Whether the transaction constitutes a false tax invoice concerning gold bullion

The key issue is merely a disguised transaction for the evasion of value-added tax, but the tax invoice constitutes a false tax invoice, but there is no real transaction, so no additional tax may be imposed on lack of evidence under the Corporate Tax Act

Tax amount paid under Article 17 of the Value-Added Tax Act

1. The defendant's imposition of corporate tax of 287,140,730 won against the plaintiff on October 4, 2005 and corporate tax of 500,883,300 won against the plaintiff on October 4, 2005 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 7/8 of the costs of lawsuit shall be borne by the Plaintiff, and 1/8 by the Defendant, respectively.

Cheong-gu Office

The judgment of the court below and the defendant on October 4, 2005 each revoked the imposition of value-added tax of KRW 1,783,219,050 for 203 against the plaintiff, value-added tax of KRW 1,965,621,440 for 204, value-added tax of KRW 229,180,950 for 204, and the disposition of refusing to refund of KRW 1,148,718,550 for 204 for 204.

1. Details of disposition;

A. The Plaintiff is a corporation established for the purpose of gold, wholesale and retail, and precious metal export and import business on October 28, 2003.

B. The Plaintiff received a tax invoice on the purchase of gold bullion amounting to KRW 45,59,408,807 (hereinafter “each purchase tax invoice of this case”) from 000,000 to 16,00,000 from November 06, 2003 to 10, as indicated in the separate sheet of domestic purchase, sales related transaction, and export related transaction details, and filed an application for each value-added tax with the Defendant for the second half of 2003, 204 and the second half of 204, by deducting the corresponding input tax amount from the output tax amount.

C. As a result of conducting a tax investigation against the Plaintiff, the director of ○○ Regional Tax Office notified the Defendant of the fact that each of the purchase tax invoices of this case and the tax invoices issued by the Plaintiff to each gold bullion seller in attached Form 3, and the transaction details related to domestic purchase and sales.

D. The Defendant, upon the notification of the director of ○○○ Regional Tax Office, excluded the input tax deduction for each purchase tax invoice of this case and applied the additional tax under Article 22 of the Value-Added Tax Act to the Plaintiff on October 04, 2005, added the additional tax for receiving evidence of 2003 to the Plaintiff on October 04, 2005, imposed the value-added tax of 1,783,219,050 for 203, value-added tax of 1,965,621,40 for 204, value-added tax of 229,180,950 for 204, and rejected the application for refund of value-added tax of 229,148,718,50 for 204 as the additional tax for receiving evidence of 203, 287, 140, 730, 204, 208, 308, and 308.

E. As above, the Defendant denied the deduction of the sales tax when revising the VAT tax base and tax amount, and denied the tax amount corresponding to the sales tax amount by deeming the tax invoice for the sales portion as also a false tax invoice among the attached Form’s “the transaction details related to domestic purchase and sales.” (Therefore, the main issue between the parties is each purchase tax invoice listed in the attached Form’s “the transaction details related to export.”

[Reasons for Recognition] 1-5, 4-15, 5-20, 6-16, 17-14, 18-41, 1-3, 2-1, 2-3, 3-2 of the evidence Nos. 35-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff, while actually purchasing gold bullion normally from the purchaser, received each of the instant purchase tax invoices, exported them thereafter, or sold them to the domestic seller. In addition, even if the Plaintiff did not conspired with the importer, the domestic company, and the domestic exporter in order to unlawfully refund value-added tax, and even if the Plaintiff involved in the distribution process of domestic gold bullion, it was not known that the Plaintiff was not aware of such a bomb, nor was at all known about whether gold bullion was distributed for any route until the Plaintiff reached the immediately preceding purchaser. Accordingly, each of the instant purchase tax invoices was false, or on the premise that the Plaintiff knew or could have known of such fact, the disposition of imposition and refusal of refund of each of the instant value-added tax in question was unlawful.

2) As seen above, since the Plaintiff’s purchase of gold bullion is normal transaction, each of the instant purchase tax invoices is false tax invoices, each of the instant dispositions imposing additional tax on the Plaintiff, on the premise that it is a false tax invoice, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) A general form of variable transaction for the purpose of tax evasion in the transaction of gold bullion;

(A) The case holding that the value-added tax was levied on the gold bullion imported by wholesalers and manufacturers of gold bullions, etc. upon receipt of a tax-free gold bullion import recommendation from the importer of the tax-free gold bullion and the gold bullion business operator, etc. from July 01, 2003 to June 30, 2005 by abusing the system under which the value-added tax is exempted [Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005)] for the sales of gold bullions, which is at least 95/1,00 of the Value-Added Tax Act (Article 11(1)1 of the Value-Added Tax Act), and the sales of gold bullions, etc. or the sales of gold bullions, as if they were through various stages of wholesale after importing the gold bullions for the purpose of unfairly being refunded, or the sales of the gold bullions were made through a disguised sales process among the precious metal business operator ○○○.

(B) The appearance of gold bullion is distributed through the stages of 'foreign companies', 'import companies', 'the first (s) companies', 'the second (s) companies', 'the second (e.g., heavy carbon companies', 'the floor wholesale companies', 'the export companies', 'the foreign companies', and the transaction price is paid in succession in the reverse direction from the export companies to the import companies. However, among the above distribution companies, it is limited to the issuance of tax invoices from the large coal companies to the floor wholesale companies, and there are many cases where gold bullion is not actually traded or transported.

(C) After purchasing gold bullion, which was distributed under tax exemption at the previous stage, and selling it to the Do government company as an additional tax amount equivalent to 10% of the value-added tax, the amount equivalent to the value-added tax shall be successively transferred to the State by each stage enterprise by withdrawing its profit in cash and closing its business within the short period. The amount equivalent to the value-added tax shall be successively transferred by each stage enterprise through the tax invoice issued by the immediately preceding stage enterprise to deduct its input tax amount. Ultimately, the exporter exports gold bullion as zero tax rate and then is entitled to refund from the State by the method of deducting its input tax amount. The ultimate source of profit from the value-added tax refund amount is the portion equivalent to the value-added tax amount paid by the Gun government. The above profit is distributed to the domestic company involved in the Gun coal business in the form of Mara, which is distributed in the form of Mara, or the amount calculated by the specified ratio of the profit (the remainder after deducting the purchase price from the sales price) of the company. In addition, the export price of the foreign company is lower than the export price (the domestic export price).

(d)Pistan business shall distribute to the greatest extent possible amount of gold bullion in a short term in order to maximize its profits, and to prevent disputes between participating enterprises that may arise therefrom, or accidents, such as loss of prices, ① the same pecuniary owner (referring to any person who prepares for the import and settlement of gold bullion from the outside of the carbon business network) shall operate both the exporting enterprise and the importing enterprise at the same time; ② the former owner shall place an enterprise substantially controlled or trusted by it in direct transactions with the bomban enterprise; ③ the former owner shall determine the volume, unit price, and margin of the transactions at each stage of transactions; ④ the series of transactions between the importing enterprise and the exporting enterprise at a very short time, ④ the latter is carried out in most cases at a very short time, and ⑤ the actual gold bullion is transported immediately with the exporting enterprise (limited to transportation at each stage of transactions, even if it is a formal transaction).

2) In the case of each purchase tax invoice of the instant case

(A) From July 2001, the two chief director of the Plaintiff’s board of directors operated the ○○ Unemployment as a manufacturing business entity of clothing and subsidiary materials. On October 29, 2003, the Plaintiff established the Plaintiff. However, until March 6, 2001 until March 6, 2001, there is no experience related to the present transaction other than the current processing business operator’s work experience.

(B) The gold bullion on each tax invoice received by the Plaintiff in the instant case (hereinafter “gold bullion”) is all converted into a taxable gold from a foreign country to a foreign country and distributed as a tax-free gold. They were exported through the Plaintiff through six-7 stages from the importing company or traded through the Plaintiff at the middle stage of such import and export, and a variety of stages of transactions from the import to the export was conducted within 2,3 days from the date of the import of the relevant gold bullion, or from the import to the export.

(다) 원고는 이 사건 금지금을 수출하는 경우, 호주의 ○○○ BANK에 수출한 일부는 주식회사 ○○○상사에 의뢰하여 22K나 18K의 반지, 목걸이 등으로 가공하여 수출하였고, 2004. 3. 17. 이후의 수출분은 금지금 상태 그대로 모두 홍콩에 있는 ★★, ☆☆, ◇◇ 또는 ◎◎로 수출하였다. 그런데 ○○지방국세청의 조사결과 위 ★★, ☆☆, ◇◇는 모두 '△△△'이 실제로 운영하고 있는 회사로서 사실상 동일업체이고, 위 업체들은 수출입 관련 서류 및 거래대금 등에 관한 관련 장부도 제시하지 목하고 사업장이 불분명한 등 정상적인 사업체가 아닌 것으로 확인되었으며, 원고가 수출한

Some gold bullions have been imported from the above exporter(24.05.05.05.06.06.09.16).

(D) Many of the parties involved in the transaction based on each of the purchase tax invoices of this case are RN with persons closely related to the Plaintiff’s ○○○○○ Company, one of the Plaintiff’s trading companies, and the cross-transaction where the customer overlaps or the customer and the purchaser are pending frequently without justifiable grounds.

① The Plaintiff’s shareholder consists of both ○○○○ (30%) (30%) and ○○ (30%) and ○○ (20%) and ○○ (20%). The Defendant’s wife Kim○ (20%) around December 2003, the Plaintiff’s shareholder was a shareholder of the company ○○○ (○○) around December 2003, and the Defendant’s ○○ and Park○ (199) worked for the company ○○ (198 or 199).

② The above inside ○○○ is the △△△△△△, a taxation trader, who takes charge of the ○○△△△△△, a corporation that takes charge of the role of the △△△△△△, and the husband of the ○○○○, who takes charge of the transaction of the gold bullion in the instant gold bullion, is the largest shareholder of the △△△△△, who takes charge of the △△△△△△, and the Plaintiff’s employee, the △△△△△△, a shareholder of the ○△△△△△△△,

③ 위 안△△은 주식회사 ○○○상사 대표이사 이△△의 처남이고, 양○○은 이△△의 자인 이★★과 고교 동창이며, 위 안○○과 안□□은 이△△의 처제이다.

④ One of the Plaintiff’s transaction partners, △△ Metal Co., Ltd.’s △○○○ is the mother of this △△△, a company’s employee, and Kim○○ is the shareholder who owns 8,160 shares in ○○○○○○○.

⑤ The ○○○○ Company, one of the customers of the Plaintiff, is the shareholder of the ○○ Company, and the branch office of the ○○ Bank related to the loan of the ○○ Company.

【○○○○, one of the purchase places of the Plaintiff, is a representative director of the ○○○○○ Company, and the principal director of the ○○○○ Company, is an interest relationship of the △△△△

(E) The △△○○○, the △△○○, the △△△△△, the △△△, and the △△△△, all of the wholesalers (so-called a business entity) that converted the gold bullion of this case into the taxable gold in the course of its distribution, whose purchase price is lower than the purchase price (However, the value-added tax plus the value-added tax is higher than the purchase price, i.e., the value-added tax plus the value-added tax), did not perform the liability to pay the value-added tax by arbitrarily suspending or closing the gold bullion, and all of

(F) The price exported by the Plaintiff was always set lower than the import price of the domestic importer.

(G) Some of the gold bullion in the instant case were imported from several different companies prior to that time, and re-exported transactions were repeated without going through any processing. The parties to the instant gold bullion including the Plaintiff did not receive at all a divisional certificate under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export, which is necessary for the exporter to obtain refund of 3% customs duties while exporting gold bullion, and did not enter at all the serial numbers of the traded gold bullion at all.

(아) 한편, 이 사건 각 금지금 거래에 있어서 운송장 등의 기재에 의하면 금지금이 수입되어 수입신고 후 반출되기도 전에 관련 업체들이 이미 운송한 것으로 기재되어 있거나 아예 운송시간이 기재되어 있지 않은 경우도 있다. 또한 원고는 홍콩소재 수출업자로부터 미리 수출대금을 입금받은 후 이 사건 거래업체에게 송금하는 것을 시작으로 전 단계의 도매업체를 순차로 거슬러 올라가 수입업체에 이르게 되는데, 대금의 송금에 걸리는 시간은 각 단계별로 몇 분 정도밖에 소요되지 앟을 정도로 일사불란하게 결제가 이루어졌으며, 대금의 결제가 금지금의 운송보다도 먼저 이루어진 경우도 있었다.

(c) Price, etc. of gold bullion;

In the case of gold bullion, a large-scale wholesaler, etc. provides a daily gold bullion market price via the Internet or telephone, taking into account the international market price and exchange rate. However, the Plaintiff, regardless of the above market price, at all times, at a price lower than the domestic market price and international market price. If the Plaintiff or each of the instant traders did not export the gold bullion and distributed it in the Republic of Korea, the Plaintiff or each of the instant traders could have much more advantage than exporting the gold bullion.

Evidence A-1-20, 6-16, evidence 1-14, 18-41, evidence 17-4, evidence 5-14, evidence 5-14, evidence 1-14, 18-41, evidence 5-14, 6-14, 8-1, 28-3, 29-32, evidence 33, 33-1, 33, 35-1, 37-1-6, 38-18, 42-4, evidence 46-1-4, 47, 48, 49, 50-41, 251, 45, and 525-1, 525, respectively.

D. Determination

(i) a disposition imposing and rejecting refund of value-added tax;

As seen earlier, the Plaintiff’s representative director ○○○ has no special experience or knowledge in the import and export business of gold bullion except for those who were temporarily engaged in the gold bullion business. The transaction of the gold bullion seems to have been formally transferred through various stages of companies, but it is a transaction in which gold bullion is transferred only through the structure of the evasion of the value-added tax and the refund of the value-added tax by the exporters; the so-called so-called “large carbon business” is widely known to the gold bullion wholesale business; thus, both ○○, a director of the Plaintiff’s large ○○ was well aware of the fact that the Plaintiff’s trade form was a part of the business. The gold bullion transaction seems to have been distributed from the import to the ○○○○○ company only through six-7 stages of business, and it seems to have been difficult for the Plaintiff to obtain the import price of gold bullion only through electronic financing, and it seems to have been impossible for the Plaintiff to obtain the import price of gold bullion in light of the fact that it is difficult for the Plaintiff to obtain the import price of gold bullion more than before and after the sale.

In addition, even if the business entity involved in the transaction until the plaintiff finally exports gold bullions, it is reasonable to view that the business entity merely transfers the price received from the plaintiff to the purchaser, receives the tax invoice, and then acquires in the form of the difference between the sales price and the purchase price, a certain portion of the value-added tax amount to be evaded in return for such interventions, and that the gold bullion is delivered between them and the plaintiff, and that the transaction constitutes an external appearance, such as the payment of the price, etc., is conducted,

Therefore, each purchase tax invoice of this case constitutes a processing transaction that receives only tax invoices without actual transaction of gold bullion, and constitutes the requirements for imposing additional tax under Article 22(4) and (5) of the Value-Added Tax Act, and the deduction of input tax pursuant to each purchase tax invoice of this case should be denied. Therefore, each of the disposition imposing and rejecting refund of this case is legitimate.

2) Disposition of imposing corporate tax

법인세법 제76조 제5항이 재화나 용역을 공급받은 법인으로 하여금 정규지출증빙서류를 수취하지 않은 경우 가산세를 부담하도록 하는 것은 법인의 경비지출내용의 투명성을 제고함과 아울러 거래상다방 사업자의 과세표준 양성화를 유도하기 위한 것으로서, 과세표준 양성화 대상이 되는 거래상대방 사업자에게 성실신고의무를 부과하는것만으로는 이러한 입법목적 달성에 어려움이 있으므로, 재화나 용역을 공급받는 법인에게 정규지출증빙서류를 수취하도록 하고 그 의무위반에 대하여 그 수취하지 앟은 금액의 일정비율에 상당한 금액을 추가하여 납부하도록 제재하는 것이다(헌법재판소 2005. 11. 24.자 2004헌가7 결정, 2007. 5. 31.자 2006헌바88 결정 참조). 따라서 위 규정에 의한 가산세는 실제의 거래가 있음에도 그 지출증빙서류를 수취하지 않은 경우에 적용되어야 하고, 이 사건 각 매입세금계산서와 같이 실제 거래가 없음에도 거래가 있는 것으로 위장하고 증빙서류를 수수한 행외에 대하여는 적용할 수 없으므로, 이 사건 각 법인세 부과처분은 위법하다.

3. Conclusion

Therefore, the part of the plaintiff's claim of this case seeking the revocation of each corporate tax imposition disposition is justified, and the remaining claims are dismissed, and it is so decided as per Disposition.

Relevant statutes

Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006)

Article 17 (1) The amount of value-added tax payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount obtained by deducting the tax amount under each of the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be the refundable tax amount (hereinafter referred to as the “Refund tax amount”):

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The input tax amount under the following subparagraphs shall not be deducted from the output tax amount:

1. An input tax amount in case where the list of the total tax invoice by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or entered differently from the fact, in case where the whole or part of the registration numbers or supply values by transaction parties in the submitted list of the total tax invoice by customer is not entered or entered differently from the fact, except in such case as prescribed by

(4) Where an entrepreneur falls under subparagraphs 1 and 2, an amount equivalent to 1/100 of the value of supply not submitted or entered or entered differently from the fact shall be added to the amount of tax payable, or an amount equivalent to 5/1,000 of the value of supply where falling under subparagraph 3, to the amount of tax payable, or deducted from the amount of tax refundable: Provided, That this shall not apply to the value of supply for the portion, the transaction of which is confirmed under the conditions as prescribed by the Presidential Decree, in cases where the entered items in the list in the list in the list of buyer by buyer are entered erroneously (excluding the case of submission under Article 20 (2)).

1. Where the list of the total tax invoice by buyer is not submitted under Article 20 (1) and (2);

2. Where the whole or part of the registration number or supply value by transaction partner, from among the matters entered in the list of the total tax invoice by buyer submitted under Article 20 (1) and (2), is not entered or entered differently from

3. Where the list of the total tax invoice by buyer is submitted under Article 20 (2), not falling under subparagraph 2;

(5) Where an entrepreneur falls under any of the following subparagraphs, an amount equivalent to 1/100 of the supply value corresponding to the input tax amount deducted under the tax invoice by the list of the total tax invoices by customer, or the supply value returned excessively entered differently from the fact in the list of the list of the total tax invoices by customer, shall be added to the tax amount payable or deducted from the refundable tax amount: Provided, That this shall not apply to the supply value of the portion, the transaction of which is confirmed under the conditions as prescribed by the Presidential Decree, in case where the entered items in the list of the total tax invoices by customer by customer are erroneously entered:

Corporate Tax Act

An additional tax shall be collected as corporate tax an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount, except in cases where the provisions of the proviso of Article 116 (2) are applied where a corporation (excluding a corporation prescribed by the Presidential Decree) is supplied goods or services from a business operator prescribed by the Presidential Decree in connection with a business and fails to receive evidential documents under any subparagraph of Article 116 (2). In this case, even if there is no calculated tax amount, the additional tax shall be collected.

Article 116 (Receipt and Keeping Documentary Evidence of Expenditures) A corporation shall prepare or receive documentary evidence of all transactions related to the business in each business year and keep it for 5 years from the date on which the time limit for report under the provisions of Article 60 expires.

(2) In cases of paragraph (1), where any corporation receives goods or services from a business operator prescribed by Presidential Decree and pays the price therefor, it shall receive and keep the evidential documents falling under any one of the following subparagraphs: Provided, That the same shall not apply to cases prescribed by Presidential Decree:

1. Credit card sales slip under the Specialized Credit Financial Business Act (in cases of transactions using things similar to a credit card, as prescribed by Presidential Decree, it shall include the documentary evidence thereof; hereafter the same shall apply in Article 117);

1-2. Cash receipt;

2. Tax invoice under Article 16 of the Value-Added Tax Act;

3. Invoice under the provisions of Article 121 of this Act and Article 163 of the Income Tax Act.