only the name. Therefore, whether ○○○ is actually supplied with scrap metal constitutes a tax invoice different from the facts.

B) A tax invoice received from ○ Industry, ○○○○○○○○○○ Company

The whole statements and arguments mentioned above, together with evidence mentioned above, Nos. 5, 6-1 and 2

In full view of the following circumstances recognized by the purport of the tax invoice, it is reasonable to deem that the ○○ Industry or ○○○○○○○○ (hereinafter referred to as “○○○○○○○○”) was capable of providing the Plaintiff with the scrap metal corresponding to this part of the tax invoice, or cannot be deemed as having supplied the actual scrap metal. Accordingly, this part of the tax invoice constitutes a tax invoice different from that of the actual supplier, depending on the difference between the actual supplier and the nominal supplier.

① On November 18, 2012, 201, the ○ industry started business and closed its business on June 30, 2013, which was seven months later. During that period, the 8,088,000,000 won sales tax invoices were issued, but the purchase tax invoices, etc. related to the purchase of scrap metal corresponding to the above sales are not verified, and the value-added tax for the first period of 2013 is still in arrears. Moreover, if the purchase price on the sales tax invoice is deposited into an account under the name of ○○○○, which was the representative of the ○ industry, the entire amount was withdrawn in cash within one hour.

② In 207 and 2008, ○○○○, a representative of ○○ Industries, was not verified in addition to the fact that she was engaged in a beverage retail business in 2007 and 2008, and in 2010 and 2011, she is not identified as well as the fact that she was engaged in a beverage retail business, and she appears to have no obvious occupation. In relation to this case, she is in a state of contact with her present situation.

③ On October 24, 2013, 2013, ○○○○○○○○○ was opened and closed on May 21, 2014, the following seven months: (a) issued sales tax invoices of KRW 5,335,00,00 for the said period ( KRW 2,395,000 for the second period, KRW 2,940,000 for the first period of 2013, and KRW 2,940,000 for the first period of 2014). Nevertheless, during the said period, ○○○○○ received purchase tax invoices of KRW 5,226,00,00 for the purchase of scrap metal, but it was also doubtful that ○○○○○○○○ was not actually purchased (see, e.g., Supreme Court Decision 200Do2750, Mar. 27, 202).

④ On December 17, 2016, the upper end of the scrap metal in all transactions between the Plaintiff and ○○○○○○○ and the Plaintiff, excluding 23.82 tons, and ○○○○○○○○ and 002, was the place of business of the ○○○○○, or the place of business of the ○○○○○○, which is not the place of business of the ○○○○○○○○○○,. Moreover, gambling ○, which is the representative of the ○○○○○○○○, also does not have any history related to the wholesale and retail of the ○○○○○. Although Park○ claimed that the ○○○○ was the business owner of the ○○○○○○○○○, and that the ○○○○○○○ was actually supplying the Plaintiff with the ○○○○○○, it is difficult to believe such assertion as not only inconsistent with the details of the upper end of the scrap

3) Whether the Plaintiff is a trader of good faith and negligence

However, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff was not negligent due to the Plaintiff’s failure to know that the name of the issuer of the instant tax invoice and the actual supplier were different, and there is no other evidence to acknowledge it.

Rather, the circumstances acknowledged by the above evidence or the overall purport of oral argument, namely, ① the head of ○○○, who was in charge of the Plaintiff’s scrap metal business, appears to have been well aware of the structure, etc. of tax evasion occurring in the process of the distribution structure or distribution of scrap metal [the Defendant is also deemed to fall under the purchase tax invoice (total supply price of KRW 33,863,607,220) received from six enterprises including ○○ companies from 2010 to 2012, as in the instant case. The Plaintiff issued a revised and notified the Plaintiff of the value-added tax by denying the deduction of input tax deduction. In this case, the revocation litigation (see Supreme Court Decision 2000Du2335, Oct. 2, 200) was recognized that the head of ○○ had been aware of the difference between the actual supplier and the nominal issuer of the said tax invoice and the Plaintiff’s business registration certificate. ② Even based on the Plaintiff’s assertion, the Plaintiff’s business registration certificate was confirmed to have been known to the other party.

③ The head of ○○○ appears to have known the Plaintiff that the ○○ industry started a high-amount scrap metal business before several months prior to the commencement of the high-amount scrap metal business. If the ○○○ industry visited the place of business prior to the high-end scrap metal business, it would not have been equipped with equipment to conduct such transactions, and it would not have been difficult to understand the fact that ○○○○, a representative on the business registration certificate, did not have the ability to conduct the high-priced business. ④ The head of ○○○ was also aware of the fact that the Plaintiff started a high-amount scrap metal business before several months prior to the commencement of the high-amount scrap metal business with the Plaintiff, and even if ○○○ was not aware of the fact that ○○○ was not the actual supplier, the head of ○○○○○ was not aware of the fact that ○○○ was not the actual supplier, in light of the fact that ○○ was not the Plaintiff’s name or negligence.

4) Sub-determination

Therefore, the instant disposition, which did not deduct the supply value according to the instant tax invoice from the Plaintiff’s output tax amount, is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.