Review Corporation 2016-009 (206.20)

Whether a tax invoice constitutes a false tax invoice and is subject to an illegal underreporting penalty tax

Although the tax invoice of this case constitutes a false tax invoice, the disposition imposed by applying the exclusion period of ten years shall be revoked because there is no tax amount evaded.

Article 17 of the Value-Added Tax Act, Article 14 of the Framework Act on National Taxes

Revocation of Disposition Imposing Value-Added Tax

AA

BB Head of the Tax Office and 1

2017.03.09

2017.030

1. On December 8, 2015, the following dispositions taken by Defendant BB director of the tax office against the Plaintiff shall be revoked:

(a) Imposition of the value-added tax (including the additional tax) for one year, 2009,000 won;

(b) Disposition of imposition of value-added tax (including additional tax) for a period of two years, 200,000 won;

(c) Disposition of imposition of value-added tax (including additional tax) for a period of one year, 200,000 won;

D. The portion exceeding 00,000,000 won out of the imposition of the penalty tax for an unjust underreporting of value-added tax for a period of two years in 2010

E. The portion exceeding 00,000,000 won of the imposition of the penalty tax for unfair underreporting of value-added tax for a period of one year 201

2. On December 10, 2015, Defendant BB Tax Director’s revocation of the following dispositions against the Plaintiff:

(a) Imposition of the value-added tax (including the additional tax) for one year, 2009,000 won;

(b) Disposition of imposition of value-added tax (including additional tax) for a period of two years, 200,000 won;

(c) Disposition of imposition of value-added tax (including additional tax) for a period of one year, 2010,000 won;

D. The portion exceeding 0,00,000 won out of the imposition of the penalty tax for unfair underreporting of value-added tax for a period of two years in 2010

(e) Disposition of imposition of 00,000,000 won for an unfair underreporting of value-added tax for a period of one year, 201;

in excess of the class

3. The plaintiff's remaining claims against the defendants are dismissed.

4. Of the costs of lawsuit, 1/2 of the portion arising between the Plaintiff and the Defendant BB Tax Director shall be borne by the Plaintiff and the remainder by the high BB Tax Director, respectively, and the portion arising between the Plaintiff and the Defendant BB Tax Director

1/4 shall be borne by the Plaintiff, and the remainder by Defendant BB Director.

Cheong-gu Office

Each disposition taken by the Defendants against the Plaintiff in attached Form 1 shall be revoked.

1. Details of the disposition;

가. 원고는 서울 강남구 ****길 ○에서 'xxx,xxx 닭'이라는 상호의 치킨 프랜차이즈 사업 등을 영위하고 있는 회사이고, 'ZZZ'는 부산 북구 **동 에서 '@@@@@@닭'이라는 상호의 치킨 프랜차이즈 사업 등을 영위하고 있는 개인 사업체이다.

B. The director of the Seoul Regional Tax Office may hold corporate tax offices for the Plaintiff from June 5, 2015 to November 17, 2015

합세무조사를 실시한 후 ZZZ가 2009. 5.경부터 2011. 2.경까지 계육가공업체인 @@식품 주식회사(이하 편의상 법인 명칭에서 '주식회사'를 생략하기로 한다), @@식품,@@유통, @@식품 등으로부터 약 000,000,000원의 계육을 매입하여 원고에게000,000,000원에 이를 납품한 거래(이하 '이 사건 거래'라 한다)에 대하여, 외형은 원고가 ZZZ로부터 가공계육을 매입한 형식을 갖추고 있으나 실질은 원고가 ZZZ가 아닌 계육가공업체들로부터 가공계육을 직접 매입한 것으로서 원고가 ZZZ 로부터 수취한 매입세금계산서(이하 통칭하여 '이 사건 세금계산서'라 한다)는 사실과 다른 세금계산서에 해당한다는 취지의 조사 결과를 피고들에게 통보하였다.

C. Based on this, the Defendants: (a) did not deduct the input tax amount for the value-added tax; and (b) did not include the corporate tax for the amount of KRW 0,000,000 and the amount of KRW 0,000,000,000, which is the difference between the Plaintiff and the land processing company; and (c) did not include the amount of KRW 0,000,000,000 as the processed purchase amount; and (d) did not include the amount of additional tax for the wrongful underreporting, etc. for the Plaintiff from the business year 2009 to the business year 1, 2011; and (e) the Plaintiff issued a notice to the Commissioner of the National Tax Service of KRW 36,00,000,000 for each of the total amount of KRW 0,000,000 and the total amount of KRW 36,000,000 for each of the 206,000.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 and the whole pleadings

purport of this chapter

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiff's assertion

First, since the Plaintiff actually supplied the processed land from the Z and paid the price to the Z, etc., the transaction of water was lawful and effective, the instant tax invoice does not constitute a false tax invoice.

Second, when calculating the corporate tax base, the Defendant considers the purchase amount of KRW 0,000,000 and the purchase amount of KRW 0,000,000 and that of KRW 0,000,000 as the purchase amount between the Plaintiff and the Plaintiff and the Plaintiff processing company, as the processing purchase amount, there is insufficient specific grounds for non-taxation.

Third, since the Plaintiff did not evade taxes due to not only intentional tax evasion but also fraudulent or other unlawful act, each of the dispositions in the instant case was subject to the exclusion period of five years for the respective value-added tax (including additional tax) and corporate tax (including additional tax) for the business year from January 2009 to January 201, 209.

Fourth, the part of the imposition of each of the instant dispositions is unlawful.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Whether the instant tax invoice constitutes a false tax invoice

1) Facts of recognition

A) The Plaintiff is a company that started to operate a mutually franchising business from around 2001 to around 2008, while conducting a mutually franchising business, and the Z is an individual entity established by the representative director K** of the Plaintiff around February 2009.

B) On September 24, 2015, K** was investigated by the Seoul Regional Tax Office on September 24, 2015, “the Plaintiff was directly supplied with the processed meat from around May 2009, and the Z** established by the Z* agreed to be supplied with the processed meat from the ZZ to provide the economic support because the ZZ faces difficulties in the initial business. When comparing before and after the Plaintiff was supplied with the processed meat from the ZZ, there was no substantial change in the process of processing and supply of the ZZ. It was determined that the ZZ will no longer help but help them grow to a certain extent; from March 3, 201, the Plaintiff was directly supplied with the processed meat from the Z processing company.”

C) Upon receipt of the order from the chain stores, the Plaintiff issued a detailed statement of transaction (the supplier appears to have been written in the “ZZ”) while transporting the processed land directly to the Plaintiff without passing through the ZZ. If the Plaintiff sent the detailed statement of transaction to the Z by facsimile, etc., the Z has issued a tax invoice to the Plaintiff by adding a certain amount of money (100-200 won) to the ZZ.

D) Even after the Plaintiff started to be supplied with the processed land from the Z, the Plaintiff still consulted with the mooring processing company about the allocation of the limit price, logistics cost, etc., demanded the mooring processing company to take measures following the supply of the inferior meat, and conducted the quality inspection directly.

E) The Plaintiff directly purchased salt paper to be used by the meat processing company for processing the Gyeyang meat and supplied it to the meat processing company.

F) The Z has received payments from the Plaintiff twice in one month from the Plaintiff and paid the purchase price to the land processing company on the day or on the water day.

G) During the transaction period of the instant case, the Plaintiff received sales incentives (1% of the purchase price) or advertising funds from the meat processing company, and then a certain number of processed meat at the time of the open opening of the store is free of charge.

On the other hand, the Z does not receive any such goods or money.

[Reasons for Recognition] Facts without dispute, Gap evidence 7, Eul evidence 2, Eul evidence 3, Eul evidence 6, Eul evidence 23 and Eul evidence 29 (including each number), each statement and argument

The purport of the whole

2) Determination

A) Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that input tax amounts shall not be deducted from the input tax amount in cases where the details of a tax invoice are different from the facts. In this case, the meaning that it is different from the fact is the name of the ownership of the income, profit, calculation, act or transaction subject to taxation, and if there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment and the relevant tax law shall apply. In light of the purport of Article 14(1) of the Framework Act on National Taxes, where the necessary descriptions of a tax invoice do not coincide with those of the party to the transaction contract, etc. prepared between the parties to the goods or service, notwithstanding the formal descriptions of the transaction contract, etc., the person to whom the goods or service is actually supplied or the person to whom the goods or service is supplied, and the burden of proving that the tax invoice constitutes a false type of transaction.

B) In light of the above, there are circumstances: (a) the Plaintiff ordered the Z to order the processed meat when the Plaintiff was requested to supply the processed meat from its affiliated stores; (b) the transit processing company made a statement to the effect that it conforms to the Plaintiff’s assertion; and (c) the Plaintiff was accused of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance of False Tax Invoice) that “the Plaintiff was issued a false purchase tax invoice even if he was not actually supplied with the processed meat from the ZZ from the Seoul Southern District Prosecutors’ Office.”

C) However, the administrative judgment is not bound by the prosecutor’s non-prosecution disposition on the non-prosecution disposition by the prosecutor, but can sufficiently be recognized as opposing the fact with free evaluation by evidence (see, e.g., Supreme Court Decision 87Nu493, Oct. 26, 1987). In full view of the following circumstances that can be known or may be inferred by the overall purport of the above recognition and arguments, the Plaintiff is deemed to have the appearance of the Plaintiff’s representative director, K**** the same student, Z** as the Z operated by the Plaintiff, even though the Plaintiff was supplied with processed meat from the Z processing companies other than the ZZ, even though it was actually supplied with the processed meat by the ZZ processing companies. Therefore, the instant tax invoice constitutes a tax invoice different from the facts. Therefore, the Plaintiff’s assertion in this part is without merit.

(1) The plaintiff seems to have commenced the transaction in this case for the purpose of providing economic benefits to the Z which is operated by the representative director K** of the Z*.

(2) It is difficult to view that the Plaintiff had a substantial change in the process of processing, supply, follow-up management, etc. of the affected land due to the instant transaction, in light of the fact that the Plaintiff still performed such tasks as the change of price and limit of the affected land size, delivery, etc., consultation on delivery, cream treatment, quality check-up, etc.

(3) The instant transaction consists of ordering, processing (such as inland processing, cutting, salting, packing, etc.), delivery, and issuance of documentary evidence, such as tax invoices, and payment of the price, quality inspection, and follow-up management, etc. In addition to the issuance of documentary evidence, such as tax invoices, and payment of the price, there is insufficient objective data to recognize that the Z actually performed or participated therein.

(4) Since the Z has paid the purchase price to the land processing company only after the Plaintiff received the sale price, the Z did not bear any burden on the payment of the purchase price.

(5) During the transaction period of the instant case, the Plaintiff received various kinds of goods and cooperation from the land processing company, while the Z did not receive such assistance. There is no explanation from the Plaintiff regarding this.

(6) The Plaintiff did not directly supply the processed meat from the mooring processing company, but received the processed meat from the Z, resulting in purchasing the same goods at a lower price. However, there is no special reason for the Plaintiff to obtain the processed meat from the Z, not from the mooring processing company, in addition to the purpose of giving economic benefits to the Z, in addition to the purpose of providing economic benefits to the Z, there is no special reason for the Plaintiff to obtain the processed meat from the Z.

(d) Whether there is any ground to exclude the processed purchase amount from the deductible expenses in calculating the corporate tax base;

Article 19 (1) of the Corporate Tax Act provides that deductible expenses shall be the amount of losses incurred by transactions that reduce the net assets of the corporation, and Article 19 (2) of the Corporate Tax Act provides that deductible expenses under paragraph (1) shall be losses or expenses incurred in connection with the business of the person concerned, which are generally accepted or directly related to profits.

In the instant case, the other party who actually supplied the processed land to the Plaintiff is not the Z but the Z, and the Plaintiff added the total purchase amount paid to the ZZ at the time of filing a corporate tax base report. As seen earlier, the purchase amount paid to the ZZ cannot be added to the total amount of expenses because it is difficult to see that the Plaintiff satisfies the requirements of losses as the processing cost. However, the purchase amount paid to the ZZ is the same as the purchase amount paid to the ZZ before the instant transaction, which was supplied by the ZZ to the Z processing company. Thus, it seems that the Plaintiff can be added to the deductible expenses by recognizing it as the purchase amount of the ZZ which the Plaintiff ordinarily disbursed to the Z processing company. Therefore, at the time of calculating the corporate tax base, the Defendant did not err by misapprehending the purchase amount between the Plaintiff and the ZZZ and the purchase amount of KRW 0,000,000,0000,000 for the purchase amount between the Z and the Z processing company.

E. Whether the exclusion period of imposition, and the illegal under-reported additional tax are legitimate

1) Value-added tax portion

A) Contents of relevant statutes and legal principles

Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same) provides that where a taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means (hereinafter referred to as "unlawful acts"), a national tax may be imposed for ten years from the date on which the national tax may be imposed, and where a taxpayer does not fall under such cases, a national tax may not be imposed after five years from the date on which the national tax may be imposed.

In addition, Article 47-3 (1) and (2) 1 of the former Framework Act on National Taxes provides that an amount equivalent to 10/100 of the amount calculated by multiplying the calculated tax by the ratio of the under-reported tax base to the tax base if the tax base falls short of the tax base to be reported shall be the additional tax, but the amount equivalent to 40/100 shall be the additional tax if the under-reported tax base is underreported

However, in a case where a taxpayer receives a different tax invoice from the actual supplier under the tax invoice, and receives a deduction or refund of the amount of tax, the ten-year exclusion period under Article 26-2(1)1 of the former Framework Act on National Taxes shall apply to the case where the taxpayer evades a national tax or obtains a refund or deduction as an unlawful act, and where the taxpayer undergoes a return of the tax base due to an unlawful act under Article 47-3(1) and (2)1 of the former Framework Act on National Taxes, other than the awareness that the taxpayer is entitled to a deduction or refund of the input tax amount by a false tax invoice, the taxpayer should be aware that the taxpayer’s return or payment of the tax base and tax amount of the value-added tax excluding the amount of the output tax on the tax invoice, or the taxpayer’s receipt of a request for correction after filing a return or payment of the entire amount of the output tax on the tax invoice, thereby bringing about a decrease in national tax revenue (see, e.g., Supreme Court Decision 2015Du161614, Dec. 14, 2017

B) Determination

In light of the following circumstances as to this case, the Plaintiff paid all the purchase amount and value-added tax on the tax invoice of this case to the Defendant, which is the tax authority, on the basis of the purchase amount and sales amount on the tax invoice of this case for unjust under-reported additional tax for the Defendant’s taxable period (Evidence A 12), and there is no evidence suggesting that the Z was exempted from the liability to pay value-added tax on the tax invoice by filing a tax return and payment of value-added tax, and by filing a request for correction, etc. after the tax return and payment of value-added tax, the Z was exempted from the liability to pay value-added tax on the tax invoice. However, even if the Plaintiff submitted a tax invoice different from the fact issued by the ZZ to the Defendants and received the deduction of the input tax amount, the evidence alone is insufficient to find that the Plaintiff was aware that the deduction of the input tax amount under the tax invoice of this case would result in the reduction of national revenues. Accordingly, the Plaintiff’s assertion on this part of this issue is with merit.

C) Sub-determination (Calculation of Legitimate Tax Amount)

Since the Plaintiff cannot be deemed to fall under the case where the liability for the payment of the value-added tax was evaded with the deduction of the input tax amount by unlawful means, each of the dispositions in this case from January 2009 to January 201, 200 among the dispositions in this case is illegal with the exclusion period for imposition of five years.

In addition, in imposing the value-added tax on the Plaintiff, general underreporting should be subject to the penalty tax not for unfair underreporting. As such, each of the dispositions in this case exceeds the amount of the penalty tax for unfair underreporting of each value-added tax up to the second half of 2010 for each of the dispositions in this case, and the amount exceeding the amount of the penalty tax for underreporting of each of the unfair underreporting of each of the taxes in this case is unlawful. The calculation of the legitimate penalty tax is the amount stated in the "reasonable penalty tax amount" column

2) Corporate tax portion

A) Contents of relevant statutes and legal principles

Article 26-2(1)1 of the former Framework Act on National Taxes provides that if a taxpayer evades a national tax due to an unlawful act, it shall not be imposed ten years from the date on which the national tax can be imposed, and if not, five years after the date on which the national tax can be imposed. Article 47-3(1) and (2)1 of the former Framework Act on National Taxes provides that if the taxpayer fails to meet the tax base to report, the amount equivalent to 40/100 thereof shall be the penalty tax if the taxpayer under-reported the amount due to an unlawful act. As above, Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012; hereinafter the same shall apply) provides that the amount equivalent to

Preparation(No. 2) and false certification(No. 3) are cited.

The term “declaration of a tax base by unlawful means” under Article 47-3(2)1 of the former Framework Act on National Taxes refers to a case where a tax base is underreporting due to an active act, such as making it difficult to find any taxation requirement of the national tax or forging or withdrawing false facts, which results from the purpose of evading tax (see Supreme Court Decision 2013Du12362, Nov. 28, 2013).

B) Determination

First, as to whether the Plaintiff’s tax base was underreported by an affirmative act, the Plaintiff’s payment of purchase price to the Z in excess of the purchase price ordinarily paid to the ZZ in connection with the instant transaction, and as seen earlier, it appears that the Seoul Regional Tax Office has made a declaration of under-reported the corporate tax base by adding the total amount to deductible expenses based on the instant tax invoice. In addition, it appears that the instant tax invoice was under-reported only after the Seoul Regional Tax Office underwent a long-term tax investigation. Thus, it constitutes a case where the Plaintiff’s tax base was under-reported due to an unlawful act under Article 27(2) subparag. 3 of the Enforcement Decree of the Framework

Next, in light of the following circumstances revealed by the Plaintiff based on the health account, the facts recognized earlier, and the overall purport of the pleadings, i.e., the Plaintiff failed to take measures, such as offsetting any excessive loss incurred by the Plaintiff, and the fact that the Plaintiff failed to perform corporate tax by filing a revised return, etc. before undergoing the tax investigation by the Seoul Regional Tax Office, even though the opportunity to pay corporate tax was not fulfilled, it is reasonable to deem that the Plaintiff had the purpose of tax evasion.

Therefore, the plaintiff should be deemed to have under-reported the corporate tax base by the illegal or illegal act. Therefore, the plaintiff's assertion on this different premise is without merit.

F. Sub-committee

Among each of the dispositions in this case, each of the value-added taxes (including additional taxes) and each of the following taxes on the amount from January 2, 2009 to January 201, 201, from February 2, 2010 to January 201, 201, exceeds the amount stated in the "justifiable penalty tax amount" column for each of the above items, and the remainder is legitimate.

3. Conclusion

Thus, each claim against the Defendants against the Defendants is justified within the scope of the above recognition.

Therefore, the remainder of each claim is dismissed as it is without merit. It is so decided as per Disposition.