Seoul Administrative Court-2015-Gu Partnership-60457 (2016.09)

It constitutes a false tax invoice.

The actual transaction is deemed to have issued a tax invoice under the name of the nominal lender, even though the nominal borrower entirely carries out the tax invoice under the name of the nominal lender. Therefore, it is reasonable to deem that the tax invoice under these names falls under

Article 16 (Tax Invoice)

2016Nu55829 Value-Added Tax, etc. revocation of imposition

AA

Head of the Ansan Tax Office, the head of the Yangcheon Tax Office

April 11, 2017

April 18, 2017

1.The judgment of the first instance shall be modified as follows:

A. (1) The head of Ansan Tax Office’s revocation of the imposition disposition of KRW 3,643,849,211 (including additional tax) on July 2, 2012 against the Plaintiff in excess of KRW 937,19,645 among the imposition disposition of KRW 3,643,849,211 (including additional tax), the amount exceeding KRW 4,142,295,789 among the imposition disposition of KRW 2,2010 (including additional tax), the amount exceeding KRW 4,142,295,789 among the imposition disposition of KRW 4,710,78,232 among the imposition disposition of KRW 1,200 (including additional tax), the amount exceeding KRW 4,710,787,232, and the amount exceeding KRW 129,77,307,304, 207, and the amount exceeding the imposition disposition of additional tax (including additional tax), and the amount exceeding KRW 374,37,47

2) On April 5, 2013, the head of Yangcheon Tax Office’s disposition of global income tax amounting to KRW 173,825,760 for the Plaintiff in 201 (additional Tax on no evidence verification) is revoked in excess of KRW 161,193,868.

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

2. Of the total litigation costs, 75% of the portion arising between the Plaintiff and the Defendant Ansan Tax Office shall be borne by the Plaintiff, the remainder by the Defendant Ansan Tax Office, and 90% of the portion arising between the Plaintiff and the Defendant Gyeyang Tax Office shall be borne by the Plaintiff, and the remainder by the Defendant Yangcheon Tax Office

1. Purport of claim

The principal tax on July 2, 2012 and April 3, 2013 by the head of Ansan Tax Office on the Plaintiff.

In addition, each imposition of KRW 14,505,766,03, total value-added tax for the second period from 2009 to 2011, and the imposition of KRW 173,825,760, which the head of Yangcheon Tax Office made against the Plaintiff on April 5, 2013, the imposition of global income tax for the year 201 by the head of Yangcheon Tax Office against the Plaintiff is revoked (the Plaintiff reduced its claim against the head of Ansan Tax Office in the trial).

2. Purport of appeal

A. Plaintiff: The part against Plaintiff in the judgment of the first instance is revoked. It is so decided as per Disposition by the assent of all participating Justices.

(b) The director of the Ansan Tax Office: Cancellation of the part against the director of the Ansan Tax Office in the first instance judgment, and that part;

The plaintiff's claim against the director of Ansan Tax Office falling under the cancellation part is dismissed.

1. Details of the disposition;

The reasoning for this part of this Court’s judgment is as stated in the corresponding part of the judgment of the first instance except for the following parts or any additional parts, and thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ In the judgment of the first instance court, "attached Form 1" shall be applied to the portion of the principal tax and the amount of additional tax (the first place) in attached Form 1.

○ 4th written judgment of the first instance court is to add "the same as the main tax as the main tax and the additional tax (the first) in attached Table 1 to the plaintiff."

○ The following shall be added at the fourth nine pages of the judgment of the first instance court:

G. On June 9, 2015, the court of first instance rendered a judgment in favor of the Plaintiff on the grounds that the part exceeding the amount of the general underreporting penalty tax was unlawful among the imposition of the imposition of the unfair underreporting penalty by the head of Ansan Tax Office, and the Plaintiff and the head of Ansan Tax Office appealed respectively. The Defendant Ansan Tax Office, in accordance with the purport of the first instance judgment on December 20, 2016, applied 40% of the unfair underreporting penalty tax to the general underreporting penalty tax 10% in accordance with the purport of the judgment of the first instance court on December 20, 2016 where the lawsuit is pending in the trial, and subsequently corrected ex officio the reduction or exemption of the imposition of the unfair underreporting penalty tax exceeding the amount of the general underreporting penalty tax against the head of Ansan Tax Office on March 27, 2017 (hereinafter “instant revocation of the claim for revocation of the unfair underreporting penalty tax exceeding the amount of the general underreporting penalty tax against the head of the tax office (hereinafter “instant disposition”). The judgment of the first and the first instance judgment was corrected as follows:

[Ground of recognition] Facts without dispute, Gap 1 through 4, 58 evidence, Eul 1 and 2 evidence (including numbers), and the purport of the whole pleadings

A. Plaintiff’s assertion, relevant statutes, and facts of recognition

The reasoning for this part of this Court's judgment is as follows, except for any part which is written or added below, and this part of the judgment of the court of first instance is the same as the corresponding part of the judgment of the court of first instance (from 9 to 35 9 e.g., e., the judgment of the court of first instance).

⑥ JGH는 고철 브로커들과 공모하여 2009년 제2기 및 2010년 제1기 부가가치세 과세기간 동안에 고철 브로커들은 JC금속 명의로 고철을 납품하고, JGH는 JC금속 명의로 매출세금계산서를 발행하고, 고철 대금과 부가가치세 상당액이 JC금속 명의의 계좌로 입금되는 즉시 이를 현금으로 출금하여 공모한 자들과 나눈 후, JC금속으로 부과되는 부가가치세는 납부하지 아니한 채 JC금속을 폐업하는 방법으로 조세를 포탈하였다는 범죄사실로 기소되어 유죄판결이 확정되었다(대구지방법원 서부지원 2010고합200, 대구고등법원 2011노262). ○ 제1심 판결서 9쪽 '⑧항' 다음에 아래 '⑨항'을 추가한다.

9. KYH made a registration with YH metal business operator in collusion with KSS, purchased waste Dongs without being issued a tax invoice from YH metal business operator, sold them to the Plaintiff, etc., and was indicted for committing a crime of evading tax by issuing tax invoices in the name of YH metal and paying the amount equivalent to value-added tax and closing the business (the old District Court Decision 201Mo262). The judgment of the first instance court of ○○ 10th shall be added to the following paragraph.

(7) It is confirmed that cash has been withdrawn from the YTY account in the telephone call of the BS metal office.

The following is added to the judgment of the first instance court 14th 3th '.'. SKM stated that it was in currency with KS at the time of transactions with IMO metal.

The judgment of the court of the first instance is 14 pages. â……………………………§) added below to the following.

vii The CYJ stated that KS was engaged in accounting and accounting and lending the name to KS, and KS also established a daylight metal under the name of CYJ, but the actual business owner stated that KS was the principal.

8) The Defendant deemed that KS was a title trust of shares to CYJ, and imposed gift tax of KRW 6 million.

3-1 Licensed Real Estate Agent stated that at the time of termination of the lease agreement between the business site of the SSB, a male who has been accompanied with the KBH received the purchase and sale amount of the security deposit and the facility.

【15th written judgment of the court of first instance’s trial’s No. 15th, followed by the No. 1020, 1990.

8) On the other hand, KBH, as the president of the BJU, purchased and sold a closed Dong without a tax invoice, and subsequently was prosecuted for a crime of evading tax by closing SB, and found guilty of having been convicted of having committed a crime of evading tax (Seoul District Court Decision 2015Gohap60, Daegu High Court Decision 2015No397). On the other hand, 16th day of the judgment of the first instance court of ○○, 16th day of the first instance added 'B’ below.

8 Even if waste Dongs entered into BS metal are not waste electric wires (pocks) with the upper Dong, winter, cand, IGY mainly dealt with the giveer, and IGY stated that the unit price agreement shall be set at the same value as China's East and the same collection rate of the giveer.

○ ○ 18th written judgment of the first instance court is added to 18th 4th d' below.

YJH, in collusion with the YU, as a real business owner, supplied YJ metal, etc., and issued false tax invoices in the name of YJH, was prosecuted and convicted of the facts charged (Seoul Southern District Court Decision 2012Hau988). ○ judgment of the first instance court 19, followed by the following two paragraphs.

YB metal purchase tax invoices (total amount of KRW 1,965,766,00) are issued in falsity without being supplied with goods or services.

○ 제1심 판결서 20쪽 1행 '2010. 8. 9.'을 '2010. 7. 1.'로 고친다. ○ 제1심 판결서 21쪽 '⑧항' 다음에 아래 '⑨항'을 추가한다.

⑨ 한편 YJM(GR)은 창성자원의 명의차용인으로 세금계산서를 발급받지 않고 구리 등을 매입하였다는 범죄사실로 기소되어 유죄판결이 확정되었다(수원지방법원 안산지원 2013고합99, 서울고등법원 2013노3129, 대법원 2014도293). ○ 제1심 판결서 22쪽 '⑧항' 다음에 아래 '⑨항'을 추가한다.

9. KJS was convicted of having committed a crime of evading tax by establishing OS non-ferrous metal under the name of a person who has made a salary and employed a person who has made a heavy coal (Tgu District Court Decision 2011Gohap680, Daegu High Court Decision 2012No9). The judgment of the first instance court of ○○ is 24 pages, followed by the following.

6) KS and KRH conspireds to establish KRia in the name of KRH, prepared a tax invoice in the name of KRH, and filed a value-added tax return, and subsequently found guilty of having been prosecuted for committing a crime of evading tax through the closure of KRia, and subsequently found guilty of having been guilty of having committed a crime of evading tax ( Daejeon District Court Decision 2011Da777, 2012 High and 113, 2012 High and 2012No204, 2012No428, 2012No428). The judgment of the first instance court of the Daejeon High Court of ○, 25 pages, followed by the following sub-paragraph (d). (5) Although the currency records of KSC’s cell phone call in the 1B metal office, the aforementioned cell phone was confirmed to have been used by BCR (CS resources).

○ 25th written judgment of the first instance court is added next to the No. 25th written judgment.

8 YM was prosecuted for committing a crime of evading tax by purchasing and selling copper, etc. without tax invoices in collusion with JBM, and then not paying value-added tax (Seoul District Court Decision 2013Rahap999, Seoul High Court Decision 2013No3129, Supreme Court Decision 2014Do293), and JBM was charged for the same suspicion, but the prosecution was suspended due to unknown whereabouts. ○○ judgment of the first instance court 26 7 pages.

④ Purchase tax invoices received from NFR resources in 201 are almost all YS resources (2,032 million won) and GNA metal (14,184 million won). YS resources were actually operated by JB, the husband of CH, and GNA metal is the owner of the JB’s business registration.

○ 27 pages 27 of the judgment of the first instance court, followed by the No. 1000,000.

7) The JBM, under its own name, did not participate in the operation of the GNA metal business, and the actual business operator stated JB as the birthee.

The judgment of the court of the first instance is 27 pages. â………………………………§ â…………………………………

7) BJW was admitted on the ground that it issued a tax invoice without supply of goods or services during the first taxable period of value-added tax in 201, but its prosecution was suspended due to the unknown whereabouts.

○ 제1심 판결서 29쪽 4행 다음에 아래 '⑨항'을 추가한다.

① KRK stated to the effect that it is the nominal holder and actually operates its resources was issued a false tax invoice with JYL.

○ 29 'The Judgment of the first instance court 29 'The following paragraph' is added.

④ The JJ was suspected of preparing a processed sales tax invoice in the name of security resources during the 1st taxable period of the value-added tax in collusion with the actual operator of the BA resources, but was already subject to a non-prosecution disposition on the grounds that there was a final and conclusive judgment on the facts constituting a single comprehensive crime.

No. 32 of the judgment of the court of first instance shall be added to the following paragraph:

7) Following the establishment of YS metal company in the name of YSR: (a) even though KJH directly secured and sold non-ferrouss, YS metal’s tax invoice was prepared and the value-added tax was reported; and (b) YS metal was found guilty of having been prosecuted for committing a crime of evading tax by closing down the YS metal ( Daejeon District Court Decision 201Mo77, 2011Gohap77, 2012 High and 113, and Daejeon High Court Decision 2012No204, 2012No428). The judgment of the first instance court of ○ 34 pages 7 of the judgment of the first instance.

8. The lessor of the DM business place is aware that the lessee is "MJ", and the DM personnel stated that the DM personnel withdrawn the money from the bank under the direction of the MMJ and delivered it to the MMJ in the party room, etc.

○ ○ Adjudgment of the first instance court is added to the following 4 paragraphs after the 34th day.

③ YWS lending its name to JYL was charged with a criminal fact that a tax invoice was issued in the name of future metal even though it did not supply non-ferrouss, etc. to BS metal, and the judgment of conviction became final and conclusive (In Mancheon District Court Decision 2012Dadan1622). ○○ Decision 35 8-9 of the judgment of the first instance court was followed as follows.

[Reasons for Recognition] Facts without dispute, Gap 28 through 41, 46 through 52, 61 evidence, Eul 3, 4, 5, 8, and 10 evidence (including branch numbers), and the purport of the whole pleadings.

1) Whether the instant tax invoice is “other tax invoice different from the fact”

A) Relevant legal principles

Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. Here, meaning that the entries of a tax invoice are different from the facts. In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that where the ownership of income, profit, calculation, or transaction subject to taxation is nominal, and there is a separate person to whom such income, profit, act, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be the tax obligor and the other person to whom such income, profit, or transaction belongs shall be the tax obligor. In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that the necessary entries of a tax invoice do not coincide with those of the parties to the transaction contract, etc. prepared between the parties to the

In addition, in general, the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of tax imposition, but if the facts alleged in the facts of taxation requirements in light of the empirical rule are revealed in the course of a specific lawsuit, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that failed to meet the taxation requirements (see, e.g., Supreme Court Decision 2009Du6568, Sept. 24, 2009) unless the pertinent facts are proved to be eligible for application of the empirical rule.

(1) In light of the following circumstances, it is insufficient to readily conclude that KJW (BY) issued a tax invoice different from the fact solely on the basis of the above facts, and there is no other evidence to acknowledge it. In light of the following circumstances, the above facts alone are insufficient to readily conclude that KJ (BY) issued tax invoices different from the fact.

① The Plaintiff’s employee visited the BY’s workplace to confirm that the Plaintiff had the appearance of the workplace actually operated, such as container, three employees, and 20 tons, Ma-dong 20 tons, etc.

③ Accordingly, KJW was convicted of violating the Punishment of Tax Evaders Act, etc. on the ground that Y was not issued a purchase tax invoice even if Y was actually supplied, and it was not a problem that BY was issued on the basis of the results of the tax investigation or investigation.

(2) In light of the following circumstances, it is insufficient to readily conclude that the Korea JC (JC) issued a tax invoice different from this fact solely on the basis of the above facts, and there is no other evidence to prove otherwise.

① On January 18, 2010, the Plaintiff’s employee visited the place of business of JC metal to check that approximately 30 tons of inventory of ice crap are loaded at the end of the place of business, the vehicle outside the place of business is continuously entering and leaving the place of business, and has a normal appearance of the place of business.

② It seems that there is an actual transaction because the records of the currency at all times between the Plaintiff and the JCM have been confirmed.

(3) In light of the following circumstances, it is insufficient to readily conclude that KRC issued a tax invoice different from the fact solely on the basis of the aforementioned facts, and there is no other evidence to acknowledge otherwise.

① In the first taxable period of the value-added tax in 2010, KDC was suspected of evading the value-added tax by deceiving a person supplied with scrap metal, even though it sold scrap metal equivalent to KRW 5,957,224,00,00 during the first taxable period of the value-added tax, but was not prosecuted on the ground that it is difficult to reject a lawsuit that actual transaction had been made.

② It is difficult to readily conclude that KRC issued a false tax invoice on the sole basis of the fact that KRC did not have any purchase data, on the following grounds: (a) the details of payment, the limit of assignment, CCTV, photographs, etc. that KRC supplied the Plaintiff with the real waste; and (b) the statement on the closed Dong transaction by KRC is considerably specific

(4) In light of the following circumstances, the aforementioned facts alone are insufficient to readily conclude that the YJM (GR was issued a tax invoice different from the facts, and there is no other evidence to acknowledge otherwise, in light of the following circumstances, comprehensively based on the respective descriptions of YM (GR) A40, 47 No. 1 through 9, 8-5, 6, and 7, and the overall purport of the pleadings:

① YM, in collusion with WY, purchased and sold non-ferrouss without being issued a purchase tax invoice from the purchasing sources of non-data, and issued a purchase invoice under the name of GR and received value-added tax, and became final and conclusive as guilty of tax evasion by closing the business. According to this, YJM appears to have actually purchased and sold non-stocks from the purchasing sources of non-data.

② YM was aware of the applicable laws and structure of the crime of tax evasion, opened a passbook to be used as a transaction passbook after registering as a business, and deposited the amount equivalent to the purchase price and the value-added tax in the passbook, and returned the amount to the account in cash. Moreover, YJM was generally involved in the operation of the business, including the commencement of the transaction by finding the Plaintiff and the negotiation of the unit price of old interest, and it was actually directly purchased old interest. ③ YJM stated that YM lent the name to the Plaintiff, and that YM was both withdrawn from old interest and paid to Y. However, it cannot be ruled out that YJ made the above statement in order to be exempted from punishment because the punishment of the nominal lender was more severe than that of tax evasion. Rather, YW, WY, and YM stated that YM was actually operating Y.

④ Comprehensively taking account of these circumstances, YM appears to have operated GR due to WY and identical businesses. It is possible for one of its partners to conduct business registration under one’s sole name, and in such a case, issuing a tax invoice under the name of YJM accords with the intent of the parties. As such, even if YM and WY were to operate GR and issued a tax invoice under the sole name of YJM, it cannot be deemed as a false tax invoice.

(5) Unless special circumstances exist, barring any other special circumstance, if the name of the representative of the legal entity was used or permitted to use the name of another person as the business registration of the legal entity while carrying out the business registration of the legal entity, it does not constitute an act of making the business registration using another person’s name (see Supreme Court Decision 2016Do1070, Nov. 10, 2016). In light of the following circumstances, which are recognized as a comprehensive purport of pleading on the descriptions of evidence No. 48-1 through 5, No. 3-2, and No. 8-9 of evidence No. 1 through No. 48-2, and as a whole, the corporation’s ID metal (hereinafter referred to as “Japan metal”) is a real company that actually carries out an actual transaction and issued a tax invoice in the name of the same metal, and there is no other evidence to acknowledge that the said tax invoice falls under a different tax invoice.

② KR was established under the name of CYJ because it was unable to perform its business under its own name because it was closed due to the failure to pay the value-added tax while running the non-ferrous metal-related business. The CYJ was imposed a gift tax of KRW 6 million with respect to the capital of KRW 50,000,000,000 in the name of CYJ. ③ KS purchased and sold the waste dong from the heavy metal company to the Plaintiff, and then CYJ purchased and sold it to the Plaintiff.

The tax invoice in the name was issued and sent by facsimile.

C) A tax invoice deemed to be a different tax invoice.

① In light of the social experience, etc. as seen earlier, each of the other transaction parties appears to have not been able to operate the ice retail business, and most of them were not equipped with facilities that can be deemed to have actually operated the business at the place of business registered on the business registration certificate.

② Many of the remaining business partners were identified as data, and close down ex officio or registered business by the tax office, and have failed to pay a reasonable amount of value-added tax.

③ The remaining transaction partners, at the time of issuance of the instant tax invoice, did not make any report on purchase with the tax authority at the time of the issuance of the instant tax invoice, or did not make an excessive report on purchase compared to the sales, but did not reach KRW KRW 100 million or KRW

④ The Plaintiff asserted that the article sent the transit ticket through the freight truck driver and brought the remainder of each customer’s tax invoice. However, the driver on the transit ticket stated that the driver transported the waste metal to BS metal, which is the Plaintiff’s workplace at the time of the tax investigation, but was at a location other than the transaction partner (it is difficult to believe that each of the statements No. 24, No. 25, and No. 26, contrary thereto, is easily made in view of the relationship between the freight forwarder and the transaction partner). (5) Of the rest of each transaction party, a large number of the other transaction parties made a full withdrawal by cash immediately after the payment from the Plaintiff to the other account or by transfer it to the other account. Since it is difficult for the company operating the business normally to make a full withdrawal of the revenue deposited in the transaction account, it seems to support the situation that the actual supplier of the transaction transaction with the Plaintiff exists separately.

6. Of the remaining tax invoices in the name of each customer, a considerable number of employees of the Plaintiff were prepared by Song-si, and the Plaintiff’s employees who confirmed and examined the customer if they were the Plaintiff’s employees, there were many cases where they were not aware of the trade name or representative of the purchaser who could naturally know if they were the normal purchaser. This supports the fact that each customer did not actually supply the same.

7) Meanwhile, while the Plaintiff submitted a transit table, etc. as evidence of actual transaction of the same scrap, it is merely a report document indicating the past fact that there was the supply of a certain quantity of scrap and the payment of the price therefor. In addition, although the prosecution took a disposition against some of the other transaction partners and the Defendant’s accusation cases, such as the violation of the Punishment of Tax Evaders Act by the Defendant against the Plaintiff, against the Plaintiff, on the ground that there is insufficient evidence to acknowledge the facts constituting the relevant accusation case, such circumstance is merely insufficient, and it does not necessarily mean that each other transaction party is the supplier of the same scrap, as described in the relevant tax invoice, on the ground of the existence of such materials or circumstances. Such materials are difficult to deem that the Plaintiff has probative value exceeding the fact that the Plaintiff was supplied with the scrap. Accordingly, it is insufficient to reverse the fact that the third party, other than the other transaction parties, actually supplied the same scrap to the Plaintiff.

2) The reasoning of the judgment by the court on whether the Plaintiff’s good faith and negligence is recognized is the same as that of the corresponding part of the judgment of the first instance (from 38th to 40th eth eth eth eth eth eth son of the judgment of the first instance), and thus, this part is cited,

5) KS stated that “BS metal was known to the delivery of YS metal at the time of the transaction of YS metal by all the transaction partners when it is supplied only without confirmation of the workplace and representative,” a considerable of the transaction partners of the Plaintiff were confirmed as a bomb, and the monetary records between the Plaintiff and the actual supplier of YS are confirmed in the monetary records of the Plaintiff’s place of business.

In light of these circumstances, it is difficult to avoid the possibility that the transaction partners have silented to issue false tax invoices in order to secure a large volume of waste.

(iii) the scope of the tax amount to be cancelled.

As seen earlier, the tax invoices in the name of KJW (BY), KJC (JC), KDC (KW non-ferrous), YJM (GY), and IMO metal (CYJ) cannot be deemed as those different from the facts provided in Article 17(2)2 of the former Value-Added Tax Act. As such, the portion of the instant tax invoices on which the said tax invoices were based on the premise that they were false should be revoked should be unlawful.

The reasonable amount of tax calculated accordingly is as shown in the attached Table 5. Ultimately, the imposition of value-added tax for the second period of 209 among the dispositions of this case rendered by the head of Ansan Tax Office is justifiable, and the portion exceeding KRW 937,19,645 (including additional tax) among the dispositions of imposition of value-added tax for the first period of 2010 must be revoked. The portion exceeding KRW 4,142,295,789 (including additional tax) among the dispositions of imposition of value-added tax for the second period of 2010 must be revoked. The portion exceeding KRW 4,710,787,232 (including additional tax) among the dispositions of imposition of value-added tax for the first period of 1,201 must be revoked. The portion exceeding KRW 1,047,027,443 (including additional tax) among the dispositions of this case for the second period of 2, 2010 should be revoked, and the conclusion should be revoked.

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the plaintiff's appeal is partially accepted, and the judgment of the court of first instance shall be modified as per Disposition.