early 2012 Before 0192 ( October 26, 2012)

No good faith or negligence of the plaintiff may be recognized when a non-ferrous metal supplier receives a false tax invoice different from the fact entered in a false manner.

The instant tax invoice corresponds to a tax invoice different from the fact that the Plaintiff engaged in the non-ferrous metal industry for several years, the transaction has an exceptional aspect compared to the ordinary distribution structure, and it is difficult to view that the Plaintiff was able to exercise due diligence required in the course of the transaction in light of the possibility of ex post facto manipulation of the measurement certificate and the specifications of the transaction. Thus, good faith and negligence cannot be recognized.

2012Guhap1254 Revocation of Disposition of Imposing Value-Added Tax

KimA

Head of Chungcheong Tax Office

December 6, 2012

January 24, 2013

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the costs of lawsuit.

The imposition of value-added tax of KRW 000 on September 2, 201 by the Defendant against the Plaintiff on September 2, 2011 shall be revoked.

1. Details of the disposition;

A. Since August 20, 2003, the Plaintiff runs the manufacturing business of recycled metal processing materials, etc. with the trade name, "BB metal" from OO Ri 0 to BB metal, an OEEM, the AEM, the AEM, and the AEM.

B. The Plaintiff received 31 copies of tax invoices equivalent to the total supply value of 000 won during the first taxable period of value added tax in 2010 from KimD, which registered business of non-ferrous and scrap metal retail business, and deducted the input tax amount according to each of the tax invoices of this case, and reported and paid the value added tax for 1 year 2010 to the Defendant.

C. However, the director of the Central Regional Tax Office: (a) regarded KimD (CCC) as a disguised business operator who issued a false tax invoice without real transaction; and (b) accordingly, the Defendant deducted the input tax amount on the ground that each of the tax invoices of this case is a false tax invoice; and (c) issued a decision of correction and dismissal of KRW 000 of the first-year value-added tax on September 2, 201 to the Plaintiff (hereinafter “instant disposition”).

[Reasons for Recognition] The facts without dispute, Gap evidence 1, Gap evidence 4, Gap evidence 11, and Eul evidence 1 (if a parcel number is available, including the number, and hereinafter the same), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) KimD operated a normal non-ferrous and scrap metal wholesale trade, and the plaintiff actually purchased new stocks and scrap metals from KimD as stated in each of the instant tax invoices, and each of the instant tax invoices does not constitute a false tax invoice.

2) Even if KimD did not engage in a normal transaction as data, the plaintiff was issued a name with the business registration certificate while trading with KimD, and the plaintiff was directly confirmed that KimD was 10 employees with physical facilities, such as the open-site, the modern era, and the houseing, and that he was directly verified that KimD was employed by 10 employees. When KimD was supplied with non-ferrouss from KimD, he was issued a detailed statement of transactions, a measurement certificate, a tax invoice, and a tax invoice, and transferred the transaction price to the map in the name of KimD, and there was no negligence that the plaintiff did not know that SD was a disguised business operator and did not know that it was a disguised business operator.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) All circumstances related to the suspicion of data from KimD (CCC)

A) KimD had four years of imprisonment due to the crime of forging official documents, etc. and had no experience in the field related thereto prior to the date of release from the prison. On June 24, 2009, around 10 months after the date of release from the prison.

(B) The place of business of "CCmera" was 00 O00 'O00 'O00 '0 '00 '00 '0' at the time of the opening of business' (hereinafter referred to as "OOO'). From October 12, 2009, O0 '00 '00 '00 '00 '00 '00 '00 '00 '00 '0 '00 ' 00 ' ' '00 ' ' '00 ' ' ' ' ' '00 ' ' ' ' '00 ' ' ' ' '' ' '' ' ' ' '00 ' ' ' ' '' ' ' ' ' ' ' ' ' after 400 ' ' ' ' ' ' ' ' ' ' ' ' ' ' '. ' ' ' ' ' ' '. ' ' ' ' ' ' ' ' ' '. ' ' '. '. . ' . . . . . . . . . . . . . . . . . . . 00000000 '. . .

D) KimD has withdrawn in cash all immediately after the transfer of most of the transaction amounts, including the transaction amounts remitted from the Plaintiff, and the use of the withdrawn cash was not clearly identified.

E) From January 14, 2011 to May 24, 2011, the director of the Central Regional Tax Office of China: (a) conducted a tax investigation on KimD with respect to the first taxable period of value-added tax in 2010; (b) and (c) confirmed all sales tax invoices and purchase tax invoices equivalent to approximately KRW 000,000 in total of the supply values issued by KimD during the pertinent taxable period, including each of the instant tax invoices, and those issued by KimD with respect to the purchase of non-stock during the pertinent taxable period, as false tax invoices; and (c) accused KimO as data. While KimD did not own funds at the time of the opening of the business, it claimed that it raised approximately KRW 400,000 won of the opening of the business by receiving a loan or borrowing from the land (at the time of opening the business, KimD did not know that it did not pay a debt equivalent to approximately 47,000,000 won in arrears to the financial institution; and (d) disclosed practices and practices of the trading industry.

F) Meanwhile, on July 17, 2010, KimD reported that documents related to the purchase and sale, which were kept in the place of business, were stolen, applied for the extension of three months (by October 25, 2010) of the filing deadline of the first value-added tax for the first time in 2010, and as a result of the investigation, it was revealed that it was false for the extension of the filing deadline of value-added tax, which was arrested and was investigated under the suspicion of obstruction of the performance of fraudulent act.

2) All circumstances related to the transactions between the Plaintiff (OM) and KimD (CCCP)

가) 원고는 'BBB금속'의 사업자등록 명의인인데， 주로 원고의 시숙인 엄QQ 이 그 실질적인 운영을 담당하고 있다.

B) In the first taxable period of the value-added tax in 2010, the Plaintiff received a tax invoice in an amount equivalent to 000 won in total from 15 purchasers, including KimD (CCC) during the said taxable period, and issued a tax invoice in an amount equivalent to 000 won in total of supply values to 16 sales places during the said taxable period.

C) On January 21, 2010, the Plaintiff received 36 tax invoices equivalent to the total supply value of KRW 000 from KimD (CCC) for the first time, from July 29, 2010, and in relation to non-stock transactions, including new stocks, from July 29, 2010. Of them, the Plaintiff received 31 tax invoices equivalent to the total supply value of KRW 000,000 for the first taxable period of value-added tax in 2010.

(d) In relation to each of the tax invoices of this case, the items or weight of 1. 2 and 2. The number of vehicles listed in the 2. Mad KimD's 2. 1 and the 2. 1. 0 Mad 200 or 00 Mad 1 which are listed on the 2. Mad 20 Mad 1, which are listed on the 20 Mad 20 Mad 1, which are listed on the 20 Mad 1, which are listed on the 20 Mad 1, which are listed on the 20 Mad 1, which are listed on the 20 Mad 20 Mad 1, which are listed on the 20 Mad 1, which are listed on the 20 Mad 1, which are listed on the 20 Mad 1, which are listed on the 20 Mad 20 Mad 1, which are listed on the 1410 Mad 20.

E) At the very close time from the date of the preparation of each of the instant tax invoices, the Plaintiff transferred to an account in the name of KimD, wherein the trade name, “CCC Omission,” was written, and KimD withdrawn most of them in cash immediately after the receipt of the remittance.

바) 한편 염QQ은 2010. 6. 1. 10:00경(이 사건 각 세금계산서나 계량증명서，거래명세표에 따르더라도 원고와 김DD 사이에 거래가 있었던 날은 아니다) 'CCC메탈' 의 사업장 소재지에서 화물차(0000호)를 운전하다가 이RR(이RR은 이 법정에서 자신이 김DD의 직원으로 근무하였다고 증언하였는데， 김DD이 제출한 근로소득지급명세서 나 일용근로소득지급명세서 등에는 이RR에 관한 사항이 전혀 기재되어 있지 않다)을 충격하는 교통사고를 일으켜 이RR이 늑골 골절 등의 상해를 입었다.

G) The details of the sales that the Plaintiff reported in relation to the 1st taxable period of the Value-Added Tax in 2010 include ‘JJJ (JJ), ‘KK resources', and ‘KK resources', and ‘LL resources' are included in the details of the sales reported by KimD in relation to the said taxable period, and ‘JJJ (JJJ), ‘KK resources', and ‘LL resources' are included in the details of the sales reported by KimD in relation to the said taxable period.

아) 김DD은 2010. 4. 8. 원고에게 신주 7，690kg을 1kg 당 000원(공급가액 합계 000원)에 매출한다는 내용의 매출세금계산서를 발행하였고， 원고는 2010. 4. 9. MM비철금속 주식회사(이하 'MM비철'이라 한다)에 신주 7，690kg을 1kg 당 000원 (공급가액 합계 000원)에 매출한다는 내용의 매출세금계산서를 발행하였다[이에 대하여 원고는， 당시 엄QQ과 MM비철의 공장장인 이NN이 함께 'CCC메탈'의 사업장으로 가서 직접 위 신주 7，690kg을 확인한 후， 원고가 검DD으로부터 이를 매입하고 MM비철이 다시 1kg 당 300원을 덧붙여 원고로부터 이를 매입하기로 약정하였고， 이에 엄 QQ이 'CCC메탈'의 사업장에서 위 신주 7，690kg을 화물차(8842호)에 실어 MM비철의 사업장으로 직접 운송하였다는 취지로 주장하고 있다.

[Ground of Recognition] The facts without dispute, Gap evidence 2, Gap evidence 5 through 13, Gap evidence 15, Gap evidence 17, Gap evidence 20 through Eul evidence 22, and Eul evidence 1 through Eul evidence 5, the witness R, Eul evidence n and KimD's testimony and the whole purport of the arguments

D. Determination

1) Whether each of the tax invoices of this case constitutes a false tax invoice

A) Article 17(2)2 of the Value-Added Tax Act provides that input tax amounts in cases where the entries of a tax invoice are different from the facts, shall not be deducted from the output tax amount. The meaning that it is different from the facts is the title of income, profit, calculation, act or transaction subject to taxation, and if there is a 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 that provides that the provisions of the tax invoice apply to cases where the necessary entries are inconsistent with those of the person to whom the goods or service is actually supplied or supplied, or the price and time of the transaction, regardless of the formal descriptions of the transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 1

B) In the instant case, the following circumstances were found to have been taken into account, i.e., the 0-year period of transaction, and the 1-year period of transaction, and the 2-year period of transaction, for which the 1-year period of transaction and the 2-year period of transaction had been changed, and the 0-year period of transaction were not less than the 1-year period of transaction and the 1-year period of transaction, and the 2-year period of transaction were less likely to be less than the 1-year period of transaction, and the 1-year period of transaction were less likely to be less than the 1-year period of transaction, and the 2-year period of transaction were less likely to be less than the 1-year period of transaction, and the 2-year period of transaction were less likely to be less than the 1-year period of transaction, and the 2-year period of transaction were less than the 0-year period of the 1-year period of the 2-year period of transaction.

C) Ultimately, the Plaintiff’s actual supply of non-ferrouss to the Plaintiff is considered to be a third party, not KimD, and each of the instant tax invoices constitutes a false tax invoice different from the fact entered by the supplier. Therefore, this part of the Plaintiff’s assertion is without merit.

2) Whether the Plaintiff constitutes good faith and negligence

A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and the person who received the tax shall prove that the supplier was not negligent in not knowing the above nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) It is insufficient to find that the Plaintiff was not negligent due to the circumstances as alleged by the Plaintiff, and the evidence alone, as alleged by the Plaintiff, or alone, submitted by the Plaintiff, of the supplier listed in each of the instant tax invoices, and that there was no evidence to acknowledge that there was no negligence.

다) 오히려 앞서 인정한 사실에 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사정들， 즉 ① 원고나 엄QQ은 수년간 비철금속 업계에 종사하면서 위 업계 에 널리 퍼진 자료상 거래의 실태와 위험성을 충분히 알 수 있었으므로， 새로운 공급자와 단기간에 수억 원 규모의 거래에 임하는 과정에서 해당 공급자가 실제 공급자인지 여부 등에 관하여 더욱 주의를 기울일 필요가 있었던 점，② 더구나 앞서 본 바와 같이 통상적 인 유통구조에 비하여 원고와 김DD 사이의 거래는 이례적인 측면이 있었으므로 원고나 엄QQ으로서는 김DD(CCC메탈)의 영업이 실제성을 갖는 것인지 여부 등에 관하여 의문을 품을 여지가 더욱 많았던 점，③ 원고는 엄QQ이 국도를 주행하다가 'CCC메탈'의 간판을 발견하고 'CCC메탈'을 방문하여 김DD으로부터 사업자등록증과 명함을 받고서 거래를 시작하였고 2010. 7.경 이후 'CCC메탈'의 공급가격이 높아져 거래를 중단하게 되었다고 주장하는바， 2010년 제1기 부가가치세 과세기간에 원고가 김DD(CCC메탈)으로 부터 매입한 액수(공급가액 합계 000원)가 원고의 전체 매입액(공급가액 합계 000원) 중에서 약 64%를 차지하고 있는데， 비철 거래업계에서 안정적이고 믿을 수 있는 매입처 확보의 중요성을 감안할 때 위와 같은 경위로 거래를 개시하여 단기간에 매입 의존도가 급상승하였다가 갑자기 거래가 중단된다는 것은 상당히 석연치 않은 점，④ 앞서 본 바와 같은 계량증명서 및 거래명세표의 사후 조작 가능성에 비추어 원고가 김DD으로부터 이 사건 각 세금계산서를 교부받으면서 그때그때 이에 상응하는 계량증명서 및 거래명세표도 함께 교부받은 것은 아닐 가능성이 높은 점 등을 고려하면 원고는 김DD과의 거래과정에서 필요한 주의를 다하였다고 보기 어려우므로， 원고는 적어도 이 사건 각 세금계산서에 기재된 공급자 명의가 실제 공급자와 다르다는 사실을 알지 못한 데 과실이 있었던 것으로 보인다.

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

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.