The early appellate court 2013Gu 1617

Any non-deduction of purchase tax invoices received from the name of the rental business operator (tax invoices reported and paid normally by the supplier and the supplier) is legitimate.

The representative of the requesting corporation and the representative in the name of the main trading office, and the actual business operator themselves recognize that the actual business operator of the key trading office who issued the key tax invoice is the spouse of the requesting corporation, and the requesting corporation receives the key tax invoice with the knowledge of the fact that it is true that the supplier received the key tax invoice.

Article 17 of the Value-Added Tax Act, Article 60 of the Enforcement Decree

1. The plaintiff's claim is dismissed.

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

The value-added tax for the second term portion of the year 2005 that the Defendant provided to the Plaintiff on January 10, 2013, 2006

Each disposition of imposition of value-added tax for the first term portion shall be revoked, for the second term portion of value-added tax for 206, for the second term portion of value-added tax for 2006, for the first term portion of value-added tax for 2007, for the second term portion of value-added tax for 2007, for the second term portion of value-added tax for 2008, for the second term portion of value-added tax for 2008, for the second term portion of value-added tax for 209, for the second term portion of value-added tax for 209, for the second term portion of value-added tax for 209, for the second term portion of value-added tax for 200, for the second term portion of value-added tax for 200, for the second term portion of value-added tax for 201, for the second term portion of value-added tax for 201, for the second term portion of value-added tax for 2010.

1. Details of the disposition;

A. On May 15, 200, the Plaintiff’s representative director AB, as an individual entrepreneur, was established for the business purpose. BB, as the Plaintiff’s representative director, received the purchase tax invoice (hereinafter “tax invoice”) from BB, and Y (O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O.). On the other hand, the Plaintiff’s business place was located at the 1st floor of the Plaintiff’s 2005 to 12, 2012, and the Plaintiff received the tax invoice and the additional tax for each of the following tax periods.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) Article 75 of the Enforcement Decree of the Value-Added Tax Act, which is wholly amended by Presidential Decree No. 24638, Jun. 28, 2013, exceptionally permits taxpayers to deduct input tax amount, and Article 16(1)1 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that the number and name or name of the supplier as necessary entry. The fact that the name of the supplier and the name of the supplier in addition to the registration number of the supplier can be specified as a requisite entry. It does not interfere with the operation of the tax invoice only because the taxpayer's name and the name of the supplier can be specified as a requisite entry in the name of the supplier, as well as the name of the supplier in the name of the supplier, and that it is not an issue that the Plaintiff is not an entity that has entered in the tax invoice as a real name and the name of the supplier in the name of the supplier.

2) Even if it is not so, the Plaintiff only received a tax invoice stating the name of the supplier as the nominal name, while making real transactions with the Y, but also reported and paid all the value-added tax pursuant to the sales, there is no room to deem that the Plaintiff underreported the amount of the value-added tax due to an unlawful act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The main contents of the investigation completion report of the instant case are as follows.

【Details of the investigation

O Outgoing processing costs

O Violation of the Act on the Punishment of Corruption

- The external company of a legal entity is a related party and YY, at the 1st floor convenience room of the OO-Gu OO-ZZ factory as of Y, and verified the status of the business establishment of the external company - It is confirmed that the external company is engaged in the business with actual machinery, such as 140 straws, YY 38 straw machines, etc., in the convenience room of the first floor, but is not installed separately from the corporate machinery - It is confirmed that all the business activities of the external company, such as production management, human resource management, fund management, etc., are managed by the representative's spouse, and BB is confirmed as the actual owner of the external company, such as verification as BB by the external owner.

* During the period from February 2005 to January 2012, 2012, corporate input tax deduction, disguised BB and name holders,CC and D income tax correction, and notification related to OO tax affairs, which are the jurisdiction of the place of business of the foreign company.

O J. WO. WOO. WOO. LO.W.C.

- A juridical person is confirmed to have settled accounts at a voluntary price without a reasonable cost assessment procedure according to work volume in the course of outsourcing transactions with a person with a special interest, and received tax invoices. On the outside trading in the business year from 2007 to 2011, the appropriate cost for the outside trading shall be determined as follows, and the amount of OO00,000 won shall be included in deductible expenses.

2) The Plaintiff’s representative director AA, B B B B C C C C C C CD made a statement as follows at the time of the instant tax investigation. The head text of the investigation (A) is confirmed by the head office. The head office is not divided into P, Y’s workplace, production management, financing management, issuance of tax invoices, etc., and all of the operations, such as Z E E E EE head of the company and FF head of the company, are under the jurisdiction of the company. The management of the external company is why the external company is under the influence of the company: because the external company is under the control of the two companies under the direction of the house: the main office, etc. is confirmed. The door is the confirmation of the main office, etc.; Q, CC, its representative in the name of Y, and DD, are not involved in the business, and the content of the business is not known, and the two companies are also managed, and the entity is also verified to use B B CC funds.

답: 실사업주가 제 처인 BB이기 때문입니다. 문: 왜 실사주는 BB씨이면서, 명의를 위장하였습니까 답: XX 및 YY는 각각 처제와 처남에게 맡길 생각으로 설립하였으나, 상황이 여의치 않아 개업시부터 지금까지 집사람이 실질적으로 운영ㆍ관리하여 왔습니다. 모두 가족관계이므로 명의가 누구에게 있는 법적으로 별 문제가 없다고 생각했습니다. 또 처남이 2013년초 회사에서 퇴직하여 일손이 나면 그땐 각각 독립하여야하므로 더욱 그러 했습니다. 이번에서야 타인명의의 사업이 불법인줄 알았습니다. 문: 본직이 판단하기로는 귀하는 외주업체의 사업자등록증상 명의와 실지 사업주가 다르다는 것을 알고 있었던 것으로 판단되는데요. 동의하십니까 답: 예. 동의합니다.

In the investigation report (1) (CC) of the suspect of the violation of the law, the head of Si/Gun/Gu shall see the circumstances leading up to the operation of the business in the name of E, and the head of Si/Gun/Gu shall be able to produce a lot of suggestions in English: Z in comparison with the overseas business and E, and Z in the long time to enter into a marriage. The time to enter into a marriage is also restricted to the long-term speech company. The author will establish the company with the shares of E, but I will operate the English private teaching institute individually and operate the English private teaching institute differently from the purpose of its establishment because it does not have a separate situation to operate the P, so I will not know about the current business status of E, in view of the content of E, so far, how you do not know about the production management, and how you do not think that the business owner is the subject of BB's business. In the end, I will not think you will be the subject of the business owner.

Answer: N. The answer:

In addition, I would like to Y the process of questioning the suspect of the crime(D)(D): He will Y to speak about the process of running the business in his name, and I would like to establish it as a old-age measure after the husband's retirement. However, the husband's retirement is deferred for a few years, and unlike the original purpose of establishment, BB C was actually operating and managing from the beginning of the business. The thickness of the statement so far is that I will not entirely intervene in on-site management, production management, and fund management.In this case, I will be the previous family department, and we will not intervene in the business because I will receive long-term hospital treatment due to lack of body, and we will not know how I will know about the status of the business owner's business management without knowing all the contents.

3) At the time of the instant tax investigation, AA’s wife BB prepared a written confirmation of the following contents:

In addition, there is a fact that the O-O-O-OOOOO was established for the purpose of the birthCC to operate. However, unlike the purport, the situation where the birth is unable to concentrate on the operation of the business continues to exist and the fact that the beginning of the establishment was operated directly due to the deterioration of low financial standing, etc., but the fact that the business was continued without any change in the name of the establishment was made. YY (O-O-O-O-OOOOOOOOOOOOOOOOO) established under the name of the O20, YG was established for the purpose of operation upon retirement of the OG. However, as the time of retirement of the OG was changed, it was operated differently from the original purpose of the establishment, and it was operated continuously without any change in its business registration. There is no ground for recognition, the fact that there is no dispute between the O-O-O-O-O-OOOOOOOOOOOOOO and the purport of the whole pleadings, as a whole pleadings.

D. Determination

1) Determination on the first argument

A) Article 16(1) of the former Value-Added Tax Act provides that where an entrepreneur registered as a tax obligor supplies goods or services, a tax invoice stating the registration number and name or trade name of the entrepreneur who supplies goods at the time under Article 9 (1) and the registration number of the supplier (title 1), etc. (title 2) shall be issued to the person who receives the supply, as prescribed by Presidential Decree. Article 17(2)2 of the same Act provides that the input tax amount shall not be deducted from the output tax amount if all or part of the matters under Article 16(1)1 through 4 (hereinafter referred to as "necessary entry items") are not entered or differently entered from the fact in the tax invoice issued, and Article 14(1) of the Framework Act on National Taxes provides that the input tax amount shall not be deducted from the output tax amount. If there is another person to whom the income, profit, property, act or transaction subject to taxation belongs, and if there is another person to whom

Meanwhile, different meaning from the facts stipulated in Article 17(2)1 of the former Value-Added Tax Act refers to cases where the ownership of income, profit, calculation, act, or transaction subject to taxation is nominal, and there is another person to whom such income, profit, or transaction belongs, and where the necessary entries in the tax invoice are inconsistent with those in the transaction contract, etc. prepared between the parties to the goods or service, notwithstanding the formal entries in the transaction contract, etc., the subject of the actual supply of the goods or service, and the price and time of the goods or service. Furthermore, the input tax amount can be deducted only if the other party to the transaction was unaware of the fact that the other party to the transaction was not the actual supplier. Thus, if the tax invoice was delivered differently from the fact that the party to the transaction knew of such fact, it cannot be deducted from the output tax amount of the party to the transaction (see, e.g., Supreme Court Decisions 96Nu617, Dec. 10, 196; 200Du27, Feb. 27, 2002).

Inasmuch as a tax invoice constitutes a tax invoice entered differently from the fact by a supplier, it is reasonable to deem that the Plaintiff is not entitled to deduct the input tax amount of the tax invoice from the output tax amount because it was well known that the Plaintiff was not the actual supplier of goods, etc.

① According to Article 22(1)2 of the former Value-Added Tax Act and the main sentence of Article 70-3(1) of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same), where a business operator does not engage in a business on his/her own account and responsibility, i.e., business registration under another person’s name, and where an actual business is operated, administrative sanctions are imposed by adding an amount equivalent to 1/100 of the value of supply to the amount of tax payable or deducting

② According to Article 11(1) of the Punishment of Tax Evaders Act, a person who has registered his/her business by using another person’s name for the purpose of evading taxes or evading compulsory execution shall be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won.

③ If a de facto entrepreneur registers his/her business under another’s name and supplies goods or services, and the person registered as a supplier, and issues a tax invoice by entering the name of the actual entrepreneur as a supplier is inconsistent with the purport of the Value-Added Tax Act aiming to impair the objective transaction order and to train taxation data by taking the method of deducting the pre-stage tax amount as it is not revealed in the tax invoice proving the transaction phase. (4) Article 16(1)1 of the former Value-Added Tax Act provides that a business operator who supplies the tax invoice shall enter the registration number and name or title in the tax invoice, and the supplier’s column of tax invoice under [Attachment Form 11] of the Enforcement Rule of the Value-Added Tax Act (wholly amended by Ordinance of the Ministry of Strategy and Finance No. 355, Jun. 28, 2013) includes the registration number, trade name, and name. However, the Plaintiff was issued a tax invoice under the name of the actual entrepreneur and the name (representative).

(5) According to the proviso to Article 16 (1) of the former Value-Added Tax Act and Article 59 (1) of the Enforcement Decree of the same Act, where any ground, such as error or correction, arises after the issuance of a tax invoice, a tax invoice may be revised and issued, but the ground alleged by the Plaintiff does not constitute such ground.

6. If the actual transaction is recognized, as alleged by the Plaintiff, the input tax amount should be deducted if the Plaintiff knew or could have known that the actual transaction is different from the fact, regardless of whether it may be reflected in the loss in calculating the income tax and corporate tax base.

7) The Plaintiff, however, knew that the actual business operator XX, Y, was BB, and that the major supplier of the tax invoice was entered in the name ofCC and D, the supplier of the tax invoice, and subsequently, filed a value-added tax return based on the tax invoice issued under his/her name in order to obtain input tax deduction.

2) Judgment on the second argument

Article 47-3(2) of the former Framework Act on National Taxes (amended by Act No. 11124 of Dec. 31, 201) provides that if an enterpriser conceals or disguises all or part of the fact that serves as the basis for calculating the tax base or the amount of national tax, it would be difficult to impose and collect taxes, and thus, it would be understood that the Plaintiff would impose taxes much higher than those for general underreporting than those for which the taxpayer would return tax base in good faith. Furthermore, Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592 of Feb. 2, 2012) provides that the Plaintiff’s act of receiving tax invoices under the name of the above Y2 is an unlawful method for calculating the amount of taxes for the purpose of tax evasion by 20 years after deducting the actual amount of taxes payable under the name of the Plaintiff’s Y2 from the date of de facto underreporting, it would be reasonable to view that the Plaintiff’s act of tax evasion constitutes an unfair underreporting tax base.

3. Conclusion

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