early 208west2698 (20 August 20, 2010)

Whether a tax invoice different from the fact related to the gold bullion transaction has been received

In collusion with the purchaser, etc., the fact that the purchaser was engaged in the production of financial data of the same quantity as the purchase without actually purchasing gold bullion, or there is no evidence to acknowledge the fact that the purchaser of this case is merely a party to the transaction in form.

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

1. The Defendant’s imposition of value-added tax for the second term of April 10, 2008 against the Plaintiff on the second term of 2002, and the imposition of value-added tax for the first term of 2003, 734, 973, 973, 500 won, value-added tax for the second term of 2003, value-added tax for the second term of 2003, 370, 821, 690 won for the first term of 204, and the imposition of value-added tax for the first term of 2004, and the refusal of refund of KRW 575,000 for the first term of 205, and for the first term of 116,190,270 for the first term of 205, and for the first term of 575,037,000 won for the second term of 208.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a company that was established on October 1, 2002 and engaged in the export and import business, wholesale business, etc. of gold bullion (referring to gold in the state of raw materials, such as gold sheet, metal dules, and dubs, the net level of which is at least 995/1,000). The Plaintiff closed its business on December 30, 2005.

나. 피고는 ① 원고가 2002. 10. 1.부터 2003. 6. 30.까지 사이에 금지금 도매상인 주식회사 △△아, 주식회사 □□닷컴, 주식회사 ●●상사, 주식회사 ☆☆챔, 주식회사 ◆◆금은(이하 통칭하여 '이 사건 1차 매출처'라고 한다)에게 구매확인서(이하 '이 사건 구매확인서'라고 한다)에 의하여 영세율로 매출한 금지금(이하 '이 사건 1차 매출 금지금'이라고 한다) 74,108,641,000원의 거래와 2005. 5. 1.부터 2005. 6. 30.까지 사이에 주식회사 AA금은(이하 이 사건 1차 매출처와 통칭하여 '이 사건 매출처'라고 한다)에게 내국신용장(이하 이 사건 구매확인서와 통칭하여 '이 사건 구매확인서 등'이라고 한다)에 의하여 영세율로 매출한 금지금(이하 이 사건 1차 매출 금지금과 통칭하여 '이 사건 매출 금지금'이라고 한다) 5,754,569,000원의 거래를 '허위로 작성된 구매확인서와 내국신용장에 의한 거래'로 보아 부가가치세법상의 영세율(이하 '영세율'이라고 한다)의 적용을 부인하고,② 원고가 2003. 8. 1.부터 2004. 6. 30.까지 금지금 도매상인 BB즈 주식회사, 주식회사 AA금은(이하 통칭하여 '이 사건 매입처'라고 한다)으로부터 금지금(이하 '이 사건 매입 금지금'이라고 한다)을 매입하고 교부받은 합계 37,281,448,000원의 세금계산서(이하 '이 사건 세금계산서'라고 한다)를 '사실과 다른 세금계산서'로 보아 매입세액을 불공제하여 원고에게 청구취지 기재와 같은 처분을 하였다(이하 '이 사건 처분'이라고 한다).

[Reasons for Recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 evidence (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff imported gold bullion during the second period of 202, the first period of 2003, and the first period of 2005, while importing gold bullion, and engaged in zero-rate sales through the pertinent purchase confirmation, etc. issued lawfully by the head of the foreign exchange bank. On the second period of 2003 and the first period of 2004, the Plaintiff engaged in normal transactions, such as purchasing and exporting gold bullion in the Republic of Korea. Nevertheless, the Defendant’s sales of this case is unlawful in the disposition of this case by deeming that the purchase confirmation, which was falsely made within the short period of time, and the tax invoice issued in connection with the trade of the gold bullion as a trade of this case, were written differently from the fact under the mutual agreement with the Plaintiff.

(2) The defendant's assertion

(A) The plaintiff's assertion concerning import transaction

The Plaintiff offered gold bullion as zero tax rate with the knowledge of the fact that gold bullion supplied by the Plaintiff is not used as a raw material for export and is converted to taxable goods by a bombing business in Korea, and is used for the evasion of value-added tax, after inviting the Plaintiff to evade the value-added tax with the instant sales office, etc., and then the Plaintiff supplied gold bullion as zero tax rate. Accordingly, the transaction with the Plaintiff and the instant sales office is not subject to zero tax rate.

(B) The plaintiff's assertion concerning export transaction

① The Plaintiff, in collusion with the instant purchasing agency, etc., prepared financial data, such as the purchase price paid through the Internet banking, etc., with the same appearance as the purchase price, without actually purchasing gold bullion. As such, the instant tax invoice constitutes a false tax invoice.

② The instant purchase headquarters is merely a transaction party in the form of establishing a nominal trading relationship as an intermediary for a bomb business, and thus did not actually acquire the ownership of gold bullion. Therefore, the instant tax invoice issued by the instant purchase headquarters, which is merely a transaction party that cannot be seen as a supplier capable of supplying gold bullion to the Plaintiff, constitutes a different tax invoice between the actual supplier and the supplier under the tax invoice.

③ Even if a transaction party of a heavy coal business sells gold bullion as a taxable transaction, it is merely the value of supply in fact that there is no intention to collect value-added tax from the other party and to pay it to the State. Nevertheless, the transaction party of a heavy coal business shall enter a portion of the supply value in a false form as value, in order to enable the other party to the transaction to deduct the input tax amount. Since the Plaintiff offered a public offering for the tax evasion with the limited coal business in the location of the supplier of the gold bullion, and entered the value-added tax separately from the supply value in a false way, the instant

④ The Plaintiff conspiredd to evade value-added tax with a bombing company, and traded with the instant purchasing entity. Therefore, since the Plaintiff’s transaction with the instant purchasing entity is a serious criminal act that acquired the national treasury by abusing the zero tax rate system and undermines the foundation of the value-added tax system, it is not allowed to deduct the input tax amount due to the instant tax invoice in accordance with the good faith principle.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) From around 2002 to 2004, by abusing the zero-rate tax exemption system among precious metal companies located in Jongno-gu Seoul Metropolitan Government, gold bullion was imported and distributed through various stages of zero-rate tax or tax exemption was converted into the so-called so-called "large-scale carbon company" and then, again, the imported company exported gold bullion to distribute it as taxation through multiple limited wholesalers. While importing gold bullion, the importing company is entitled to the value-added tax paid upon the import of gold bullion, and the large-scale carbon company did not pay the value-added tax, and the exporting company is limited to the so-called "large carbon business" in the form of refund of the value-added tax that is not paid by the large-scale coal company.

(2) Plaintiff’s import transaction

원고는 금지금 수입업체로서 2002. 10. 1.부터 2003. 6. 30.까지 사이에는 홍콩의 ♧♧과 ♤♤던으로부터, 2005. 5. 1.부터 2005. 6. 30.까지 사이에는 ♧♧과 ▼▼리로부터 이 사건 매출 금지금을 수입하여 이 사건 매출처에게 영세율로 매도하고 수입 당시 납부하였던 부가가치세를 환급받거나 환급신청을 하였는데, 이 사건 매출 금지금은 원고에 의하여 수입된 날에 6-7단계의 거래를 거쳐 대부분 당일 또는 그 익일에 수출업체에 의하여 다시 수출되었다.

원고는 주식회사 ★★티 등에 수입대행을 의뢰하였고, 수입한 금지금을 운송업체인 ▽▽즈를 통하여 이 사건 매출처로 운송하도록 하였다.

(3) The plaintiff's export transaction

원고는 2003. 8. 1.부터 2004. 6. 30.까지 사이에 금지금 수출업체로서 이 사건 매입처로부터 이 사건 매입 금지금을 과세로 매입하여 대부분 당일 또는 그 익일에 주식회사 ★★티의 중개로 ♧♧에게 수출하고 매입세액을 환급 또는 공제받았는데, 이 사건 매입 금지금은 수입업자에 의하여 수입된 날에 6-7단계의 거래를 거쳐 대부분 당일 또는 그 익일에 원고에 의하여 수출되었다.

원고는 이 사건 매입처로부터 매입한 이 사건 매입 금지금을 운송회사인 ▽▽즈를 통하여 홍콩에 있는 ♧♧으로 수출하였다.

(4) With respect to the transaction of the instant gold bullion imported by the Plaintiff, all of the transaction stages from the Plaintiff to the exporter was completed in the reverse order, and with respect to the transaction of the gold bullion exported by the Plaintiff, all of the transaction stages from the importer to the Plaintiff were completed in the reverse order.

(5) Most of the sales gold bullion of this case and the purchase gold bullion of this case, which the Plaintiff imported, were exported by the Plaintiff, are related to the heavy carbon business in which most of them were sold at the supply price lower than their purchase price after converting them into taxable goods (However, the amount added to the value-added tax amount, i.e., the price for supply is higher than the purchase price), and do not fulfill the liability to pay

(6) The tax authorities filed a charge of violating the Punishment of Tax Evaders Act with the head of Suwon District Prosecutors' Office 2008 type No. 23609 against the purport that the Plaintiff and the Plaintiff's representative director, as the importing and exporting companies, were involved in the bombing business and committed the act of violating the Punishment of Tax Evaders Act. However, on September 24, 2008, the Plaintiff and the former was subject to a disposition of lack of evidence.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, Eul evidence Nos. 2 through 7 (including each number), the purport of the whole pleadings

D. Determination

(1) The Plaintiff’s import transaction-related part

The issue of whether an importer actually exported goods supplied to his/her business partner cannot affect the application of zero tax rate at the import transaction stage, and even if a purchase confirmation under the name of the head of a foreign exchange bank presented by his/her business partner was issued based on a false export contract, it cannot be deemed as invalid as a matter of course, barring special circumstances, such as where an importer, who is a supplier of goods, knows that there was a defect in the issuance of a purchase certificate, he/she cannot immediately exclude the supply of goods based on such purchase confirmation from the subject of zero-rate tax rate application on the sole ground of the defect in the above issuance process. In such cases, the special circumstances, such as the existence of taxation requirements and the legality of the tax imposition disposition, must be proved by the tax authority, which bears the burden of proof (see, e.g., Supreme Court Decision 2007Du15490, Jun. 12, 2008). Such legal doctrine also applies to a local letter of credit held in the name of the head of a foreign exchange bank.

In full view of the evidence submitted by the Defendant, including evidence Nos. 2 through 12, it is difficult to find the fact that the Plaintiff was aware of the defect in the process of issuing the purchase certificates, etc., and there is no other evidence to find it otherwise. Therefore, the instant disposition denying the application of zero-rate tax rate by deeming the transaction of gold bullion between the Plaintiff and the instant seller as the “purchase certificate prepared fraudulently” and the “transaction by local letter of credit” is unlawful.

(2) The part concerning the Plaintiff’s export transaction

(A) As to the assertion (i) through (iii) that it is another tax invoice.

Article 1 (1) 1 of the Value-Added Tax Act provides that "the supply of goods as taxable object of the value-added tax" and Article 6 (1) provides that "the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the fact that value-added tax has characteristics as multi-stage transaction tax, the intention or transfer of goods under Article 6 (1) of the Value-Added Tax Act includes all acts of causing the transfer of authority to use and consume goods, regardless of the actual profits gained, and in this case, the issue of whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act shall be determined individually and specifically by taking into account all the circumstances such as the purpose and circumstance of the transaction, the form and manner of the transaction, the person to whom profits accrue, and the payment relationship of consideration, etc. of the specific transaction constitutes "the burden of proof" under Article 17 (2) 1-2 of the Value-Added Tax Act 208 (see, e.g., Supreme Court Decision 2008Du178.

As seen earlier, in the case of the instant gold bullion, the actual circulation of the gold bullion from the importer to the Plaintiff, and the Plaintiff received the tax invoice of this case after receiving the gold bullion from the purchaser of this case and paying the price. Furthermore, insofar as it is acknowledged that the gold bullion was exported, the mere fact that all a series of transactions between the purchase gold bullion and the import and export of the gold bullion are conducted within a short period of time, and there is a separate company at the mid-term stage of trade, it is difficult to conclude that the purchase gold bullion transaction of this case is not the supply of goods subject to value-added tax, solely because the purchase gold bullion transaction of this case is received only by issuing the tax invoice, or the purchase gold bullion transaction of this case takes place only for the appearance of delivery of the gold bullion and the payment of the gold bullion to the actual transaction, in collusion with the purchaser of this case, and there is no evidence to support the fact that the purchaser of this case was merely a transaction party in the form of the purchase price.

In addition, even if considering the evidence submitted by the Defendant, including evidence Nos. 2 through 12, it is difficult to recognize that the Plaintiff entered the value-added tax separately from the false value of supply and value-added tax after the Plaintiff conspired to evade the value-added tax with the bomban enterprises, and there is no other evidence to recognize it

In addition, there is no other evidence to regard the tax invoice of this case as falling under a different tax invoice from the fact.

(B) As to the assertion that the principle of good faith is violated (No.4)

In order to apply the principle of trust and good faith to taxpayers, there is a person without tax payment who is objectively contradictory, the behavior was caused by the taxpayer’s severe acts of worship, and the trust of the tax authority resulting therefrom must be protected (see Supreme Court Decision 2006Du14865, Apr. 23, 2009). In full view of the evidence submitted by the Defendant, including evidence Nos. 2 and 12, it is difficult to recognize the fact that the Plaintiff conspired to evade value-added tax with the bomban companies, or there is no other evidence to acknowledge that there is an objectively contradictory behavior between the Plaintiff and the bomban companies, and there is no other evidence to acknowledge it. Therefore, the Defendant’s assertion is without merit without any further need.

(C) Sub-decisions

Therefore, the instant disposition, which did not deduct input tax by deeming the instant tax invoice as “unlawful tax invoice”, was unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.