early 2012 Middle 5358 (Law No. 11, 2013)

A disposition imposing the value-added tax by not deducting the input tax amount by deeming that the scrap scrap, etc. was received only from the data base after purchasing it as non-data is legitimate.

In light of the business status, economic ability, and form of deposit withdrawal of the transaction parties of this case, the tax invoice of this case constitutes a tax invoice entered differently from the fact, and there was no circumstance that the transaction party could not know other facts of false name. Thus, the disposition imposing an input tax by non-deduction of the input tax amount is legitimate.

Article 16 of the former Value-Added Tax Act (Amended by Act No. 11129, Dec. 31, 201) (Amended by Act No. 11129, Dec. 31, 201);

2013Guhap13618 Disposition of revocation of Imposition of Value-Added Tax, etc.

XX Stock Company

O Head of tax office

2014.07.17

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 000 of value-added tax for the first term of September 1, 2012, KRW 000 of value-added tax for the second term of 2010, KRW 000 of value-added tax for the second term of 2011, KRW 000 of corporate tax for the first term of 2010, KRW 000 of corporate tax for the business year 201, and KRW 00 of corporate tax for the business year 201 shall be revoked.

1. Details of the disposition;

A. From July 1, 2002, the Plaintiff, a company running a closed wholesale and retail business, was issued tax invoices (hereinafter collectively referred to as the “tax invoices”) from AA resource, etc. (hereinafter referred to as “the instant transaction parties”) during the value-added tax period from the first to 1st year 2011, and filed a return on the amount of value-added tax payable after deducting the relevant input tax amount from the output tax amount. The Plaintiff filed a return on this inclusion in deductible expenses for the business year 2010 and 2011.

B. The Commissioner of the National Tax Service, etc. confirmed that the instant transaction partner issued a processed tax invoice without real transaction during the taxable period from the first period of 2010 to the first period of 2011, and notified the Defendant of the issuance of the processed tax invoice. Accordingly, on September 1, 2012, the Defendant: (a) deemed that the instant tax invoice was a false tax invoice by the supplier; (b) KRW 000 for the first period of 200 for 2010; (c) the value-added tax for the second period of 2010; and (d) the value-added tax for the first period of 200 for 201, on the ground that the pertinent input tax invoice was not deducted from the output tax amount; and (d) notified the correction and notification of the amount of KRW 00 for the corporate tax for 2010 for the business year on the same day on the grounds of lack of qualified evidence evidence materials (i.e.,, “the instant disposition”).

C. On November 23, 2012, the Plaintiff filed an appeal with the Tax Tribunal, which was dismissed on July 11, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-2-5, Gap evidence 13, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant tax invoice was prepared by reflecting the content of the actual transaction, and thus, is not a false tax invoice.

2) Even if it is assumed that the instant tax invoice constitutes a false tax invoice, the Plaintiff is not negligent in not knowing the fact of false name, since it fulfilled its duty of care as a party to a transaction, and thus constitutes a bona fide trader.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination on the first argument

1) The phrase “tax invoice different from the fact” under Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201) where the input tax deduction for the tax invoice received in the course of transaction is denied refers to a case where the necessary entries of the tax invoice do not coincide with those of the entity that actually supplies or is supplied with the goods or services, or with the price and time that the goods or services are provided (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196); even if a transaction of supplying the goods or services actually exists, the supplier constitutes “tax invoice different from the fact that the name of the issuer of the tax invoice is different”.

On the other hand, in a case where a tax invoice submitted by a taxpayer for value-added tax as a basis for input tax deduction is falsely prepared without a real transaction, or is proved to be different from the fact by the tax authority that it is an actual purchase or the authenticity of the entries in the tax invoice is disputed. In a case where a transaction with a supplier stated in the tax invoice claimed by the taxpayer is proved to be reasonable, it is necessary to prove that it is easy for the taxpayer to present data, such as books and evidence, regarding the fact that the transaction with the supplier stated in the tax invoice was actually conducted with the supplier (see, e.g., Supreme Court Decision 2007Du1439, Aug. 20

2) In full view of the following circumstances, even if the Plaintiff was actually supplied with the closeddong listed in the instant tax invoice, it is reasonable to view that the Plaintiff is another supplier that is not the supplier listed in the tax invoice, and therefore, the instant tax invoice constitutes a tax invoice written differently from the fact, and thus, the Plaintiff’s assertion is therefore groundless. In full view of the following circumstances, even if the Plaintiff was actually supplied with the closeddong listed in the instant tax invoice, it is reasonable to deem that the Plaintiff is a supplier that is not the supplier listed in the relevant tax invoice.

A) Stick line (A) with business registration as the business owner of the instant transaction parties, Kim Byung-gun (CC), Kim Young-jin (DM), Lee Tae-jin (E), Lee Young-chul (FFB), Lee Jin-hun (GGB), Lee Jin-hun (HHB), and fixed lessons (II), most of the transaction parties engaged in the non-ferrous metal wholesale business, are deemed to have no economic ability to trade the scale of the value of supply on the sales tax invoice issued.

B) There is no evidence to deem that the business place of the instant clients, recorded each business registration certificate, was equipped with officetels, empty container stuffs offices, empty lots, mound marshes, etc., which are essential facilities, equipment, etc. to run the scrap metal business, such as camping sites, ancient steel bars, and strings. Accordingly, the instant business parties did not have any human resources or physical facilities that could trade the total amount of supply value on each sales tax invoice issued by each of the instant business parties.

C) The transaction partner of the instant case withdraws the full amount from the Plaintiff in cash or transfers it to the related parties immediately after the most of the deposits were made. This is difficult to view it as a lawful act of withdrawing deposits to be done by the business entity operating the business normally, and rather, it appears that it is the so-called deposit withdrawal act frequently appearing on the data that the business entity intends to avoid tracking funds.

D) With respect to the issuance of the instant tax invoice, etc., the said business owner was suspended from indictment due to the unknown whereabouts as follows, or was convicted of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) and the judgment became final and conclusive. Even if the aforementioned finalized criminal facts are considered, it is difficult to view that the instant transaction headquarters supplied the Plaintiff with the closed Dong as indicated in the instant

D. Judgment on the second argument

1) Unless there are extenuating circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the other tax invoice in the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount shall prove that the person who received the tax amount was not negligent in not knowing the above fact of deception (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

2) The evidence presented by the Plaintiff alone is insufficient to recognize that the Plaintiff was not aware of the above facts and was not negligent in not knowing the above facts, and there is no other evidence to prove otherwise. Rather, in full view of the overall purport of the arguments and the following circumstances revealed, it is reasonable to deem that the Plaintiff was negligent in not knowing the above facts. Therefore, the Plaintiff’s assertion on this part is without merit.

A) The waste Dong is traded without receipt of a tax invoice in the process of being traded in a large and medium-scale collection process after being collected in one-lane due to high-priced waste resources and being traded for a large-scale collection. In addition, the cash transaction, such as immediately account transfer at the time of the transaction with the purchaser in order to meet the quantity of the seller due to lack of supply compared to demand, seems to have been the actual situation where the cash transaction was made, and the payment of advance payment in cash is made in order to arrange the quantity. From July 1, 2002 to ten years from July 1, 2002, the Plaintiff seems to have been well aware of the structure and distribution route of the waste consent, the general form or method of the relevant industry, and the actual condition and risk of the transaction in data.

B) Although transactions with the instant transaction partners are concentrated in a short term, the amount of the value of supply is 0 billion won or more, and if the relevant business entity is well aware of the general forms of transactions with the instant transaction agreement, it is deemed that there is sufficient circumstance to suspect whether the instant transaction partner is not a disguised business entity.

C) The Plaintiff was in a situation where it is difficult for the instant clients to know who actually supplied the Plaintiff’s processing business chain by having them directly supply the Plaintiff’s plastic metal instead of being supplied with her waste-dong, and without confirming whether each transaction commenced or even prior to the commencement of each transaction, the Plaintiff was equipped with physical facilities, etc. to supply the waste-dong, and it seems that only confirmed whether the waste-dong actually entered into the processing chain. Thus, there is doubt that the instant clients were not neglected to confirm whether they were a disguised business operator.

D) The Plaintiff asserted that the Plaintiff constitutes a transaction party with good faith and negligence since it confirmed the business registration or the copy of passbook, etc. while commencing the transaction with the instant transaction parties. However, the business registration certificate is delivered to the head of the competent tax office by requiring the business owner to apply for registration to the head of the competent tax office in order to identify the taxpayer of value-added tax, etc., and to secure taxation data. It is not just a certificate proving the registration of the business fact, but it is not recognized that the copy of passbook is merely a designated account to be deposited (see, e.g., Supreme Court Decision 2003Do6934, Jul. 15, 2005).

3. Conclusion

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

shall be ruled.