A disposition that deducts input tax amount by deeming it as a false tax invoice (a prohibited amount)

Since the instant transaction is merely a nominal transaction and cannot be deemed to have been transferred the actual ownership, the issue is that the tax invoice is prepared without a real transaction or is prepared differently from the actual transaction by at least the supplier, and constitutes a “tax invoice different from the actual transaction.”

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 1,381,825,270 on October 10, 2005 against the Plaintiff of KRW 1,381,825,270 on the first quarter of 2004, value-added tax on the second quarter of 2004, KRW 146,647,790 on the second quarter of 204, and KRW 329,346,440 on the corporate tax of 204 is revoked.

1. Details of the disposition;

A. From January 19, 2004, the Plaintiff is a corporate entity that operated the wholesale business of gold bullion (referring to gold bullion (referring to gold bullion; hereinafter “gold bullion”) in ○○○○-dong ○○○○-dong ○○○○○○○ ○○○○○○○○○○○○○○, and its net level is not less than 995/100 in this case).

B. From the time of its establishment to December 31, 2004, the Plaintiff received a tax invoice on the purchase of gold bullion of KRW 14,428,028,00 (974 kilograms) equivalent to the total supply price from 7 gold bullion wholesalers, and the Plaintiff exported gold bullion of KRW 6,684,80,591 in total from 11 February 1, 2004 to 16 April 2004 (hereinafter “first purchase tax invoice”). The Plaintiff exported gold bullion of KRW 6,684,804,591 in total from 27 April 27, 2004 to 37, 207,757,787,75,777, and 791 in Hong Kong, a foreign company located in Hong Kong, for a total amount of eight times from September 17, 2004 to 204.

C. In addition, in 2004, the Plaintiff issued a tax invoice for the purchase of gold bullion equivalent to KRW 2,475,185,000 (165 kilograms) (hereinafter “the second purchase tax invoice of this case”) from two wholesalers, other than the Co., Ltd., and issued a tax invoice for the sales of gold bullion equivalent to KRW 2,487,046,00 (hereinafter “the sales tax invoice of this case”) in total of the supply values to three companies, other than the ○○ Aggregate Co., Ltd. (hereinafter “the second purchase tax invoice of this case”). The second purchase tax invoice of this case and the sales tax invoice of this case were referred to as “the second purchase tax invoice of this case”).

D. Based on the first purchase tax invoice of this case, the second tax invoice of this case, and the above export facts, the Plaintiff reported to the Defendant each tax base and tax amount of the first quarter of 2004 and the second quarter of 2004 and the corporate tax belonging to the business year 2004.

E. However, the director of ○○ Regional Tax Office: (a) conducted a legal investigation with respect to the Plaintiff from October 8, 2004 to August 23, 2005 (hereinafter “instant investigation”); (b) acknowledged that the first purchase tax invoice of this case constituted a false tax invoice (the difference between the person who sold the actual gold bullion and the person who issued the tax invoice) different from the facts; and (c) notified the Defendant of the fact that the second tax invoice of this case constituted a processed tax invoice (the tax invoice without real transaction). On October 10, 2005, the Defendant notified the Plaintiff of the first tax invoice of value-added tax of 1,326,127,910 won for the first half of 204, the second half of value-added tax of 204, the second tax invoice of 140,736,850 won for the business year belonging to 2004, and the corporate tax of 316,7140 won for each of the above dispositions (hereinafter collectively referred to as “instant disposition”).

F. On November 28, 2005, the Plaintiff was dissatisfied with the instant disposition and requested for a trial to the National Tax Tribunal, but the National Tax Tribunal dismissed the Plaintiff’s request on September 1, 2006.

Facts without any dispute over recognition, Gap's evidence 1-3, Gap's evidence 2, Gap's evidence 1-3, Eul's evidence 4, Eul's evidence 1-3, Eul's evidence 2 and 3, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff actually traded the same contents as the 1st purchase tax invoice of this case and the 2nd tax invoice of this case, and there was no participation in the public offering for unfair refund of value-added tax. The Plaintiff conspired with a trader, a tax-free supplier, a supplier, or a corporation located in Hong Kong to unlawfully refund value-added tax is merely the Defendant’s trend without any evidence. The Plaintiff did not intend to evade taxes jointly with gold bullion companies and did not know the Plaintiff’s act of other companies. Accordingly, the Defendant’s disposition of this case, which was based on the premise that the 1st purchase tax invoice of this case and the 2nd tax invoice of this case were false or that the Plaintiff knew or could have known, was unlawful.

(2) According to the Defendant’s assertion, since the Plaintiff’s instant gold bullion transactions fall under the largest transaction (the absence of actual goods, etc.), no value-added tax shall be levied on the Plaintiff on the grounds that there is no supply of goods or services, which are subject

B. Relevant statutes

It is as shown in the attached Table related statutes.

C. Facts of recognition

(1) A general form of variable transaction for the purpose of evading tax in the current transaction.

(A) According to Article 11(1)1 of the Value-Added Tax Act, the zero-rate tax rate for the input tax is applied to the supply of goods for export. If an export-related document is issued to a foreign exchange bank with a purchase approval certificate (purchase approval certificate) and then purchased the goods from another wholesaler on this basis, the input tax rate is applied to such input tax amount. Meanwhile, Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 6852 of Dec. 30, 2002 and enforced from July 1, 2003) and Article 106-3 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829 of Dec. 30, 200) delegated by the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829 of Dec. 30, 202).

(B) As above, the case where the value-added tax was imported as raw materials for export under the Value-Added Tax Act or the former Restriction of Special Taxation Act, and the value-added tax was applied to the transaction portion from July 1, 2003 to June 30, 2005 even if the zero-rate tax was not applied to the value-added tax, and then the case where the value-added tax was sold or exported through disguised marketing or through disguised marketing after importing the current market for the purpose of being unjustly refundable, or where the value-added tax was to be refunded after being exported among the relevant ○○○○-Gu precious metal companies (before June 30, 203, it was used in the same form as for the abuse of the zero-rate tax rate system, and its contents were widely known in the gold metal wholesale market around 203.

(C) In appearance, gold bullion is distributed through the stages of ‘foreign enterprises ? ? importer ? ? ? 1 ( wholesale companies) ? 2 (defluence ? ? so-called cedied company (hereinafter referred to as ‘cubic company’) ? floor wholesale companies ? export companies ? the transaction price is paid in sequence from the export company to the import company ? The transaction price is paid in the reverse direction from the import company to the import company. However, among the above distribution companies, there are many cases where gold bullion is issued only from the large coal company to the floor wholesale company, to the specific person or the specific company, and it is not actually traded or transported gold bullion.

(D) After purchasing gold bullion that has been distributed at the zero-rate tax rate at the previous stage, and selling it to the cushion Company an amount equivalent to 10% of the value-added tax, the value-added tax cannot be collected by the State by withdrawing the profit within the short period in cash and closing the business. The amount equivalent to the value-added tax paid by the cushion Company is successively transferred by each of the companies in the immediately preceding stage by deducting the input tax through the tax invoice issued by the cushion Company. Ultimately, the exporter’s export of gold bullion and then is entitled to refund from the State according to applying zero-rate tax. The portion equivalent to the value-added tax refunded by the Dumtan company is the ultimate source of the profit from the Dumtan business. The above profit is distributed to the domestic company involved in the Dumtan business in each stage of the transaction, or the amount calculated by the ratio of the import price calculated by deducting the purchase price from the sales price is separately allocated to the relevant foreign company in the form of the Mamalan and the domestic export price.

(E) In order to maximize its profit, most of the gold bullion is distributed within a short-term period. ① In order to prevent disputes, loss of price, etc. among the participating companies that may arise therefrom, most of the same states (referred to the capital owners: persons preparing for the import and settlement of the first gold bullion from the outside of the heavy carbon business network) operate both the exporting company and the importing company at the same time; ② the former owners shall place the companies substantially controlled or trusted by themselves in direct transactions with the bomban companies; ③ the former owners shall determine the volume, unit price, and margin of the transaction at each stage of transaction; ④ the series of transactions from the importing company to the exporter is substantially short time; ⑤ the actual transport of the gold bullion is most immediately transported with the exporting company (limited to the formal transport of the gold bullion, even if it is transported every stage of transaction).

(2) In the case of the transaction concerning the first purchase tax invoice and the second tax invoice of this case

(A) The representative director of the Plaintiff, Lee Jong-soo, a representative director of the Plaintiff, graduated from ○ High School in 1970 and majored in art at the university, and then closed his personal business (do, retail/scopic/scopic/spopic/spopic/spopic/spopic/spopic/spopic/spopic/spopics) with the trade name of "○○○ Commercial incheon-do" from December 1995 to May 1996. From August 197 to January 2004, the Plaintiff established the Plaintiff Company on January 19, 204.

This "○○" stated that the representative director of a corporation and the ○○○○○ amount of money from the corporation to the wholesale retail of gold bullion from the representative director of the corporation and that the corporation constituted the Plaintiff corporation after hearing the talk that ○○○ and ○○ amount of money from the corporation to the wholesale retail of gold bullion.

(B) In the case of the transaction relating to the First and Second Purchase Tax Invoice

1) Gold bullions listed in the first and second purchase tax invoices of this case were imported from all import enterprises and distributed as tax-free gold, and were converted to six to nine stages from import enterprises up to the Plaintiff. The gold bullion imported on the date of export was purchased from the import enterprises through the tax exemption wholesale of two to three stages, and the tax invoice was issued as purchased by the Plaintiff via the two to three stages of taxation wholesale.

2) In the transaction related to the 1, 2, purchase tax invoices of this case, all of the wholesalers (so-called a business entity with a wide range of carbon) converted from the tax-free gold to the tax-free gold in the distribution thereof did not fulfill the liability for the payment of the value-added tax by closing the business after selling the gold bullion that they purchased (However, the amount added to the value-added tax amount, namely, the value-added tax plus the purchase price, i.e., the purchase price higher than the purchase price) (total 14 companies and 114,360,000,000). The representatives of the above businesses have no business experience in the field of precious metal, and most of their families and property are not owned, and some of them

3) The Plaintiff exported gold bullion listed in the purchase tax invoice No. 1 of this case to ○○old and ○ ○Gold Dozd and ○○Gold Dozd in Hong Kong. However, the above company engaged in the pawning business, which is located in the middle market of Hong Kong, is an entity engaging in the Hong Kong, which is the main business. However, even if the National Tax Service’s on-site visit by the employee of the National Tax Service, the Plaintiff refused to submit specific data related to the transaction or to answer to the Korean customer, etc. In addition, 00 Whole altd is engaged in gold trading as an affiliate of the Hong Kong ○○ Group, but all domestic export-related documents are signed not only by the representative or the manager of 00 Ltd, but also by the "○○", and refuses to answer specific details of the transaction with the Korean company.

4) Most of the gold bullion exported by the Plaintiff were imported on the day, and thus, an application for refund of customs duties (3% of import duty base) paid at the time of import can be filed. Of the 17 exports over 17 times, no application was filed for refund equivalent to KRW 392,00,000 for the duty refund due to exports of 16 times except for exports of September 7, 2004, and the export price was exported at a price that is identical or lower than the import price.

5) The Plaintiff did not export gold bullion subsequent to the commencement of the instant investigation after suspending the export of gold bullion.

(C) In the case of the transaction on the sales tax invoice of this case

As a result of an investigation into the sales tax invoice of 165 kilograms 165 kilograms as indicated in the instant tax invoice, ○○○○○○○○○○○○○○○ 2. Sales tax invoice on August 10, 204, ○○○○○ 2, a company with a width of 5 kilograms, received ○○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 4. Sales invoice on September 1, 204, 200 ○ 20 ○ ○ 4. Sales invoice issued by ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 20 ○ ○ ○ ○ 24.m.

Facts without dispute over the basis of recognition, evidence B through 18, evidence B 19-1 through 7, evidence B 20-1 through 16, evidence B 21-1 through 13, and the purport of the whole pleadings.

D. Determination

(1) Whether the 1st purchase tax invoice of this case is "unlawful tax invoice"

(A) The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority. As such, the defendant must prove that the tax invoice is not accompanied by real transactions on the basis of direct evidence or overall circumstances. In a case where the defendant proves considerable degree of proof as to this point to the extent that he reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy for the plaintiff who is the taxpayer to dispute the illegality of the defendant's disposition to present relevant evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

In addition, in Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act, a tax invoice is delivered to an entrepreneur who supplies or receives goods or services, such as a person who delivers or provides services due to contractual causes, etc.; and a person liable to pay value-added tax is a person who actually engages in a transaction of supplying goods or services to a person who actually supplies or receives services from an entrepreneur, not a person who establishes a nominal legal relationship with an entrepreneur who provides or is supplied with the entrepreneur (see Supreme Court Decision 2002Do4520, Jan. 10, 2003). Other tax invoices of the actual supplier and the supplier under the tax invoice cannot be deducted or refundable unless there is any special circumstance that the supplier was unaware of the fact that he was unaware of the name of the tax invoice, and that the person who received the goods or services was not negligent in not knowing the above fact in the name of the supplier (see Supreme Court Decision 2002Do4520, Jun. 27, 2002).

(B) Considering the following circumstances as to the instant case’s health, as recognized earlier, the width of gold bullion business was widely known at the time of the instant transaction, i.e., gold bullion wholesale business, and the Plaintiff’s representative director was in the position to fully engage in the instant business, considering the fact that the Plaintiff exported gold bullion in relation to the instant first purchase tax invoice, it is unclear whether ○○○ Ltd and ○○ Ltd were normal import business, and the Plaintiff did not cooperate in the instant investigation. Considering the domestic market price of gold bullion, the Plaintiff continued to export gold bullion business even if it was able to take more advantage of the fact that the Plaintiff would have been able to receive more profits than that of the instant gold bullion business, and that the Plaintiff could have received more than that of the instant gold bullion business for the purpose of refunding the value-added tax, and that the Plaintiff could not be seen as having received more than that of the instant gold bullion business for the purpose of exporting gold bullion in light of the fact that there were no reasonable grounds to view the Plaintiff’s sales and purchase price increase.

Meanwhile, it is clear that the Plaintiff received gold bullion from the purchaser, and the Plaintiff merely exported goods, export declaration completion certificate, and transport securities, etc. at each time of exportation. Thus, the instant tax invoice is in conformity with the facts. However, the aforementioned transaction method is a structure that can only be viewed as losses on the premise of the payment of legitimate tax from the beginning. As such, the transaction partner is obligated to collect the tax from the trading partner, while the tax authority is obligated to collect the amount equivalent to the value-added tax that is exempted from the payment by the report of business closure, and it can be seen that the amount equivalent to the value-added tax, which is exempted from the payment by the report of business closure, was the only source for profit and the motive for the transaction, and in reality, it does not mean that the reduction of the tax revenue or the loss would be caused by the National Treasury. Thus, even if the tax invoice was issued and delivered in formality, and the tax invoice was returned by submitting the tax base and tax return, if it was done normally, it can be said that the overall collection of value-added tax was impossible or considerably difficult (see, 2005Da5465, supra).

(C) Whether the Plaintiff acted in good faith and without fault

In light of the aforementioned facts and circumstances, in order to complete illegal acts of acquiring value-added taxes by deceiving the national treasury through the method of receiving a refund of the zero-rate tax system and value-added tax related to the export and import of gold bullion by abusing the zero-rate tax system and the refund of value-added tax related to gold bullion, the existence of an exporting company, such as the Plaintiff, who exports gold bullion and received a refund of value-added tax, is essential. As long as the Plaintiff appears to have engaged in the trade with the type of exporting gold bullion in consideration of the refund of value-added tax without any separate negotiation with the transaction partner, it is difficult to view that

(2) Whether the second tax invoice of this case constitutes a processing tax invoice without real transaction

In full view of the various circumstances described in Paragraph (a)(2) of the above, in particular, and in the point of view, all the circumstances revealed in the proceedings of the pleading in this case are shown as follows: (a) transactions conducted between a bomist and a trade partner before and after the transaction in connection with the second tax invoice of this case appear to be a nominal transaction in which only a tax invoice is issued and received in order to convert a tax transaction into a taxable transaction; and (b) thereafter, even the taxation intermediary participating in the transaction up to the Plaintiff appears to be a nominal transaction in which only a tax invoice is issued and received in order to convert a tax transaction into a taxable transaction; and (c) the taxpayer acquires in the form of the difference between the sales price and the purchase price of the value-added tax to be evaded in return for the receipt of the tax invoice, and even if each sales contract for the second tax invoice of this case was concluded between them and the Plaintiff, it is difficult to deem that there was an actual transaction merely because it was a nominal transaction

Therefore, it is reasonable to view that the second tax invoice of this case was lent only to the Plaintiff as an intermediary without real transaction.

(3) The Plaintiff asserts that all gold bullion transactions in the instant case constitute the most trade without real transactions, but as seen above, all gold bullion transactions in the instant case cannot be deemed the most trade, and all purchase and sales related to the trade without real transactions were denied. The first purchase tax invoice in the instant case was merely a tax invoice different from the fact, but the sales (export) related thereto was not deducted. Accordingly, the Plaintiff’s assertion on this part can be accepted.

(4) Sub-determination

Therefore, the first purchase tax invoice of this case is a tax invoice different from the facts, and the first purchase tax invoice of this case constitutes a tax invoice prepared by processing without actual transaction. Thus, the defendant's disposition of this case on the premise that it is legitimate.

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.

Related Acts and subordinate statutes

○ Framework Act on National Taxes

Article 14 (Real Taxation)

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of the income, profit, property, act or transaction.

○ Value-Added Tax Act

Article 6 (Supply of Goods)

(1) The supply of goods shall be a delivery or transfer of goods pursuant to all contractual and legal grounds.

Article 7 (Supply of Services)

(1) The supply of services shall be either the supply of services or having others use the goods, facilities or rights, pursuant to all contractual and legal grounds.

Article 16 (Tax Invoice)

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, he/she shall deliver an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply as prescribed by Presidential Decree at the time specified in Article 9: Provided, That in cases prescribed by Presidential Decree, the delivery time may vary:

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation.

5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount computed by deducting the tax amount under 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 a refundable tax amount (hereinafter

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 following input taxes shall not be deducted from the output tax amount:

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a "necessary entry item") is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall

Article 21 (Settlement and Correction)

(1) The head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service shall determine or correct the tax base of value-added tax or tax amount

2. Where there are any mistakes or omissions in details of the final tax return;

3. Where the list of the total tax invoice by buyer or the total tax invoice by buyer is not submitted in the final tax return, or all or part of the submitted list of the total tax invoice by buyer is not entered or

○ Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006)

Article 76 (Additional Tax)

(5) In case where a corporation (excluding such corporation as prescribed by the Presidential Decree) is supplied goods or services with a businessman as prescribed by the Presidential Decree in connection with its business and fails to receive the evidential documents falling under any of subparagraphs of Article 116 (2), the chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax the amount calculated by adding an amount equivalent to 2/100 of the unpaid amount, except for the case where the provisions

§ 116. Receipt and safekeeping of documentary evidence of expenditure

(1) A corporation shall prepare or receive documentary evidence for all business-related transactions for each business year and keep them for 5 years from the date of the expiration of the time limit for report under the provisions of Article 60.

(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 of the following subparagraphs: Provided, That the same shall not apply to cases prescribed by Presidential Decree

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

○ Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005)

Article 106 (Special Taxation of Value-Added Tax on Gold Metals)

(1) The value-added tax shall be exempted until June 30, 2005 pursuant to the classification under paragraph (3) for the supply of gold bullion falling under any of the following subparagraphs (hereafter referred to as "tax-free gold bullion" in this Article), which is bullion equipped with the form, net altitude, etc. prescribed by Presidential Decree (hereafter referred to as "gold bullion" in this

1. Gold bullion supplied by the wholesalers and refiners of gold bullion prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold bullion wholesalers, etc.") to the gold craftsmen, etc. prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold craftsmen, etc.") after receiving tax-free recommendation from a person prescribed by the Presidential Decree (hereafter in this Article, referred to

(2) The value-added tax shall be exempted until June 30, 2005 on the gold bullion imported by the gold craftsmen, etc. and financial institutions after receiving a tax-free import recommendation from the persons prescribed by the Presidential Decree (hereafter referred to as "the head of the tax

(3) Special cases under the Value-Added Tax Act shall apply to the tax-free gold metals under paragraph (1) pursuant to any of the following subparagraphs:

1. Where a financial institution supplies tax-free gold metals, Article 12 of the Value-Added Tax Act shall apply;

2. Where any entrepreneur other than financial institutions supplies the tax-free gold bullion, the relevant entrepreneur shall be deemed the value-added tax taxable entrepreneur and subject to the application of the Value-Added Tax Act. In this case, the value-added tax amount borne at the time of purchasing the relevant gold bullion in connection with the supply of the tax-free gold bullion shall not be deemed the input tax amount eligible for the deduction under Article 17 of the Value-Added Tax Act, and the tax-free gold bullion gold metals manufactured and supplied by the gold bullion refiner and the value-added tax amount borne by the relevant entrepreneur in connection with the purchase

(11) The head of the competent tax office may, if deemed necessary for preserving the value-added tax, request the gold metal wholesalers, etc. and the gold craftsmen, etc. to offer a security.