Seoul High Court 2008Nu14328 ( October 10, 2008)

National High Court Decision 2006Du2545 (No. 22, 2007)

The propriety of the disposition of this tax invoice different from the fact that the input tax amount received after registration of a disguised businessman

Where a business operator operates a real estate consulting business after registering his/her business and operates a real estate consulting business, etc., and receives a tax invoice under the name of an employee other than his/her own name, the disposition that deducts input tax amounts

The contents of the decision shall be the same as attached.

Article 17 (Payable Tax Amount)

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

In comparison with the records of this case and the judgment of the court below, the allegation in the grounds of appeal by appellant is not accepted in accordance with Article 4 of the Act on Special Cases Concerning the Procedure for Appeal.

Therefore, the appeal is dismissed in accordance with Article 5 of the Act. It is so decided as per Disposition by the assent of all participating Justices.

[Seoul High Court Decision 2008Nu14328 ( October 10, 2008)]

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's rejection of a claim for correction of value-added tax of 629,648,150 won against the plaintiff on January 13, 2006 shall be revoked.

1. Quotation of judgments of the first instance;

The reasoning for the court's explanation concerning this case is as follows: "The 5th of the first instance court's 5th to 6th of the 5th court's 6th of the 5th court's 6th of the 5th court's 6th of the 5th court's 6th of the 5th court's 6th of the 5th court's 6th of the 19th

"General Rule 22-0-1 of the Value-Added Tax Act, which the plaintiff claims as the basis for input tax deduction, is merely an administrative rule that issued the criteria for interpretation and enforcement of the tax law within the tax authority, and is not a law that has the effect of binding the court or the people. Thus, even if the basic rule of domestic affairs is interpreted as the plaintiff's assertion, it is against the interpretation of Article 16 (1) 2 and Article 17 (2) 1-2 of the Value-Added Tax Act, which is recognized as legal nature, so the plaintiff's assertion from the premise that the tax invoice of this case is not written differently from the fact is not a legitimate one."

2. Conclusion

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

[Attachmentcheon District Court 2007Guhap1303, 2008)]

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's disposition rejecting the plaintiff's request for correction of value-added tax of KRW 629,648,150, 2003 against the plaintiff on January 13, 2006 shall be revoked.

1. Details of the disposition;

A. On December 31, 2003, the Plaintiff purchased part of the ○○○○○○○○○○, Inc., Ltd., ○○○○○○, Inc., ○○○○○, and ○○○○○○○○○, Inc., and ○○○○○○○○○○, Co., Ltd., which was jointly owned by ○○○○○○○, under the name of ○○○○○○○, an employee, and issued a purchase tax invoice (hereinafter “purchase tax invoice”) to those who received the said employee after completing business registration under the name of the said employee as follows.

Title holder

Business Number

Total

Purchase Agency

Purchase

Value of Supply

( principal)○○○○○

(m)○○○

(m)○○

○ ○

135-16-0000

27

1,214,775,000

404,924,998

404,924,003

404,924,99

○ ○

123-35-0000

15

1,510,400,000

503,466,664

503,466,668

503,466,668

○○

135-16-0000

21

75,256,500

258,418,832

258,418,834

258,418,834

○ ○

135-16-0000

24

1,206,950,000

402,316,663

402,316,670

402,316,667

○ Kim

135-16-0000

3

405,345,000

135,115,00

135,115,00

135,115,00

Maap○

135-16-0000

3

405,345,000

135,115,00

135,115,00

135,115,00

○ Kim

135-16-0000

3

389,205,00

129,735,000

129,735,000

129,735,000

○ ○

130-06-0000

3

389,205,00

129,735,000

129,735,000

129,735,000

guidance.

9

6,296,481,500

2,098,827,157

2,098,826,175

2,098,827,168

B. On January 25, 2004, the Plaintiff’s employees filed a final tax return on the amount equivalent to the input tax amount with the head of ○○○ Tax Office for the final tax return on the second half of 2003, but the said employees failed to deduct the input tax amount on the grounds that the said employees were not the actual purchaser of the said commercial building. On November 29, 2005, the Plaintiff filed a claim for correction of the value-added tax amount of 629,6948,150 won with the purport that the Plaintiff, who is the actual business operator, should obtain the deduction of the input tax amount on the purchase tax invoice of this case. However, the Defendant rejected the Plaintiff’s claim for correction on the grounds that the purchase tax invoice of this case was written differently from the facts (hereinafter “the instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 11 (including paper numbers), Eul evidence 1 to 3 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The Defendant asserts that the instant tax invoice constitutes a tax invoice written differently from the facts and thus, it cannot be deducted from the input tax amount, and that the instant disposition rejecting the Plaintiff’s request for correction is lawful, since the Plaintiff purchased the instant commercial building in the name of its employees and received the tax invoice with the registration number of a disguised businessman, and received the tax invoice with the registration number of the disguised businessman, thereby filing a value-added tax return with the head of the tax office having jurisdiction over the location of the said commercial building.

(2) For this reason, the plaintiff should interpret that the registration number of the person receiving the supply under Article 16 (1) 2 of the Value-Added Tax Act is the case where the false registration number of the person receiving the supply is stated differently from the fact. Thus, in the case where the plaintiff borrowed a third party's name and registered the business and received the purchase tax invoice under the name of the third party and received the actual goods or services under the name of the third party, it shall not be deemed that the tax invoice is a false tax invoice. Even in accordance with the general rule of the Value-Added Tax Act 22-0-1 [Application of the Value-Added Tax Act to the master business operator], if the tax invoice is corrected and registered under the name of the third party and paid the value-added tax, the input tax invoice issued under the name of the third party is deducted from the output tax amount of the master business operator under Article 14 of the Framework Act on National Taxes. Thus, the plaintiff is legitimate to request the correction of the plaintiff's place of business having jurisdiction over the plaintiff's place of business.

B. Relevant statutes

It is as shown in the attached Form.

D. Determination

Article 17 (2) 1-2 of the Value-Added Tax Act provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of the tax invoice issued by an entrepreneur are different from the facts. Article 16 (1) 2 of the Enforcement Decree of the Value-Added Tax Act provides that "the registration number of the person to whom the tax invoice is supplied" shall be the one of the requisite entries of the tax invoice. However, Article 60 (2) 2 of the Enforcement Decree of the Value-Added Tax Act provides that an input tax amount may be deducted exceptionally in cases where the transaction is confirmed in view of other necessary entry items or discretionary entry items in the relevant tax invoice and the relevant tax invoice and the relevant transaction is made in view of the facts. The phrase "in this case," refers to cases where the necessary entry items in the tax invoice are inconsistent with those of the person to whom the goods or services are actually supplied or supplied, and such provision provides for a kind of transaction between the parties to the tax invoice and the parties to the tax invoice under the current Act, which adopts the tax credit system.

In light of the purport of the whole pleadings and arguments in this case, it can be acknowledged that the purchase tax invoice of this case was received under the name of the above employee after the completion of the business registration under the above employee's name and the receipt of the purchase tax invoice of this case. Since the purchase tax invoice of this case constitutes legitimate tax invoice of this case under Article 16 (1) 2 and Article 17 (2) 1-2 of the Value-Added Tax Act, since it is merely a tax invoice of this case under the premise that the plaintiff's entry of the same differently from the facts constitutes a tax invoice of this case under the premise that the plaintiff's use of the plaintiff's business registration name for the purpose of facilitating the loan and the plaintiff's use of 0,481,50 won without intentionally borrowing the 6,296,481,50 won under the name of the employee, and that the plaintiff's use of the tax invoice of this case is not a binding one of the plaintiff's basic tax invoice under the name of the above employee, it cannot be viewed that it is not a binding one of the plaintiff's basic tax law.

3. Conclusion

Therefore, the defendant's disposition of this case is legitimate, and the plaintiff's claim is groundless, and it is so decided as per Disposition.