Cho High Court Decision 2010Du1295 (Law No. 119,07)

It is difficult to deem that an actual supply exists in accordance with the matters listed in the issues tax invoice.

In full view of the fact that it is difficult to deem that the Plaintiff acquired the ownership or the right to dispose of goods as an independent party and transferred them to a third party, it is merely a formal form of tax invoices, supply contracts, financial transaction details, etc., and the key transaction appears to be a bicycle for unretailing sales, it is difficult to deem that there exists an actual supply act corresponding to the matters stated in the key tax invoice.

Article 17 of the Value-Added Tax Act and Article 22 of the Value-Added Tax Act

Article 6 of the Value-Added Tax Act

2011Revocation of disposition imposing value-added tax, etc.

AAAAtech Co., Ltd.

Director of the District Office

August 24, 2012

September 28, 2012

1. Of the instant lawsuit, the part of the Plaintiff’s representative’s claim as to the collection notice of the corporate income tax for the year 2006 and the earned income tax for the year 2008 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 are assessed against the Plaintiff, and the remainder are assessed against the Defendant.

The Defendant

(a) the imposition and imposition of value-added tax of 206 and 000 won for the second half of 2006 as of January 4, 2010, and 000 won for the second half of 2007; and

B. On September 201, 201, the notice of collection of each corporate income tax for the year 2006, and for the year 2008 on the wage and salary income tax for the year 2008 of the Plaintiff’s Representative, which was issued on September 201, was revoked (the Plaintiff sought the revocation of each of the above employment income tax imposition disposition by the warden, but the taxation disposition against the Plaintiff appears not to be a taxation disposition on wage and salary income but to be a corporate income collection disposition on the wage and salary income tax of H, and thus, it is deemed to be a corporate income collection disposition on the wage and salary income tax of H (see evidence 1-3 and

1. Details of the disposition;

A. On April 2009, the director of the Seoul Regional Tax Office issued 6 copies of the purchase tax invoice of 00 won (hereinafter referred to as "purchase tax invoice") (hereinafter referred to as "sale tax invoice") by pretending that the plaintiff purchased cable receiver and PED controler from CCC during the second taxable period of 2006, and issued 6 copies of the purchase tax invoice of 00 won (hereinafter referred to as "purchase tax invoice") (hereinafter referred to as "sale tax invoice") by pretending that the above cable receiver and CED controler were supplied with the above goods, and then issued 6 copies of the sale tax invoice of 00 won (hereinafter referred to as "sale invoice") (hereinafter referred to as "the above cable receiver and 200 sales invoice of CEC") and 30 DD (hereinafter referred to as "Purchase invoice of 200) purchase invoice of 300 won and 100 DDD (hereinafter referred to as "Purchase") purchase price of 200 won and 100 DD (hereinafter referred to as "D10").

B. The former head of the Guro Tax Office confirmed the result of the investigation in accordance with the above taxation data notification, and ① the issues, ② the sales omission of KRW 00 in the first half of the year 2006, and the Plaintiff confirmed the excess input tax deduction of KRW 000 in the total amount of KRW 200 in the second half of the year 2008, and confirmed the amount of input tax deduction of KRW 000 in the second half of January 15, 2010, the amount of KRW 000 in the year 2006 and KRW 000 in the total amount of KRW 00 in the calculation income of KRW 200 in the representative of the Plaintiff H as a bonus to the Plaintiff H, and the notice of the change in income amount (hereinafter “the notice of the change in income amount”).

C. On January 4, 2010, the Defendant issued each disposition imposing value-added tax (hereinafter “instant disposition 1”) on the Plaintiff on January 4, 2010, by cancelling both the output tax amount and the input tax amount under subparagraph 1, (2), and imposing the penalty tax on the sales account statement and the negligent filing of the purchase account statement (hereinafter “instant disposition”) related to the transaction.

D. On April 2, 2010, the Plaintiff filed an appeal with the Tax Tribunal regarding the instant Disposition No. 1 and the notice of change in the amount of income, but the Tax Tribunal dismissed the Plaintiff’s claim on September 7, 201.

E. On September 201, the Defendant issued a notice of collection of each corporate income tax for 2006, H’s representative, and 000 won of the earned income tax for 2008 (hereinafter “instant collection disposition”). After accepting the Plaintiff’s assertion that the former head of Guro Tax Office did not escape from the sales omission or the input tax deduction for 2008, on July 18, 2012, the Defendant issued a new notice of change in the income amount under the instant notice of change in the income amount, and accordingly, on July 27, 2012, the Defendant revoked the Plaintiff’s tax collection disposition for 2006 corporate tax for 2006 and the corporate tax for 2008 corporate tax for 2000.

[Based on Recognition] The facts without dispute, Gap (including household numbers, hereinafter the same shall apply), Eul evidence 2, Eul evidence 1, 10, and 11, and the purport of the whole pleadings

2. Whether the part of the claim regarding the collection and disposition of this case is legitimate

The instant collection disposition not only did not go through the pre-trial procedure as seen earlier (only if it is deemed that the Plaintiff asserted the notice of change in the income amount in this case, and the same applies to the case where the lawsuit is unlawful due to the failure of the Defendant, not the subject of the above disposition), and as long as the original tax correction resolution was adopted on July 27, 2012 by the Defendant, the claim against the instant collection disposition during the instant lawsuit does not have any interest in the protection of rights. Accordingly, the claim for this part is unlawful.

3. Whether the first disposition in this case is lawful

A. The plaintiff's assertion

The Plaintiff was actually supplied from the CCC and DDDS in connection with the transaction, and the issue was ①, ② the sales tax invoice was issued, ② the sales tax invoice was issued, and ③ the fact of the actual transaction was verified by the satch transaction evidence, and the disposition No. 1 of this case was unlawful, even though each of the above transactions was processed.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Key issues ① The objective data relating to trading are examined as follows.

A) According to the supply contract entered into on October 17, 2006 between the Plaintiff and CCC (Evidence A No. 21) and the Plaintiff, and the Plaintiff stated that the Plaintiff is supplied with PEC consortium 20,610, and CATV 1,640, in total, to 00 won (the supply price excluded from surtax is 000 won).

B) The date and details of each delivery according to the issue purchase tax invoice and the supply are as listed in the following table 1:

C) The details on which the Plaintiff paid the purchase price to CCC are as listed below 2.

D) According to the supply contract between the Plaintiff and the BB system on July 27, 2006 (Evidence A 20), it is written that the Plaintiff supplies the BB system to 3 times from November 17, 2006 to December 22, 2006, 2000 won in total for proceeds of supply, and 3 times from November 17, 2006 to December 22, 2006.

E) The details of supply by date of delivery pursuant to the sales tax invoice 1 are as listed below 3.

F) From the BB system, the Plaintiff’s receipts and disbursements relating to the transaction are as listed below 4.

2) Issues (2) The objective data relating to trade are as follows:

A) From the CCC on November 12, 2007, the Plaintiff issued the 2-1 purchase tax invoice, the issues indicated as follows: (i) No. 1,000, the supply price of which was 000 won; (ii) from the DD future, the issues indicated as No. North 1,663, the supply price of which was 00 won; (iii) and (iv) the 2-2 purchase tax invoice were issued (total supply price of KRW 000), and (iv) on November 16, 2007 and December 26, 2007, the issues of Nowon North 2,663, and the total supply price of KRW 00,000 in the BB system.

B) Issues (2) The Plaintiff did not pay the transaction amount to the CCCCC and DDDB, and the Plaintiff did not receive the payment from the BB system. On the other hand,CC and DDDma sent by the Plaintiff to the effect that “If the Plaintiff did not receive the payment from the BB system with respect to the above transaction, it is confirmed that the Plaintiff would not claim the payment from the BB system” (see Evidence A, 36, and 37).

3) Issues (1) and (2) the statements of the Parties relating to trade are as follows:

o Hah’s answer (No. 3-2) dated March 19, 2009

Through both inside directors and Section II, "CCC" was introduced by the Labor Relations Commission to introduce the CCCJ president, and from the Labor Relations Commission, "CCC was scheduled to supply large-scale IT equipment to Russia, and export BB system to Rusia. If the Plaintiff wishes to participate in such equipment distribution business, the Plaintiff company accepted the request upon the request of the president of the BB system that "if you want to participate in the BCC and BB system, you will be responsible for the intermediate route between CCC and BB system."

o The Hah Had's answer on December 2, 2009 (No. 2-2)

On the following day, the Plaintiff confirmed the actual goods using the transactional goods as a vehicle quantity at one time from the CCC, and sent the transactional goods to the Incheon Airport designated by the APB system. ② Considering that there is no problem with the transactional goods, the transactional goods were supplied to the BB system immediately without going through the Plaintiff from the CCC and DDDmi. The tax invoice was divided into several occasions at the request of the transaction partner, and the amount was transferred from the BB system to the CCC immediately upon receipt of the transaction partner’s request, and the key issue was ② The transaction portion was not paid to the BCC and the Plaintiff did not receive the payment from the BB system.

OCC representative director, LaborJ (Evidence No. 9)

Around December 2006, 2006, the president of the BB system made the above transactions upon the proposal that CCC would ensure approximately 2 per cent of the involvement in the distribution and justice between K and K, and the principal could not be involved in the calculation of the unit price for the purchase and sale. (1) At issue: (a) after receipt of transaction goods and verification in form; and (b) immediately after verification; (c) issuance of the purchase tax invoice from K; and (d) issuance of the sales tax invoice to the Plaintiff; and (e) CCC participated in the interim distribution and justice.

4) The defendant is aware of the structure that BB system makes such false transactions as above as follows.

가) 쟁점 ① 거래의 물품은 주식회사 리버아이비 ☞ KK ☞ CCCCCCC ☞ 원고 ☞ BB시스템 ☞ 홍콩의 OOO TECHNOLOGY로 수출된 후 BB시스템 의 가공매입처인 주식회사 파워사이트에게 대금 지급 없이 그대로 재수입된다. 위 거래구조에서 물품대금을 수령한 주식회사 리버아이비는 당초 물건을 보유하고 있던 BB시스템과 관계인들에게 물품대금을 다시 되돌려준다. 결국 위와 같은 자전거래로 인하여 BB시스템의 외형 매출이 증가하는 결과를 가져온다(을 제4 내지 6호증 참조).

나) 쟁점 ② 거래의 물품은 주식회사 에드온시스템 ☞ KK ☞ 엔에스에이치 ㆍ DDDD미래 ☞ 원고 ☞ BB시스템 ☞ PPPP ☞ 주식회사 QQQQ ☞ 홍콩수출 ☞ 국외 회전거래 ☞ BB시스템 재수입을 통한 자전거래로 BB시스템의 외형적 매출을 부풀린다(을 제4호증， 을 제7호증의 1 참조).

5) The Seoul Southern District Prosecutors' Office (hereinafter referred to as the "Seoul Southern District Prosecutors' Office") was charged on May 30, 2012 in the accusation case against the violation of the Punishment of Tax Evaders Act by the plaintiff and the representative director Lee O in relation to the transaction.

[Based on Recognition] The non-contentious facts, Gap 2, 20, 33, 36, 37, 51, and Eul 2 through 7, 9, and 12, and the purport of the whole pleadings

D. Determination

1) Article 17(2)1-2 of the Value-Added Tax Act (amended by Act No. 8142, Dec. 30, 2006; hereinafter the same) provides that an input tax amount shall not be deducted from the output tax amount where the necessary entry of a tax invoice is different from the fact, and Article 22(2)1 provides that an entrepreneur who actually supplies or supplies goods should be imposed an amount equivalent to 1% of the value of supply when all or part of the necessary entry in the tax invoice is different from the fact, as an additional tax. The meaning of the aforementioned difference is that the requisite entry in the tax invoice is different from the fact that the taxpayer actually supplies or is not in conformity with the original entry in the transaction contract, etc. prepared between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). In addition, a person who actually supplies or supplies goods should be deemed to be a person who actually supplies or supplies goods under the premise that he/she actually supplies or supplies goods.

2) The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority. Therefore, the defendant must prove that the tax invoice is not accompanied by real transactions on the basis of direct evidence or all the circumstances with regard to it, and considering that the tax invoice is not false and it is in a position that it is easy for the plaintiff who is the taxpayer to present evidence and materials related to the defendant's disposition, the defendant must prove that the tax invoice is not accompanied by real transactions, and that it is not easy for the defendant to reasonably recognize it (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

3) Examining the instant tax invoice back to the instant case, taking into account the following circumstances recognized in light of the aforementioned facts and the overall purport of the pleadings, and the actual supply of goods that conform to the items entered in the purchase and sale tax invoice (the Plaintiff supplied goods from the CCC and supplied them to the BB system) is difficult to see that there exists ① trade and the Plaintiff supplied goods to the CCC and DDD Corporation, and it is difficult to see that there was a trade, and the above tax invoice can be confirmed false, and the testimony of the NAJ as well as the testimony of evidence A to evidence 20 through 37, 50, and 51 is insufficient to reverse the above recognition and there is no counter-proof otherwise.

A) Key issues: ①, ② there is a nominal contract corresponding to the transaction, and in particular, in the case of issues and transactions, and the situation in which the Plaintiff and CCC and the Plaintiff and CCC have made a successive settlement of purchase and actual delivery between the Plaintiff and BB system. However, the key issues are ① (2) the status in which the purchase price and the unit price have already been determined between the BB system and CCC, which is the purchaser, and the Plaintiff did not participate in the determination of the above transaction terms; and (2) the dispute verified that the CCC and DDDI do not exist any goods payment claim against the Plaintiff; and (1) the issue is that the Plaintiff, regardless of the respective supply contract with CCC and BB system, has remitted the money transferred from the BB system to CCC on the same day, and it is difficult to view that the Plaintiff had transferred its actual right to purchase or dispose of the said goods to a third party as a party having an independent interest related to the transaction.

B) The key purchase tax invoice: (a) the supply proceeds under the supply contract between the Plaintiff and the Plaintiff, and the deposit details of the Plaintiff’s CCC in the transaction at issue, are not consistent; (b) the sales tax invoice (i) the supply proceeds under the supply contract between the Plaintiff and the Plaintiff, which are the supply proceeds in the summary of the supply contract between the Plaintiff-B system, do not coincide with the Plaintiff’s KRW 000,000, which is the supply proceeds in the transaction between the Plaintiff-B system; and (iii) the Plaintiff’s actual supply of the transaction goods (one vehicle) and the purchase tax invoice (one vehicle) are not in accord with the Plaintiff’s supply details; and (iv) the supply contract or tax invoice appears to have been made after the supply to the Plaintiff; and (v) the supply contract or tax invoice, which can be seen as the evidence of the dispute transaction, are nothing more than those without properly reflecting the substance of the transaction.

C) Under the planning of BB system, it is difficult to find specific roles performed by the Plaintiff as the actual party to the transaction in addition to creating the appearance of the transaction, such as creating the formal tax invoice and financial transaction details, or the economic purpose to achieve the above transaction (the issue is ①, ② the Plaintiff asserted that he received benefits corresponding to the difference of the consideration for the transaction through the transaction, but it is difficult to see that the Plaintiff obtained any pecuniary profit from the transaction as above, and even if he obtained such profit, it seems to have the nature of the consideration for creating the external appearance of the said transaction).

4) Therefore, the first taxation disposition of this case where the Defendant revoked both the input tax amount and the output tax amount, and the first taxation disposition of this case where the Defendant imposed an additional tax on the purchase and sales tax invoice under Article 22 of the Value-Added Tax Act is lawful.

4. Conclusion

Therefore, among the lawsuit in this case, the part of the claim on the collection notice of each corporation tax on the labor income tax of 000 won for the year 2006 and the labor income tax of 000 won for the year 2008 is unlawful, and it is so dismissed, and the remainder of the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition (However, considering that the lawsuit cost is dismissed at the defendant's ex officio revocation, and that part of the lawsuit in this case is dismissed, it is shared to the defendant pursuant to Article 32 of the Administrative Litigation Act).