Seoul Administrative Court 2012Guhap42724 ( October 14, 2013)

Whether it constitutes a false tax invoice

The server, etc. has been sold to the plaintiff, etc. even though there is no source of purchase in terms of the statement of the customer and the transaction flow, and there is also a fact that the server, etc. has been revised by itself, and some parts of the server, etc. have been distributed before the market through multiple companies without reasonable grounds, and some of them have been purchased again by the plaintiff.

Article 16 (Tax Invoice)

2013Nu2707 Disposition to revoke the imposition of value-added tax.

AAA Corporation

Head of Mapo Tax Office

Seoul Administrative Court Decision 2012Guhap42724 decided August 14, 2013

July 2, 2014

August 20, 2014

1. According to the Plaintiff’s expansion of the purport of the claim, the judgment of the first instance court is modified as follows.

A. Of the disposition imposing value-added tax on the Plaintiff on March 20, 2013, the Defendant imposed value-added tax on the Plaintiff on March 20, 205 through February 2007, the part of the imposition of value-added tax on the attached list as of March 20.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Purport of claim, purport of appeal and scope of trial of this court

1. Purport of claim and appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The part of the judgment against the plaintiff in the judgment of the court of first instance that exceeds the legitimate amount of the value-added tax for 2 years 2005 or 2008 among the items in the disposition imposing value-added tax on the attached list as of January 12, 201, and the part that exceeds the legitimate amount of the tax for 2 years 2005 or 2 years 2008, among the items in the disposition imposing value-added tax on the attached list as of March 20, 201, shall be revoked.

2. Scope of the judgment of this court;

In this case, the Plaintiff sought revocation of the imposition of value-added tax on January 12, 201 through 2008, and the imposition of value-added tax on March 201 through 2008 on March 20, 2013, the first instance court revoked the amount sought by each Plaintiff among the imposition of value-added tax on January 2005 and the imposition of value-added tax on January 1 through 2007, 2005 and the imposition of value-added tax on February 2007, and issued a judgment dismissing the remainder of the claims. The Plaintiff appealed from the appeal, and extended the purport of the Plaintiff’s claim to revoke all of the imposition of value-added tax on January 12, 2005 through February 207, 2007, as the Plaintiff had already revoked the entire imposition of value-added tax on January 12, 2011.

1. Details of the disposition and related statutes;

The reasoning for this part of the court's explanation is the same as that for the corresponding part of the judgment of the court of first instance, and thus, it is citing it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. The plaintiff's assertion and judgment

A. Summary of the argument

1) Claim that the purchase tax invoice of this case did not constitute a false tax invoice

"Purchase tax invoices at issue in this case (hereinafter referred to as "market tax invoices") are confirmed to have been supplied to the final consumer BB, etc. In addition, the Plaintiff received a tax invoice, which is a legal document, from each purchaser at the time of the transaction related to the issue, as well as the Plaintiff received the transaction statement, stating the details of the items, unit price, and supply price of the goods supplied, and the goods price was actually paid through the settlement method of credit sales claim security loan (B2B electronic bill). The transaction parties also recognize that the transaction in this case is true by means of the transaction confirmation prepared by the Plaintiff. Thus, the issue issue is not a different tax invoice. Even if this is true tax invoice, even if it is a tax invoice different from the fact, the Defendant, the tax authority, who is the Defendant, is responsible for proving this issue, and the evidence submitted by the Defendant alone, cannot be deemed to have been falsely prepared without the actual transaction. Accordingly, the Plaintiff’s taxation disposition at issue is unlawful.

Even if the issue is a tax invoice different from the fact, the five-year exclusion period should be applied since the tax invoice does not fall under the case where the national tax was evaded due to fraud or other unlawful act. However, with respect to the additional tax of value-added tax of January 2005 or February 2007, each five-year exclusion period has already expired as of March 20, 2013, and thus, this part of the disposition should be revoked.

B. Determination

1) Determination as to whether a tax invoice is false

In full view of the following circumstances admitted by the evidence duly adopted by the first instance court, the issue is sufficient to regard the tax invoice as a tax invoice different from the facts of the first instance as a tax invoice, and there is no evidence to deem any different from the facts of the first instance. Therefore, the Plaintiff’s assertion with a different purport is rejected as there is no

① The RedCC served as the Plaintiff’s business employee from January 1, 1996 to December 15, 2009, and engaged in the business of purchasing and selling goods, such as the computer server. The judgment became final and conclusive on May 17, 2012 by: (a) ordering the Plaintiff to place an order on the goods purchasing company and pay the price for the goods by forging the original order; (b) making the relevant goods a type as if the goods go through a variety of distribution processes; and (c) reducing all or part of the price for the goods in the process, and then using them for operating expenses and other personal funds and was discovered. Accordingly, the RedCC was sentenced to imprisonment for 4 years and a fine OOOOO on the grounds of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery of False Tax Invoice, etc.); and (d) dismissed the appeal filed by Seoul High Court 2012No1213 on May 17, 2012.

② All of the instant transactions are transactions in which the RedCC was responsible, and the Plaintiff received tax invoices from DDte Co., Ltd., EEE Co., Ltd., FF Information and Communications Co., Ltd., GG Information and Communications Co., Ltd., HH Co., Ltd., III, JJ JJ Co., Ltd., Kdis, and LL Co., Ltd. (hereinafter referred to as “NL Co., Ltd.”). However, in the course of the tax investigation, RedCC Co., Ltd., Ltd. (hereinafter referred to as “Dte, EE”), EE, FF Information and Communications, III, GG Information and Communications, JJ, and LLL Co., Ltd. (hereinafter referred to as “FF Co., Ltd.”) and stated that RedCC issued a written order, tax invoice, and received money from the Plaintiff, and that there was no direct verification of goods related to the transaction. ③ DDte, EE, and FF Information and Communications purchased and sold a server server itself to the Plaintiff.

④ It is true that the public prosecution for the part corresponding to the tax invoice in the criminal case of RedCC has been withdrawn. Although the facts acknowledged in the criminal trial become valuable evidence in the administrative trial, barring any special circumstance, it may be rejected if it is deemed difficult to adopt the factual judgment in light of other evidence submitted in the administrative trial, and further, the conviction in the criminal trial means that there is a proof by strict evidence that allows the judge to confirm the extent of excluding a reasonable doubt as to the facts charged, while the verdict of innocence means that there is no such proof, and it does not mean that the non-existence of the facts charged has been proven (see, e.g., Supreme Court Decision 2006Da27055, Sept. 14, 2006). In light of these circumstances, it cannot be deemed that the issue conforms to the facts merely because the public prosecution for the relevant part was withdrawn.

⑤ The key issue is that the server, etc. related to the tax invoice is confirmed to have been supplied to MF through the NN as a result of re-audit or the identification number managed by the KN. However, since the Plaintiff and the business entity related to the instant transaction did not manage the identification number, it is impossible to verify the distribution route through the identification number (the fact that the computerized equipment purchased at a place other than the purchaser of the instant case was supplied to MF). Meanwhile, the Plaintiff asserts to the effect that, in the case of intermediate distributors, who are not the manufacturer or the KM, it is ordinary to not manage the identification number, it is difficult to doubt the actual transaction route through the identification number as a processed transaction. However, the server has unique identification number as each high-priced goods exceeding 1,000 won, and it is difficult to readily understand that the server did not manage the goods at the intermediate distribution stage, given the characteristics of the goods, and if it appears that there were no reasonable reasons to view that the Plaintiff purchased the goods through the server, etc. through a long-term investigation or distribution order, and there were no reasonable reasons to view that the Plaintiff purchased the goods through the server.

2) Determination on whether the exclusion period has expired

Considering the following circumstances acknowledged by the evidence duly adopted by the first instance court, namely, that the Plaintiff purchased computer equipment equivalent to the purchase amount of the instant tax invoice, ② RedCC requested a customer to conduct inventory in the account book, and appears to have received the instant tax invoice with the intent to evade tax, ③ it appears that the Plaintiff did not actually paid value-added tax pursuant to the instant tax invoice, solely on the ground that the instant tax invoice entered differently from the facts was submitted to the tax authority, it cannot be readily concluded that the Plaintiff could not be deemed as either impossible to discover the taxation requirement of the tax authority with the intent to evade tax, or caused the tax authority to mislead, etc., and there is no other evidence to acknowledge this, and thus, the exclusion period of value-added tax should be deemed five years.

According to this, the additional exclusion period of the principal tax is the tax imposed and collected in the principal tax. Among the disposition of this case, the additional value-added tax for the first time from July 26, 2005 to which the value-added tax can be imposed, the additional tax for the second time from January 26, 2006 to January 26, 2006; the additional tax for the first time from July 26, 2006 to July 26, 2006; the additional tax for the second time from January 26, 2006 to the second time from January 26, 2007; the additional tax for the second time from July 26, 2007 to the first time from July 26, 2007; and the additional tax for the second time from January 26, 2007 to the second time from January 26, 2008 to the third time after 203.

Since the degree of exclusion period for imposition of value-added tax should also be deemed to fall under the grounds for revocation, the imposition of value-added tax for the first and second years from 2005 to 2007 should be revoked, and this part of the Plaintiff’s assertion is with merit (the Plaintiff claimed from the first trial to 2007 that only the portion exceeding a certain amount of tax on the additional tax on the first and second years from 2005 to 2007, but the Plaintiff sought revocation of its claim in the first trial.)

3. Conclusion

Thus, the plaintiff's claim, including the part expanded in the trial, should be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit. Therefore, the judgment of the court of first instance shall be modified as above, and it is so decided as per Disposition.