Seocho 2013west 1050 (No. 12, 2013)

It is reasonable to deem that the Plaintiff is a bona fide trading party that is believed by the customer as a real supplier and that the Plaintiff constitutes a bona fide trading party that is not negligent in trusting.

The representative director visited the place of business to obtain a business registration certificate, visited the factory to take measures for inspection by visiting the factory, etc., and as long as not only the conclusion of the contract but also the payment of the price was made to the supplier, it cannot be deemed that the Plaintiff was negligent in not knowing the above.

Article 17 of the Value-Added Tax Act

2013Guhap26545 Disposition to revoke the imposition of value-added tax

KimA

Head of the District Tax Office

April 24, 2014

June 5, 2014

1. On November 7, 2012, the Defendant’s imposition of the value-added tax on the Plaintiff on November 7, 2009, and the imposition of the value-added tax on the first half of 2009, and the imposition of the value-added tax on the second half of 2009, each disposition exceeding the OO won is revoked.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The Defendant’s imposition of the value-added tax for the first period of November 7, 2012 against the Plaintiff, and the imposition of the value-added tax for the second period of December 2009, and the imposition of the value-added tax for the second period of February 2009, respectively, revoked.

1. Details of the disposition;

A. From August 1, 1989, the Plaintiff is a person who is engaged in the wholesale and retail business of lighting organizations with the trade name of AA from August 1, 1989.

B. The Plaintiff received tax invoices equivalent to the value of supply in the first half of 2009 from Nonparty Co., Ltd. BB (hereinafter “BB”), and filed a value-added tax return after deducting the input tax amount from the tax invoice sales equivalent to the value of supply in the second half of 2009, and the tax invoice sales equivalent to the value of supply in the second of 2009.

C. The Seoul Regional Tax Office confirmed the fact that the actual supplier on the instant tax invoice was Nonparty KimB, not BB, and Nonparty KimB, and the Plaintiff, on the second half of 2009, that the instant tax invoice was omitted, and notified the Defendant of the taxation data by deeming the instant tax invoice as a false tax invoice. The Defendant, upon the above notification of the Seoul Regional Tax Office, deducted the input tax amount related to the instant tax invoice from input tax amount, and included the omitted sales amount in the output tax amount for the second half of 2009, on November 29, 2012, issued a disposition imposing the Plaintiff the value-added tax amount for the first half of 2009 and the value-added tax amount for the second half of 2009. (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on February 24, 2013, but the Tax Tribunal dismissed the appeal on August 12, 2013.

E. The Plaintiff appealed and filed the instant lawsuit on October 28, 2013.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 3, 16, Eul evidence 1 and 8, the whole purport of pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

At the time of the instant transaction, the Plaintiff was aware of the actual supplier of the lighting organization as BB, not KimB, and the Plaintiff was not negligent in not knowing such facts in light of the circumstances at the time of the instant transaction. Nevertheless, in rendering the instant disposition, the Defendant did not regard the instant tax invoice as a tax invoice different from the fact, and thus, was unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) In principle, where an entrepreneur and an actual supplier on a tax invoice received a different tax invoice, the input tax amount may not be deducted or refundable, but where there are special circumstances, such as the entrepreneur’s failure to know the fact of misrepresentation and failure to know the fact, even if the entrepreneur received such tax invoice, the input tax amount may be deducted or refundable from the output tax amount (see, e.g., Supreme Court Decision 2013Du6527, Jul. 25, 2013).

In light of the above legal principles, the plaintiff was unaware of the fact that the actual party to the transaction of this case was KimB, not BB, and was not aware of the fact that it was not BB, and there was no negligence about the fact that it was not known. In light of the above legal principles and the grounds for recognition of the above disposition, the plaintiff did not know about the fact that the actual party to the transaction of this case was KimB, not BB.

① Around March 2008, KimB had been engaged in BBB and partnership business after receiving a proposal from BBB, and the Plaintiff issued a name named as BBB business head of BBB, stating that the Plaintiff became a business head of BB, and that the Plaintiff was issued a name of BB business head on May 2008 when KimB requested the remainder of BBB’s lighting organization, and the Plaintiff directly visited BB to confirm the business. The Plaintiff was issued the BBB’s business registration certificate (for issues: lighting equipment, electrical equipment, thesis) by visiting BB’s representative director of BBB’s O located in BB, Seo-gu, Incheon, Seo-gu, Incheon, with the guidance of KimB, by visiting the place of business of BB.

② From November 24, 2008 to December 24, 2009, the Plaintiff entered into the instant transaction to be supplied with lighting fixtures, and there was a defect guarantee agreement accordingly. The parties to the contract were both BBB and KimB, known as the business director of BB, led to the conclusion of the said contract by using the corporate seal impression of BBB.

③ Since then, LCC, an employee of the Plaintiff, visited a lighting fixture manufacturing factory in Seo-gu Incheon, Seo-gu, Incheon. At the time, there was a signboard indicating “BBBBB” at the entrance of the above factory, and the phrase “BBBB” was printed on all boxes located in the factory, and KimB presented a copy of passbook BB and a corporate seal impression.

④ The claim for payment was also made in the name of BBB, and the Plaintiff deposited the payment of the lighting organization’s account under the instant transaction into BBB, and the Plaintiff also entered the deposit list in BBB.

⑤ The Plaintiff was accused of the violation of the Punishment of Tax Evaders Act regarding the instant transaction, and the prosecutor was unaware of the fact that the Plaintiff was not aware of the fact that the Plaintiff received tax invoices different from the facts, and it was difficult to deem that there was negligence.

In full view of the above various circumstances, the Plaintiff appears to have believed that the supplier of the instant transaction was BB and KimB was the head of the business division to be the person in charge of the conclusion and delivery of the contract. The Plaintiff visited the business place of BBB, received the business registration certificate from the representative director, and took various verification measures such as visiting the factory, taking measures for inspection, etc., and as long as the payment of the price was made to BB as well as the conclusion of the contract was made to BB, it cannot be said that the Plaintiff was negligent for the Plaintiff

2) Therefore, the portion of the instant tax invoice, among the instant disposition, for which the input tax amount was not deducted, should be revoked as it is unlawful. Of the instant disposition, the amount of tax on the omitted sales for the second period of February 2009 is as follows.

3) The Plaintiff deemed that the period of penalty tax for unfaithful payment related to the omission of sale in February 2009 was 101 days, and calculated a reasonable amount of tax as an OOO, but considering the overall purport of the facts and evidence examined earlier, the above period is deemed 1015 days, and thus, the reasonable amount of tax is deemed OO, and the Plaintiff’s claim is reasonable within the scope of cancelling the portion exceeding the OO won, which is the legitimate amount of tax during the instant disposition, and there is no reason for the remainder of the claim (However, since the difference is very insignificant, the costs of lawsuit are fully borne by the Defendant).

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is without merit, and it is so decided as per Disposition.