early 2010west0236 ( October 31, 2010)

It is the receipt of a false purchase and sale tax invoice through the revolving transaction of electronic parts.

Since it is reasonable to regard it as a processing transaction to avoid the company's policy prohibiting the wholesale of chip sets as a transaction for the purpose of avoiding the company's policy that prohibits the wholesale of chip, a company engaged in the electronic component distribution business, etc., which receives false purchase and sales tax invoices, and thus the disposition imposing value-added tax is legitimate.

2010Guhap34828 Disposition of revocation of Value-Added Tax Imposition

원고〇〇주식회사

피고〇〇세무서장

December 16, 201

January 13, 201

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The defendant's imposition of value-added tax for the second period of 2006 against the plaintiff on June 1, 2009 and the imposition of value-added tax for the first period of 94,093,400 won for each year of 2007 shall be revoked.

1. Circumstances of dispositions;

A. The Plaintiff, a company engaged in the electronic parts distribution business, etc., issued a tax invoice as shown in attached Table 1 to △△△ Electronic Co., Ltd. and △△△△△ Electronic Co., Ltd. (hereinafter referred to as △△△△△, hereinafter referred to as △△△△△, etc. in each taxable period of the value-added tax in 2006 and 1st, 207, and received tax invoices as shown in attached Table 2 from △△△△, etc., and reported value-added tax for each taxable period.

B. On April 1, 2009, the Defendant conducted a false investigation into the facts charged to the Plaintiff on the data, and found that the tax invoice of the portion of the purchase amount and the sales amount pursuant to the above tax invoice received between the Plaintiff and △△△△, which falls under the following table [the tax invoice of △△△, KRW 3,505,696,696,000, KRW 1,215,945,00 (including this tax and additional tax)] (hereinafter referred to as the “tax invoice of this case”) (hereinafter referred to as the “tax invoice of this case”) was the excessive purchase amount and sales amount, and on June 1, 2009, the Plaintiff issued a revised notice of the amount of value-added tax of 206, KRW 31,703,880 (including this tax and additional tax) and KRW 94,093,400 (including this tax and additional tax) respectively.

[Ground of recognition] Facts without any dispute, entry of Gap's No. 1,7,10, purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff has an exclusive right to develop, manufacture, and sell the CD mobile phone with source technology. However, the Plaintiff is a company that produces and exports mobile phone devices through a strategic alliance with domestic development enterprises and manufacturers because it has no independent development capacity and factory. The general transaction structure is a company that produces and exports mobile phone devices through an external production. The Plaintiff and developer entered into a product development agreement with the Plaintiff and the Plaintiff granted the Plaintiff’s authority to develop the CD. Upon completion of the product development, the Plaintiff grants a specific production authority to a specific production company to manufacture the developed products, and finally, sells them to a business with the ability to sell the products.

However, unlike the general trading structure, the Plaintiff requests the Plaintiff to manufacture and sell the mobile phone machine after receiving an order from overseas customers to make the mobile phone machine in the form of advance payment, etc. <2> the Plaintiff received in the form of advance payment of the purchase price of the mobile phone from △△△△, etc., and then deliver it to △△, etc.;3) △△, etc., produced the relevant chip machine and supplied it to the Plaintiff, issued a tax invoice on the cost of voluntary processing of the mobile phone while selling it to the Plaintiff; and 4) the Plaintiff, while delivering the mobile phone again, traded the structure in which the Plaintiff issued the sales tax invoice for the relevant mobile phone, and was responsible for the production of the mobile phone machine in the process.

In full view of the above special transaction structure between the Plaintiff and △△△, ownership of chips set, and responsibility for the production of cellphones, etc., the transaction between the Plaintiff and △△△, etc. is not the wholesale transaction of chips set, but the external production transaction of mobile phones, and is the real transaction based on the real goods, and thus, the instant disposition that reported the transaction with the Plaintiff and △△△△△, etc. as the processing transaction

(b) Fact of recognition;

1) The Plaintiff was established on November 4, 2005, and it was a company holding a license for the CD(s) of △△ Company’s CD(s). Around March 2006, the Plaintiff acquired the exclusive right to the development, manufacture, and sale of the CD mobile phones (the above rights are transferred by the Plaintiff from △ Electronic).

2) On March 2, 2006, the Plaintiff entered into a letter of understanding of business partnership for the joint development of products based on chip sets with △△△○○○, and on March 3, 2006, the Plaintiff entered into a development agreement with the Plaintiff on the content that the products should be developed to the Plaintiff, and on January 2, 207, February 14 of the same year, the Plaintiff entered into a basic agreement on import agency with the content that the Plaintiff imports chip sets for △△△△△○ on the Plaintiff’s request.

3) As of May 11, 2006, the Plaintiff entered into a basic contract on the consignment of processing with the content that △ Electronic will provide the Plaintiff with the processing of products.

4)On the other hand, △△△, when the Plaintiff imports chip sets to be delivered to him, shall bear all the charges, such as import clearance fees, value-added taxes, warehouse charges, and transportation charges, and the Plaintiff shall issue a tax invoice for the discretionary processing costs to the Plaintiff, but neither deliver the mobile phone actually produced to the Plaintiff nor receive the discretionary processing costs from the Plaintiff for the mobile phone machines.

5)In the audit of the external accounts for the 2007 business year, the Plaintiff received the following points, thereby reducing the product sales amount of KRW 3,136,447,00 and the product sales amount of KRW 3,136,447,00, and filed a revised return of the corporate tax for the business year 2007.

6) On September 30, 2008, when the director of the production management headquarters of the Plaintiff was on-site investigation conducted by the Defendant, the investigator on Sep. 30, 2008, who was entitled to directly import chip sets from the Defendant, △△△△ supplied chip sets to the Plaintiff through the Plaintiff and sold them abroad. Once chip sets were transferred to the manufacturing factory of △△△△△, there was no need to separately prepare a contract for discretionary processing because there was no interest with the Plaintiff. On the other hand, the Plaintiff did not have to control the chip sets delivered to △△△△△△△, and there was no need to control them. While the Plaintiff and the Plaintiff were aware that the tax invoice was issued with respect to the portion of the discretionary processing cost among △△△△△△△△△△△△△△, the Plaintiff was not involved in the calculation of the discretionary processing cost, etc. by itself.

7) On April 23, 2009, KimB, the actual manager of the Plaintiff, prepared a written confirmation to the effect that "the Plaintiff has excessively appropriated sales and sales costs as much as the external processing costs during the transaction with △△ Electronic, and reported after deducting the sales tax when filing a return on corporate tax for the business year 2007."

[Ground of recognition] Facts without any dispute, Gap's 2 to 9 evidence, Eul's 1 to 12, the purport of the whole pleadings

C. Determination

The following circumstances revealed by the facts of recognition as seen earlier, namely, the Plaintiff entered into a product development contract with △△ Electronic. The Plaintiff entered into a contract for discretionary processing with △△ Electronic. However, the Plaintiff imported chips at the expense of △△△, etc. (price of chips purchase + price equivalent to royalties revenue), after delivery to △△△△, etc., it was not delivered with chips from △△△, etc., nor paid the expenses for discretionary processing. There was no participation in the management of chips set delivered to △△△, etc. or in the process of processing the cell phone; the Plaintiff entered into an import agency contract with △△△△△ Electronic, which contains the details of chips imported by △△△△△△△, which is the same structure as that of the Plaintiff’s actual manager; the Plaintiff’s portion of the sales of △△△△△△ Electrical, which was imported to △△△△△, etc. for the same purpose as that of the Plaintiff’s sales of chips and the Plaintiff’s sales of 20.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.