Suwon District Court 2006Guhap5903 ( November 25, 2008)

National High Court Decision 2005J 3946 (Law No. 19, 2006)

The legitimacy of the assertion that the actual gold bullion was traded on the disposition due to the processing transaction

Even if a series of transactions from the import of gold bullion to the export of gold bullion is conducted within a short period of time, and only the appearance of gold bullion is delivered and paid for the purpose of disguised transaction at the intermediate stage, it cannot be readily concluded that it is merely a nominal transaction.

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

1.The decision of the first instance shall be revoked.

2. The defendant filed on September 8, 2005 with the plaintiff on September 8, 2005

(a) Disposition of imposition of value-added tax of 7,761, 624, 290 won for one year, 204;

(b) Disposition of refusal of refund of value-added tax amounting to 295,659,104 for a period of two years, 2004;

(c) Disposition on imposition of additional tax amounting to 29,537,780 won and additional tax amounting to 29,537,780 won for failure to file a return, such as failure to submit a list of total tax invoices for the second period of 204.

(d) revoke each disposition of imposition of KRW 1,334,942,870 of the corporate tax for the year 2004.

3. The total costs of the lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. The Plaintiff is a company established on December 16, 2003 for the purpose of engaging in gold bullion wholesale and trade business.

B. From January 12, 2004 to December 14, 2004, the Plaintiff purchased gold bullion amounting to KRW 60,679,221,50 (hereinafter referred to as “the gold bullion in this case”) in total over 25 times from the comprehensive company of △△△△ (hereinafter referred to as “△△△”), or △△△△ (hereinafter referred to as “△△△”); and immediately after the date of purchase or the following day, the Plaintiff exported the gold bullion in this case to KRW 61,157,516,00 in total at the export price of the gold bullion in Hong Kong (hereinafter referred to as “the instant gold bullion”).

C. As above, the Plaintiff received 25 tax invoices on purchasing gold bullion from △△△△ or △△△△ (hereinafter collectively referred to as “the purchase tax invoices in this case”) and deducted the input tax amount on the tax invoice. Meanwhile, the amount of the output tax for exporting gold bullion at the location of the real estate in which gold bullion was exported shall be calculated at zero tax rate, and 5,806,279,725 won was refunded from the Defendant, and the Defendant applied for refund of KRW 295,659,104 for the amount of the value-added tax on the second quarter of 2004 to the Defendant.

D. The Defendant: (a) on September 8, 2005, the purchase tax invoice of this case (the purchase tax invoice of this case 57,725,443,50 won in January 2004, 2004, and 2,953,778,000 won in collusion with the transaction partner in order to evade value-added tax; (b) on the ground that the Plaintiff was the tax invoice which was most likely to be a normal transaction in collusion with the transaction partner in order to evade value-added tax; (c) on February 2, 2004, the Plaintiff refused to refund the input tax amount of KRW 7,761,624,29,104 in total; and (d) on February 2, 2004, the Plaintiff issued the refund of the input tax amount of KRW 295,659,104 in total, and KRW 29,537,7837,740 and KRW 3708,47,297.37.7

E. The plaintiff was dissatisfied with the disposition of this case and requested to the National Tax Tribunal on January 2006, but the National Tax Tribunal dismissed it on September 19, 2006.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 3 (including each number), the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

The Plaintiff, in collusion with the so-called "Seoul Special Metropolitan City Mayor, a supplier of the instant gold bullion, and Dog Dog, distributed profits from the evasion of value-added tax to other gold bullion distributors, and made a transaction with the content of the same as the entry in the instant tax invoice, in full view of the fact that the instant tax invoice constitutes a false tax invoice.

Therefore, the instant disposition based on a different premise is unlawful.

(b) Related statutes;

The same shall apply to debentures.

(c) Fact of recognition;

1) The Plaintiff’s representative director, the Gu, and the Plaintiff’s representative director, mainly engaged in the French business, established the Plaintiff Company and participated in the instant gold bullion transaction.

2) The instant gold bullion transaction was conducted by the importer of the gold bullion from a foreign country to the Plaintiff, who is an exporter of the gold bullion exported from a foreign country to a foreign country, and all stages of transactions were conducted on a daily or several days. The Plaintiff supplied the instant gold bullion from △△△△ or △△ Group, on the date of purchase or the following day, exported the instant gold bullion to the △△△△, and the Plaintiff paid the export price to △△△△ and △△ Group after the Plaintiff received the export price from the △△△△ and paid the price for the instant gold bullion to △△△△ and △△ Group.

3) The instant gold bullion is imported from a foreign country and distributed as a tax-free gold, and the supplier of the instant gold bullion in the transaction that is converted from a tax-free gold bullion distribution process to a tax-free gold bullion (hereinafter referred to as the “explosion supplier”) has sold the gold bullion he purchased to the supply price lower than the purchase price (However, the price for supply added to the value-added tax, i.e., the price for supply is higher than the purchase price, but is ultimately lower than the purchase price if the value-added tax is paid normally), and did not fulfill the obligation to pay

4) The GuA did not directly visit the Do governor, Do governor, Do governor-gu, Do governor-gu, which is the place of supplying the instant gold bullion, and the instant gold bullion exported by the Plaintiff to the Do governor-gu, Do governor-gu, Do governor-gu, and Do governor-gu, immediately exported from the Do governor-gu, Do governor-gu, and the Plaintiff’s office did not supply gold bullion to other domestic companies, and did not distribute it in Korea.

5) The export price of the gold bullion of this case was lower than the import price of the gold bullion of this case, and was lower than the domestic market price of the gold bullion at the time of export, and the Plaintiff exported the gold bullion of this case under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export on the customs duty paid at the

There is no application for refund of customs duties equivalent to 3% of the import price.

6) On the other hand, the reason why the Do governor filed a lawsuit seeking the revocation of value-added tax against the head of Si/Gun/Gu, but the sales tax invoice issued by the Do governor and the purchase tax invoice received are different from the facts, and thus the imposition disposition of value-added tax for the first and second years in 2003 against the Do governor, etc. was legitimate, was dismissed on June 11, 2008, and the judgment became final and conclusive as it is.

[Reasons for Recognition] The Gap evidence Nos. 3, Eul evidence Nos. 2, 3, 5, 6, and 7 (including each number), the purport of the whole pleadings

D. Determination

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, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of rights to use and consume goods, regardless of the existence of actual profits (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001; 9Du9247, Mar. 13, 2001; 201; 30.6.2. Determination of whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act is based on the entrepreneur's purpose and circumstance of each transaction, ownership of profits, and payment relationship between the two parties.

According to the above facts, the plaintiff purchased and received the gold bullion in this case, and received them, and received the tax invoice in this case. After purchasing the gold bullion in this case, it again exported it to Hong Kong, and made a considerable profit. In light of this, the plaintiff purchased gold bullion at a short period of time from the import of the gold bullion in this case to the export, and supplied it to the middle stage of the transaction, and there are other circumstances that make it difficult to obtain the tax invoice and deliver it, and there are other circumstances that make it difficult to obtain the amount of the value-added tax as seen above in the transaction process of the gold bullion in this case, it cannot be concluded that the transaction in this case is merely a nominal transaction where gold bullion is delivered and received without a real transaction, or the gold bullion is delivered and paid for the purpose of disguised it as a real transaction, and there is no evidence to acknowledge that it constitutes a different tax invoice from the fact that the plaintiff received the gold bullion in this case under subparagraphs 4 through 9 (including each number).

Therefore, the disposition of this case, which was based on the premise that the tax invoice of this case falls under a different tax invoice from the fact, is all unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of all of its reasons, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition with the cancellation of each disposition of this case.