Cho-2016-Divisions-2434 (Law No. 24, 2016)

When a taxpayer trades taxable goods without the intention to pay value-added tax at the time of the transaction, it shall be deemed that the transaction is made with the exception of value-added

If value-added tax is waived by receiving only the value of supply in spite of the receipt of value-added tax separately, it cannot be deemed that the value of supply and the amount of tax are unclear.

Article 29 of the Additional Tax and Tax Act

2016Guhap51267 Revocation of Disposition of Imposition of Value-Added Tax, etc.

Park 00

00. Head of tax office

December 13, 2016

January 24, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's value-added tax for the 000-year period for the plaintiff on October 0, 200, 000

Each imposition of KRW 0 (including additional taxes), KRW 0 (including additional taxes), among KRW 0 (including additional taxes), KRW 0 (including additional taxes), KRW 0 (including additional taxes), among KRW 0 (including additional taxes), KRW 0 (including additional taxes) out of KRW 0,000 for a period of 0 years, KRW 0 (including additional taxes) out of the global income tax for the business year 2000, KRW 0 (including additional taxes) out of the global income tax for the business year 2000, and KRW 0 (including additional taxes) out of the global income tax for the business year 200, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a person who operated a gas station located in 00:0:00 Do 00,000 Do 00-0,000 from October 0, 200 to 0,000.

B. From Oct. 0, 200 to Oct. 0, 2000, the Plaintiff sold 0 won (hereinafter “the instant transaction”). The Plaintiff sold 0 won (hereinafter “the instant transaction”).

C. On October 0, 200, the Defendant considered the total amount omitted in the sales of this case as the supply value, and issued each disposition of imposition of the value-added tax (including the additional tax), the value-added tax (including the additional tax), the value-added tax (including the additional tax), the value-added tax (including the additional tax), the value-added tax (including the additional tax), the value-added tax (including the additional tax), the value-added tax for the last ten years of 2000, the global income tax (including the additional tax) for the business year of 2000, and the global income tax (including the additional tax) for the business year of 2000 (hereinafter collectively referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, and 3 (if there are serial numbers, including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In addition to the omission of sales in this case, the Plaintiff received value-added tax separately from this case.

Since it is not possible to do so, the omitted amount of sales in this case includes value-added tax or at least it is unclear whether the value-added tax is included.

In addition, value-added tax shall also be levied on the sales of non-data traded if non-data transactions are discovered.

It is a taxation practice that treats it as included.

Therefore, the defendant shall be the defendant under Article 29 (7) of the Value-Added Tax Act, and General Rules 13-48-1 of the Value-Adde

In addition, the disposition of value-added tax and global income tax should have been imposed as shown in attached Form 1, but the disposition of this case was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(i) criminal judgment against ParkB;

ParkB, who is the plaintiff's reference, is prosecuted for the following facts of crime 1), at the first instance:

The suspended sentence of 0 years was sentenced to 0 years of imprisonment and 0 years of 0 years of 00,000,000.0.0.0.0.00) The ParkB and the Prosecutor appealed both, but the appellate court rendered a judgment dismissing the appeal (Supreme Court Decision 2000No00,000). The above criminal facts include acts relating to the omission of sales in this case.

○ door: there is a fact that you sell the land (e.g., transit, oil, etc.) on which the normal shipment has been ordered from HeCC Petroleum (ju), 000 (ju), 00 petroleum, 00 petroleum, etc. through thisA as non-data. It is essential to how much the distribution process and scale of the land oil sold as non-data are distributed.

Pursuant to this, we can find as follows: CC petroleum purchased illegal sea oil in the name of Russia crew without receiving a tax invoice, and issued and sold a tax invoice to a maritime construction company, etc. which is a customer. However, due to lack of data, it purchased land oil from 000 (States) and sold it as non-data through Lussia, instead of selling it normally from CC Petroleum. The amount of non-data sales was 88% of the shipping price, 90% of the total amount of light oil, from January 201 to June 2013, and CCB was released under the name of 50% of the total amount of non-data sales to 88% of the shipment price, and from January 1, 2011 to May 15, 2013, it purchased 7% of the total amount of non-data sales to be distributed from the ship to 70% of its normal distribution price-free petroleum in the name of a foreign country (excluding e.g., g., amb).

ParkB ordered oil to 000 (ju) which is a normal oil distributor in the name ofCC(s) operated by it for the purpose of submitting purchase tax invoices for illegal oil to the tax office, and sold it as non-material without issuance of sales tax invoices in collusion with thisA.

박BB는 위와 같은 방법으로 2000.0.0. 위 CC석유(주)에서 위 0000(주)에 경유 26,000리터(38,740,000원)를 주문하고, 이AA를 통하여 위 경유를 위 0000(주)로부터 받아 성명을 알 수 없는 딜러에게 매출세금계산서를 교부하지 아니하고 정상가의 약 88%(부가가치세 10% 및 수수료 2% 제외)인 34,000 000원에 판매한 것을 비롯하여, 그때부터 2013. 0 .00.경까지 세금계산서를 발급하지 않고 유류를 판매하고, 판매한 유류의매출신고를 누락하여 조세를 포�하였다.은 그대로 확정되었다(이하 '이 사건 관련형사판결'이라 한다).

(ii) a statement of suspicion of violation against ParkB;

ParkB shall make inquiries from the tax authorities regarding the facts constituting the crime of the instant criminal judgment.

The main contents are as follows:

The quantity sold as non-data shall be 00,000liter, and the value of oil oil shipped shall be 00,000 won.

○ text: The reasons for preparing evidentiary documents related to the sale of non-data (Evidence A7) and explanation of the items described.

○○ reply: This material was prepared to settle the accounts on a monthly basis with thisA. The date of similar shipment, trade name, type D, transit and class D, the quantity means liter, the unit quantity means the shipment quantity, and the unit price means the unit price of fixed and similar shipment. The first amount is the amount multiplied by the fixed and similar shipment amount, that is, the quantity and the unit price. The second amount is the amount calculated by multiplying the shipment amount by 8%, the quantity and the unit price. The second amount is the amount calculated by multiplying the shipment amount by 90%, the amount by 88%, and the equivalent is not included in the additional tax sold as non-data through thisA, and the third amount is the cash received from thisA.

○ door: how to deal with value-added tax while selling land as non-data;

○: The answer is the value-added tax for sale as non-material. The reason why the transit was set at 88% of the fixed and similar shipment price is also calculated by excluding 10% of the value-added tax and 2% of the distribution closing price. Therefore, the sale price of non-material stated earlier is that it is an amount not included in the value-added tax, and that the value-added tax is implicitly nonexistent.

○ door: Since the value-added tax is not included in the value-added tax, the total sales amount is the revenue amount of the corporation and individual.

○ Examples, I will do so.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5, 7, 12, and 15, the purport of the whole pleadings

D. Determination

In light of the above, the whole evidence of the court below can be admitted as a whole.

Comprehensively taking account of the above circumstances, it is legitimate for the Defendant to calculate the total amount omitted from the sales of this case as the value of supply and make the instant disposition. Therefore, the Plaintiff’s assertion is without merit

1) Article 29(7) of the Value-Added Tax Act provides the goods or services to the businessman.

In cases where it is unclear whether the value-added tax is included in the amount received, an amount calculated by multiplying the amount received for the supply by 100/110 shall be the value of supply." In addition, the General Rule 13-48-1 of the Value-Added Tax Act provides that "if an entrepreneur supplies goods or services, and the amount received for the supply is not indicated separately, and if it is unclear whether the value-added tax is included in the amount received for the supply, the amount equivalent to 10/110 of the transaction amount or the amount to be received shall be the tax base (hereinafter collectively referred to as the "instant provision")."

2) The purport of the main issue of this case is that an entrepreneur receives the proceeds from the supply of goods or services.

If there is room to view that value-added tax is included because it is unclear whether the value-added tax is included, then the entrepreneur will pay more amount than the value-added tax to be actually paid, which is to prevent it, and to calculate legitimate tax amount based on the actual value of supply.

3) As such, the key issue provision of this case is premised on ① an entrepreneur’s intent to pay value-added tax with the primary tax authority to pay the value-added tax, ② the entrepreneur does not have the intent to pay value-added tax at the primary tax authority, or the entrepreneur does not include value-added tax on the amount received from the proceeds of supply of goods or services. Therefore, the said provision cannot be applied.

4) In this case, ① did not intend to pay value-added tax to the next tax authority.

In the relevant criminal judgment of this case, the plaintiff himself/herself recognized that the "amount omitted in sales (the amount omitted in sales in this case)" is "amount other than value-added tax", and the above judgment was finalized as it is, and no other ground exists to deem that the amount omitted in sales in this case is included in value-added tax, and thus, in this case, the issues of this case cannot be applied. Accordingly, the plaintiff's assertion that differs from this premise is without merit.

5) Meanwhile, the Plaintiff’s disposal of non-data sales as including value-added tax.

However, in light of the tax authority’s decision (Article 16 through 25) that “if the value-added tax is waived by receiving only the value of supply that could have been received separately, the value of supply and the amount of the value-added tax may not be considered as unclear.” The evidence submitted by the Plaintiff, including evidence Nos. 16 through 25, is insufficient to deem that the tax practice asserted by the Plaintiff was established, and there is no other evidence to acknowledge it. Accordingly, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

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