Seoul Administrative Court-2015-Guhap-56359 ( October 17, 2015)

Seocho 2014west 3718 ( December 04, 2014)

In 2009, the Supreme Court's decision was made in 2009 to determine whether service transactions are over-tax-free transactions or tax-free transactions are required to issue tax invoices.

Before the Supreme Court’s ruling on October 15, 2009, it is difficult to view that there was an interpretation that service transactions with respect to the automatic deposit of cash are a taxation transaction that requires the issuance of a tax invoice.

2015Nu5495. Revocation of imposition of additional tax on value-added tax

OOOO Co.

O Head of tax office

Seoul Administrative Court Decision 2015Guhap56359 Decided July 17, 2015

November 24, 2015

December 15, 2015

1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s imposition of value-added tax against the Plaintiff on May 2, 2014: (a) the full imposition of KRW 128,205,150 for the first term of 209; and (b) the imposition of KRW 140,721,710 for the second term of 209; and (c) the imposition of KRW 69,669,410 for the second term of 209.

B. The plaintiff's remaining claims are dismissed.

2. The total costs of the lawsuit shall be five minutes, and four of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The Defendant’s additional value-added tax imposed on the Plaintiff on May 2, 2014: (i) the first term portion 128,205,150 won in 209; (ii) the second term portion 140,721,710 won in 209; and (iii) the first term portion 14,920,630 won in 2010; (iv) the second term portion in 2010, 151,65,65,100 won in 2010; (v) the first term portion in 2011, 141,41,47,880 won in 203,876,230 won in 201; and (vii) the first term portion in 2012, 132,378,870 won in 20, 2012, 301, 1408, 2301, 20137 won in 37.

2. Purport of Plaintiff’s appeal

The part of the judgment of the first instance against the Plaintiff in its judgment shall be revoked on May 2, 2014, and the value-added tax imposed by the Defendant against the Plaintiff on May 2, 2014,

3. Purport of defendant's appeal

In the judgment of the court of first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Circumstances of the disposition, the plaintiff's assertion, relevant statutes, and facts of recognition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination on the legality of the disposition imposing additional tax in this case

This Court's explanation is the same as the entry of "the judgment of the court of first instance" under Paragraph 2 of Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, except for the addition or dismissal as follows.

A. The following is added at the end of paragraph 2 of Paragraph 2 of the judgment of the court of first instance as to whether the Plaintiff had justifiable grounds.

Meanwhile, even based on the evidence submitted by the Plaintiff, it is difficult for the instant bank to deem that it actively refused to receive the tax invoice, and in principle, the duty to issue the tax invoice to the Plaintiff, who is the supplier of the instant service, and there is no provision imposing additional tax on the person who did not receive the tax invoice, it is difficult to deem that imposing additional tax only on the Plaintiff, who is the service supplier without the tax invoice, is contrary

B. Paragraph 2 of Paragraph 2 of the judgment of the court of the first instance on the scope of revocation of the disposition imposing the penalty tax of this case shall be subject to the following modifications:

3) Furthermore, we examine the scope of revocation of the instant disposition imposing additional tax.

According to the former Value-Added Tax Act, a tax invoice shall, in principle, be issued by an entrepreneur to a person who is supplied with goods or services at the time of supply for goods or services (Article 34(1)), but where a tax invoice is issued as of the last day of the relevant month, including the supply price for the calendar month for each customer, by the 10th day of the month following the month in which the date of supply for goods or services falls (if the day is a legal holiday or Saturday, referring to the immediately following business day).

However, where a tax invoice is not issued by the deadline for issuing a tax invoice under Article 34 of the former Value-Added Tax Act, if a tax invoice is issued within the taxable period to which the time of supply for the relevant goods or services belongs, an amount calculated by multiplying the value of supply by one percent shall be imposed as an additional tax (Article 60(2)1 of the former Value-Added Tax Act), and where a tax invoice is not issued by the end of the taxable period to which the time of supply for the goods or services belongs (Article 60(2)2 of the former Value-Added Tax Act).

In this case, it is reasonable that the Plaintiff did not issue a tax invoice until October 15, 2009, which was decided by the Supreme Court of Korea in 2009, and there is no justifiable reason to deem that there is no justifiable reason thereafter. Therefore, the part on the supply of services by October 15, 2009, i.e., the Plaintiff’s failure to issue a tax invoice until October 15, 2009, among the disposition imposing the value-added tax on the first term portion of this case 2009, and the part on the imposition of the value-added tax on the second term portion of this case 2009, concerning the supply of services by September 2009, shall be deemed to have a justifiable reason for the Plaintiff not issuing the tax invoice. In other words, it is difficult to view that there is a justifiable reason that the Plaintiff did not issue the tax invoice.

Therefore, the part of the Plaintiff’s imposition of the value-added tax for the first period of January 2009, which exceeds KRW 128,205,150, ② the imposition of the value-added tax for the second period of February 2009, which exceeds KRW 69,669,410 (the supply price for the service from October 2009 to December 2009 x KRW 3,483,470,894 x 2%, and less than KRW 10) should be revoked as unlawful, and the Plaintiff’s claim that exceeds this is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed. Since the judgment of the court of first instance which partially different conclusions are unfair, the judgment of the court of first instance is modified as ordered and the remaining claims of the plaintiff are dismissed. It is so decided as per Disposition.