Whether the transaction of gold bullion through a breadthed coal company is a processing transaction for the purpose of obtaining a refund of value added tax.

The burden of proving that the tax invoice is false is based on the tax authority in principle, and the plaintiff's purchase place is insufficient to prove that it is an intentional enterprise, so the initial disposition is unreasonable.

Tax amount paid under Article 17 of the Value-Added Tax Act

1. On December 1, 2005, the Defendant revoked each disposition of KRW 2,041, 227,570 for the second term portion of the value-added tax for the year 2003, value-added tax for the first term portion of the year 2004, KRW 3,773,76,150 for the first term portion of the value-added tax for the year 2004, KRW 464,518,740 for the second term portion of the value-added tax for the year 2004, KRW 345,438,510 for the corporate tax for the year 203,513,750 for the year 204.

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

The same shall apply to the order.

1. Details of the disposition;

A. From April 11, 2003, the Plaintiff engaged in precious metal wholesale and retail and export-import business from ○○○○○○○-dong 00 officetels 00-0 ○○○○○○○○○○○○.

B. During the period from July 30, 2003 to October 7, 2004, the Plaintiff purchased gold bullion amounting to KRW 51,314,648,851 (referring to gold bullion amounting to at least 995/1,00 in the actual state of raw materials, such as gold dudles, etc.) from 14 companies, such as a stock company (hereinafter referred to as “○○”) and then exported it to Hong Kong, and filed a return of value-added tax in each taxable period after deducting the above input tax amount from the output tax amount.

C. Upon receipt of the notice from the director of ○○ Regional Tax Office that the tax invoice of this case was false or other unlawful means, the Defendant deducted the input tax amount of the entire tax invoice of this case from the input tax amount, and on December 1, 2005, the Defendant deducted the Plaintiff from the second period portion of value-added tax in 2003 (including the additional tax of KRW 471,052,518), 3,736,150 (including the additional tax of KRW 1,019,138,684), 204, 364,518,740 (including the additional tax of KRW 197,289,180), 345,438,510 (including the additional tax of KRW 1,00,000), 510,510 (including the additional tax of KRW 1,00,000), 203, 203, 203730,739.

D. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the Board of Audit and Inspection (the Board of Audit and Inspection) No. 55 in 2007. However, on June 15, 2007, the Board of Audit and Inspection dismissed the Plaintiff’

[Ground of Recognition] Unstrifed Facts, Gap 1-8, 11, Eul 1, 2 (including each number)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff actually traded the same contents as the tax invoice of this case. The Plaintiff purchased and exported gold bullion, and paid gold bullion suppliers the price and value-added tax through bank branch, and the result of exporting gold bullion was also deposited in the Plaintiff’s deposit account accurately, all of the instant transaction is not a transaction using data on the place of normal transaction.

(2) The Defendant has to refund value-added tax upon the Plaintiff’s questioning by applying zero tax rate. When the Plaintiff filed a return of value-added tax, the Defendant confirmed that there was a real transaction through the investigation and refunded value-added tax, but the instant disposition violates the good faith principle stipulated under Article 15 of the Framework Act on National Taxes.

(3) The Defendant sold gold bullion more than the purchase price, did not get a refund of customs duties, purchased the gold bullion on credit once. Some of the gold bullion exported by the Plaintiff were re-exported, and there was a bombomb in the Plaintiff and a trader, but the instant disposition was made on the ground that there was a bomb in the Plaintiff and a trader, but there was no ground therefor.

B. Relevant provisions

○ Application of zero tax rate Article 11 of the Value-Added Tax Act

(1) The zero tax rates shall apply to the supply of the following goods or services:

1. Exported goods;

○ Article 17 of the Value-Added Tax Act

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as "purchase tax amount") from the tax amount on the goods and services supplied by him/her (hereinafter referred to as "sales tax amount"): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter referred to

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry items”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

○ Decision and Correction Article 21 of the Value-Added Tax Act

(1) The head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service shall determine or correct the tax base of value-added tax or tax amount

2. Where there are any mistakes or omissions in details of the final tax return;

3. Where the list of the total tax invoice by buyer or the total tax invoice by buyer is not submitted in the final tax return, or all or part of the submitted list of the total tax invoice by buyer is not entered or

○ Article 76 of the Corporate Tax Act

(5) In case where a corporation (excluding such corporation as prescribed by the Presidential Decree) is supplied with goods or services from a businessman as prescribed by the Presidential Decree in connection with this business and fails to receive documentary evidence as prescribed in any subparagraph of Article 116 (2), the chief of the district tax office having jurisdiction over the place of tax payment shall collect the amount calculated by adding an amount equivalent to 2/100 of the unpaid amount to the corporate tax, except for the case where the proviso of

○ Receipt and safekeeping of documentary evidence of expenditure Article 116 of the Corporate Tax Act

(1) A corporation shall prepare or receive documentary evidence for all business-related transactions for each business year and keep them for 5 years from the date of the expiration of the time limit for report under the provisions of Article 60.

(2) In cases falling under paragraph (1), where any corporation receives goods or services from a business operator prescribed by Presidential Decree and pays the price therefor, it shall receive evidential documents falling under any one of the following subparagraphs and keep them: Provided, That the same shall not apply to cases prescribed

2. Tax invoice under Article 16 of the Value-Added Tax Act;

Article 24 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19215 of Feb. 9, 2006)

(1) Exports provided for in Article 11 (1) 1 of the Act shall be as follows:

1. Shipping domestic goods (including the fishery products collected by Korean vessels) from a foreign country;

(2) The goods exported under Article 11 (1) 1 of the Act shall be deemed to include the following goods:

1. Goods supplied by an entrepreneur through a local letter of credit or written confirmation of purchase as prescribed by the Ordinance of the Ministry of Finance and Economy: Provided, That gold bullion supplied under a written confirmation of purchase

○ Scope of local letters of credit, etc. under Article 9-2 of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 499 of March 17,

(2) The term "purchase confirmations provided for in Article 24 (2) 1 of the Decree and Article 26 (1) 2-2 of the Decree means confirmations issued by the head of a foreign exchange bank under Articles 38-2 and 116 (14) of the Enforcement Decree of the Foreign Trade Act within 20 days after the end of the taxable period to which the time of supply for goods or services belongs, corresponding to a local letter of credit referred to in paragraph (1) and on which the documents, such as the export letters of credit

○ Goods supplied under General Rules 11-24-9 of the Value-Added Tax Act by local letter of credit or letter of approval for purchase.

The zero tax rates shall apply to goods supplied under a local letter of credit or a purchase approval as prescribed by the Foreign Trade Act, regardless of whether such goods are used for export after they are supplied.

○ Special taxation of value-added tax on gold bullion under Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005)

(1) The value-added tax shall be exempted not later than June 30, 2005 pursuant to the classification under paragraph (3) from the supply of gold bullion falling under any of the following subparagraphs (hereafter referred to as "tax-free gold bullion" in this Article), which is a gold bullion with the form, net drawing, etc. prescribed by the Presidential Decree (hereafter referred to as

1. Gold bullion supplied by the wholesalers and refiners of gold bullion prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold bullion wholesalers, etc.") to the gold craftsmen, etc. prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold craftsmen, etc.") after receiving tax-free recommendation from a person prescribed by the Presidential Decree (hereafter in this Article, referred to

2. Gold bullion supplied or redeemed by the gold bullion wholesalers, etc. and financial institutions prescribed by the President (hereafter in this Article, referred to as "financial institutions") to the financial institutions recommended for tax-free gold bullion trading, which have received tax-free gold bullion trading recommendation;

3. Gold metals supplied under the futures trading under the Futures Trading Act: Provided, That the same shall not apply to the case where any person other than the gold craftsmen, etc. (including the financial institutions) takes over the actual objects of

(2) The value-added tax shall be exempted until June 30, 2005 on the gold bullion imported by the gold craftsmen, etc. and financial institutions after receiving a tax-free import recommendation from the persons prescribed by the Presidential Decree (hereafter referred to as "the head of the tax

(3) Special cases under the Value-Added Tax Act shall apply to the tax-free gold metals under the provisions of paragraph (1) in accordance with the following subparagraphs:

1. The provisions of Article 12 of the Value-Added Tax Act shall apply mutatis mutandis to the supply of tax-free gold metals by the distribution agency

2. Where any entrepreneur, other than financial institutions, supplies the tax-free gold bullion, the relevant entrepreneur shall be deemed the value-added tax taxable entrepreneur and the Value-Added Tax Act shall apply. In this case, the value-added tax amount borne at the time of purchasing the relevant gold bullion in connection with the supply of the tax-free gold bullion shall not be deemed the input tax amount eligible for the deduction under Article 17 of the Value-Added Tax Act, and the tax-free gold bullion wholesaler, among the gold bullion wholesalers, etc. and the value-added tax amount borne by the relevant entrepreneur in connection with the purchase of the

(c) Fact of recognition;

(1) The Plaintiff purchased all gold bullion recorded in the attached list and exported them on the same day, and the exporting place is the Johnson Shy Ltd.) and the Alley Apex Limited in Hong Kong. On June 18, 2004, there has been two to three months prior to export and import on one occasion before and after the end of two to three months.

[Toe, gold bullion, the serial number of which is Ma871707, 1kg, is Madbrid, shall be imported and exported by ○○○, Inc. without any processing for three times through three times, including the date of Jan. 8, 2004, Jan. 14, 2004, Jan. 30, 2004, and the date of Jan. 30, 2004, and the serial number of which is Ma85935, is 1 km, and the gold bullion, the serial number of which is Ma859335, is Madbrid, is repeated for eight times from December 12, 2003 to March 3, 2004, by an importer, such as ○○○, Inc.).

(2) All the gold bullion transactions in this case were conducted through the second-third-stage wholesale on the day on which the import declaration was filed from Hong Kong to the taxable conversion company (the gold bullion purchased through tax exemption from value-added tax is converted into the taxable amount without being sold as tax exemption, and the sales tax invoice is issued and issued, and the sales tax invoice is issued and issued, and the transaction company is allowed to deduct the input tax amount from the sales price, and the transaction is called a "one-time carbon company" as an enterprise which is temporarily locked without paying the value-added tax). In other words, the gold bullion transactions in this case are supplied to the Plaintiff, the exporter, through the second-third-stage wholesale company, which is ultimately supplied to the Plaintiff

Reviewing the detailed details of the instant transaction on March 17, 2004 is as follows.

① The ○○ Commercial Corporation imported 500 km from Hong Kong Mitsui Buss (H.K) Lt. to KRW 7,684,074,056. ② The ○○ Company sold the said gold bullion to ○○○○○ Company with tax exemption for KRW 782,830,000 per 50 km. ④ The ○○ Trade Company, a company with a width, sold the said gold bullion to 785,326,750 won. ⑤ The ○○○ Fund sold the said gold bullion to ○○○ Company with tax exemption for KRW 881,150,000,000, including the value-added tax. However, the ○○○ Fund sold the said gold bullion to ○○○○○ Company without paying KRW 73,56,00,00 included in the sales price.)

(3) The price of gold bullion exported by the Plaintiff is always lower than the import price of gold bullion on the day (see the following table), and the Plaintiff, an exporter, did not refund a customs duty (3%) assessed at the time of initial import.

[Comparison of the plaintiff's export price with the domestic market price and international market price]

($ /g)

Date of transaction

(1) The export price of the plaintiff

(2) Domestic market taxes:

International City Tax

The difference between each market price and each market price

(3) Peremptory price

(4) Minimum price

(2) -3

-2

(1) -

203.07.31

11.50

12.14

11.49

11.36

0.65

-0.64

0.14

oly 24, 2003

12.36

12.93

12.6

12.34

0.30

-0.57

0.02

November 06, 2003

12.28

12.80

12.33

12.18

0.47

-0.52

0.10

December 03, 2003

12.91

13.48

13.00

12.88

0.48

-0.57

0.03

204.01.05

13.38

13.99

13.65

13.35

0.34

-0.61

0.03

204.02.03

12.82

13.55

12.96

12.79

0.59

-0.73

0.03

204.03.03

12.55

13.41

12.65

12.46

0.76

-0.86

0.09

204.04.16

12.74

14.04

12.94

12.75

1.10

-1.30

-.01

204.05.03

12.39

13.39

12.51

12.39

0.88

-1.00

0.0

204.06.07

12.58

13.58

12.67

12.58

0.91

-1.00

0.0

204.07.12

13.07

13.90

13.14

13.03

0.76

-0.83

0.04

204.08.19

12.98

14.05

13.11

12.98

0.94

-1.07

0.0

204.09.02

13.09

14.25

13.13

13.04

1.12

-1.16

0.05

04.10.08

13.45

14.63

13.62

13.41

1.01

-1.18

0.04

Average Price

12.87

13.70

13.00

12.82

0.70

-0.83

0.05

(4) The Plaintiff purchased all gold on credit from the domestic gold bullion purchaser, etc., and exported the gold on the same day, and received the export payment from approximately two days after the purchase price.

(5) In relation to the instant gold bullion transaction, ○○○, ○○○, ○○○, ○○○, ○○○○, and ○○○, etc. among the purchasing places, ○○○○, a stock company, ○○○, ○○, ○○○, ○○○○, ○○○, ○○○, ○○○, ○○○○, and ○○○○○, etc., were accused of violating Articles 9(1) and 11-2 of the Punishment of Tax Evaders Act.

(6) The Plaintiff did not respond to the Plaintiff’s request for explanation as to whether there was any record of manufacturing company, serial number, net level, weight, etc., which can specify gold bullion traded by the Plaintiff.

(7) For gold bullion, the domestic market price of gold bullion is higher than the international market price, which accounts for 66% of the domestic circulation volume (based on 2001). Accordingly, various variable transactions, including the avoidance of value-added tax, are crossing to the price of gold bullion regularly imported, in order to meet the price of gold bullion.

[Reasons for Recognition] Each entry in Gap, 10, Eul 1-23 (including each number), the purport of the whole pleadings

D. Determination

(1) As a matter of principle, the burden of proving that a tax invoice is false in fact exists to the defendant who is the tax authority, the defendant must prove that the tax invoice is not accompanied by real transactions on the basis of direct evidence or all the circumstances. However, in a case where the defendant proves considerable degree of proof as to this point to the extent that he reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy to present evidence and materials related to the plaintiff who is the taxpayer who is the taxpayer disputing the illegality of the defendant's disposition, by asserting that the tax invoice is not false (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

(2) The Defendant issued the instant disposition on the ground that the instant tax invoice received by the Plaintiff from Samsung, etc. upon purchasing gold bullion was a tax invoice different from the fact. In order to be lawful from the instant disposition, it should be proven that the purchaser, such as ○○, was a rush coal company or a rush company. However, the evidence submitted by the Defendant alone is insufficient to acknowledge that the purchaser, such as ○○, was a rush coal company or a rush company, and there is no other evidence to acknowledge it. (In addition, it is insufficient to recognize that the purchaser was a rush coal company or a rush company with the transaction entity recognized by the above 2 to 3th phase prior to the purchase entity as the rush coal company. Moreover, it is insufficient to recognize that part of the purchase entity was accused of the violation of Articles 9(1) and 11-2 of the Punishment of Tax Evaders Act

(3) Therefore, the instant disposition based on the premise that the instant tax invoice was false, is unlawful.

3. Conclusion

Then, the plaintiff's claim is justified, and it is so decided as per Disposition with the assent of all participating Justices.

[Seoul High Court Decision 2007Gudan1046, 2008.24)]

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

A. The Defendant’s imposition of KRW 345,438,510 of corporate tax of the year 2003 against the Plaintiff on December 1, 2005 and the imposition of KRW 783,483,750 of corporate tax of the year 2004 shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. The plaintiff bears 84% of the total costs of the lawsuit, and the remainder shall be borne by the defendant respectively.

1. Purport of claim

The judgment as described in Paragraph (a) of Paragraph (1) of the Disposition No. 1 (the Director's KRW 783,513,750 of corporate tax in 2004 appears to be a clerical error of KRW 783,483,750 of corporate tax in 2004) and the defendant's imposition of value-added tax of KRW 2,041,227,570 of corporate tax in 2003 against the plaintiff on December 1, 2005 and value-added tax of KRW 3,773,736,150 of value-added tax in 204, value-added tax of KRW 464,518,740 of corporate tax in 204 shall be revoked.

1. Circumstances of the imposition disposition;

A. The Plaintiff is a company engaged in precious metal wholesale and retail business, and export and import business from ○○-gu ○○○-dong 65-○○○○ 703.

B. From July 30, 2003 to October 7, 2004, the Plaintiff received 143 copies of the tax invoice (hereinafter referred to as "each tax invoice of this case") stating that the Plaintiff purchased 3,470.9km in total from 51,314,648,851 won (hereinafter referred to as "each tax invoice of this case"), and that the company issuing each of the tax invoices of this case is "the purchase transaction office of this case," and that it received 'the gold bullion of this case' subject to the tax invoice of this case from 14 companies, such as the company, etc., including the company, and that received 'the gold bullion of this case' after deducting the above input tax amount from each taxable period after exporting the Hong Kong ○○○, value-added tax, and the above input tax amount.

C. On May 1, 2005, the director of the Seoul Regional Tax Office determined that each of the tax invoices of this case was false tax invoices, and notified the Defendant thereof. On December 1, 2005, the Defendant did not deduct the input tax amount of each of the tax invoices of this case, and imposed tax amount of 2,041,227,570 won (including additional tax 471,052,518 won), value-added tax for the first period of 2003, value-added tax for 3,773,736,150 won (including additional tax 1,019,138,684 won), value-added tax for 2,04, value-added tax for 2,518,740 won for 2,04, value-added tax for 364,518,189,180 won for each of the tax invoices of this case, 305,2701,7304,7405,7,75701, etc.

D. The Plaintiff dissatisfied with the instant disposition, and filed a request for review with the Board of Audit and Inspection (the Board of Audit and Inspection) No. 55 in 2007, but the Board dismissed the Plaintiff’s request for review on June 15, 2007.

[Ground of recognition] Unsatisfy, Gap evidence 1 to Gap evidence 8, Gap evidence 11, Eul evidence 1 and 2 (including each number)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) After normally purchasing the instant gold bullion from the Plaintiff, the Plaintiff received each of the instant tax invoices from the Plaintiff, and paid the purchase price and value-added tax via the bank branch. Moreover, the purchase price was exported to ○○○○○○○○, a company located in Hong Kong through normal completion, and the purchase price was paid accurately in the Plaintiff’s deposit account. Therefore, since the instant gold bullion transactions are normal transactions consistent with the actual conditions, the Defendant’s imposition disposition of this case solely on the basis of several circumstances, including the Plaintiff’s extension of the Plaintiff’s transaction company, the Plaintiff’s extension of the Plaintiff’s transaction company, and the Plaintiff’s non-payment of customs duties, is contrary to the principle of basis taxation.

(2) The Defendant has to refund value-added tax upon the Plaintiff’s questioning by applying zero tax rate. When the Plaintiff filed a return of value-added tax, the Defendant confirmed that there was a real transaction through the investigation and refunded value-added tax, but the instant disposition violates the good faith principle under Article 15 of the Framework Act on National Taxes.

(b) Related statutes;

Article 6 of the Value-Added Tax Act

Article 7 of the Value-Added Tax Act

Article 11 of the Value-Added Tax Act

(c) Fact of recognition;

The following facts may be acknowledged, either in dispute between the parties, or in combination with the whole purport of the pleadings in the entry in Gap's 9, 10, and Eul's 1 to 28 (including each number):

(1) A general form, etc. of an irregular gold bullion transaction for the purpose of tax evasion

(A) According to Article 11(1)1 of the Value-Added Tax Act, the zero-rate tax rate shall apply to the supply of harvested goods. In addition, according to Article 106-3 of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 17827, Dec. 11, 2002; Presidential Decree No. 17827, Jul. 1, 2003) Article 24(2)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Jul. 1, 2002); since gold bullion is not an exception, it can be subject to the zero-rate tax rate even to the supply of gold bullion from the gold bullion wholesalers upon obtaining a written confirmation of purchase from the head of foreign exchange bank on the basis of export-related documents. Moreover, the tax-free gold bullion importer’s recommendation and its tax-free gold bullion importer’s recommendation from the gold bullion wholesaler’s gold bullion dealer’s gold bullion’s trading and sales of gold bullion’s.

(B) Such abuse of the value-added tax rate or tax exemption system, which imports gold bullion and distributes it as tax exemption through multiple stages of wholesalers. The so-called "large carbon business" (the gold bullion purchased through value-added tax exemption is converted into tax exemption, the sales tax invoice is issued and issued, and the sales tax invoice is issued and issued, and the transaction partner is allowed to deduct the input tax amount, and the transaction partner is allowed to deduct the input tax amount without paying the value-added tax) is converted into tax amount, and the "large coal business" is exported to distribute it as tax through multiple stages of wholesalers, and the "large coal business" is exempted from the value-added tax collected from the transaction, and the exporter is entitled to receive the unpaid value-added tax from the point of 2002 to the precious metal business located in Jongno-gu Seoul Metropolitan Government. This type of "large coal business" is further detailed as follows.

1) In appearance, gold bullion is distributed through the stages of 'foreign enterprises' ? importer ? duty-free wholesale ? tax-free wholesale ? tax-free wholesale ? taxation ? taxation ? export ? foreign enterprises. The transaction price is paid in sequence from the exporter to the importer, but in particular, the taxable wholesalers only issue the tax invoice according to the specific company's orders, and they do not actually trade or transport gold bullion.

(ii)The "exploitation coal supplier" shall purchase gold bullion as a tax-free gold and sell it as a tax-free gold, and then evade the value-added tax by withdrawing and concealing the profit within a short period of time and closing the business. "exploitation coal supplier" sells gold bullion with the supply value lower than the purchase value, but the supply value added to the value-added tax is higher than the purchase value and is not paid with the transaction-free value, so that the difference between the supply value and the purchase value will be reasonable.

3) On the other hand, the value-added tax collected by the "large Carbon Business" is transferred in order by each of the companies in the immediately preceding stage to deduct the input tax amount by using the tax invoice received from the immediately preceding stage company. In the end, the importer is entitled to refund the gold bullion from the State in accordance with the application of the zero-rate tax rate after exporting the gold bullion. The ultimate source of profit is the value-added tax paid by the State, which is a substantial portion of the value-added tax paid by the "large Carbon Business". The profit is distributed in the form of the so-called in the margin, in which the amount calculated by the specified ratio is separately paid by the participating company to the participating company, and the difference between the import price and the export price (the export price is lower than the import price if based on the domestic company) is also allocated to the foreign company.

4) In order to maximize profits, a "large amount of gold bullion business" shall be distributed to the maximum extent possible in a short period of time. ① In order to prevent disputes between participating companies that may arise therefrom, or accidents such as loss of prices, most of the same poles (referring to those who prepare for import funds for the first gold bullion from the outside of the carbon business network) shall be operated simultaneously by the exporting company and the importing company; ② shall be placed in direct transactions with the "large-scale company"; ③ the previous owner shall determine the volume, unit price, and margin of the transaction at each stage of transaction; ④ The series of transactions from the importing company to the exporting company shall be carried out in most short time or less days; ⑤ The actual transactions of gold bullion shall be carried out immediately with the exporting company, and most of them shall be transported immediately through normal transactions (limited to formal transportation for disguised transactions even if they are transported every stage of transaction).

(C) In the event that the head of the competent tax office deems it necessary to preserve the value-added tax as a result of the amendment of the Restriction of Special Taxation Act by Act No. 7322 on December 31, 2004 to prevent tax evasion by the above methods, the security system was newly established that allows gold bullion wholesalers, etc. to request the provision of security (Article 106-3(11)). Since April 1, 2005, the gold bullion import volume was 268 tons, export volume was 23 tons, and export volume was 56 tons of import volume in the year 2005, and export volume was 19 tons.

(2) The details of establishment of the Plaintiff

(A) On April 11, 2003, the Plaintiff established the main office in ○○-dong, Seoul, 169-○○-dong, and its trade name as ○○○ ○○ ○○ ○○ ○○ ○ ○○ ○○ 17, 2003. On October 17, 2003, only this ○ ○ ○ was appointed as the representative director, and the head office was transferred to 65-○ 65-○ ○ 703, and the trade name was changed as at present.

(B) A representative director of the Plaintiff was appointed from around 1983 to serve as a customs officer on April 200, and was retired from the Seoul Customs office on April 200, and there was no gold bullion transaction experience by engaging in a self-employed business, such as operating coffee specialty store in the Gyeonggi-do ○○○○ Dong branch. On October 2003, 200, the Plaintiff had a management right transferred from the former representative director’s regular use (attached Form 1) to operate gold bullion export business, such as gold bullion export.

(3) Specific details of the instant gold bullion transaction

(A) The Plaintiff’s purchasing and trading office of the gold bullion of this case classified the tax invoice received by the Plaintiff from 13 companies, including ○○, etc., for each taxable period, as follows.

(Omission of List)

(B) The plaintiff's major purchasing and trading partners, ○○○○, in collusion with the actual operators of the 45 wide coal companies, including the main purchasing and selling company from April 3, 2001 to May 10, 2004, filed an appeal to the Seoul Central District Court on the grounds that "the operator of the above 45 large coal companies evaded the value-added tax amounting to about 74 billion won by means of almost remaining assets in the company's name, etc." (including the value-added tax) and the operator of the above 45 large coal companies was sentenced to five years of imprisonment and a fine of about 15 billion won at the Seoul Central District Court on January 2, 2008, and the appeal was filed with the Seoul High Court on June 20, 2008 (Supreme Court Decision 2007Da7992). However, the appeal was dismissed on June 20, 2008 (Supreme Court Decision 2008No1984080).

(C) On July 24, 2008, the Seoul High Court sentenced 8 years imprisonment and a fine of KRW 170 billion to 200 billion (Supreme Court Decision 2008No385 Decided July 24, 2008) on the following grounds: (a) ○○○ Fund, the Plaintiff’s major purchase and sale business entity, in sequence with ○○○○○, a pro-friendly relationship with the representative director Lee Dol, was committed by using the above ○○ Fund, etc. as a Doc enterprise.

(D) The Defendant issued each of the instant purchase tax invoices to the Plaintiff and purchased the instant gold bullion through a typical brupt business entity, such as ○○○○D Co., Ltd., ○○○○○○D Co., Ltd., ○○○○○○○D Co., Ltd., ○○○○○○○ SP, ○○○○○D Co., Ltd., Ltd., ○○○○○D Co., Ltd., ○○○6 Co., Ltd., ○○D Co., Ltd., ○○○○○

(E) The Plaintiff purchased all gold bullion listed in the list of [Attachment 1] on credit, and exported them to ○ ○ ○○○ and ○○ fax on the day of the purchase. On June 18, 2004, the Plaintiff had already been exported and imported at or before 2-3 months before and after the end of 2-3 months from the Alley exported to ○○ ○○ fab. For example, the gold bullion, serial numbers 2871707, 1kg, 2004, was repeated by ○○ ○○○, Inc. without any processing on three occasions, including serial numbers Ma 85935, 1k g fab, from January 14, 2004, and January 30, 2004.

(F) All of the gold bullion transactions in this case had gone through the Hong Kong company via the tax exemption sheet at two to three levels on the day of the import declaration from Hong Kong, and then have been supplied to the Plaintiff, the exporter, at two to three levels, at the end, through the second-third wholesale companies, and was finally exported to Hong Kong on or after the date of import, or after 2 to three days. For example, the gold bullion transactions in this case, which was imported on March 17, 2004 from the gold bullion transactions in this case and brought into the bonded warehouse for Asia or Asia Incheon for the same day at 09:10 on the same day, were imported from March 17, 2004, and were brought into the importing company ? Two duty-free wholesale companies ? Two tax-free wholesale companies ? 2 ? 19:44 Incheon Airport for the same day through the order of the Plaintiff, were converted into 50 km gold bullion (Evidence No. 3-1).

① The importer’s company (main shareholder) imported 500 km from Mitsui Bussan (H.K) Ltd. to KRW 7,684,074,056, and sold the said gold bullion to the Hong Kong ○○○○○, without delay, at KRW 783,830,000 per 50 km.

(2) ○○○ Trade has sold the gold bullion 50 g above at KRW 784,150,000 as a tax exemption, and (ju) ○○ Trade has sold the gold bullion 785,326,750 as a tax exemption for the gold bullion to (ju) ○○ Trade.

③ The amount of ○○○○, which is a major carbon company, sold 808,115,000 won (734,650,000 X 1.1) including value-added tax, and escaped without paying value-added tax of 73,465,00 won included in the above sales price.

④ (State) ○○○○ ○○ was sold to the Plaintiff the gold bullion amounting to KRW 809,60,000 ( KRW 736,000,000) including value-added tax, and (ju) the gold bullion sold to the Plaintiff KRW 816,915,000 ( KRW 742,650,000) including value-added tax.

⑤ On March 17, 2004, the Plaintiff exported the gold bullion 50km to the Hong Kong Hong Kong ○○ Holdings to KRW 749,457,482, which is lower than the price imported by the (ju) ○○○ on the day. The price was deposited on March 17, 2004, after the mold.

(G) The Plaintiff exported not only within the premises on the date of export, but also at a price lower than the international market price, as set forth below.

Omission of the Table

(h) Meanwhile, gold bullion importers pay customs duties equivalent to 3% of the price of gold bullion at the time of the import of gold bullion, which is included in the transaction price of gold bullion and transferred to the purchaser, and gold bullion exporters are entitled to refund 3% of customs duties paid to the purchaser. For this purpose, "the certificate of division" under the Act on Special Cases concerning the Refund of Taxation, etc. on Raw Materials for Export from the Purchase Trading Agency is issued to the purchaser. However, in the instant gold bullion transaction, the parties, including the Plaintiff, did not receive at any time the certificate of division necessary for the refund of customs duties, and the Plaintiff, the exporter, did not take necessary procedures for the refund of 3% customs duties.

(i) The Plaintiff purchased gold bullion from the instant purchase trader, and then exported the said gold bullion to ○○○○○ and Alley○○○○, Hong Kong. While the price was paid after the purchase, the Plaintiff did not secure any security against the said export trader.

(j) On April 3, 2008, the Seoul Central District Public Prosecutor's Office filed a complaint with the Seoul Central Public Prosecutor's Office on the crime of evading value-added tax equivalent to 6.6 billion won in total, in collusion with the Plaintiff's representative director, by submitting false purchase tax invoices. On January 25, 2008, the Seoul Central Public Prosecutor's Office ordered the Plaintiff to suspend indictment by taking into account the following circumstances: (a) the Seoul Central Public Prosecutor's Office's disposition against the Plaintiff on April 3, 2008 that "no prosecution has been instituted on the ground that the statute of limitations has expired on January 25, 2008; (b) the Defendant's principal crime was sentenced to punishment

D. Determination

(1) As to the imposition of value-added tax

(A) Criteria for determination

Article 6 (1) and Article 16 (1) of the Value-Added Tax Act provides that "any person who supplies or is supplied goods or services, such as a person who delivers or provides services on the grounds of contract, etc." and provides a tax invoice to the supplier. Furthermore, the person liable to pay the value-added tax shall be deemed to be the person who actually performs the transaction of supplying the goods or services to the person who actually supplies or is supplied with the goods or services from the supplier, not from the supplier or the person who forms a nominal legal relationship.

따라서 실제로 재화 또는 용역을 공급하는 사업자와 세금계산서상의 공급자가 다른 경우 그 세금계산서는 부가가치세법 제17조 제2항 제1홍의2에서 규정하는'그 기재 내용이 사실과 다른 세금계산서'에 해당하고(대법원 1997.3.28. 선고 96다 48930. 48947 판결 대법원 2003.1.10. 선고 2002도4520 판결 등 참조), 이와 같이 실제 재화 또는 용역의 공급자와 세금계산서상의 공급자가 다른 세금계산서는 공급받는 자가 세금계산서의 명의위장사실을 알지 못하였고 알지 못한 데에 과실이 없다는 특별한 사정이 없는 한 그 매입세액을 공제 내지 환급받을 수 없으며, 공급받는 자가 위와 같은 명의위장 사실을 알지 못한 데에 과실이 없다는 점은 매입세액의 공제 내지 환급을 주장하는 자가 위와 같은 명의위장 사실을 아지 못한 데에 과실이 없다는 점은 매입세액의 공제 내지 환급을 주장하는 자가 이를 입증하여야 한다(대법원 2002.6.28. 선고 2002두 2277 판결 등 참조).

(B) Whether each of the tax invoices of this case constitutes "tax invoices different from the facts"

As to the instant case, the following circumstances revealed in the above recognition: (i) the instant gold bullion was distributed through various stages of wholesalers within a very short period of time from importation to exportation; (ii) there was no added value in the process; (iii) the export price was an abnormal transaction structure for export as a whole; and (iv) the ultimate source of profits earned by each transaction was the part of the value-added tax refunded by the exporting company; (ii) the export price of the instant gold bullion was considerably low compared with the international market price and domestic market price; and (iii) the Plaintiff’s transaction parties, including the Plaintiff, were unable to obtain more profits than the instant gold bullion if it were distributed in the domestic market; and (iv) the Plaintiff’s purchase price of the instant gold bullion was no more than the Plaintiff’s purchase price for the instant gold bullion transaction through a false transaction for the purpose of refund of value-added tax; and (v) the Plaintiff’s purchase price of the instant gold bullion was no more than the Plaintiff’s purchase price for the instant gold bullion transaction, and thus, it is difficult to view the Plaintiff’s purchase price of the instant gold bullion transaction to be determined as a sale method.

Therefore, the tax invoice of this case is a different tax invoice between the actual supplier and the supplier on the tax invoice. The representative director of the plaintiff is a person who has been employed for a long time as a customs officer, and is well aware of the procedures for refund of customs duties related to export and import. However, in full view of the fact that 00% of the tax invoice in the gold bullion transaction of this case did not receive or deliver a divisional certificate necessary for refund of customs duties, 00%, 00 won, which is the principal purchaser of the plaintiff, was identified as a company in the related criminal case, and that 00 won, as the principal purchaser of the gold bullion transaction of this case including the above company, was involved in a typical wide-scale coal company, such as 00 ○D, etc., it is difficult to view that the plaintiff was not aware of the difference between the actual supplier of the gold bullion and the supplier on the tax invoice of this case, or was negligent in not knowing that the disposition of this case

(C) Whether the instant disposition of value-added tax violates the principle of good faith

In general, in order to apply the principle of trust and good faith to the tax authority's acts in the tax law relations, the tax authority must issue a public opinion list that is the object of trust to the taxpayer, and the taxpayer's trust that the tax authority's name of opinion is justifiable shall not be attributable to the taxpayer. The taxpayer shall trust his name of opinion and conduct what is it is, and the tax authority's disposition against the opinion list shall result in a violation of the taxpayer's interest (see Supreme Court Decision 2001Du9103, Nov. 26, 2002). Thus, there is no evidence that the defendant expressed a public opinion that it would not impose the value-added tax on the gold bullion transaction in this case, and there is no reason that the plaintiff's assertion in this part is without merit.

(D) Sub-determination

Therefore, the part of the value-added tax in the Defendant’s taxation is legitimate.

(2) As to the imposition of corporate tax

In applying Article 76(5) of the Corporate Tax Act (amended by Act No. 8141, Dec. 30, 2006; hereinafter “Corporate Tax Act”) on the ground that the instant tax invoice is a tax invoice different from the actual one, the Defendant imposes penalty tax equivalent to 2/100 of the total value of supply arising from transactions in each business year.

However, Article 76(5) of the Corporate Tax Act provides that a corporation to whom goods or services are supplied shall bear the additional tax in cases where it fails to receive the regular expenditure documents, such as tax invoices, is aimed at enhancing transparency in the content of the corporation’s expenditure and inducing the other party to the transaction to foster the tax base. Since the legitimacy of its purpose is recognized and imposing the other party to the transaction, which is the object of tax base cultivation, has difficulty in the legislative purpose of imposing the duty of faithful return on the other party to the transaction, the corporation to whom the goods or services are supplied, which shall receive the regular expenditure documents and additionally pay an amount equivalent to a certain percentage of the amount not received for the breach of the duty (see Constitutional Court Order 2004Hun-Ba7, Nov. 24, 2005; 2006Hun-Ba88, May 31, 2007). Therefore, the additional tax under the above provision shall apply to cases where it is not received the evidentiary documents despite the actual transaction, and it cannot be applied to the act of receiving the evidentiary documents different from the actual transaction (see, etc.).

Therefore, among the instant taxation, the portion of imposing penalty tax on the Plaintiff on the ground that the pertinent gold bullion was not received, is unlawful by applying the aforementioned provision to the Plaintiff.

3. Conclusion

Therefore, the part of the plaintiff's claim for the revocation of the disposition imposing corporate tax among the claims of this case is justified, and it is dismissed as there is no ground to seek the revocation of the disposition imposing corporate tax, and the judgment of the court of first instance is unfair in part as it is unfair from this conclusion. Therefore, the judgment of the court of first instance is modified as prescribed in