Whether a transaction is accompanied by a real transaction with a non-licensed borrower for the sale of alcoholic beverages.

Since the so-called "sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub

Article 17 (Payable Tax Amount)

1. The imposition of global income tax on July 1, 2005 by the Defendant against the Plaintiff as global income tax of KRW 1,112,270 for the year 201, KRW 1,797,480 for the year 2002, and KRW 3,578,060 for the year 203 shall be revoked.

2. All remaining claims of the Plaintiff are dismissed.

3. The costs of lawsuit are divided into two parts, and one shall be borne by the plaintiff, and the remainder by the defendant, respectively.

The judgment as referred to in Paragraph (1) of this Article and the defendant's disposition of imposition of value-added tax of KRW 1,481,290 for the second period of 201, value-added tax for the plaintiff on July 1, 2005, KRW 830,850 for the first period of 202, KRW 1,215,160 for the second period of 202, KRW 1,608,800 for the first period of 203, and KRW 1,187,150 for the second period of 203, respectively.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the following facts, Gap evidence 1, Eul evidence 2-1 through 6, Eul evidence 1-1 through 8, and the whole purport of pleadings:

A. The Plaintiff is a business operator who operates an amusement restaurant in the trade name of ○○○○○, which is an employee from May 24, 2001 to ○○-dong, Seoul, ○○○○○.

B. The Plaintiff received each of the following tax invoices (the detailed tax invoices received by the Plaintiff from ○○ Unemployment and ○○ Alcoholic Beverages are as indicated in the column of “tax invoices” in the attached Form, and the following tax invoices are as listed in the following tax invoices, and on the basis of each of them, deducted them from the input tax amount at each tax base return at each tax base return on global income tax return for each taxable year, after deducting them as input tax amount for each taxable period portion as listed in the following table from 2001 to 2003, 201 to 2003.

Amount of taxable period

For the second period of 2001

For the first term, 2002

For the second period, 2002

For the first term, 2003

For the second period, 2003

○○ Unemployment

8,110,000 won

4,786,00 won

7,376,00 won

1,393,00 won

○ Alcoholic Beverages

8,749,00 won

C. However, as a result of the investigation of tracking the distribution process of the alcoholic beverages from ○○○ Commissioner of the National Tax Service, the Defendant received the instant tax invoice under the name of ○○○○○○○, which was traded with the right of purchase of alcoholic beverages from ○○○○○, but was not in the name of ○○○○○, and that was notified of the taxation data for disguised and fictitious transactions. On July 1, 2005, the Defendant issued the instant tax invoice to the Plaintiff on July 1, 2005 by adding the additional tax to the amount calculated by denying the amount of money equivalent to the instant tax invoice from the input tax amount for each corresponding term portion, as indicated in the list of global income tax calculation statement, by denying the inclusion of the amount of money corresponding to the instant tax invoice in necessary expenses for the pertinent taxable year and adding the amount of tax calculated by adding it to the amount of tax calculated by deducting the amount of tax to the global income, and by deducting the amount of tax already paid (hereinafter referred to as “the disposition of imposition of value-added tax and global income tax”).

《표》생략

D. On November 18, 2005, the Plaintiff dissatisfied with the instant disposition and filed a request for examination with the Commissioner of the National Tax Service on November 18, 2005, and the Commissioner of the National Tax Service dismissed the Plaintiff’s request on December 29, 2005.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Defendant issued the instant tax invoice on the grounds that the instant tax invoice, which the Plaintiff received from ○○ Unemployment and ○ Alcoholic Beverages, was entirely issued differently from the facts. However, the instant tax invoice was issued on the ground that ○○○○○○ was an employee of ○○ Unemployment or ○○ Alcoholic Beverages, and the Plaintiff was issued the instant tax invoice in direct transaction with ○○ unemployment and ○○ Alcoholic Beverages, and even if ○○○○ issued the instant tax invoice differently from the facts, the Plaintiff was a bona fide entrepreneur who received the instant tax invoice with the knowledge that ○○○○○ was an employee of ○○○ and ○ Alcoholic Beverages, and thus, the Plaintiff was a bona fide entrepreneur who received the instant tax invoice with the knowledge that ○○○○○○ was an employee of ○○○ unemployment and ○○ Alcoholic Beverages, and thus, the amount equivalent to the instant tax invoice should be deducted as the input tax amount when calculating the global income tax.

Luxembourg, even if the instant tax invoice was issued differently from the fact, and the Plaintiff did not receive input tax deduction in calculating the value-added tax, since it was a transaction corresponding to the amount corresponding to the instant tax invoice, the Plaintiff had to include the corresponding amount of the instant tax invoice in the necessary expenses when calculating the global income tax, and thus, the disposition denying the instant tax assessment is unlawful.

(b) Related statutes;

○ Tax amount paid under Article 17 of the Value-Added Tax Act

① 사업자가 납부하여야 할 부가가치세액(이하 ＂납부세액＂이라 한다)은 자기가 공급한 재화 또는 용역에 대한 세액(이하 ＂매출세액＂이라 한다)에서 다음 각호의 세액(이하 ＂매입세액＂이라 한다)을 공제한 금액으로 한다. 다만, 매출세액을 초과하는 매입세액은 환급받을 세액(이하＂환급세액＂이라 한다)으로 한다.

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

1의2. 제16조 제1항 및 제3항의 규정에 의한 세금계산서를 교부받지 아니한 경우 또는 교부받은 세금계산서에 제16조 제1항 제1호 내지 제4호의 규정에 의한 기재사항(이하＂필요적 기재사항＂이라 한다)의 전부 또는 일부가 기재되지 아니하였거나 사실과 다르게 기재된 경우의 매입세액. 다만, 대통령령이 정하는 경우의 매입세액은 제외한다.

○ Calculation of necessary expenses under Article 27 of the Income Tax Act

(1) In calculating real estate rental income, business income, temporary property income, other income, or forestry income, the necessary expenses to be included shall be the sum of the expenses corresponding to the total amount of income in the current year and which are generally accepted.

Article 14 of the Framework Act on National Taxes

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall, notwithstanding the titles or forms of income, profit, property, act or transaction, be applied according to the substance.

(c) Fact of recognition;

The following facts may be acknowledged if Gap evidence, Gap evidence 6, Eul evidence 7-1 through 5, Eul evidence 8-1 through 20, Eul evidence 9-1 through 6, Gap evidence 10-1 through 95, Eul evidence 14, Eul evidence 2-1, 2, Eul evidence 3, Eul evidence 4 and 5-1, 2- Eul evidence 6, Eul evidence 7-1 through 5, Eul evidence 8-1 through 6, Eul evidence 9 through 12, Eul evidence 13-1 and 2, Eul evidence 13-2, and Eul evidence 4 and 5-1, respectively:

(1) The representative of the company at ○○○-dong, Seoul, ○○○-○. The representative of the company at ○○○-dong, Seoul, ○○○-dong, and the representative of the company at ○○-dong, Seoul, ○○-dong, ○-○. The representative, Kim○-○ and Kim○, a father and children, used the ○○-dong and ○○-dong as alcoholic beverage storage.

B. From August 17, 2004, 2004 to October 14, 2004, ○○○○○○○ Tax Service conducted an investigation of tracking the process of distributing alcoholic beverages to ○○○○ Alcoholic Beverages. As a result of an investigation by comparing the sales of the actual accounts by customer and the list of tax invoices by customer at each sales office submitted at the time of filing a value-added tax return by comparing the sales of ○○ Unemployment and the list of tax invoices by customer at each sales office, it was confirmed that the remaining transactions except for about 200 alcoholic beverages (2,242 companies, 343 billion won, 2,831 companies, 373 million won) have been issued. The ○○○○○○ Tax Service supplied 2,00 alcoholic beverages to 2,00 alcoholic beverages without license and the remaining sales offices except for alcoholic beverages without license and 3,000 alcoholic beverages to 2,00 alcoholic beverages beverages, which were supplied with 3,000 alcoholic beverages without license and then sold without license.

【○○○○○○○ initially worked as the head of the sales business of the Plaintiff’s company engaging in the wholesale business of alcoholic beverages. Around July 201, 201, ○○○○○○○○○○ Company supplied alcoholic beverages with free materials from ○○○ and sold alcoholic beverages mainly in the region of ○○○○○○ region. The Plaintiff and the Plaintiff traded from ○○○ Company since trading since ○○○ Company. On the type of transaction, ○○○○ was ordered to make a mobile phone from the Plaintiff, the Plaintiff purchased alcoholic beverages from ○○○ and alcoholic beverages, and paid the amount of alcoholic beverages with the Plaintiff’s exclusive purchase card in the name of the Plaintiff. The Plaintiff paid the amount of alcoholic beverages to ○○○○○○○ upon receipt of an order from ○○○○○ Company to purchase the alcoholic beverages under the Plaintiff’s name. After that, ○○○○○ issued a tax invoice and issued them to the Plaintiff.

In addition, the amount of money deposited into the exclusive passbook for purchase of alcoholic beverages under the name of the plaintiff is as indicated in the column of "the details of approval of the exclusive passbook for purchase of alcoholic beverages" stated in the "tax invoice and details of payment" stated in the "tax invoice". The plaintiff was granted input tax deduction based on the aggregate tax invoice for each seller, including the tax invoice for the second period from 2001 to 2003. The remaining tax invoice for each seller excluded the tax invoice for the second period from the tax invoice for the second period from 201, the second period from 000, the first period from 2002 from 00, the second period from 000, from 000, from 000, and the second period from 2003 and 103 years from 203, respectively.

(v) In addition to the instant disposition against the Plaintiff, the Defendant: (a) registered the business ex officio with respect to the Plaintiff; (b) purchased alcoholic beverages from ○○ Unemployment and from ○○ Alcoholic Beverages as seen above as an individual entrepreneur; and (c) sold them to ○○○ including the Plaintiff; and (d) imposed KRW 330,569,390 in total value-added tax from 2001 to 2003; and (c) imposed KRW 34,865,560 in total on global income tax for the year 201 through 203.

D. Determination

(i) Whether a tax invoice has been issued differently from the fact

㈎ 위 인정사실에 의하면, 원고에게 주류를 공급한 권○○는 ○○실업 혹은 ○○주류 직원이 아니라 ○○실업과 ○○주류로부터 주류를 공급받아 자기의 고정거래처에 판매하는 등 모든 거래를 자기 책임하에 하는 무면허 주류판매업자인 이른바 '지입차주'이므로, 이 사건 세금계산서가 실제의 거래내용에 따라 진정하게 발행된 것이라고 볼 수 없다.

㈏ 다만, 원고 주장과 같이 관계기관의 조사로 인해 명의위장사업자로 판정되어 사업자가 받은 세금계산서가 실제의 거래내용에 따라 진정하게 발행된 것이 아니라는 것이 밝혀졌다고 하더라도 거래처가 위장사업자라는 사실을 알지 못하였으며 또 그 알지 못한 데에 잘못이 없는 선의의 거래당사자가 그 세금계산서에 의하여 부가가치세신고를 한 경우에는 그로 인하여 실지사업자가 아닌 자가 공급자로 되었더라도 그 매입세액은 공제되어야 할 것이나(대법원 1989. 10. 24. 선고 89누2134 판결 참조), 이 경우 선의의 거래당사자라는 입증은 이를 주장하는 자가 해야 한다.

Therefore, in this case, it is insufficient to recognize that the testimony of ○○○○ as a bona fide trading party is insufficient to recognize the Plaintiff as a bona fide trading party only with the statement of 5-1 through 4 of the Plaintiff’s submission and the testimony of ○○○○○ witness right, and there is no other evidence to acknowledge this otherwise. Rather, as recognized earlier, the Plaintiff ordered the Plaintiff to make a long-term transaction with ○○○○○○○○○○○○○’s mobile phone, and the delivery of the order was always ○○○○, while holding the card for exclusive purchase of alcoholic beverages under the Plaintiff’s name, and the ○○○○○○ was directly paying alcoholic beverages to ○○○○○○○ and the Plaintiff was directly paying alcoholic beverages to ○○○○○○○, and in light of other various circumstances indicated in the argument of this case, the Plaintiff appears to have known the fact that ○○○○○

㈐ 따라서 이 사건 세금계산서가 사실과 다르게 발행된 것이 아니고, 또 가사 사실과 다르게 발행된 것이라고 하더라도 원고는 선의의 거래당사자라고 하면서 이 사건 부과처분의 위법을 주장하는 원고의 이 부분 주장은 이유 없다.

She Whether the amount equivalent to the tax invoice of this case has been actually disbursed

㈎ 살피건대, 국세기본법 제14조에서 정하는 실질과세의 원칙상 납세의무자가 제출한 세금계산서가 허위임이 밝혀졌다고 하더라도 허위 세금계산서 상당 금액이 실제로 지출된 경우에는 이를 종합소득세 산정시 필요경비로 산입할 수 있다고 할 것이다.

㈏ 그러므로 이 사건 세금계산서 상당 거래가 있었고, 따라서 이 사건 세금계산서 상당 금원이 실제로 지출되었는지 여부에 관하여 보건대, 앞서 인정한 사실에 의하면 ① ○○실업, ○○주류는 원고를 비롯한 소매업자들과 직접적인 거래가 없음에도 세금계산서를 발행하기는 하였으나, 그 실질 거래처는 이른바 '지입차주' 및 중간도매상이라고 밝히고 있는 점, ② 이른바 '지입차주'인 권○○도 원고에게 실질거래 없이 이 사건 세금계산서를 교부하여 준 것이 아니라 실질 거래 후 세금계산서를 ○○실업, ○○주류 명의로 발급해 준 것 뿐이라는 점, ③ 별지 '세금계산서 및 대금결재내역표' 기재에 의하면 비록 약간의 차이는 있기는 하지만 세금계산서 발급내역과 원고 명의의 주류구매전용통장에 입금된 금원이 비슷한 점, ④ 원고가 2001년 제2기분부터 2003년 제2기분 부가가치세 신고시 제출한 매입처별 세금계산서 수취내역을 보면 원고는 이 사건 세금계산서 이외에 주류매입으로 인한 수취한 세금계산서는 없어 보이고, 따라서 이 사건 세금계산서 상당 금액 전부를 부인하는 것은 유흥음식점 영업을 하는 원고가 위 기간 동안 주류를 전혀 매입하지 아니하였다고 하는 결과가 되어 부당하다는 점, ⑤ 피고는 이 사건 부과처분 이외에 권○○에게 권○○가 개인사업자로서 원고를 비롯한 다른 소매업자들과 거래한 내역을 토대로 2001년 제2기분부터 2003년 제2기분까지의 부가가치세 및 2001년 내지 2003년 귀속 종합소득세를 각 부과하였는 바, 이는 권○○가 원고를 비롯한 다른 소매업자들과 주류를 실제로 거래하였다는 것을 전제로 하는 것임에도 이 사건 세금계산서 상당 금원을 실질 거래가 없었다고 하면서 부인하는 것은 서로 모순된다는 점 등 이 사건 변론에 나타난 여러 사정에 비추어 볼 때, 원고는 권○○와 사이에 이 사건 세금계산서 상당 실질 거래가 있었다고 판단된다.

㈐ 따라서, 피고가 이 사건 세금계산서 상당 금원을 원고에 대한 종합소득세 산정시 필요경비로 부인하여 한 이 사건 종합소득세 부과처분은 위법하다. 원고의 이 부분 주장은 이유 있다.

3. Conclusion

Therefore, since each disposition of imposition of global income tax against the plaintiff among the disposition of this case is illegal, it shall be revoked, and this part of the claim shall be accepted, and the remaining claims shall be dismissed as it is so decided as per Disposition.