Seoul High Court 2005Nu2637 (Law No. 31, 2007)

The burden of proof that it constitutes a processed tax invoice that does not trade goods is borne by the tax authority.

The burden of proof on the fact that the tax authority constitutes a tax invoice different from the fact is the principle that the tax authority bears the burden, and the mere fact that the nominal representative director has discontinued the business after a short-term transaction, or there was a defect in the transport documents, and that the transaction amount was remitted on the day, it is difficult to deem that the nominal

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

Article 17 of the Value-Added Tax Act

The part of the lower judgment against the Plaintiff regarding the imposition of value-added tax for the second period of 200, is reversed.

This part of the case is remanded to the Seoul High Court.

The remainder of the appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the part concerning the purchase approval

According to Article 11(1)1 of the Value-Added Tax Act, Article 24(2)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 30, 2002), the supply of exported goods shall be subject to the zero-rate tax rate, and if an entrepreneur supplies goods through a local letter of credit or a purchase confirmation as prescribed by the Ordinance of the Ministry of Finance and Economy, the zero-rate tax rate shall apply

Meanwhile, under the value-added tax system, the application of zero-rate tax rate is recognized only for exports to prevent double taxation, and it is recognized as exceptional and restrictive only for domestic consumption in compliance with the national policy purpose of encouraging foreign exchange within the scope of not impairing foreign exchange management and the order of collection of value-added tax (see, e.g., Supreme Court Decision 83Nu409, Dec. 27, 1983).

In light of the purport of applying the zero-rate tax rate and the relevant laws and regulations, where a supplier of goods sells goods by applying a zero-rate tax with knowledge that there is a defect in obtaining a false purchase certificate in collusion with the buyer or in issuing a purchase certificate, or where there is any special circumstance that impairs the order of collection of value-added tax, such as where he knows that he/she knowingly uses a purchase certificate with knowledge of the fact that he/she uses it, he/she shall not be subject to zero-rate tax (see, e.g., Supreme Court Decision 2003Du3642, Jun. 11, 2004)

The court below determined that the transaction with the above company is not zero tax, on the ground that the plaintiff's sales of each gold bullion to ○○ Metal Co., Ltd., ○○ Metal Co., Ltd., ○○ Trading Co., Ltd. (hereinafter referred to as "○○ Trade") and ○ Metal Co., Ltd. were known of the fact that the above company was aware of the fact that it would evade taxes by exporting gold bullion purchased from the plaintiff, not for exporting gold bullion purchased from the plaintiff, but for using a purchase approval with intent to evade taxes in Korea. In light of the above legal principles and the records, the court below's findings of fact and determination are just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the exception to the transaction and the application of zero tax under the purchase approval under the Value-Adde

2. As to the grounds of appeal on the portion relating to the processed tax invoice

Article 1(1)1 of the Value-Added Tax Act provides that the supply of goods shall be deemed to have been delivered or transferred by all contractual or legal grounds. In light of the fact that the value-added tax is multi-level transactions, it shall include all acts of transferring the authority to use or consume the goods, regardless of the actual profit gained (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001). In this case, the issue of whether the supply of the goods was based on the above ○○○○○○○ upon the supply of the goods should be determined by comprehensively taking into account all the circumstances, such as the purpose and background of the transaction of the transaction, the owner of profits, and the payment relationship between the owner of the goods and the owner of the gold bullion, etc., which are not subject to the supply of the goods under Article 6(1)2 of the Value-Added Tax Act.

Nevertheless, the court below determined that the tax invoice of this case was processed without actual transaction, and rejected the plaintiff's claim seeking revocation of the part related to the imposition of value-added tax for the second period of 2000. The court below erred in the misapprehension of legal principles as to the supply of goods and other tax invoices different from fact, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Conclusion

Therefore, among the judgment of the court below, the part against the plaintiff regarding the imposition of the value-added tax for the second period of 2000 shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining grounds of appeal shall be dismissed. It is so decided as per Disposition by the assent