Whether it is a false tax invoice or not

(as in the judgment of the first instance) If the subject, time, supply value, etc. of the goods or services are inconsistent, the requisite entry of the tax invoice is different from the fact, and in principle, the input tax deduction is not allowed.

Article 17 of the Value-Added Tax Act

Seoul High Court 2015Nu36012 Revocation of Disposition Rejecting Value-Added Tax Refund

AA

BB Director of the Tax Office

August 25, 2015

9.22

1. The plaintiff's appeal is dismissed.

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

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as stated in the reasoning for the judgment of the court of first instance, except for the following changes: Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

C. Determination

1) Basic law and determination criteria

Article 17(2)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) provides that an input tax amount shall not be deducted or refunded from the output tax amount in cases where the whole or part of the necessary matters to be entered (i.e., the registration number and name of the entrepreneur who supplies, (ii) the registration number of the person who receives the supply, (iii) the price of supply and the value-added tax, and (iv) the date of preparation) under Article 16(1)1 through 4 are not entered or entered differently from the fact on the tax invoice issued. Thus, in principle, if an entrepreneur and a supplier on the tax invoice receive another tax invoice,

Here, the meaning that the tax invoice is different from the fact is that the ownership of income, profit, calculation, act or transaction subject to taxation is nominal and there is another person to whom it actually belongs, in light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that the person to whom it actually belongs shall be liable for tax payment and shall be subject to the application of the tax law. In light of the purport of Article 14(1) of the Framework Act on National Taxes, where the necessary contents of the tax invoice do not coincide with those of the person to whom the goods or service is actually supplied or supplied, regardless of the formal contents of the transaction contract, etc. prepared between the parties to the goods or service (see, e.g.

Meanwhile, a tax invoice is issued by a supplier, and if a supplier does not issue a tax invoice, a purchaser may issue a purchaser-issued tax invoice and receive input tax deduction only when the supplier has obtained confirmation of the fact of transaction from the head of the competent tax office. In such a case, the applicant must prove the existence of the fact of transaction and its details [see Article 126-4 of the Restriction of Special Taxation Act (Amended by Act No. 11873, Jun. 7, 2013); Article 121-4 (2) and (7) of the former Enforcement Decree of the Restriction of Special Taxation Act (Amended by Presidential Decree No. 24638, Jun. 28, 2013)].

2) In the instant case:

The following facts and circumstances are recognized if Gap evidence 1 to 5, Eul evidence 2 to 7 (including the number of pages) added to the purport of the whole pleading:

① On November 9, 2010, the CCC entered into a business agreement with D and CCC to pay 5% of the amount recovered for export to D in the name of D and D, and then remitted KRW 221,157,000,00, which is the sum of the total amount of supply and tax until March 6, 2012, when purchasing clothing and other carry-over products under D’s name.

② EE filed a value added return in 2010, including sales of DD 201,052,050 won, and D also filed a value added tax return in 201,052,050 won, including purchase of D from E, and received deduction of the relevant input tax amount in 2010.

③ Around February 8, 2011, D notified CCC of its intent to terminate the pertinent business agreement. On March 5, 2012, CCC concluded a business agreement with the Plaintiff and CCC to provide EE carry-over products and to provide offices, storages, and all expenses to be borne by the Plaintiff in charge of the operation of the company and to store quantities. The Plaintiff and CCC entered into a business agreement with the Plaintiff and CCC to distribute profits and investments at the rate of 50:50.

④ Meanwhile, the CCC demanded the return of KRW 20,105,205, which was deducted as input tax when purchasing a carry-over product from DD, and D appears to have agreed to issue a tax invoice in the future to the Plaintiff (F) who is a partner of CCC, instead of returning the said money.

⑤ However, D did not issue a tax invoice. Accordingly, D issued a purchaser as of May 1, 2012, D, a supplier as Plaintiff (F), and issued a purchaser-issued tax amounting to KRW 201,052,050, stating the supply value as of KRW 201,052,050, and filed a value-added tax return on July 17, 2012, including the total input tax amount of KRW 503,839, the total input tax amount of KRW 21,189,72, the total input tax amount of KRW 10,00,00, the refundable tax amount of KRW 20,695,933.

In light of the above facts and circumstances in light of the legal principles as seen earlier, since D had agreed to issue a tax invoice in the future to return the money that D had been deducted as an input tax amount after the termination of a partnership agreement concluded with Hong Jin, but failed to comply with it, the Plaintiff issued a tax invoice as a purchaser even though D did not receive a carry-over product, such as clothing, etc. from D, so the said tax invoice constitutes a false tax invoice, and thus, it cannot be deducted from input tax amount.

Therefore, since the instant disposition is lawful, the Plaintiff’s assertion cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim is dismissed, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.