Cho High Court Decision 2016Do3699 ( December 27, 2016)

No tax invoice of this case may be deemed a tax invoice issued without real transactions.

There is no circumstance to deem that documents related to transactions were prepared on the date of the preparation of the tax invoice and were prepared in a false manner, and the plaintiff and the seller have paid the gold bullion price in accordance with the value-added tax payer scheme, so it cannot be deemed as false

Article 17(2) of the former Value-Added Tax Act

2017Guhap59352 Revocation of Disposition of Imposition of Value-Added Tax

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a) the Director of the Tax Office

November 10, 2017

November 24, 2017

1. The Defendant’s imposition disposition of KRW 47,258,170, and KRW 27,360,000, imposed on the Plaintiff on September 8, 2016, shall be revoked in entirety.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a company that engages in the wholesale and retail business of gold bullion. On December 11, 2012, the Plaintiff received a tax invoice of KRW 260,480,000 (hereinafter referred to as the “tax invoice of this case”). The Plaintiff issued the tax invoice of KRW 260,713,200 on the same day to the Korea Prepaid MetalM Co., Ltd. (hereinafter referred to as the “Korea Prepaid MetalM”).

B. The Plaintiff reported and paid the value added tax for the second year of 2012 and corporate tax for the year of 2012 by deducting the input tax amount related to the instant tax invoice from deductible expenses.

C. On September 8, 2016, the Defendant deemed that the Plaintiff received the instant tax invoice from an amusement metal without any real transaction, and imposed KRW 47,258,170, and corporate tax of KRW 27,360,00 for the year 2012 on the Plaintiff (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, entry of Gap 1, 4, 13 evidence, purport of the whole pleadings

2. Relevant statutes;

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

3. Whether the instant disposition is lawful

A. The following facts can be acknowledged according to the statements of evidence Nos. 1 to 3:

1) The flow of gold bullion transactions pursuant to the tax invoice leads to Korean precious metal (hereinafter referred to as “Korean precious metal”) - Plaintiff - Korea precious metal - in succession.

2) Around May 2013, the head of the Gangnam District Tax Office conducted an investigation into the data on the precious metals of Korea. As a result, it became final and conclusive as a processed transaction in the second period of 2012 by our precious metal. The head of the Dongdaemun District Tax Office conducted an investigation on the data on the precious metal at around March 2014, and as a result, confirmed the tax invoice received from our precious metal and the tax invoice issued by the Plaintiff as a processed transaction. The Defendant conducted an integrated investigation of the Plaintiff’s corporate tax on the Plaintiff on July 2016, and decided to rectify the value-added tax and the corporate tax by denying the instant tax calculation.

3) The Plaintiff received the payment of gold bullion from Korea precious metal M, and paid it to the cheon Metal. The amount of the gold bullion transferred to Korea precious metal, and our precious metal withdrawn in cash.

B. Meanwhile, following facts can be acknowledged according to the overall purport of Gap evidence Nos. 3, 5, 9, 12, and 4 and all pleadings.

1) On December 11, 2012, the Plaintiff: (a) drafted a “declaration of the fact of delivery,” “certificate of the details of transaction,” “certificate of the contents of transaction,” and “certificate of the contents of transaction,” with respect to gold bullion 4,00g; and (b) drafted a “statement of transaction,” “certificate of the contents of transaction,” and entered them in the Plaintiff’s account ledger, purchase ledger, and sales ledger. The Plaintiff’s statement of the fact of delivery, etc. contain the name, weight, unit price, amount, etc.; and (c) affixed the Plaintiff’s seal of the Plaintiff, scar metal, and Korean precious metal mix.

2) Korea precious metal M paid the gold bullion price to the Plaintiff, and the Plaintiff paid the gold bullion price to the Plaintiff. Korea precious metal M and the Plaintiff paid the gold bullion price by depositing the value of supply and value-added tax into the designated account in accordance with the value-added tax payer scheme.

3) On October 16, 2015, the public prosecutor of the Seoul Southern District Public Prosecutor’s Office conducted an investigation into trade between the Plaintiff and the rare Metal on the criminal facts that “The instant tax invoice was issued to the Plaintiff even if the representative Kim Gyeong-cheon did not supply goods or services,” on October 16, 2015.

For reasons, a disposition of non-prosecution (not suspected) was taken.

C. The Defendant issued the instant disposition on the ground that the instant tax invoice received from the Plaintiff was issued without a real transaction, since our precious metal and tent metal are materials.

B. However, as seen above, ① the Plaintiff prepared documents related to the date on which the Plaintiff made a tax invoice with the Korea PrescarM and the Korea PrescarM, and there are no circumstances to deem that the documents themselves (content or seals) were made up by falsity (the Defendant is concerned with the fact that the signature of India is an employee, not an Kim Ho-cheon, but an employee, a representative of the Y, but an employee of the Y. However, it is difficult to deem that the Plaintiff and the Korea PrescarM were supplied gold bullion from other companies or persons than the Y because the employee of the Y delivered gold bullion.) ② The Plaintiff and the Korea PrescarM paid the gold bullion price in accordance with the Value-Added Tax Payment System; ③ the prosecution made a non-prosecution disposition by deeming transactions with the Plaintiff as normal transactions with the Y, the above facts alone are insufficient to recognize that the instant tax invoice was issued without actual transactions (it cannot be deemed that the instant tax invoice was issued without actual transactions even if the gold bullion was supplied to the Plaintiff through another route).

4. Conclusion

The claim of this case is justified, and it is so decided as per Disposition.