Gwangju District Court-2013-Gu Partnership-2693 ( November 13, 2014)

The early appellate court 2013 Mine1741

Only the fact that a tax invoice issued through a disguised transaction has been submitted cannot be readily concluded that the intent to evade tax has been expressed.

If it is insufficient to deem that the supplier and the actual supplier entered in the tax invoice did not know their names or did not know their names, the disposition of non-deduction of input tax amount is legitimate, but it cannot be readily concluded that the intention of tax evasion has been expressed solely on the basis of the fact that the tax invoice issued under a disguised transaction has been submitted, and thus, the imposition

2014Nu6813 Revocation of Disposition of Imposition of Value-Added Tax

AA

000 director of the tax office

Gwangju District Court Decision 2013Guhap2693 decided November 13, 2014

April 30, 2015

June 11, 2011

(as shown in the judgment of the first instance)

1. The Defendant’s imposition disposition of value-added tax on January 17, 2013 exceeds KRW 000 among the imposition disposition of value-added tax on the first term portion of the year 201, exceeding KRW 000 among the imposition disposition of value-added tax on the second term portion of the year 201, and exceeding KRW 000 among the imposition disposition of value-added tax on the first term portion of the year 2012 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

On January 17, 2013, the Defendant revoked the imposition of value-added tax of KRW 000 for the first quarter of 201 against the Plaintiff, value-added tax of KRW 000 for the second quarter of 2011, and value-added tax of KRW 000 for the first quarter of 2012 against the Plaintiff.

1. Basic facts

A. The plaintiff's status

The plaintiff is a company that runs the business of manufacturing earth, sand, and ice containers in Jeonnam-do 00 00 00 ririri-ri, Jeonnam-do.

B. Plaintiff’s value-added tax return

The Plaintiff received a purchase tax invoice of KRW 000 ( = the first period portion of KRW 000 in 201 + the second period portion of KRW 0000 in 201 + the first period portion of KRW 0000 in 2012 + the first period portion of KRW 000 in 2012) from a limited liability company (hereinafter referred to as “in the following”), and upon deducting the input tax amount under the above tax invoice, filed a return on and pay the value-added tax for the pertinent taxable period to the Defendant.

C. Defendant’s corrective disposition of value-added tax

On January 17, 2013, the Defendant issued a tax invoice to the Plaintiff on the grounds that the Plaintiff’s tax invoice (total supply value of 000 won for the first term portion of 1, 2001, 000 won for the second term portion of 2,000 won for the first term portion of 2,011, 000 won for the first term portion of 1, 2012, 200 won for the next term of 1, 2000 won for the following tax invoice hereinafter “tax invoice”) is a tax invoice different from the fact from AAA, not for 00, for the following reasons that the Plaintiff has underreported the tax base of value-added tax £« 00 won for each of 2000 won for the underreported additional tax for the second term of 200 won for each of 2000 won for the underreported return and payment of 00 won £« 1,000 won for the underreported tax base of value-added tax for each of 20000 won for each additional tax for the year 2000000 won.

(d) Procedures of the previous trial; and

On April 12, 2013, the Plaintiff dissatisfied with each of the instant dispositions and filed a petition with the Tax Tribunal for an inquiry, but was dismissed on September 11, 2013.

[Ground of recognition] Unsatisfy, Gap evidence 5, 6 evidence, Eul evidence 1 (including Serial number, hereinafter the following), the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

Each disposition of this case is unlawful on the following grounds.

1) Illegal imposition of value-added tax on the Plaintiff

A) It is not a false tax invoice.

The plaintiff is supplied with mits and mits in fact from 00 oil tanks and received the tax invoice of this case, so it cannot be viewed as a false tax invoice.

B) The Plaintiff’s good faith and negligence

Even if the instant tax invoice falls under a tax invoice different from the fact, the Plaintiff was unaware of the fact that the actual supplier of mith oil was not a 00 oil tank but a AAA, and there was no negligence in not knowing.

C) It is possible to deduct input tax from the payment of the relevant tax amount under section 00.

According to the proviso to Article 17(2)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the following), and Article 60(2)6 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013); even if a tax invoice was issued for a place of business, which is not supplied or supplied with goods or services, the place of business shall either be paid in the aggregate pursuant to Article 4(2) of the Act or a tax invoice for which the actual supplier of goods or services has reported or paid the amount of tax payable for the pertinent taxable period to the head of the competent tax office of the competent tax office under Article 5(2) of the Act, the Defendant issued each of the instant tax invoices without mentioning whether Hyundai oil was returned or paid the amount of tax payable for the pertinent taxable period.

2) Illegal imposition of penalty tax for illegal or illegal underreporting

The Plaintiff did not know that the instant tax invoice was a tax invoice different from the fact, and did not file a value-added tax return by deducting the relevant input tax amount for the purpose of evading tax, and thus, it was unlawful to impose an unfair or unlawful penalty tax for underreporting,

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Determination

A. Whether the value-added tax may be imposed on the plaintiff

1) Whether the instant tax invoice constitutes a false tax invoice

A) Article 17(2)2 of the former Value-Added Tax Act provides that the input tax amount shall not be deducted from the output tax amount in cases where all or part of the matters to be entered under Article 16(1)1 through 4 of the same Act (the registration number and name of the entrepreneur who supplies, the registration number, the value-added tax, the date of preparation of the value-added tax, the date of preparation, and the following "necessary entry items") are not entered or entered differently from the fact on the tax invoice issued under Article 16(1)1 through 4 of the same Act. In such a case, the meaning that it is different from the fact is merely the name of the income, profit, property, act, or transaction subject to taxation, and if there is a separate person to whom it actually belongs, the person to whom it actually belongs is the taxpayer, in light of the purport of Article 14(1) of the Framework Act on National Taxes that Article 14(1) of the same Act applies to the case where the requisite entry items in the tax invoice do not coincide with the actual supplier, time, etc.

In addition, a person liable to pay value-added tax is a person who actually receives goods or services or who actually supplies goods or services from an entrepreneur who falls under a contractual cause as a person who provides goods or services, such as a person who provides or receives services, and then issues a tax invoice to the supplier. Furthermore, a person liable to pay value-added tax is not a person establishing a nominal legal relationship with the supplier or the supplier, but a person who actually receives goods or services from an entrepreneur who actually supplies or is supplied with the goods or services from the supplier (see, e.g., Supreme Court Decision 2007Do10502, January 28, 2010).

B) The facts as seen earlier and the following facts and circumstances, which can be acknowledged by comprehensively taking into account the overall purport of the pleadings, as seen earlier, and each of the statements in the evidence Nos. 2, 4, 6, and 7, i.e., (i) AA sells non-data mitts which the Plaintiff has secured by providing 00 assistance of Park 00 staff members by issuing a tax invoice in which Article 00 was entered as a supplier; (ii) the Plaintiff received through AA a tax invoice in which Article 00 is entered as a supplier (total supply value of 00 won) and supplied mit mit 200,000 won. In light of the fact that the Plaintiff supplied mit mit 200,000 supplied by AA in the above manner, the Plaintiff includes non-data mit mit 200,000 won of the total supply amount of 00,000 won of the input tax invoice for the portion of 200,000 won of the Plaintiff’s supply of the tax invoice.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the Plaintiff is bona fide and without fault or not

A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice either knew the fact that the supplier was unaware of the name of the tax invoice, and that the supplier was not aware of the fact that there was no negligence on the part of the supplier, the supplier cannot deduct or refund the input tax amount, and that the supplier was not negligent in not knowing the fact that the purchaser was unaware of the said name, the person who asserts the deduction or refund of the input tax amount must prove (see, e.g., Supreme Court Decision 2002Du2277,

B) However, in light of the following facts and circumstances, which can be acknowledged by comprehensively taking into account the aforementioned facts and the purport of the entire arguments, i.e., ① the complexity of the supply structure of the oil industry and the frequent transaction of non-originating materials using free oil, etc., if a usual petroleum product handler is a petroleum product, it is necessary to pay close attention to whether an oil supplier is an actual supplier. ② The Plaintiff has been operating a business of manufacturing and selling asphalt using mit oil since 1993 and about 20 years since 193; ③ the Plaintiff was receiving an offer of AAAA to supply mit oil which was lower than the market price, ④ The Plaintiff was not aware of the fact that there was no fault between the Plaintiff and the Plaintiff’s place of business and the telephone number of the Plaintiff’s place of business that was not related to the Plaintiff’s oil purchase, and the Plaintiff was not aware of the fact that there was no different from the Plaintiff’s market price, and the Plaintiff was not aware of the fact that there was no different from the Plaintiff’s market price.

Therefore, the plaintiff's assertion on this part is without merit.

3) Whether it is possible to deduct an input tax amount due to the payment of the relevant tax amount related to Article 00

The Plaintiff’s assertion is premised on the premise that Article 60(2)6 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) is applicable to each of the dispositions of this case. This part of the Plaintiff’s assertion is a newly established provision under the Enforcement Decree of the Value-Added Tax Act, which was amended by Presidential Decree No. 24359, Feb. 15, 2013, which was enforced on the same day, and there is no room to apply to each of the dispositions of this case, which was previously established on the first to the second to the second to the second to the value-added tax in 2011, which was subject to each disposition of

(b) Whether the imposition of an illegal or unlawful penalty tax for underreporting is legitimate;

1) Article 47-3 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; Act No. 11604, Jan. 1, 2012; hereafter the same shall apply) provides for the following acts: (a) the statutory system of Article 47-3 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 201; (b) the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012; hereinafter the same shall apply); (c) the provision provides for the imposition of tax base for the second term portion of value-added taxes; and (d) the provision providing for the imposition of tax base for the second term portion of value-added taxes; and (d) the provision providing for the imposition of tax base for the second term portion of taxes by “an unlawful or under-reported return of tax base” can be deemed either an unlawful or unreasonable return of tax base.

2) In light of the following circumstances revealed by comprehensively taking account of the facts and the purport of the entire arguments as seen earlier, namely, ① the Plaintiff’s provision of non-data AA’s mith oil at a significantly low price compared to the market price, ② the Plaintiff’s provision of tax invoices for 00 mith oil supplied by the Plaintiff is included in the part corresponding to the inducing mith oil supplied by the Plaintiff, and the Plaintiff’s provision of tax invoices for 00 mith oil was submitted to the tax authorities, solely on the ground that the instant tax invoice issued through a disguised transaction was submitted to the tax authorities, it cannot be readily concluded that the Plaintiff filed the tax invoice or the amount of tax by such active act as making it difficult for the Plaintiff to discover the taxation requirements for national taxes with intent to evade taxes or making it difficult for him/her file a false fact-finding, and thus, the Plaintiff’s return, such as the Plaintiff’s tax base, does not constitute the requirement to impose any unfair or unfair under-reported additional tax. Accordingly, each of the dispositions of this case is unlawful.

3) Meanwhile, in the case of each value-added tax for the first and second years from 2011 to 2012, since the tax base reported by the Plaintiff falls short of the tax base that should be reported under the tax laws, an additional tax for underreporting should be imposed. Accordingly, in the event that the amount of the additional tax for the first year from 201 is added to the principal tax for each of the above value-added tax, the amount of the additional tax for the first year from 200, the amount of the additional tax for the second year from 2011, and the amount of the additional tax for the first year from 200, the amount of the additional tax for the first year from 2012, and the amount of the additional tax for the first year from 1 to 2012 should be revoked.

C. Sub-committee

Among the respective dispositions in this case, the pertinent imposition disposition of value-added tax for the first term through the first term of 2012 (the first term portion of 201, the second term portion of 2011, the first term portion of 2011, and the first term portion of 2000) and the pertinent imposition disposition of value-added tax for the first term of 2012 is legitimate. However, the pertinent imposition disposition of value-added tax for the first term of 201 through the first term portion of 2012, which exceeds the pertinent legitimate imposition of value-added tax for the first term of 200 won, is unlawful. As such, among the value-added tax for the first term portion of 201 through the first term portion of 2012 which was imposed for each disposition in this case, the aforementioned imposition of value-added tax for the first term portion of 200 won for the first term of 200 won £« the total sum of the principal and penalty taxes for 2000 won for 1 year ＋ the second term of 2000000 won (the second term portion).

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remainder is without merit, and it is dismissed as per Disposition.