Cho High Court Decision 2010Du4081 ( October 10, 2011)

It constitutes a false tax invoice in light of the current status of the supplier's transactions and the reality of the collection industry, etc.

Considering the fact that there is a high need to collect purchase tax invoices for purchase deduction due to frequent cases where a supplier company fails to issue purchase tax invoices during the process of collecting scrap metals, it is deemed that it is a processed or disguised tax invoice as if it was traded by the Plaintiff’s necessity in light of the empirical rule.

Article 17 (Payable Tax Amount)

2011. Revocation of imposition of value-added tax, etc.

XX

Head of the Northern District Tax Office and one other

November 17, 2011

December 8, 2011

1. All of the plaintiff's claims are dismissed.

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

The disposition of imposition of value-added tax amounting to KRW 421,014,330 for the second period of February 2009 against the plaintiff on September 9, 2010 by the head of North Northern District Tax Office and the disposition of imposition of global income tax amounting to KRW 267,87,690 for the plaintiff on September 9, 2010 shall be revoked.

1. Details of the disposition;

A. On September 15, 2009, the Plaintiff is a personal entrepreneur who runs a wholesale business, such as scrap metal, with the trade name of " XXSethyl", and was issued 26 copies of the total purchase tax amount of KRW 2,527,547,450 (hereinafter referred to as "the purchase amount of this case") from five companies as listed below during the two taxable periods of value added tax in 2009, and filed a value-added tax return by deducting the tax amount related to the purchase amount of this case from the total purchase amount of KRW 2,527,547,450 (hereinafter referred to as "the purchase amount of this case").

[The following table omitted]

B. The Busan Regional Tax Office, as a result of the investigation of five suppliers of the above supplier (hereinafter “the supplier of this case”), notified the head of the Northern District Tax Office, etc. to correct and notify the value-added tax amount for 271 minutes in 2009 on the ground that the tax invoice of this case is different from that of the previous supplier by processing or disguised transaction, without deducting the above input tax amount.

C. Accordingly, on September 9, 2010, the head of the Defendant Northern District Tax Office imposed value-added tax of KRW 421,014,330 on the Plaintiff for the second period of 209, and the head of the Defendant East District Tax Office imposed KRW 267,87,690 on the Plaintiff on the same day (hereinafter referred to as the “instant disposition”).

D. On December 7, 2010, the Plaintiff appealed to the Tax Tribunal for the revocation of the instant disposition, but was dismissed on February 10, 201.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1, 10, 11 (including additional numbers) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Of the instant tax invoice, the tax invoice for KN resources, GS Korea, DP non-stock, and TK is not a tax invoice for processing or disguised transaction, but a normal transaction based on the instant tax invoice from the instant supplier and the Plaintiff received the instant tax invoice by paying the price normally. Thus, the instant disposition that is based on the instant tax invoice is unlawful on the premise that all transactions based on the instant tax invoice are processed or disguised.

B. Relevant statutes

Attached sheet and conflict.

(c) Fact of recognition;

1) The circumstances concerning the instant supplier

A) DNBE

(1) On January 3, 2008, the Plaintiff’s husband, and the Plaintiff’s husband, and the Plaintiff was accused of tax evasion in 2008 and closed down business, and the Plaintiff continued to engage in the business under the name of “DNB” under the name of the factory head, and the Plaintiff’s breach of duty to issue tax invoices and the name transfer was confirmed, and thus the Plaintiff’s ex officio closure and accusation was made. Since then at the same place, the Plaintiff registered the business as the Plaintiff’s trade name, the remaining Zz is the actual dynamic.

(2) In selling inventory assets and vehicles to the Plaintiff during the second period of 2009, NBE published 12 copies of the sales tax invoice amounting to KRW 729,117,000. However, after the closure of business on November 2009, three copies of the purchase tax invoice of this case in KRW 181,053,00 were processed.

(b)KN resources;

(1) The KN resource was opened on August 3, 2009, but it was closed on December 2009, and only for a short period of up to five months, and there was no data on purchase.

(2) Park SSH, a representative of KN resource, is a person with no work experience before commencing the business.

(3) In Yangsan-si, the business registration area of KN resources, the 1000-3 of the YYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY, the land category of which is an answer, there

(4) In the course of the Busan Regional Tax Office’s investigation, the Southern District Tax Office stated that there is no evidence proving the fact of transactions with the KN resources, and signed a written confirmation confirming that it was unfair as a processing purchase tax invoice.

C) GS Korea

(1) On September 1, 2009, GS Korea opened its business and issued a tax invoice of KRW 5 billion in a short period of time, but the purchase does not exceed KRW 292 million.

(2) Kim HM, a representative of the GS Korea, is currently in the state of suspension of prosecution by the prosecution due to the escape.

(3) In the process of the Busan regional tax office’s investigation and investigation, the Southern District Tax Office stated that the actual transaction place is YL resources, DW metal and JL trade, and signed on the confirmation of such content.

D) DP non-performance metal

(1) DP non-performance metal was opened on November 7, 2009, but closed on December 2009.

(2) The place of business of DP non-stock is 00-04, Daegu Seo-gu, Daegu-gu, and there is no place of business to view it as a place of business, and there is only a store with a two-story size and a two-story size.

(3) The representative of the DP non-ferrous stated that ms, which is the representative of the DP non-stock, is aware of the fact that it is well known to the purchaser of the DW metal and JL trade with respect to the details sold to the Plaintiff during the investigation process.

(4) The witness investigator, who is an employee of the National Tax Service who investigated the instant case, asked her ms or the Plaintiff about the portion sold to her. It testified that her “the content was well known and only lent to her name by making it possible to use her name.”

(e) TK non-Iron

(1) The place of business of KR non-Iron is 000 B, Jin-si, Jin-si, and the place of business is the place where DY company started its business from June 1, 2007, and according to the above land owner, SSD, the representative of TR non-Iron, did not operate its business at the above place.

(2) ESD was convicted of six months of imprisonment due to the crime committed by the Defendant that issued four copies of the instant tax invoice to the Plaintiff without supplying goods or services (the Changwon District Court Decision 201Sang82).

2) The Busan regional tax office filed an accusation against the Plaintiff and the Southern District Office on the grounds of the same facts as the above 2.c. (1). On December 30, 2010, the Busan District Prosecutors’ Office rendered a disposition that the Plaintiff was not suspected of having been suspected (influence of evidence) and filed a summary indictment of KRW 3 million for the Southern District Office.

3) The remaining Z recognized that the transaction with the DNA is a processing transaction in the course of the National Tax Service’s investigation, and stated that the remaining transaction was conducted through the GuHJ, and if the transaction is conducted only with the goods, and if the transaction partner intends to confirm the daily transaction, it is difficult in this industry to conduct the business.

4) The South Z on behalf of the Plaintiff: (a) confirm that the transaction with the KRN resources is a de facto processing transaction; (b) confirm that the actual purchase price of the tax invoice received from the GSS Korea is a YL resources; (c) confirm that the actual transaction with the PEN resources is a DW metal and JL trade; and (d) confirm that the actual transaction partner of the tax invoice received from the DP non-ferrouss is a DW metal and JL trade; and (c) sign the actual purchase price of the tax invoice received from TRs on behalf of the Plaintiff.

5) The former HJ stated that, while mediating the Plaintiff’s transaction, it was known to the South Z in the event that goods are loaded at a place other than the actual place of business of the trader, and that the goods are measured and supplied to the Zethyl through articles.

[인정근거] 갑 3호증, 을 5 내지 8, 12, 14 내지 16호증(각 가지번호 포함) 각 기재, 갑 4호증의8의 일부 기재, 증인 문QQ의 증언, 증인 남ZZ, 구HJ의 각 일부 증언, 변론 천체의 취지

D. Determination

1) The burden of proving that a tax invoice received from a certain transaction on the ground that it is a nominal transaction for which no substantial delivery or transfer of goods is available falls under a “tax invoice different from the fact provided for in Article 17(2)1-2 of the Value-Added Tax Act for which the deduction of an input tax amount is denied” (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). Generally, in a lawsuit seeking revocation of a tax imposition, the burden of proving the tax requirement lies on the person liable for taxation. However, unless it is proved in the course of a specific lawsuit, unless it proves that the fact in question is not eligible for the application of the empirical rule, it cannot be readily concluded that the pertinent taxation disposition is an unlawful disposition that fails to meet the requirements for the application of the empirical rule (see, e.g., Supreme Court Decision 2009Du6568, Sept. 24, 2009).

In addition, the actual supplier and the supplier on a tax invoice may not be allowed to deduct or refund the input tax unless there are special circumstances that there is no negligence on the part of the supplier in the name of the tax invoice, and that there is no negligence on the part of the supplier in the name of the tax invoice, and that the person who claims the deduction or refund of the input tax amount has to prove the fact that there is no negligence on the part of the supplier in the above name of the purchaser (referring to the Supreme Court Decision 2002Du2277 Decided June 28, 2002).

2) We examine the instant case in accordance with such legal doctrine.

A) Comprehensively taking account of the aforementioned evidence and the above facts revealed, ① the suppliers of this case who issued the tax invoice of this case do not purchase at all or less purchase compared to sales; ② KN resource is excessively excessive sales and no entity of the place of business; ③ GS Korea has filed a complaint with the representative Kim HM in the racing tax office, but it is still suspended due to the escape of the place of business; ④ it is determined that SSD has no substance of the place of business; ⑤ it was found that SSD was guilty of having delivered the tax invoice of this case to the Plaintiff without any transaction; ④ it appears that the Plaintiff could not obtain punishment for the Plaintiff’s actual business after lending the Plaintiff’s husband, and that it appears to be a disguised purchase or sale of the tax invoice of this case, and that it appears to be a disguised purchase or sale of the tax invoice of this case to be a disguised purchase or sale of the Plaintiff’s new tax invoice of this case, and thus, the Plaintiff appears to have been aware of the necessity of the Plaintiff’s false purchase or sale of the tax invoice of this case.

B) Therefore, the Plaintiff should prove special circumstances that there was no negligence on the part of the Plaintiff due to the Plaintiff’s failure to know the fact that the instant tax invoice is the same as the facts or the disguised fact of the said tax invoice, and in light of the aforementioned circumstances, such as the details of the receipt of the instant tax invoice, the operational form and the representative’s history of the instant supplier, the form of transaction between the Plaintiff and the instant supplier, and the developments leading up to the transportation of scrap iron, etc., each of the instant tax invoice Nos. 4 through 9 (each number number distribution), the testimony of the witness SSD, the witness Z, and each of the testimony of the HJ are insufficient to acknowledge the said facts.

C) Therefore, the Plaintiff’s above assertion is without merit, and as determined earlier, the instant tax invoice is a false tax invoice, and it is presumed that the Plaintiff did not receive a tax invoice from the real purchaser. Thus, the instant tax invoice is lawful, since it is presumed that the Plaintiff did not deduct the Plaintiff’s tax invoice from the purchase tax amount for the business year 2009 and imposed value-added tax without deducting it from the Plaintiff’s purchase tax amount for the business year 2009

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.