Cho High-2014-Seoul Government-0132 ( July 8, 2015)

False Tax Invoice

If tax authorities proved that a tax invoice is not accompanied by a real transaction, it is necessary to prove that a taxpayer who is in a position of easy to present relevant evidence and data has actually engaged in such transaction, as stated in the tax invoice.

Article 17 (Payable Tax Amount)

2015Guhap9025 Revocation of Disposition of Imposition of Value-Added Tax

AA Corporation

BB Director of the Tax Office

October 19, 2016

December 2, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 7,136,00 (including additional taxes) and KRW 80,325,760 (including additional taxes) for the second year of 2011 against the Plaintiff on September 5, 2013 shall be revoked in entirety.

1. Details of the disposition;

A. On December 13, 2011 and December 14, 2011, the Plaintiff (former: hereinafter “CC”) received purchase tax invoices of KRW 181,600,000 in total from 181,60,000 from CC (former: hereinafter “CC”) and received purchase tax invoices of KRW 4,00 in total from 181,60,000 during the first taxable period of the value-added tax, from 17, 2012 to 17, 2012, the Plaintiff (former; hereinafter “CC”) received each of the above purchase tax invoices of KRW 2,051,230,00 in total (hereinafter “purchase tax invoices”).

B. On December 13, 2011, the Plaintiff issued to EE (hereinafter “E”) a total of KRW 183,200,000 of the supply value to the EE (hereinafter “E”), and issued a clean gold (hereinafter “GG”, operated by EE and FF from January 9, 2012 to June 19, 2012 during the first value-added tax period, from January 2012 to June 2012, 201, respectively, a tax invoice of KRW 2,072,772,72,730 in total, among E and GG, is called “market sales tax invoice”, and the purchase tax invoice and sales tax invoice are added to “markets”).

C. The Plaintiff filed a return on the value-added tax for the second and first years of 2012, including the purchase amount of the purchase tax invoice at issue and sales amount of the sales tax invoice at issue.

D. On September 5, 2013, the Defendant deemed the key tax invoice as the processed tax invoice without real transaction, and accordingly corrected and notified the Plaintiff of the second-year value-added tax (13,735,334 won + penalty tax of KRW 7,296,00 + penalty tax of KRW 13,895,334) and value-added tax of KRW 80,325,760 for the first-year value-added tax of KRW 80,325,760 (=calculated tax of KRW 8,43,026 + penalty tax of KRW 82,480,054 + penalty tax of KRW 10,597,312, and below KRW 100,00 for each disposition of this case), respectively (hereinafter referred to as "each disposition of this case"). [Grounds for recognition], Gap, 4,895,334 won, and each of subparagraphs 1 through 7, 2012

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) 원고와 쟁점 매입처 및 쟁점 매출처 사이의 은 그래뉼(Granule, 알갱이) 거래는 모두 실물 거래이므로, 쟁점 세금계산서는 사실과 다른 세금계산서라고 볼 수 없다. 이와 다른 전제에서 이루어진 이 사건 각 처분은 위법하다(이하 '첫 번째 주장'이라 한다).

2) 원고는 쟁점 매입처 및 쟁점 매출처와의 은 그래뉼 거래가 부정거래에 해당한다는 점을 알지 못하였고 이를 알지 못한 데에 과실이 없으므로, 쟁점 매입세금계산서에 의한 매입세액은 공제되어야 한다. 이와 다른 전제에서 이루어진 이 사건 각 처분은 위법하다(이하 '두 번째 주장'이라 한다).

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged, either in dispute between the parties, or in full view of the entries in Gap evidence 11, Eul evidence 2, 5, 10 (including the relevant branch numbers), Gap evidence 10-1, 2, and the purport of the whole arguments.

1) On July 3, 2014, HH, the representative of DD, issued a false tax invoice as if he/she supplied the Plaintiff with a false tax invoice equivalent to KRW 65,100,00 on January 17, 2012, in the absence of the fact that HH had supplied the Plaintiff. ② From January 18, 2012 to June 14, 2012, HH issued a false tax invoice as if it suppliedCC with KRW 3,869,310,000 as if it had been supplied; ③ from March 27, 2012 to April 30, 2012, HH was sentenced to a suspended sentence of KRW 1,717,571,000 to KRW 20,000 (the appellate court sentenced the suspended sentence of KRW 205,200,000 to KRW 250,000,000,000).

2) On January 8, 2015, III, an operator ofCC, was convicted of one year and six months of imprisonment and a fine of 80 million won in the Seoul Southern District Court on the following grounds: (a) on January 13, 2012, the JJ (hereinafter “J”) issued a false tax invoice as if he/she had been supplied with 54,40,00 won; (b) from January 18, 2012 to June 14, 2012, as if he/she was provided with 3,869,310,000 won as if he/she was provided with D with 3,869,310,000 won; and (c) was sentenced to a suspended sentence of 1 year and six months (2014,322), and was sentenced to a fine of 1,630,000 won (Seoul High Court) at the appellate court to be sentenced to a suspended sentence of 1,815 million won (Seoul High Court).

3)CC was established on January 13, 1995 for the purpose of various housing, commercial facilities, building development projects including business facilities, real estate leasing business, etc., and III added non-ferrous metal wholesale and electrical shop wholesale businesses to the objective project by changing its trade name from the former KK to theCC on November 18, 2011.

4)CC does not have any other employee than III, there is no relevant measurement facility in the office, and there is no inventory. In addition, III does not check the weight or net level with the land while trading Eul, but does not measure the degree or weight by using measuring instruments, etc.

5) In relation to the transaction during the first taxable period of the value-added tax in 2012,CC issued a tax invoice equivalent to KRW 3,869,310,00 from DD; ② a tax invoice equivalent to KRW 54,40,000 from J; ③ a tax invoice equivalent to KRW 1,001,000 from E; ④ a tax invoice equivalent to KRW 503,930,000 from LL (hereinafter referred to as “LL”); ⑤ a tax invoice equivalent to KRW 52,750,000 from MM (hereinafter referred to as “M”); and ⑤ a tax invoice equivalent to KRW 1,255,820,00 from the Plaintiff during the same period.

6) In relation to the transaction during the 1st VAT period in 2012, CCTV issued a tax invoice of the amount equivalent to KRW 1,717,571,00 from DD; ② a tax invoice of the amount equivalent to KRW 2,200,000 from NN (hereinafter “N”); ③ a tax invoice of the amount equivalent to KRW 250,000 from EE; ④ a tax invoice of the amount equivalent to KRW 45,000,000 from OO (hereinafter “O”); and ④ a tax invoice of the amount equivalent to KRW 730,310,000 from the same period. Meanwhile, Canada issued a tax invoice of the amount equivalent to KRW 730,310,00 to the Plaintiff during the same period.

7) In 2012, the Plaintiff issued a tax invoice with the content that the Plaintiff supplied EE with an equivalent of KRW 2,052,334,00 in the first taxable period of the value-added tax, and that the Plaintiff supplied GG with an equivalent of KRW 20,438,00, respectively.

D. Determination

1) As to the first argument

A) Article 17(2)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) provides that an input tax amount shall not be deducted from the output tax amount in cases where all or part of the requisite entry items are entered differently from the fact in the tax invoice issued. The burden of proving that a specific transaction constitutes an "tax invoice different from the fact that the input tax amount deduction is denied on the ground that the specific transaction is a nominal transaction for which no substantial delivery or transfer of goods is made (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). However, if the tax authority proves that the relevant tax invoice is not accompanied by a real transaction, it is necessary to prove that the relevant evidence and data are not a taxpayer who is in a position to present, as described in the relevant tax invoice, that the transaction actually existed.

B) In light of the following circumstances as seen earlier, the aforementioned evidence and the evidence set forth in the Evidence Nos. 6-1, 2, and 6-1, 2, and 4 as well as the overall purport of the pleadings, it shall be deemed that there was no purchase or sale transaction corresponding to the tax invoice between the Plaintiff, the key purchaser, and the key seller during the 2011 and the 191-2 taxable period, and that there was no other counter-proof of the aforementioned facts. Accordingly, the pertinent tax invoice corresponds to all the tax invoices that are different from the facts. contrary thereto, it is difficult to believe that each of the items set forth in the Evidence No. 7-1 through 5, which is contrary to the above evidence submitted by the Plaintiff, is insufficient to reverse the above recognition, and there is no

(1) In a final and conclusive criminal judgment, even if DD did not supply the notice on January 17, 2012, it was recognized that it issued a tax invoice as if D supplied the Plaintiff with the tax invoice equivalent to KRW 65,100,000.

(2) In a final and conclusive criminal judgment,CC was not supplied with 3,869,310,000 won during the first value-added tax period in 2012, but it was found that it was issued a tax invoice as if it were supplied with 3,869,310,000 won fromJ and 54,400,000 won fromJ. excluding the portion of the tax invoice issued by D andJ during the first value-added tax period in 2012,CC was issued 557,681,000 won (E 1,001,000 won + LL503,930,000 won + MM 52,750,000 won) for the same period, and the Plaintiff was also issued a tax invoice in excess of 3,505,000 won for the same period.

(3) In a final and conclusive criminal judgment, DD did not supply C in the first taxable period of the Value-Added Tax for the year 2012, but it was recognized that it issued a tax invoice as if it supplied CB with 1,717,571,100 won. Exclusion from the portion of DD’s tax invoice issued from DD, for the first taxable period of the Value-Added Tax for the year 2012, it was merely equivalent to 47,450,000 won (NN 2,200,000 + E E EE 250,000 + OO 45,000,000 won + for the same period, the Plaintiff was issued a purchase tax invoice for the same period of time with the content that it purchased 730,310,000 won from CB for the same period of time. Moreover,CC was issued for the same period of time in addition to the cost of the Plaintiff’s 100,000 won.

(4) In light of the transaction period, the term “CC” was considerably doubtful as to whetherCC supplied the Plaintiff during the 2nd taxable period of value-added tax in 201, in light of the personnel and type of business.

(5) The Plaintiff issued the sales tax invoice to EE with the content that the Plaintiff sold a quantity similar to the purchase amount on the purchase tax invoice of the issue at issue at issue after receiving the purchase tax invoice from the key purchaser.

(6) The difference between the total sales amount on the key sales tax invoice and the total purchase amount on the key purchase account statement is merely KRW 1,600,000 in the second half of 201 and KRW 1,04,000 in the second half of 2012.

(7) As to the transaction entered in the tax invoice at issue, the Plaintiff immediately remitted the amount remitted from EE to the purchaser at issue.

(8) During the 1st VAT taxable period in 2012, GG submitted a confirmation that it received tax invoices equivalent to KRW 20,438,000 from the Plaintiff without real transactions during the tax investigation period, and filed a revised declaration of value-added tax by deeming that the input tax amount equivalent to the above amount is not deducted.

(9) EE의 대표자인 PPP는 세무조사 과정에서 "원고의 대표자인 QQQ에게 거래처로 주식회사 RR, 주식회사 SS, 주식회사 TT, UU 주식회사를 소개해 주었으나, 쟁점 매입처를 소개하지는 않았다."는 취지로 진술하였다.

C) Therefore, the first argument is without merit.

2) As to the second argument

A) In cases where a supplier and an actual supplier are different, an input tax amount pursuant to a tax invoice may not be deducted or refundable unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that there was no negligence on the part of the supplier, barring special circumstances. Furthermore, the burden of proving that the supplier was not negligent in not knowing the fact that the supplier was unaware of the said name should be attested by the party asserting the deduction or refund of the input tax amount (see, e.g., Supreme Court Decisions 2002Du277, Jun. 28, 2002; 2014Du42001, Feb. 2

B) The foregoing legal doctrine applies to cases where a person who received a purchase tax invoice receives goods from another supplier who is not the supplier on the purchase tax invoice. However, the transaction between the Plaintiff and the purchaser is processed as seen earlier, and the evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff purchased the goods corresponding to the purchase tax invoice from another supplier who is not the purchaser at issue during the second and the first taxable period of the value-added tax in 2011, and there is no other evidence to acknowledge this differently. Therefore, the second argument is without merit, without examining the Plaintiff’s good faith and negligence.

3) Sub-determination

Each disposition of this case does not contain any unlawful grounds asserted by the plaintiff, and the court of this case cannot find any unlawful grounds for ex officio examination on records. Each disposition of this case is legitimate.

3. Conclusion

The plaintiff's claim of this case is dismissed without merit, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.