early 208west 1731 ( December 30, 2010)

The plaintiff's transaction of gold bullion as an exporter cannot claim the deduction and refund of the input tax amount in violation of the principle of good faith.

In making gold bullion transactions, the Plaintiff, an exporter, was aware of, or was unaware of, the circumstances that there was a malicious entrepreneur engaged in illegal transactions for the purpose of evading the output tax amount in a series of transaction processes, thereby causing a decrease in the input tax amount for the Plaintiff. Therefore, in light of the principle of good faith, the Plaintiff cannot claim for the deduction and refund of the input tax amount according to the tax invoice.

2011Revocation of revocation of disposition, such as rectification of value-added tax, 7595

SS Co., Ltd.

O Head of tax office

June 17, 2011

July 22, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of correction of value-added tax of KRW 754.688.530, 2004 against the Plaintiff on February 4, 2008 is revoked.

1. Details of the imposition;

The following facts are not disputed between the parties, or arguments in each entry in Gap evidence 2, 3, 5-1, 5-2, 1, 7-1, 9-1 through 5, 16 and 16:

in full view of the purport of the whole. I

A. The Plaintiff is a juristic person established on June 25, 1981 for the purpose of running a restaurant business, a siren business, an export and import business, etc.

B. From January 6, 2004 to January 14, 2004, the Plaintiff purchased at KRW 5,077,291,000 in the aggregate of the supply value of gold bullion 325 km (hereinafter referred to as “the gold bullion of this case”) from XX Roves Co., Ltd. (hereinafter referred to as “X Roves”) and Ojuice Co., Ltd. (hereinafter referred to as “Ojuice”), and received refund of KRW 530,149,000 in the aggregate of the value-added tax by reporting to export AA (H.K) LIITD (hereinafter referred to as “AA”) in Hong Kong.

(2) The following details of transactions are omitted:

C. After conducting a tax investigation with the Plaintiff on November 4, 2007, the Defendant corrected and notified the Plaintiff of the amount of input tax pursuant to the instant tax invoice on the ground that all purchase tax invoices (hereinafter “tax invoice of this case”) equivalent to KRW 5,077,291,00 in total of the purchase prices that the Plaintiff received from XX Round and OE due to a systematically disguised variable transaction (hereinafter “the instant tax invoice”) were false tax invoices. On February 4, 2008, the Defendant corrected and notified the Plaintiff of the amount of KRW 805,461,440 (the amount of value-added tax calculated on June 16, 201, 754,68,530, excluding the amount of penalty tax, was corrected to be reduced to KRW 754,68,530, 200) (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On December 23, 2003, the Plaintiff purchased and exported gold with its own funds to △△△△△△△△ (hereinafter “△△△△△”), and entered into a contract with a foreign importer to provide optimal information on the purchase of gold in Korea, and arrange foreign import companies to receive 50% of net profit, and entered into gold purchase and export business. In doing the instant gold bullion transaction, the Plaintiff confirmed that the purchaser is a normal trader, and paid the purchase price in full. The Plaintiff exported the instant gold bullion to AA located in Hong Kong through its normal route, and was normally deposited with the Plaintiff’s account. Accordingly, the Plaintiff fulfilled its duty of due care in the process of the instant gold bullion transaction. However, the Plaintiff filed a complaint against the Plaintiff during the process of the instant gold bullion transaction, and the so-called △△△△△△△△△△△ was unlawful solely on the grounds that the Plaintiff purchased the instant gold bullion and the instant gold bullion’s purchase price was unlawful.

B. Defendant’s assertion

In light of the fact that there is a so-called "explosion business entity" in the transaction process of the gold bullion in this case, who is in arrears with value-added tax and has discontinued without permission, and is a person who has led or arranged the trade of gold bullion, and the purchase price of the gold bullion in this case was at least lower than the international market price and domestic market price. In light of the fact that the plaintiff had been a malicious business entity with bad faith to make illegal transactions for the purpose of evading the output tax amount during the series of transactions before the transaction process of this case, and thereby, the plaintiff knew or was unable to know the situation that the deduction and refund of the input tax amount against the plaintiff would cause a decrease in other tax revenues. Accordingly, in light of the principle of good faith, the defendant's disposition of taxation in this case that rejected the deduction and refund of the input tax amount under the tax invoice received by the plaintiff and corrected the tax amount to be paid is legitimate.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

The following facts are either disputed between the parties, or found in Gap evidence 1-2, Eul evidence 3, Eul evidence 4-1, 2-2, Eul evidence 6-1 through 3, Eul evidence 7-1, Eul evidence 14-1, and Eul evidence 14-2, and the whole purport of the pleadings.

(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 exported goods. In addition, Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002 and enforced from July 1, 2003) and Article 106-3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17829 of Dec. 30, 2002 and enforced from July 1, 2003) provide that the value-added tax shall be exempted for gold bullion supplied by gold craftsmen and refiners of gold bullion to those who received tax-free gold bullion recommendation for the trading of tax-free gold bullion and for gold bullion imported by gold craftsmen, etc. upon recommendation from the tax-free gold bullion importer.

(B) After importing gold bullion by abusing the zero-rate or zero-rate tax exemption system, it is possible to convert the gold bullion purchased through the value-added tax exemption system into the tax exemption, and distribute it to the so-called so-called "large carbon business (the gold bullion purchased through the value-added tax exemption is converted into the tax exemption, and the sales tax invoice is issued and issued at a price lower than the purchase price, and let the transaction partner deduct the input tax amount, and the transaction partner is allowed to do so without paying the value-added tax). In other words, while exporting the gold bullion to be distributed through various stages of wholesalers, the so-called "large coal business" in the form of "large coal business" subject to the refund of the unpaid value-added tax from the point of 202 to the precious metal business in Seoul, especially from the point of 202.

(C) The form of "bomb coal business" is specifically examined as follows:

In appearance, gold bullion is distributed through the stages of ‘foreign companies ? importer ? duty-free company ? Tax-free company ? Tax-free company ? Tax-free company ? Tax-free company ? ? export-related company ? ? foreign company ? the amount of the transaction is paid in sequence from the export company to the import company, but there are many cases where the taxation-related company issues the tax invoice according to the order of the specific company and does not actually carry out the transaction or transportation of gold bullion.

A gas supplier evades the value-added tax by purchasing gold bullion as tax-free gold and selling it as full withdrawal, concealment, and closing the business within the next short period. In this case, a gas supplier sells gold bullion with supply price lower than the purchase price, but the supply price added to the value-added tax is higher than the purchase price and the value-added tax collected is not paid.

Meanwhile, the value-added tax collected by a trade-related company shall be successively transferred by each of the companies at the immediately preceding stage of the transaction in order to deduct the input tax amount by using the tax invoice received from the immediately preceding stage of the transaction. Ultimately, the exporter exports gold bullion and then obtains a refund from the State according to the application of the zero-rate tax rate. As such, the portion of the value-added tax paid by the State is the ultimate source of the profits accrued from the trade-related business, which is equivalent to the value-added tax not paid by the heavy coal company. The profit is distributed to the domestic companies involved in the trade-related business in the trade-related business in the form of madin, or paid separately to the participating companies in the trade-related business in the form of the so-called Madin which the amount calculated by the specified ratio out of the profits of the heavy coal company, is distributed in

In order to maximize profits, most of the gold bullions are distributed within a short period of time. In order to prevent disputes between participating companies, or accidents such as loss of prices, etc., most of the same owner (referring to a person who prepares for the import fund of the gold bullion from the outside of the wide-scale business network) operates both an exporting company and an importing company at the same time, and the former owner directly trades with the large-scale carbon company. The former owner shall determine the volume, unit price, and margin of the transactions at each stage of the transaction, and most of the series of transactions from the importing company to the exporting company are traded immediately with the exporting company by cutting off the transaction stage.

(2) Matters concerning the purchaser and exporter of the gold bullion transaction of this case

(A) From January 2003 to March 2004, the purchaser of the instant gold bullion: (a) sold the current gold bullion, which was purchased from an intermediate wholesaler of gold bullion, such as Cheongju Co., Ltd., as a taxation; and (b) sold the gold bullion to 34,30,000,000 won from May 200 to 34,30,000 won, which was purchased from △△△ International Co., Ltd.; and (c) discontinued without paying KRW 3,430,00,000, value-added tax.

(B) It is an intermediate sheet that served as an intermediary for the Ojuice transaction of the instant gold bullion, which is another purchaser of the instant gold bullion.

(C) On the gold bullion tax exemption sheet concluded with the Plaintiff on December 23, 2003, △△ju, the Plaintiff and the Plaintiff issued zero-rate tax invoices to Yjuri Co., Ltd. from January 1, 2004 to June 30 of the same year, and HY Co., Ltd., and the real goods are distributed in the market as non-data.

(D) AA, located in the fourth floor of the Hong Kong SSS 00 PPH commercial building, all of the instant gold bullion imported from the Plaintiff, is operated by MaW and DomM at the same place. The number of employees of the said two enterprises is five in total, and MaW is a person who was in collusion with Park K in around 1995 (see Busan District Court Decisions 2008Guhap670, Oct. 1, 2009; 201Nu921, May 27, 201).

(3) Specific details of the instant gold bullion transaction

(A) The export price of the Plaintiff was not only the domestic market on the date of export, but also the price lower than the international market price.

(B) On January 6, 2004, 25 g of 50 km exported gold bullion 25 g is 25 g. Of the above gold bullion 25 g, 15 of the above gold bullion 25 were re-imported into the Republic of Korea through RDR Co., Ltd. on January 13, 2004 and January 14, 2004.

(C) The Plaintiff’s 50kg of the 100kg of the exported gold bullion on January 8, 2004 is 50 foot gold bullion. Of the above 50 gold bullion, 28 gold bullions are imported into the Republic of Korea through the Z General Trading Company and the FF Global on January 8, 2004, the date of the Plaintiff’s export. In addition, most of the above 50 gold bullions were imported into the Republic of Korea on January 8, 2004, and the remainder of the said 50 gold bullions were imported into the Republic of Korea on January 8, 204, and the remainder of the gold bullion except for one gold bullion among the said 50 gold bullions were imported into the Republic of Korea twice.

D. Determination

(1) Article 15 of the Framework Act on National Taxes provides that “A taxpayer shall drive away decentity in performing his/her duties. The same shall apply in cases where a tax official performs his/her duties,” thereby declaring that the principle of good faith should be a basic guiding ideology in the field of tax law. This principle of good faith, which enables the specific validity of the operation of the law through the function of embodying or supplementing the laws of respect and supplementing them, and supplementing the criticism of the law, plays a role in revising the weak points of the principle of no taxation without law in the field of tax law, and even though the scope of application is somewhat limited compared to the area of civil law, if the provisions of the tax law are applied to individual cases, it would result in an unreasonable result that cannot be easily paid in light of the universal justice and ethics, and rather go against a sound legal order, the application of the provisions may be restricted or excluded exceptionally by the principle of good faith (Article 13(1) main text of the Framework Act on National Taxes). This principle is natural (Article 3(1) of the Framework Act on National Taxes).

Article 15 of the Value-Added Tax Act provides that an entrepreneur shall collect the value-added tax on the value of supply when supplying goods and services from the recipient of the supply. Article 17(1) of the Value-Added Tax Act provides that the value-added tax to be paid by an entrepreneur shall be the amount obtained by deducting the input tax amount from the output tax amount, and that the input tax amount exceeding the output tax amount shall be refundable. This is based on the following: (a) an entrepreneur who supplies goods and services in each transaction phase prior to reaching a final consumer shall collect the sales tax amount from the entrepreneur who receives the supply and pay the tax amount to the State; and (b) an entrepreneur who collects the tax amount shall, through the process of deducting and refunding the input tax amount from the State as the input tax amount, ultimately impose an infant on the final consumer (see, e.g., Supreme Court Decision 9Da3984, Nov. 12, 199). In such structure, it is impossible to maintain the system of value-added tax where the output tax amount collected at each transaction phase is paid to the State.

Therefore, in a series of continuous transactions, where a malicious business operator in one phase has attempted to evade the value-added tax from the beginning to the end, and does not pay the value-added tax collected by him by attempting only an abnormal transaction that is deemed to cause losses if he/she does not evade the value-added tax (hereinafter referred to as "illegal transaction"), as in the next transaction stage, if a business operator is entitled to deduct or refund the input tax without the burden of the output tax amount due to applying the zero-rate tax rate as in the next transaction stage, as in the next transaction stage, the country has no choice but to make a refund with other tax revenues. As such, the result exceeds the passive gap of tax revenues and constitutes an active outflow of the national treasury, the burden exceeds the damage of the self-employed body and is transferred to the general public, thereby causing serious harm to the overall tax system.

Of course, even if there are the above reasons, if an exporter is in a situation where the existence of an illegal transaction is unknown at all, he/she may not, in principle, deny that the exporter can deduct or refund the input tax amount as prescribed by the Value-Added Tax Act. However, if the exporter was aware of the existence of an illegal transaction at that pre-stage stage, he/she had engaged in the transaction in order to promote the benefit of good faith without any scambling opportunities, and his/her transaction profit is connected to the aforementioned illegal transaction, and his/her participation in the transaction would ultimately result in a critical factor that makes it possible to make an illegal transaction by securing the market for the illegal transaction, it shall be deemed an act of pursuing unjust benefits by abusing the input tax deduction and refund system, and thus, it cannot be said that the exporter’s deduction and refund of the input tax amount with any other tax revenue with any other tax revenue would be the guarantee of the benefits derived from the illegal transaction by the National Treasury as well as the serious harm to the general tax system as seen above.

Therefore, in such a case, an exporter’s seeking the deduction and refund of an input tax amount cannot be easily paid in light of the universal sense of justice and ethics, which is contrary to the principle of trust and good faith as stipulated in Article 15 of the Framework Act on National Taxes, and thus, it shall not be permitted. Such a legal principle is equally applicable to a case where an exporter was unaware of such illegal transaction due to gross negligence in light of the perspective of fairness, the gravity of the outcome, and the universal sense of justice, namely, in a case where the exporter was unaware of the existence of such illegal transaction due to gross negligence, in view of the relationship with a malicious business operator, it is reasonable to deem that the same applies to a case where the exporter was unaware of the fact that he was fully aware of the fact that he did not have been aware of the fact that he did not have been aware of the fact that he

In addition, in such cases, since an exporter who is in a mutual relationship with a malicious business entity is entitled to deduct and refund the input tax amount from the State, and thus, the exporter denies such deduction and refund of the input tax amount, it cannot be said that he/she transferred to the exporter without reasonable grounds the responsibility for the evasion of the value-added tax (see Supreme Court en banc Decision 200q9Du13474, Jan. 20, 201). In addition, the State may refuse the exporter's claim for refund by denying the refund of the input tax amount under the principle of trust and good faith, and even if the input tax amount is already refunded, it can assert the principle of trust and good faith as a new disposition.

(2) As to the instant gold bullion, the following circumstances are revealed by adding all the arguments acknowledged as above to the health stand, namely, ① in the gold bullion wholesale industry at the time of the instant gold bullion trade, the Plaintiff seems to have been aware of the fact through the gold bullion trade. ② The instant gold bullion was distributed within a very short period of time from the import to the export (the substantial part of the gold bullion handled by the Plaintiff seems to have been exported on the date of import), but there was no creation of added value in the process. ③ The export of the instant gold bullion was an abnormal trade structure that was exported at a price less than the domestic and international trade price. The ultimate source of the revenue that the Plaintiff obtained was not paid by the exporter for the gold bullion trading, ④ The Plaintiff did not claim that the gold bullion sales amount would have been refunded to the Plaintiff’s exporter’s gross profit before the import of the instant gold bullion trading, in light of the fact that the Plaintiff did not know of the fact that there was a high-level increase in the import price of the gold bullion trading in the process of purchasing the gold bullion, and that the Plaintiff did not claim for sale of gold bullion trading.

3. Conclusion

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