Cho High Court Decision 2008Da3220 ( November 28, 2008)

Whether a processed tax invoice related to the transactions of scrap metal has been received;

거래처의 매출세금계산서가 원고 사업장에 보관된 점, 금융거래가 뺑뺑이 거래가 있었다고 볼 여지가 있는 점 등으로 보아 실물 거래없는 가공거래가 있었다고 보임

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 257,138,890 on July 3, 2008 against the Plaintiff on the second half-year value-added tax, KRW 439,192,140 on the first half-year value-added tax in 2008, and KRW 82,863,40 on the first half-year corporate tax in 2007 is revoked.

1. Details of the disposition;

A. The Plaintiff is a corporation that runs the business of collecting and selling scrap metal from 1320 to 31 December 2008 from 1320 to 1320 to 131, 2008.

B. In filing a return on the second period value-added tax in 2007, the first period value-added tax in 2008, and the first year corporate tax in 2007, the Plaintiff, a representative director of the Plaintiff, deducted the input tax amount equivalent to KRW 1,691,370,000 from the output tax amount, and included the purchase value in deductible expenses, after deducting the input tax amount on the supply value of KRW 1,691,370,00 from the output tax amount. The Plaintiff included the purchase value in deductible expenses after deducting the input tax amount equivalent to KRW 3,10,583,00 from the output tax amount for the supply value of KRW 3,10,583,00 received from the GG trade in Park A and Park

C. The director of Busan Regional Tax Office (hereinafter “instant tax investigation”) conducted a tracking survey on the distribution process of waste resources to Plaintiff, HF, and GG trade (hereinafter “instant tax investigation”), and determined that only KRW 29,622,748,00 out of the tax invoices of KRW 1,691,370,000 that HF delivered to the Plaintiff by HF was an actual transaction, and that the tax invoice was issued by the processing transaction for KRW 1,661,748,000, which is the difference. The amount of KRW 3,100,583,000, excluding KRW 220,380,200,000, out of the tax invoices of KRW 3,100,000 that the GG trade received to the Plaintiff, and notified the Defendant thereof.

D. Accordingly, on July 3, 2008, the defendant considered the amount recognized as a result of the processing transaction with the plaintiff as a false purchase tax amount and deducted the purchase price from the deductible expenses, and issued a notice of correction and notification of the amount of value-added tax 439,192,140 won for the first year of 2008, and corporate tax 82,863,400 for the first year of 2007 (hereinafter "each disposition of this case").

E. On September 4, 2008, the Plaintiff dissatisfied with each of the instant dispositions and filed an appeal against each of the instant dispositions with the Tax Tribunal on September 4, 2008, but the Tax Tribunal dismissed the Plaintiff’s appeal on November 28, 2008.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 1, 3, and 4-1, 2, Eul evidence 1-1, 2, Eul evidence 2, 3, Eul evidence 4-1, 2, 4-2, and Eul evidence 4-5, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The Plaintiff purchased scrap metal equivalent to KRW 1,691,370,00 from HF from August 2007 to December 2007, and received a tax invoice therefor, and completed the payment of scrap metal by remitting the total amount of KRW 1,909,95,295 to the KimB account several times from August 21, 2007 to January 11, 2008. Since the Plaintiff purchased scrap metal equivalent to KRW 3,530,197,870 from GG trade from January 208 to issued a tax invoice therefor, the Plaintiff was not subject to the disposition of imposition of KRW 3,530,57,870 from February 18, 2008 to April 30, 208, and thus, the Plaintiff and the Defendant were not subject to the disposition of imposition of KRW 3,57,586,586, etc. of the instant gold metal from each of the instant transactions to the Plaintiff and the Defendant were not subject to the disposition of imposition of imposition.

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) The tax investigation process, results, etc. of the instant case

A) KimB reported and paid KRW 48,293,430 as the value-added tax for the first quarter of 2007 to the Defendant. Accordingly, the Defendant notified KRW 24,146,710, which is 50% of the above amount, as the value-added tax amount for the second quarter of 2007. After that, KimB declared KRW 2,962,427,635, as the sales tax invoice subsidy amount at the time of the return of the value-added tax for the second quarter of 2007, KimB failed to submit specific evidentiary materials. Ultimately, it was impossible to pay KRW 271,739,625, which exceeded the above value-added tax amount.

B) On April 208, when KimB failed to pay the above value-added tax, a public official belonging to the Busan Regional Tax Office visited the HF office located in Kimhae-si, Kimhae-si in order to conduct a fact-finding investigation; the container stuff used as the office was left unattended, and the HF did not appear to have been operated by the HF. After fact-finding investigation, it was impossible to find out that the HF was in operation. After fact-finding investigation, the amount of 90% of the HF’s scrap metal transaction was revealed as a result of the Plaintiff’s inspection of the value-added tax return of HF by HF and the Plaintiff’s HF’s representative director’s 90% of the HF’s scrap metal transaction was concentrated on the Plaintiff’s “Fna” and the Plaintiff’s HF’s transaction. Hence, the instant tax investigation began with a question as to whether the Plaintiff and HFF transaction were real transaction.

C) On April 30, 2008, among the instant tax investigation Dos, a public official belonging to the Busan Regional Tax Office visited the Plaintiff’s office on the site, and found and temporarily deposited the Plaintiff’s office and the sales and purchase account books in 2007 and 2008. During the deposit process, the Plaintiff’s representative director Park Jong-A prepared and issued a confirmation document confirming that the said office and purchase account books were prepared by the Plaintiff’s accounting staff.

D) In comparison with the Plaintiff’s return on value-added tax and the list of the total tax invoices by seller kept in custody, the following were confirmed.

① According to the above business labor-management, sales and purchase account books, the Plaintiff’s high-priced purchase amount of KRW 1,55,708,00 for the period between 207 and HB ( August 1, 2007 - December 31, 2007) was 1,691,370,000, the Plaintiff’s amount entered in the tax invoice as HF’s high-end sales amount of KRW 205,00,00 for the above HF’s high-end sales amount of KRW 1,691,370,00,00 for the above HF’s high-end sales amount of KRW 205,00,000 for real transactions between the Plaintiff and HF, 200,000 for 32,585,000,000 won for the above HF’s supply amount of KRW 20,000,000 for the above HF trading.

② The input tax amount of the scrap metal returned by the Plaintiff during the taxable period of the value-added tax on January 1, 2008 ( January 1, 2008 - March 31, 2008) is KRW 3,17,478,00, among which the purchase tax amount of the scrap metal returned by the Plaintiff is KRW 3,100,58,000, or the purchase tax amount of the scrap metal purchased from the Plaintiff for the actual transaction from the GG trade is merely KRW 220,380,00 in total on the basis of the supply value of the scrap metal purchase amount of KRW 3,100,583,00,000, excluding the remainder of KRW 220,380,000 from the said high scrap metal purchase tax amount of KRW 3,100,583,000,

③ As a result of the investigation into GG trade, the letters in 25 copies of the sales tax invoice issued by the GG trade are similar to the letters in the business labor and purchase account books kept by the Plaintiff. Although it is reasonable to keep the ordinary sales tax invoice in order to report value-added tax, the sales tax invoice of the GG trade was kept in the Plaintiff’s workplace, and the above sales tax invoice was found to have been issued by the Plaintiff’s female employees, not ParkD. While ParkD did not have issued the Plaintiff’s tax invoice in the process of the investigation in this case, it was found that the first final return was not due, but did not reverse the tax invoice in the middle, but did not memory accurate sales. Furthermore, according to the contents of the above business set and each sales and purchase account book, it was confirmed that the purchase price of the GG trade from January 1, 2008 to March 31, 2008 was KRW 2,167,020,000, and the Plaintiff’s trading partner amount, reply amount, and amount overlaps with the Plaintiff’s trading amount as KRW 10.30D.

E) The director of Busan Regional Tax Office, on the ground that the Plaintiff issued a tax invoice through the processing transaction, accused the Plaintiff and the representative director of the Plaintiff for violating the Punishment of Tax Evaders Act. However, the Prosecutor’s Office accepted the changes of the Plaintiff and the HafF, GG trade, based on the details of remittance between the Plaintiff and HHF, and the GG trade, that the transaction constitutes a real transaction between the Plaintiff and HF, and the GG trade, and took measures for free suspicion against them.

2) The details of transactions and transfers between the Plaintiff and HF and GG trade

A) According to the Plaintiff’s list of total tax invoices by seller at the end of February 2007 and January 2008, the amount reported by the Plaintiff as the input tax amount of the scrap metal purchased from HF during the trading period (two years in 2007) from August 1, 2007 to December 31, 2007 is KRW 1,691,370,995, and from January 1, 2008 to March 31, 2008 (one year in 2008), the amount reported by the Plaintiff as the input tax amount of the scrap metal purchased from HF from HF at the end of 69,345,00 won, and the amount actually to be paid to the HF with the value of supply 1,936,787,594,597,9796,979,9796,975,97,975,97,97,975,97,975,97,97,97,97,297,20

Meanwhile, from July 20, 2007 to August 9, 2007, ParkB, the Plaintiff’s representative director, transferred a total of KRW 355,000,000 to the bank account of KimB’s small and medium enterprises. From July 20, 2007 to October 25, 2007, KimB withdrawn KRW 1,836,020,370 from the money received from the Plaintiff and ParkB in cash, and the Plaintiff and ParkB remitted KRW 1,85,102,650 to the KK bank account under the Plaintiff’s name from August 21, 2007 to April 30, 2008.

B) According to the contents of the Plaintiff’s business sets, sales and purchase account books, the Plaintiff’s return of value-added tax on January 1, 2008 and the list of total tax invoices by seller, each of which was kept in custody in the course of the instant tax investigation, the transaction between the Plaintiff and GG trade was conducted from January 1, 2008 to June 30, 2008. The supply price of scrap metal in GG trade was 3,100,583,070 won from January 1, 2008 to March 31, 2008, and the supply price of scrap metal in the transaction period from 305 to June 30, 208 (the supply price of scrap metal in GG trade was 40,500,308,307,379,370,781,370,379,757,781,740,757,757,7800, and 500.

[Ground of recognition] Each of the evidence mentioned above, evidence Nos. 5-1, 2, and 6-1, 2, 3, evidence Nos. 7, evidence Nos. 8-1, 2, 3, evidence Nos. 9-1 through 7, evidence No. 10, evidence Nos. 6, evidence Nos. 7, 9, 10-1, 2, and evidence Nos. 12, and the purport of the whole pleadings

D. Determination

1) In a lawsuit seeking revocation on the grounds of illegality of taxation, the tax authority bears the burden of proving the legality of disposition and the existence of the taxation requirement. Therefore, in principle, the tax authority bears the burden of proving the legality of disposition and the existence of the taxation requirement. However, in a case where a tax invoice on a part of the expenses reported by a taxpayer has been falsely prepared without a real transaction, it is considerably proven by the tax authority to the extent that it is reasonable for the tax authority to dispute whether it is an actual cost, and the taxpayer’s assertion and the other party to the payment have proved to the extent that it is false, it is necessary to prove that it is easy for the taxpayer to produce data, such as books and evidence, regarding the fact that such expenses have been actually paid (see, e.g., Supreme Court Decision 20

2) In full view of the above facts and the following circumstances revealed therefrom, it is reasonable to deem that a tax invoice for the remainder of the scrap metal transaction between the Plaintiff and HF and the GG trade, excluding the amount that the Defendant had actually traded, was prepared and issued without a real transaction, and that the transaction corresponding to the above amount was processed. The witness KimB’s testimony contrary thereto is not trust, and the Plaintiff was subject to a disposition of non-guilty suspicion by the prosecution against the suspected violation of the Punishment of Tax Evaders Act due to the issuance of a false tax invoice does not interfere with the above recognition.

① 이 사건 세무조사과정에서 영치하게 된 업무노트 및 매출ㆍ매입장부는 원고의 경리직원 이지혜가 원고의 거래 내역에 대하여 기록하여 놓은 문서로서 부산지방국세청 소속 공무원이 위 문서를 영치할 당시 원고 대표이사 박AA은 위 문서의 진정성을 확인하는 취지의 확인서를 작성하였고, 위 문서의 기재 내용과 원고의 부가가치세 신고 내용을 비교�분석한 결과 원고와 HHFF 및 GG무역간 가공거래사실을 확인할 수 있었다.

② HF and the other party to the scrap metal transaction are mainly concentrated on the Plaintiff. Of the supply price of KRW 2,212,218,58, and 582 in the value-added tax for the second quarter of 2007, the ratio of the input tax amount in the HF to the supply price of KRW 76% (1,691,370,95 won/2,212,218,582,100, less than a decimal point; hereinafter the same shall apply), and the ratio of the input tax amount in the GG trade between the Plaintiff and the Plaintiff is difficult to view that there was about 96% (3,100,583,070 won, 3,070 won, 212, 2478, 607 won, which is the input tax amount, in the value-added tax for the first quarter of 208. In light of the fact that the Plaintiff and the Plaintiff were ordinarily engaged in the GG trade between the Plaintiff and the Plaintiff.

③ 원고 및 박AA은 김BB와 박DD에게 실제 거래한 고철대금에 비하여 더 많은 금액을 송금하여 주었고, 김BB와 박DD은 원고 및 박AA으로부터 송금받은 대금을 즉시 현금으로 인출하였으며, 김BB와 박DD이 현금을 인출한지 얼마 되지 않아 원고 및 박AA이 원고 명의의 KK은행 계좌로 다액의 현금을 입금한 점에 비추어 보면, 비록 김BB와 박DD이 인출한 현금이 원고 및 박AA에게로 흘러 들어갔는지 여부를 확인할 정황은 없지만, 짧은 기간 동안 다액의 현금이 원고 및 박AA에서 김BB와 박DD에게로 이동하였다가 다시 원고 및 박AA이 관리하는 원고 명의의 은행계좌로 되돌아온 점을 볼 때, 원고와 HHFF, GG무역 사이에 이른바 '뺑뺑이 거래'가 있었다고 볼 여지가 충분히 있어 보인다.

④ In light of the fact that the sales tax invoice of GG trade was kept in the Plaintiff’s workplace, and that the said tax invoice was confirmed to have been issued by the Plaintiff’s employee, a large number of the parties in the transaction with the Plaintiff’s scrap metal buyers overlap with the Plaintiff’s trading with the Plaintiff’s scrap metal buyers, and Park Jong-D is unable to properly associate with the sales revenue of the GG trade, it seems possible to conclude that Park Jong-A is merely a nominal manager of the GG trade, and that in substance, it would be possible to see whether Park Jong-A, the Plaintiff’s representative director, is not a company that separately produces for the purpose of deducting the input

3) Accordingly, the Plaintiff and HF’s imposition of KRW 1,661,748,00, which constitutes a processing transaction between the Plaintiff and HF, and KRW 2,880,203,00, which constitutes a processing transaction between the Plaintiff and the GG trade, are legitimate in the amount of input tax, and the imposition of each of the instant dispositions, which were non-deductiblely excluded from deductible expenses.

3. Conclusion

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