Seoul Administrative Court 2005Guhap1979 (20083.06.04)

Whether it is a nominal transaction for disguised transaction in relation to the actual transaction of gold bullion

It is difficult to conclude that all a series of transactions until gold bullion is imported and exported are conducted within a very short period of time or less than a day, and that there is a so-called bombomb in the middle stage, etc., only by issuing and receiving tax invoices, or that there is no actual supply of goods.

The contents of the decision shall be the same as attached.

Article 60 (Report of Tax Base, etc. of Corporate Tax)

Article 67 (Disposal of Income)

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

A. The part corresponding to each amount indicated in the column for revocation tax amount in the separate sheet in the separate sheet 2. Item (1) of the separate sheet that the Defendant made against the Plaintiff shall be revoked in the imposition disposition of each value-added tax and corporate tax.

(b)to accept the plaintiff's request for money;

10% of the total litigation costs shall be borne by the plaintiff, and the remainder by the defendant.

1. Purport of claim and plaintiff's purport of appeal

The judgment of the first instance court shall be modified as follows. The defendant shall revoke the imposition of each value-added tax and corporate tax stated in the attached Table 2. detailed statement against the plaintiff.

2. The defendant's purport of appeal

The part of the judgment of the court of first instance shall be revoked.The plaintiff's claim corresponding to the cancellation part shall be revoked.

The dismissal is dismissed.

1. Quotation of judgment of the first instance;

The court's explanation about the instant case is based on Section 2-c. (1)(b) of the reasoning of the judgment of the court of first instance.

A. The reasoning of the judgment of the court of the first instance is the same as that of the reasoning of the judgment of the court of the second instance, except for the dismissal as set forth in Section 2(a)(6) as set forth in Section 2(b) as set forth below. As such, this rate is quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The part to be mard;

(a)the decision on the first proposal of the plaintiff;

(1) Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that the supply of goods shall be delivered or transferred by all contractual or legal grounds. In light of the corner that value-added tax has characteristics as multi-level transaction tax, Article 6(1) of the Value-Added Tax Act includes all acts of causing transfer of authority to use and consume goods, regardless of the existence of profits actually acquired. In this case, the issue of whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act shall be determined individually and specifically by taking into account all the circumstances such as the purpose and process of the transaction by each transaction party, the form and manner of the transaction, the person to whom profits accrue, and the payment relationship of consideration, and the burden of proving that a tax invoice received in the course of the transaction falls under Article 17(2)1-2 of the Value-Added Tax Act that denies the deduction of the input tax amount on the grounds that the specific transaction is a nominal transaction without delivery or transfer.

그런데 갑 제19 내지 30호증(각 가지번호 포함)의 각 기재 및 제1심 중인 유○숙 의 증언에 변론 전체의 취지를 보태어 보면, ★★쥬얼리 등 이 사건 12개 거래업체들 중 ◇◇금은, ◎◎◎콜드, □□무역, ☆☆쥬얼리, ◎◎금은, ◈◈쥬얼리의 경우 대체로 업체들의 대표나 직원이 금지금 전량 또는 거의 대부분 물량을 직접 원고에게 인도하거나 일부는 운송회사를 통하여 원고에게 언도한 사설, 원고는 거래 상대방 회사로부터 금지금을 언도받을 때 항상 그 회사 직원의 신분증을 복사하여 화물운송층과 함께 받았고 이률 2부 작성하여 원고와 상대방 회사가 각 1부씩 보관한 사설(갑 제26호증의 18), 원고는 ☆☆쥬얼리 등 12개 업체들로부터 끔지금을 매입한 당일 및 그 다음날에

Inasmuch as the gold bullion was actually delivered from the importer to the exporter, and the price was paid, and the tax invoice of this case in Chapter 832 was written and issued, as argued by the Defendant, it is difficult to readily conclude that the transaction of this case is not a supply of goods subject to value-added tax solely on the ground that the transaction of this case was issued only by issuing the tax invoice, or even if the actual gold bullion was delivered or paid, it does not constitute a supply of goods as a nominal transaction for the purpose of disguisedizing the actual transaction, and there is no other evidence to find that the tax invoice of this case constitutes a “tax invoice different from the fact” as alleged by the Defendant, inasmuch as the entire transaction of this case was conducted within a very short period of time until the import and export of the gold bullion of this case, and there is a so-called carbon company at the intermediate stage.

(2) As to this, the Defendant asserts that the Plaintiff’s transaction of this case is entirely subject to zero-rate tax rate for exports, and thus, at least a series of illegal acts committed by the Plaintiff in collusion with the so-called large carbon enterprises for the purpose of illegal refund through the form of exporting the value-added tax evaded by the so-called large coal enterprises, and thus, is null and void by Article 103 of the Civil Act. Thus, the Defendant asserts that the Plaintiff shall deny the application for refund by denying the input tax deduction in order to prevent the damage of the country that caused the tort and enable the Plaintiff, etc

살피건대, 원고의 대표이사 권○엽이 폭탄업체들과 순차로 공모하여 지금 변칙거래 의 방식으로 부가가치세를 포탈하였다는 퉁으로 형사처벌을 받은 사실은 앞에서 인정 한 바와 같으나, 이는 ★★쥬얼리 등 12개 업체가 원고에게 금지금을 공급하였음을 전 제로 이미 성립된 이들 업체의 부가가치세 납부의무에 대한 포탈행위에 원고가 공법으로 가담하였다는 점을 의미할 뿐이고, 위에서 본 바와 같이 이 사건 거래에 해당하는 설제 거래가 있었던 것으로 인정되는 이상 피고 주장과 같은 사정만으로 매입세액 콩 제를 부인할 수는 없으므로, 피고의 위 주장은 받아들일 수 없다.

In addition, the Defendant asserts that the instant tax invoice constitutes a false tax invoice, as it is merely a case where the original value-added tax amount is written, which is to be paid to the State by collecting the transaction from the other party and paying it from the other party, on the ground that it is merely a case where the instant tax invoice constitutes a false tax invoice.

However, in the case of a transaction of supply of goods between a business entity who is liable to pay value-added tax, if value-added tax is separated and specified separately from the value of supply in the supply contract and a tax invoice is issued and received in a lump sum, the value-added tax shall be deemed to have been processed separately from the value of supply (see Supreme Court Decision 2004Da60065, May 27, 2005), and as recognized earlier, so long as the Plaintiff purchased the present of this case and paid the price to the supplier, the tax invoice issued in the transaction process cannot be deemed to be a tax invoice different from the quality, and thus the Defendant’s assertion cannot be accepted.

B. Sub-committee

Therefore, in calculating the value-added tax from 11271 to 1204 on the ground that the tax invoice in this case constitutes a "tax invoice different from the facts", it is unfair to calculate the amount of each supply value on the above tax invoice by excluding the amount of each supply value on the grounds that the tax invoice in this case constitutes a "tax invoice different from the facts" subject to the input tax deduction of the above value-added tax. Therefore, when calculating a legitimate tax amount by including it in the case subject to the input tax deduction of the input tax amount, the amount indicated in [Attachment 1...................... the portion corresponding to the amount indicated in the "III" column should be revoked as stated in the judgment of the court of first instance, which is the amount exceeding the above legitimate tax amount among the disposition imposing the value-added tax in this case.

3. Conclusion

Therefore, the judgment of the court of first instance is to be modified together with the judgment of the court of first instance and it is the same as the order.