Seocho 2015west 1318 (Law No. 18, 2015)

Since it is reasonable to deem that the entrepreneur is not an entrepreneur, a tax invoice issued therefrom constitutes a false tax invoice.

Since it is reasonable to deem that a business operator is not an actual operator, it is difficult to deem that a tax invoice issued therefrom falls under a false tax invoice, and it is difficult to deem that it was not negligent or negligent

Article 16 of the Value-Added Tax Act [Tax Invoice]

2015Guhap78946

Maritime Co., Ltd.

○ Head of tax office

oly 2016.16

2016.09.01

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On August 1, 2014, the part of the tax amount for which the Defendant sought revocation (including remaining penalty tax) among each taxation disposition in the attached Form which the Defendant made against the Plaintiff on August 1, 2014 is revoked.

1. Details of the disposition;

A. The Plaintiff is a juristic person established on October 0, 190 for the purpose of construction business (construction business of hardware, steel structure, painting, steel materials installation, roof board construction business).

B. From 2007 to 2012, the Plaintiff received 00 copies of the purchase tax invoice of KRW 000 (hereinafter referred to as “instant tax invoice”) by being provided with steel structure installation services from AA (business registration number: 00-00-000, business operator: ○○; hereinafter referred to as “New AA”).

C. The head of ○○○○○ conducted a tax investigation with respect to the Plaintiff, and deemed that the Plaintiff received the instant tax invoice with the knowledge that the nominal owner of the new AA and the actual business owner are different, and notified the Defendant, the disposition authority, of the tax data. On August 1, 2014, the Defendant issued a revised and notified each of the following: (a) the total amount of value-added tax (including additional tax for unfair underreporting) for the second and second years from 2007 to 2012 calculated by deducting the input tax amount of the instant tax invoice from the input tax amount for the second years from 2007 to 2012; and (b) the total amount of corporate tax for the business year from 2007 to 2012 due to lack of qualification evidence (including additional tax for underreporting) (hereinafter referred to as “the initial disposition”).

D. On October 24, 2014, the Plaintiff appealed against the initial disposition, and filed an objection with the head of ○○○○ Office. The head of ○○○ rendered a decision to revoke the disposition imposing value-added tax for a period between February and January 2007 and 2009 on the ground that the exclusion period has expired on December 12, 2014.

E. On February 16, 2015, the Plaintiff filed an appeal with the Tax Tribunal seeking revocation of the remaining part of the original disposition as described in the said paragraph. On August 18, 2015, the Tax Tribunal rendered a decision to rectify the tax amount by applying the general under-reported penalty tax and dismiss the remainder of the appeal.

F. Among the initial dispositions, the imposition of each value-added tax remaining after correction as described in the foregoing paragraph (d) (hereinafter "the imposition of the value-added tax of this case") and the portion of the penalty tax not received in the evidence of disbursement among the imposition of each corporate tax (hereinafter "the imposition of the corporate tax of this case") are as shown in the separate disposition.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since the new AA had been actually operated by ○○○, a business owner’s title holder, the instant tax invoice does not constitute a false tax invoice, and even if the instant tax invoice is false, it cannot be said that ○○ was unaware of the fact that ○○ was a business owner of the new AA, and was negligent in not knowing that ○○ was the actual business owner of the new AAA. Thus, the instant tax invoice is deemed to have been entitled to deduct the value of supply under the instant tax invoice from the input tax amount. Furthermore, the instant tax invoice does not constitute an evidentiary document different from the facts under Article 76(5) of the Corporate Tax Act.

2) Notwithstanding the fact that the taxable period of the second half-year value-added tax in 2009 was included in the investigation period from December 13, 2010 to January 16, 201, and was determined to have no problem as to the false tax invoice as a result of the investigation conducted from January 16, 201, it is unlawful that the second investigation conducted at the time of the tax investigation in 2014 violates the principle of prohibition of duplicate investigation. The imposition of the second half-year value-added tax in 2009 and the imposition of the corporate tax for 2009 business year is based on the illegal duplicate investigation

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Business registration, opening, closing, and taking over business;

A) On October 0, 200, Park○-○ was registered as the business operator on the business, the business of installing steel structures for the category, and the business operator on October 0, 200, and the business operator on October 0, 200 and traded with the Plaintiff, but the business was discontinued ex officio on October 0, 2007.

B) With respect to AA, the new AA was started on October 0, 2007 in the name of this ○○○, and was registered as the business of October 0, 2007 and the business of installing steel structure, and was closed on October 0, 2012.

C) On October 0, 2012, BB (hereinafter referred to as “BB”) was established and operated on the same day by 00, 2012, where 00 ○○○○○’s wife was the representative director, and registered as a business operator on October 0, 2012.

D) After the closure of Park○-○’s business after the closure of the former AA, the asset for business was transferred to the new AA in the name of ○○, and the asset for business was transferred to the BB after the closure of the new AA in the name of ○○.

2) He was investigated by the ○○○○ Office and stated as follows. He also submitted a written confirmation to the effect that he entered into a construction contract with the Plaintiff with respect to the business of a new AA under his own responsibility and issued sales tax invoices, and that his account management was also directly conducted.

As the plaintiff's partner could not participate externally in the corporation's name, ○○ was the head of the team in the plaintiff's name, and issued a certificate of employment as if the plaintiff's employee was the plaintiff's employee, but the plaintiff's employee was not a worker and has been engaged in the transaction with the plaintiff since 2006.

Since the business registration of one's own name was discontinued ex officio due to the default of ○○, the business has been registered in this name and continued to operate the business.

○ The principal proposed the same defect to ○○○, and first tried to begin with the concept of a partnership, but the actual project was operated under the name of this ○○ under the responsibility of the principal. The actual project operator of the new AA himself is the principal.

○○○ plays a role in managing and transporting tools necessary at the site at its own house, paid 20 million won per month to ○○○○, and let him use oil expenses, etc. due to vehicle transportation in a card. Since all important duties, such as contractual relations, funding, management of books, and issuance of tax invoices, have been done by himself/herself, this ○○○ cannot be deemed as the representative, and this ○○ can be deemed as having been done only by his/her name as the representative.

The plaintiff management department was found to the responsible person of the plaintiff management department that he could not operate his business in his own name on the wind that he is in default, presented the business registration certificate under this ○○ name, and until that time, the title holder of the corporation between the plaintiff and the former AA under the name of the principal and the plaintiff changed to the title holder of the corporation.

○ himself directly managed the seal impression in the name of ○○○○, and used it at the time of preparing a contract or tax invoice.

○ The issuance of sales tax invoices, claim and management of construction cost, and the cost management of on-site workers’ personnel expenses with respect to new AA was directly conducted by the principal.

As taxes are in arrears in the course of the operation of the new AA, the property of the ○○ was seized, was closed to prevent damage to the ○○○, and the business was acquired by establishing a corporation with the trade name of BB in the name of the spouse of the principal before the closure of the business.

The amount of the value-added tax and global income tax of ○○○ in relation to the New AA is paid every month from the corporate account and the account in the name of the principal of BB.

3) The ○○○○○○ made a statement following the investigation conducted by the ○○○○ Office.

○ himself was a daily worker for the construction of steel structure for about 15 years, and he was friendly from 2005 with pro-Japanese Park ○, but he did not receive labor costs, and in 2007, Park ○ was created with her full payment of punishment, if he borrowed his name of business registration.

The consideration for the lending of the name of business registration to ○○○ was not received separately. However, while keeping and transporting the tools used in the new AAA, the money was received in return, and the money was collected from the card received for the use of oil expenses.

○ Documents necessary for the registration of business was made by himself/herself to Park○, and the bank account was also opened to Park○.

○○ had a personal seal affixed to Park○○ by using the personal seal in his/her name.

There is no participation in the conclusion of the construction contract between the plaintiff and the new AA, and there is no other participation in the affairs of the new AA.

○ ○ ○ ○ had managed the revenue amount of the New AA, and ○ ○ ○ ○ ○ , the principal collected and used only 2-3 million won of living expenses.

The amount of delinquent taxes related to ○ New AA is paid by ○○.

4) The door-○, the vice president, and the vice president of the Plaintiff’s representative director, is the factory head of the “A” factory, was investigated by the ○○○ Office, and stated the following as follows.

In order to identify the original contractor, the name of the team leader of the plaintiff is produced as he/she works for the plaintiff, and the certificate of employment has also been issued.

○ Park○ is not an employee of the plaintiff but a president of a separate company.

In 2006, the transaction with ○○○ was first started at the first time in 2006, and the principal himself expressed that he would change the name of the business registration from 100 to 200.

○○○ does not know about it, and there is no doubt about it, and there is no intention to raise it at all.

Since ○○○ had changed the name of business registration from the time of providing construction services to ○○, there was no separate examination on the records of construction works or the execution capacity, etc.

○○ Construction Business Operator and Person in charge are Park○○, and all the construction contracts, requests for progress payment, financing management, and tax reports are known to be Park○○.

The conclusion of the construction contract was made in a way that the head of Gangwon ○○, upon internal settlement, affixs his corporate seal to the contract (Agreement).

5) The ○○○, the chief of the Plaintiff’s production management team, was investigated by the ○○○○ Office and stated as follows.

It has been 5 years since it was traded with ○○○.

The problem of ○○○ is that the business registration was made in the name of ○○, and the actual business is known to have been made by ○○.

○○○ submitted a business registration certificate with the name of the business operator to the principal while changing the name of the business operator, but whether it is a cause for ○○○ was not asked due to personal circumstances.

Since the vice president of ○○○ was reported to the vice president, the vice president of ○○ is also aware of the fact that ○○ has replaced the business registration name to ○○○○.

“○○○ does not know at all about, and does not know about, the fact that he visited the factory “A”, 6) other circumstances.

A) In the file stored on the Plaintiff’s computer that was confirmed at the time of the tax investigation, the new AA data was recorded in the name of ○○.

B) On March 2009, the Plaintiff’s phone number on the Plaintiff’s staff phone number is written only ○○ as the site director, and ○○ is not written.

C) On May 3, 2010, the Plaintiff’s “○ ○ Newly-built Construction Work” work log, written on May 3, 2010, includes “AAA Park ○○,” and the name of this○ ○ is not written.

D) The Plaintiff’s list of recipients attached to the official document dated January 26, 2011, which provided that gift shall be paid to the executives and employees of the New Year’s Day and the representatives of on-site collaborative companies, is written only by Park○, and the name of this ○ is not written.

E) On July 29, 2011, the current construction schedule and the installation plan meeting held at the Plaintiff A’s factory are indicated as the attendance of ○○.

F) On November 4, 2014, the Plaintiff issued a certificate of employment that he/she held office as the head of the Plaintiff’s field team for eight years from January 1, 2005 to November 4, 2013.

D. Determination

1) The meaning of whether the tax invoice of this case constitutes a tax invoice written differently from the fact is different from the fact. In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that if the title of income, profit, calculation, act or transaction subject to taxation is nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment and the person to whom it actually belongs shall be liable for tax payment, it refers to a case where the requisite entries of the tax invoice do not coincide with those of the person to whom the goods or service is actually supplied or the person to whom the goods or service is supplied, regardless of the formal entries of the transaction contract, etc. made between the parties to the transaction with respect to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Specifically, the specific transaction includes a case where the specific transaction is a nominal transaction without the delivery of goods or the supply of service, or where the supplier is a so-called "counter transaction" different from the name to whom it is issued (see, etc.

In light of the following circumstances, it is reasonable to view that ○○○○○○○○○○ is a business operator who has been engaged in the business of installing steel structure to the Plaintiff, and that ○○○○○○○○○○○ is a business operator who has been engaged in the business of lending the name from ○○○ upon ex officio cancellation of the business name due to tax in arrears. This can be inferred from considering that ○○○○○ established BB under the name of her spouse after closure of a new AAA and continues operating the business. ② Park○○’s statement on the fact that ○○○ is an actual business operator of ○○○○○○○○○, a business of ○○○○○○○, a business operator, who had been engaged in the business of ○○○○○○○, was not a business operator of ○○○○○, a business of ○○○○, a business operator who had been engaged in the business of ○○○, a business of ○○○, and a business of ○○○○.

Therefore, we cannot accept this part of the plaintiff's assertion.

2) Whether the Plaintiff is bona fide or without fault

In a case where an entrepreneur and a supplier on a tax invoice have received another tax invoice, in principle, the input tax amount cannot be deducted or refundable. However, if there are special circumstances, such as where the entrepreneur was unaware of the nominal name and was unaware of the nominal name, and there was no negligence, the input tax amount may be deducted or refundable from the output tax amount (see Supreme Court Decision 2013Du6527, Jul. 25, 2013): Provided, That the burden of proving that the recipient was not negligent in not knowing the nominal name as above shall be proved (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

Therefore, we cannot accept this part of the plaintiff's assertion.

3) Whether the prohibition of double investigation violates the principle

A) Article 81-4(2) of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same “former Framework Act on National Taxes”) provides that a tax official may not re-examine the same item of tax and the same taxable period, unless there exist any grounds prescribed in each subparagraph. In violation of such provision, a tax investigation conducted in duplicate for the same item of tax and the same taxable period is unlawful, and a tax disposition based on an illegal tax investigation is also illegal (see, e.g., Supreme Court Decision 2004Du12070, Jun. 2, 2006).

B) Comprehensively taking account of the overall purport of arguments in Gap evidence Nos. 43 and 44, Gap evidence Nos. 45-1 and Eul evidence No. 20, the head of 000 head of the tax office shall conduct an integrated investigation of corporate tax suppliers (from January 1, 2007 to December 31, 2007) for the period of investigation from December 13, 2010 to January 6, 201 (from January 1, 2007 to December 31, 2007; hereinafter referred to as "first tax investigation") on the ground that the investigation was conducted from 205 business years to 207, corporate tax for 207, corporate tax for 2008, corporate tax for 2008, corporate tax for 2009, corporate tax for 209, and corporate tax for 204, the head of the tax office shall notify the plaintiff of the fact that the tax investigation was conducted for 201 years to 201.6.

According to the above facts, the first tax investigation is a tax investigation for the business year of 2007, and it appears that the corporate tax was corrected for the consolidated items of the business year of 2005 to 2009, which is the result of the related business year, and there is no evidence to deem that the tax investigation was conducted for the value-added tax for the second year of 2009 or the corporate tax for the business year of 2009.

Therefore, it is difficult to view that the second tax investigation falls under the re-investigation (re-investigation) stipulated in Article 81-4 (2) of the former Framework Act on National Taxes, and thus, the plaintiff's assertion on this part

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.