Whether the instant tax invoice constitutes a false tax invoice

It appears that the instant tax invoice constitutes a false tax invoice in light of the facts acknowledged, and that the Plaintiff was aware or could have been aware of the difference between the actual supplier and the supplier on the tax invoice.

Article 39 of the Value-Added Tax Act

2017Guhap76043 Revocation of Disposition of Imposition of Value-Added Tax

AAAAA

R Director of the Tax Office

2019.08.23

2019.09.27

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On June 15, 2017, the Defendant’s imposition of value-added tax of 116,917,380 won (including additional tax) for the first term portion of 2016 against the Plaintiff on June 15, 2016 and the imposition of value-added tax of 1,727,549,270 won (including additional tax) for the second term portion of 2016 shall be revoked.

1. Details of the disposition;

A. The plaintiff's status

On March 10, 2014, the Plaintiff was an enterprise that was established on March 10, 2014 and operated the main wholesale business, feed wholesale business and retail business. On February 18, 2016, the Plaintiff added non-ferrous metal wholesale business, such as copper, to its sub-business category.

(b) Receipt of tax invoices and return of value-added taxes;

The Plaintiff received a purchase tax invoice equivalent to the total value of KRW 13,58,009,234 from AA during the period of January 2016 and the second taxable period of the Value-Added Tax, and then deducted the same as the input tax amount, thereby filing a return and paying the value-added tax.

(c) Correction and notification of value-added tax;

1) From August 29, 2016 to December 28, 2016, a regional tax office conducted a value-added tax investigation on AAA for the first term of 2016 against the Plaintiff’s purchaser. AA’s total sales and purchase transaction constituted a processing transaction that was issued and received without a real transaction, and subsequently filed a complaint with the relevant data, and notified the purchaser and the seller of the data.

2) As a result of an investigation into the portion of value-added tax for the Plaintiff from January 19, 2017 to June 2, 2017, the head of the regional tax office notified the Defendant that a tax invoice received by the Plaintiff from AA (hereinafter “instant tax invoice”) constitutes a tax invoice different from the facts provided in Article 39(1)2 of the Value-Added Tax Act, and filed an accusation against the Plaintiff and the Plaintiff’s representative O, and OO for actual actors as data.

3) On June 15, 2017, the Defendant corrected and notified the Plaintiff of value-added tax amounting to KRW 116,917,380 for the first term portion in 2016, and KRW 1,727,549,270 for the second term in 2016 (including additional tax; hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 1 through 3, 8, Eul 1, 3, 11, 16, and before pleadings

The purpose of body

2. The plaintiff's assertion

When the Plaintiff purchases waste Dongs from AA, he was present at the depository operated by AA and confirmed the volume, and received the slips and acceptance certificates, and AAA was transported and supplied to the seller’s place of business in accordance with the Plaintiff’s instructions. As such, the Plaintiff was actually engaged in a closed-end transaction with AA and received the actual purchase tax invoice accordingly, the instant tax invoice was deemed to have been received from other companies than AA, solely on the ground that the sales invoice of AA became final and conclusive as a processed material, and thus, the instant disposition for which the input tax amount was not deducted was unlawful.

3. Relevant statutes;

It is as shown in the attached Form.

4. Whether the instant disposition is lawful

A. Relevant legal principles

1) According to Articles 39(1)2 and 32(1)1 through 4 of the Value-Added Tax Act (amended by Act No. 15223, Dec. 19, 2017), where no tax invoice or import tax invoice is issued, or where all or part of the registration number, name or title, the registration number, supply price, and value-added tax amount of the person who receives the supply on the issued tax invoice or import tax invoice, or the date of preparation of the tax invoice or import tax invoice (hereinafter “necessary entry item”) is not entered or entered differently from the fact, the input tax amount shall not be deducted from the output tax amount.

Here, the meaning that the entry in a tax invoice is different from the fact is that the ownership of income, profit, calculation, or transaction subject to taxation is nominal, and if there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment. In light of the purport of Article 14(1) of the Framework Act on National Taxes, where the necessary entry in a tax invoice does not coincide with the actual supplier, price, and timing of the goods or service, notwithstanding the formal entry in a transaction contract, etc. prepared between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

2) Generally, in a lawsuit seeking the revocation of a tax imposition disposition, the burden of proving the facts of taxation requirements exists to the taxable person, but if it is revealed that the facts of taxation requirements have been presumed in light of the empirical rules in the course of a specific lawsuit, unless the other party proves that the facts at issue were not eligible for the application of the empirical rules, the pertinent taxation disposition cannot be readily concluded to be an illegal disposition that did not meet the taxation requirements (see, e.g., Supreme Court Decision 2009Du6568, Sept. 24, 2009).

(b) Fact of recognition;

The following facts are acknowledged in light of the above evidence, evidence Nos. 52, evidence Nos. 2, 10, 13, 18 through 23, 26, 47 through 51, 64 and the purport of the whole pleadings.

1) On June 15, 2016, the Plaintiff entered into a contract for a business agency to delegate all the authority pertaining to the closed-dong business to the least director, and the details thereof are as follows.

2) The Plaintiff’s representative LeeO stated that in the course of tax investigation, although he was not well aware of the flow of the closed-dong business and transaction, it did not know about the connection with the Plaintiff’s business by himself, and that it would proceed with the Plaintiff’s business by adding the type of business to the Plaintiff’s intended business, and that the Plaintiff’s representative continued to operate the closed-dong business by purchasing credit of the closed-dong and selling it to the seller, and that the payment was made with the funds received from the seller, and therefore, the company’s operation fund was not much raised and the company’

3) Examining the details of the Plaintiff’s account and leO’s account, most of the funds for the Plaintiff’s closed-dong business were deposited into leO’s name, and that money was deposited into AAA as the closed-dong price, and a majority of the details deposited into leO’s account is confirmed by O and opO, etc. Meanwhile, opO used part of the passbook opened in opO’s name.

4) AAA is a new company that started on March 26, 2016, and its representative assistant has not been engaged in the relevant business before opening the AAA. Maximum and steering directors have worked at the same time in the same Osethyl, and Os have worked at the same time as that in the AAAA.

-The lastO stated that the waste transport volume purchased from AA is sent directly from the AA depository to the Plaintiff’s seller, and that the transport cost is borne by the AA.

-OO advisers and EO representatives shall state that the Plaintiff’s storage located in Chungcheong Northern OO did not at all use during the first half of 2016;

-OO stated that the costs of transportation related to the waste transport volume supplied to the Plaintiff are borne by the Plaintiff, and that there is difference between the Plaintiff’s representative O and the lastO as the OO stated that the waste transport volume was set aside in the OO and the OO storage and was set up at the Plaintiff’s storage, the store of the Plaintiff’s storage, and that it was set up at the OOO.

-AA statement that it was confirmed from July 2016 that it had not used the O storage and that the OO was not used from September 2016.

-AA's sales status in the second half of the year 2016 will be 287 cases, 22,048,000,000 won in total, but it shall be understood that there is no place to load, except for the Gyeonggi OO storage area which exceeds 5% of the OO storage area, and that there is no place to load, and even if so requested for explanation, until the date of the completion of the investigation;

It also borrowed business funds. The purchaser of trust ethyl Co., Ltd. is substantially overlapped with the Plaintiff’s wife.

5) Of the supplementary investigation reports to AA, the main contents relating to the Plaintiff are as follows:

6) The details of the report on storage of the Plaintiff and AAA are as follows.

7) The electronic tax invoices issued by the Plaintiff related to the closed-dong business in 2016 are total of 196 items. Of these 166 items, the 162 items among which IP information is inquired via the National Tax Service’s computer network are confirmed to have been issued by AA on the same computer as the computer that issued the electronic tax invoices. The summary of some of the IP information is as follows:

8) The OO police station secured a transactional account book that was entered by the OO through search and seizure of the location of the place of business of AAA. The transactional account book includes the type and price of the business consent, the vehicle, execution, type, the kind of the vehicle, the shop, the shop, and the shop rent. However, the tax invoice issued by AA to the customer including the Plaintiff and the transaction details of the said account book were different.

C. Whether the instant tax invoice constitutes a false tax invoice

Comprehensively taking account of the evidence mentioned above and the following circumstances acknowledged in light of the above relevant legal principles, the instant tax invoice constitutes a false tax invoice for the following reasons.

1) In the event that a closed Dong is supplied as non-registered data through a tax invoice for processing, the general distribution channel shall be “tax, solid (unregistered non-registered sales) - intermediate distributors-exploiters (data distributors)-

A business entity (the overall management of closed transactions, the protection of final consumption sources)- shall consist of "final consumption sources". This is visible to:

In other words, in the case of the waste consent, it is likely that it will be traded from the first source as it is collected by small-scale height, which is a unregistered business operator at the removal site, and in that case, there is a characteristic in which the large carbon business and the Do business are involved.

2) Most of the progress of the Plaintiff’s closed-dong business and the execution of funds were carried out by the leastO. The Plaintiff did not impose any investment and risk on the closed-dong business. In addition, according to the details of the Plaintiff’s closed-dong business, the Plaintiff was responsible for all countermeasures and responsibilities in relation to the issuance of tax invoices and tax investigations. Furthermore, according to the Plaintiff’s closed-dong business, the Plaintiff’s closed-dong business was financed out of leO’s funds, not by the Plaintiff’s funds. However, the Plaintiff only received 0.69% of the value-added ratio generated from the closed-dong business from June 27 to December 31, 2016.

In other words, it is difficult to see that the profit gained by the Plaintiff from the transaction with AA is extremely low compared to the value of supply, and the profit gained by the Plaintiff is merely the fee for the issuance of the tax invoice.

3) The funds invested by the Plaintiff were deposited into AAAA, the purchasing entity, and the majority of the details deposited into the AAAA. Of passbooks established under the title of the AO, part of the head of the head of the Tong was used by the leastO. Not only the Plaintiff but also the purchasing entity, leading the operation of the AAA and the investment of the funds. The fact that the funds paid by the Plaintiff to the AA as the compensation for the closure agreement were re-paid to the leO is a circumstance to doubt whether the AAA has actually existed.

4) The Plaintiff and AAA issued multiple electronic tax invoices using the same computer at the same time and at the same place. Of 166 of the Plaintiff’s number of inquiries into information about the issuance of the Plaintiff’s electronic tax invoices, 162 of them were issued on the same computer as the computer that issued the electronic tax invoices by AAAA. The Plaintiff’s electronic tax invoices issued while purchasing the closed Dong from AAA and the electronic tax invoices issued by the Plaintiff after selling the closed Dong to the sales office, such as Omers and PPmers, are the same as the CPU’s identification number and IP address, and the time of issuance is only the same and the difference between several minutes, and thus, it appears that AAAA was issued using the same computer at the same time and at the same place. This is a evidence supporting the Plaintiff’s role as the so-called

5) The Plaintiff alleged that the closed Dong purchased from AA was traded in the form of promptly sending it from the depository of AA to the Plaintiff’s seller. However, there is no conflict between the Plaintiff and the AAAA’s statement concerning the closed Dong type of transaction, such as the burden of transportation costs and storage. In addition, in the latter part of 2016, AA appears to have been able to use only the storage located in a very narrow sports OO located in the second half of 2016. Therefore, it is questionable whether the Plaintiff’s assertion could be traded.

6) The Plaintiff asserted that it actually traded with AA and submitted the details of the Plaintiff’s closed account, the data related to the purchase transaction, and the data related to the transaction (Evidence A through 47, 53 through 388). The data related to the purchase transaction submitted by the Plaintiff consisting of ① electronic tax invoices received from AA; ② electronic tax invoices received from the Plaintiff; ② certificates of acceptance issued by AAA to confirm the fact that the Plaintiff received the goods; ③ certificates of measurement verified that the Plaintiff’s goods were measured; ④ documents of measurement issued by the Plaintiff by the Plaintiff’s seller; and ④ documents related to the transaction submitted by the Plaintiff consisting of ① electronic tax invoices issued by the Plaintiff as the seller; ② certificates of measurement issued by the Plaintiff by the Plaintiff’s wife. However, there is no evidence supporting that the electronic tax invoices issued by the Plaintiff as the seller were actually traded with the Plaintiff and the Plaintiff’s actual transaction with the Plaintiff. In addition, most of the process of conducting criminal litigation with the representative of AA, including certificates of acceptance, confirmations, etc., are difficult to support documents based on the Plaintiff’s or documents of acceptance.

D. The Plaintiff was unaware of the difference between the actual supplier and the supplier on the tax invoice.

whether or not

1) The Plaintiff asserts that there was no negligence between the actual supplier and the supplier on the tax invoice and the supplier on the tax invoice.

2) The Plaintiff delegated the authority to conduct all the business affairs pertaining to the closed-dong business to the leastO, and accordingly, the leastO managed all the business affairs related to the closed-dong business of the Plaintiff. Thus, it is reasonable to determine whether the tax invoice has been authentic or not on the basis of the leastO. However, the Plaintiff and the AAAA were involved in the operation and investment of the Plaintiff as well as the purchaser, and multiple electronic tax invoices were issued by the same computer at the same time and place. According to the evidence Nos. 4, 6, and 10, the leastO was recognized as having been accused of the fact that the Plaintiff engaged in the closed-dong business several times as the representative director or the executor of the company operating metal, and thus, the mostO knew knew of the transaction practices and distribution flow, and in the process, it seems to have been able to know that there was any difference between the actual supplier and the supplier in the tax invoice due to frequent transactions.

3) Therefore, the Plaintiff’s assertion on this part is without merit.

5. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.