National Tax Service Review Division 2011-0125 (Law No. 29, 2011)

It seems that the non-party corporation was aware of the fact that it lent a construction business license to the actual contractor.

According to the facts stated in the instant criminal judgment, the Plaintiff’s business division appears to have been aware of the fact that the actual contractor borrowed the name of the non-party corporation in selecting the successful bidder of the instant construction project site, and it is difficult to recognize the good faith and negligence of the Plaintiff’s representative.

Article 17 of the Value-Added Tax Act

2012 disposition of revocation of imposition of value-added tax

Federation of Korean AAAA federation

Head of Seocho Tax Office

June 1, 2012

June 29, 2012

1. The plaintiff's claim is dismissed.

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

The imposition of value-added tax on the Plaintiff on January 3, 201, KRW 000, KRW 2007, and KRW 000 in total, KRW 000 in 2008, and KRW 000 in 2008, which the Defendant imposed on the Plaintiff on January 3, 201.

1. Details of the disposition;

A. The plaintiff, a non-profit corporation established on March 29, 1990, was planned to establish a small and medium distribution center in the Odong in Busan Northern-gu, Busan in around 2007, and contracted the construction of the above logistics center (hereinafter referred to as the "construction of this case") with the construction cost of 00 won to BB General Construction Co., Ltd. (hereinafter referred to as "the current stock company CC comprehensive architectural firm," hereinafter) on August 9, 2007, and signed an additional construction contract with the construction cost of 00 won on August 9, 2008 (hereinafter referred to as the "construction contract of this case").

B. During the construction process of the instant case, the Plaintiff received the purchase tax invoice of KRW 000,000, and KRW 000,000,000, and KRW 200,000,000 in total, from the non-party corporation during the construction process of the instant case, and received input tax deduction at the time of return of value-added tax.

C. From May 11, 2009 to June 12, 2009, the head of the North Busan District Tax Office’s subcontractor to a non-party corporation.

As a result of the tax investigation related to the transaction order, the person who actually carried out the construction of this case was DoD, and the non-party corporation was confirmed that only lent the construction business license, and accordingly, the head of the Busan District Tax Office having jurisdiction over the non-party corporation Eul notified the defendant of the taxation data that the plaintiff received tax invoice different from the fact.

D. On January 3, 2011, the Defendant considered the issue tax invoice as a tax invoice different from the fact, and instead deducted the input tax amount pursuant to Articles 16(1)1 and 17(2)1-2 of the Value-Added Tax Act (amended by Act No. 8826, Dec. 31, 2007; hereinafter the same shall apply), and issued the Plaintiff a disposition imposing each value-added tax of KRW 000 (hereinafter the “instant disposition”).

E. On March 9, 2011, the Plaintiff appealed and filed a request for examination to the Commissioner of the National Tax Service on June 30, 201, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request on September 29, 2011.

[Based on Recognition] The non-contentious facts, Gap evidence (including household numbers, hereinafter the same shall apply) to 3, and Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고는 이 사건 공사와 관련하여 계약상대방인 소외 법인으로부터 법인등기부등본，법인인감증명， 사업자등록증， 건설업등록증， 공사원가계산서 및 내역서， 하자이행보증보험증권 등 제반 서류를 정상적으로 교부받았고， 거래대금도 소외 법인에게 은행을 통하여 정상적으로 지급하면서 이 사건 세금계산서를 교부받았다. 비록 원고의 사업과장 박EE이 경쟁입찰인 이 사건 공사를 소외 법인에게 편법으로 낙찰시키기 위하여 박ㅇㅇ 등과 공모한 사실이 있다고 하더라도， 윤DD이 실제로 공사를 수행하고， 소외 법인은 건설업면허만을 윤DD에게 대여한다는 사정에 대하여 알지 못하였다. 따라서 원고로서는 이 사건 세금계산서가 사실과 다르다는 점을 알지 못하였고， 이를 알지 못한데 과실이 없었으므로， 이 사건 세금계산서에 따른 매입세액 공제를 부인한 이 사건 처분은 위법하다.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) During the process of receiving the instant construction from the Plaintiff, the non-party corporation was indicted in collusion with the Plaintiff’s business head Park E and ParkF on the ground that it committed interference with the construction industry violation and the execution of duties by fraudulent means as follows, and the Busan District Court rendered a fine of KRW 000 on March 19, 2009 upon convictioning all the facts charged of Defendant Park E and ParkF as of March 2008.

2) ParkE and ParkF filed an appeal against the above judgment of the first instance court, and the Busan District Court, on June 25, 2009, found the Defendants guilty of only the crime of obstruction of performance of official duties by deceptive means against the Defendants on the same factual basis as the above judgment of the first instance court (hereinafter referred to as the “instant criminal judgment”). The Supreme Court, on October 15, 2009, rendered a dismissal decision of the appeal against the instant criminal judgment, became final and conclusive as it is by means of the dismissal decision of the Supreme Court on October 15, 2009.

3) On the other hand, around August 2010, the director of the Busan District Tax Office confirmed that "leD received H from the representative director of the non-party corporation through LG through LG, and paid 000 won in return for borrowing the construction business license from the non-party corporation, and that "hG received 000 won and 000 won in LH" (see subparagraph 3 and hereinafter referred to as "other investigation").

4) The Plaintiff received the tax invoice from the non-party corporation and paid the construction cost, and in particular, the Plaintiff’s representative KimK knew that the non-party corporation was performing the instant construction work in the police investigation process on the suspicion of violation of the Punishment of Tax Evaders Act against himself, around August 2008, he was detained due to the non-party corporation’s lending construction business license to the non-party corporation, and leapD’s failure to pay the construction cost to its employees. In this case, the Plaintiff’s employees Park E-E paid the construction cost to the non-party corporation and confirmed that the above deposited construction cost was directly paid to the subcontractor at the construction site (see evidence 7 and 7 pages). Since April 7, 2009, the Plaintiff directly paid the construction cost to tin II and Hong J (see the report on the examination of the witness as seen below).

[Based on Recognition] The non-contentious facts, Gap evidence 3, 7, and Eul evidence 2 to 4, and the whole purport of the testimony, and the whole argument

D. Determination

1) Article 16(1)1 of the Value-Added Tax Act provides that when an entrepreneur supplies a service, a tax invoice stating the business operator’s registration number and name or title shall be issued to the supplier, and Article 17(2)1-2 of the same Act provides that the input tax amount shall not be deducted from the output tax amount in cases where the necessary entry is not indicated in the tax invoice. In such a case, the actual supplier and the supplier under the tax invoice cannot deduct or refund the input tax amount unless there are special circumstances that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the nominal name of the invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). In order to establish that the Plaintiff was not the representative of the non-party corporation’s nominal name name, and that there was no negligence on the part of the Plaintiff’s business and the non-party corporation’s name name of the Plaintiff.

2) Whether Park E-E is recognized

In full view of the following circumstances recognized by the facts and the purport of the entire pleading, and ParkE appears to have known the fact that leD substantially borrowed the name of the non-party corporation in the process of selecting the non-party corporation as the successful bidder of the instant construction project.

① The criminal facts indicated in the instant criminal judgment are as follows: “E, ParkF, and Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

② In collusions with the above bids, MaD’s testimony to the effect that MaD was not determined as to who actually performed the construction in the back of the non-party corporation, and MaD was known that the non-party corporation performed the construction, and MaD was aware that the non-party corporation performed the construction. The testimony of MaD was against the common sense, while the site manager of the field of the field of the project, submitted to the plaintiff by the non-party corporation, was Korea (Evidence 5-6), and the site manager at the site of the construction site of this case was the FF who received a branch of MaD (see Grade 7 of the witness examination report of MaD), and it is difficult to view that MaD, who was in charge of the construction of this case from the plaintiff who was the ordering party, was not aware of the fact of the above name of MaD

3) Whether the Plaintiff’s representative was negligent

As above, it is difficult to see that ParkE knew of the fact of the name name transfer of the non-party corporation, and the following circumstances recognized by the aforementioned evidence, namely, (i) it is difficult to view that GaE was in charge of the major business that inputs a large amount of budget, such as the construction work in this case, and (ii) it is difficult to consider that the representative of the plaintiff Kim K was in charge of the duty of due care as a good manager in the appointment and supervision of the subordinate employee, and (iii) if the representative of the plaintiff Kim K was unable to report it in all processes, such as the progress of construction work and payment from the selection of the contractor, and (iv) it is difficult to consider that the non-party corporation was in charge of the duty of due care in the appointment and supervision of the subordinate employee. (ii) If the representative of the plaintiff Kim K knew of the fact that the non-party corporation was not the actual contractor around August 2008, the latter transaction portion was delivered tax invoice from the actual contractor (subcontract) and the former Enforcement Decree (amended by Presidential Decree No. 23595, Feb. 2, 201595).).

3. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is decided as per Disposition.