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사실과 다른 세금계산서인지 여부(취소)
조세심판원 조세심판 | 2006-11-16 | 국심2006중2597 | 부가
[Case Number]

2006 Heavy2597 ( November 17, 2006)

[Items]

Addition

[Types of Decision]

Correction

[Summary of Decision]

It is reasonable to deduct input tax as input tax because the sales contract for the building was directly concluded with the head office and paid the price to the head office, and there was no intentional or gross negligence for tax evasion.

[Related Acts]

Article 17 of the Value-Added Tax Act / Do Governor of the Enforcement Decree of the Value-Added Tax Act / Do Governor

【Disposition】

The imposition of the value-added tax of KRW 11,469,830 for the second period of value-added tax on May 9, 2006 by the head office of the OOO corporation shall be made by the head office of the OO corporation, and the amount of the purchase tax for KRW 50,000,000 shall be corrected by deducting the input tax amount for the supply price of KRW 550,000 from the supply price received by

【Reasoning】

1. Summary of disposition;

On December 6, 2005, the applicant corporation purchased a building for a factory located in the office of OOOOO (hereinafter referred to as "sub-building") owned by OOOOOO corporation (hereinafter referred to as "OOOOO") at KRW 550,00,000 (including KRW 150,000,000 for fixed assets purchased) and deducted the input tax invoice (the supply price shall be KRW 550,000,000 for fixed assets) from the head office of OO(OO), and then deducted the input tax amount at the time of the return of value-added tax for the second period of 2, 2005.

On May 9, 2006, the disposition authority received the purchase tax invoice from the head office of the OO(main office) that used the building at issue by the applicant corporation, and received it from the head office of the OO(main office). On May 9, 2006, the major purchase tax invoice was deemed as a false tax invoice by the supplier and notified the applicant corporation of KRW 11,469,830 of the value-added tax for the second year of 205.

On July 26, 2006, the applicant filed a request for adjudication.

2. Opinion of the requesting corporation and the disposition agency;

A. The claimant corporation's assertion

Although the building at issue was originally a factory used by a branch of an OO(state), the branch has already been practically closed at the time of the contract for the building at issue of the applicant corporation, the applicant corporation entered into a sales contract with the head office of an OO(state) which is the owner of the real estate register of the building at issue and paid the price to the head office. Accordingly, the issue purchase tax invoice is also issued from the head office. Therefore, the claim corporation entered into a valid contract with the head office of an OO(state) which is the owner of the building at issue under the law, and made a valid contract with the head office, and made the purchase tax invoice received after paying the price as a tax invoice different from the fact, and thus it is improper to deduct the input tax amount.

(b) Opinions of disposition agencies;

The owner of the real estate register of the key building is an OOO (OOOO) located in the OOOO (OOOOOO). However, it is reasonable to view the issues that the disposal agency received from the head office as the tax invoice and the supplier who received the purchase tax invoice as the actual tax invoice on December 16, 2005 at the time of the purchase and sale contract for the key building and the claimant (the date of the closure report is March 31, 2006; December 31, 2005; the date of closure report is March 31, 2006; the date of closure report is December 31, 2005). Thus, the applicant corporation should have received the purchase tax invoice from the branch, not the head office, in light of the principle of taxation by each place of business stipulated in Article 4(1) of the Value-Added Tax Act.

3. Hearing and determination

A. Key issue

The propriety of the disposition imposing a tax by not deducting the input tax amount on the basis that the supplier considers the issue purchase tax invoice as a false tax invoice.

(b) Related statutes;

(1) The following input tax amounts shall not be deducted from the output tax amount under Article 17 of the Value-Added Tax Act:

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

(2) Article 60 (2) (proviso) of the Enforcement Decree of the Value-Added Tax Act provides for any of the following cases:

2. Where some of the necessary entries of the tax invoice delivered under Article 16 (1) of the Act are erroneously entered, but the fact of transactions is confirmed in view of the relevant tax invoice and other necessary entries or discretionary entries;

(3) Article 6(1) of the Enforcement Rule of the Value-Added Tax Act provides that the place of business shall be the date of actual closure of the business (hereinafter omitted) when the business is closed under Article 5(4) of the Act.

(2) If it is unclear whether business is closed, the date on which a report on business suspension under Article 4 (1) is received shall be deemed the date on which business suspension is closed.

C. Facts and determination

(1) Comprehensively taking into account the details of the national tax integrated computer network data (TIS), the sales contract for the building at issue, the copy of the real estate register, and the written confirmation prepared by the head office of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters, it is confirmed that the headquarters of the headquarters of the headquarters of the headquarters of the building at issue was entered as of December 31, 2006 and reported the cessation of business at the district tax office having jurisdiction over the district tax office on March 31, 2006, and that the requesting company entered into a sales contract for the building at issue with the head office of the headquarters of the building at issue (OOOO 1504-8, the owner of the building at issue on December 16, 2005) and received the purchase tax invoice from the said head office.

(2) The claimant corporation actually discontinued its business on September 30, 2005 in the case of an OO branch different from the details of the report on business closure. The claimant corporation asserted that it was not able to find any other party except the owner of the real estate register at the time of the contract for the building at issue ( December 16, 2005). Thus, it first examines whether the above branch was actually closed or not.

(A) The public notice of the termination of the fire-fighting management agency contract and the waste management termination contract submitted by the requesting corporation, and the office of OOOOO on the fire-fighting management agency contract and the waste management contract were terminated on September 30, 2005, respectively.

Examining the contents of the data collection sheet, the report on the performance of withholding tax, the integrated electronic document processing, the application form for reduction adjustment of industrial accident insurance premiums, the copy of the refund passbook, the resident tax refund tax amount calculation details, and the copy of the refund passbook, among the nine employees working at the above branch, the wage and salary income and retirement income for seven on-site workers were reported and settled in September, and their four-time insurance-related reports (retirement disposal) were made on October 18, 2005, and the above seven persons were refunded on November 9 and November 15, 2005, respectively.

(B) In addition, examining the details of the demand for the payment of electric charges (from July 2005 to May 2006), the business registration certificate, and the real estate lease contract, etc., it is confirmed that the amount of electric power used for the building at issue except the power used by the cafeterias in the main building between October 2005 and February 2006, as shown below:

A branch of OO (main) 1,4902,854,800,000 for July 30, 2005, for the use of electricity due to the 1,4903,0735,139205, 1,4901,643, 523205, until October 11, 2005, 4904,392, 1205, 497492, 1205, 2005, 1,497, 4962, 192, 2006, 207, 207, 384, 2084, 207, 3964, 386, 207, 206, 207, 207, 2006, 207, 2006, 384, 396, 39636, 284, 206384

(unit:,000 won)

(C) Meanwhile, Article 6(1) of the Enforcement Rule of the Value-Added Tax Act provides that “The date of business closure under Article 5(4) of the Act shall be the date on which the business is substantially discontinued for each place of business.” According to the above provision, the commencement, abolition, etc. of business under the Value-Added Tax Act shall be determined by the substance of the relevant fact regardless of registration or reporting under the Act (see Supreme Court Decision 99Du7609, Oct. 24, 2000). In this case, the substance thereof shall be determined by comprehensively taking into account specific circumstances, such as whether the business operator’s intent to resume business, the maintenance and management status of the place of business, the status of purchase and sale

(D) On September 30, 2005, the fire prevention management agency and waste management contract essential for the operation of a factory were terminated on September 30, 2005. On November 15, 2005, most of the procedures were completed for employees who worked at the above point on the date, and the procedure was completed on November 15, 2005. The electric usage of the building at issue is essential for the operation of the factory. In light of the fact that the electric usage of the building at issue was rapidly decreased since October, the office of OOOO (main) is not merely in a state of business suspension, but it is judged that the office of OOOO was substantially closed on September 30, 2005, such as the claimant corporation's assertion.

(3) Thus, in the case of a claimant corporation, the sales contract for the building at issue was directly concluded by the head office and paid the price (including value-added tax) to the head office, and in the case of trading fixed assets such as the building at issue, which are not the goods produced by the branch under actual closure of the branch, the purchaser cannot make the head office and the head office, the owner of the real estate register of the building at issue, and in addition to the supplier at issue on the purchase tax invoice, other necessary matters such as the date of transaction, supply price, etc. shall not be stated in accordance with the facts, and in addition, it is reasonable to view that the claimant corporation and the head office of the OO (O) under the integrated national tax data processing network reported and paid the value-added tax equally for the purchase and sale, taking into account the fact that it is difficult to view that there was intention for tax evasion or gross negligence, and that the claimant corporation did not receive the purchase tax invoice at issue from the head office, the owner of the real estate register, the owner of the real estate tax invoice at issue, and therefore, the purchase tax invoice is reasonable.

4. Conclusion

This case's petition for adjudication is with merit as a result of the hearing, so it is decided in accordance with the provisions of Articles 81 and 65(1)3 of the Framework Act on National Taxes.

November 17, 2006

chief judge of the National Tax Tribunal

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