Early High Court Decision 2008 Jeon1765 (Law No. 8.18, 2008)

Whether construction services-related actual services have been provided

According to related testimony, it is judged that the plaintiff has not contracted part of the corporation and has received a false tax invoice without being provided with construction services.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 217,014,00 for the first term portion of 2004 against the Plaintiff on October 5, 2007 and KRW 418,422,510 for the second term portion of 2004 is revoked.

1. Circumstances of the disposition;

가. 원고는 2004년경 천안시 ☆☆동 1498 토지 지상에 연면적 6,004.02㎡, 지하 1층, 지상 8층 규모의 ★★프라자 건물(이하 '이 사건 건물'이라 한다.)을 신축하였는데(이하 위 건물의 신축공사를 '이 사건 공사'라 한다), 위 공사와 관련하여, 원고가 ○○건설 주식회사(이하 '○○건설'이라 한다.)에게 이 사건 공사 중 일부를 도급주어 공사를 시행하도록 하였음을 전제로, ○○건설로부터 2004년 1기에는 공급가액 1,400,000,000원인 세금계산서와 2004년 2기에는 공급가액 2,799,000,000원인 세금계산서(이하 '이 사건 세금계산서'라 한다.)를 각 교부받아, 위 세금계산서에 기재된 금액을 매입세액으로 공제하여 피고에게 부가가치세 신고를 하였다.

B. From July 18, 2007 to August 22, 2007, the Defendant conducted a tax investigation with the Plaintiff. As a result, the Plaintiff, even though having obtained a construction business license and directly performed the instant construction, determined that the Plaintiff received each of the said tax invoices from ○○ Construction and filed a value-added tax return after receiving the said tax invoices. On October 5, 2007, the Defendant issued a disposition imposing value-added tax of KRW 217,014,00 for the first term portion of value-added tax for 2004 and value-added tax of KRW 418,422,510 for the second term portion of value-added tax for 204 (hereinafter “instant disposition”).

C. On January 3, 2008, the Plaintiff filed an objection against the instant disposition against the Defendant. However, on February 1, 2008, the Defendant rendered a decision to dismiss the Plaintiff’s objection, and the Plaintiff filed an appeal with the Tax Tribunal on May 2, 2008, but the Tax Tribunal rendered a ruling to dismiss the Plaintiff’s request for adjudication on August 18, 2008.

[Ground of recognition] Facts without dispute, Gap's 1, 9, 10 evidence, Eul's 1 to 5 evidence (including each subparagraph (a) where there are additional numbers), and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's principal

In light of the following circumstances, the Plaintiff entered into a contract with ○○ Construction, and ○○ Construction entered into a contract and issued a tax invoice to the Plaintiff, even though it actually carried out part of the instant construction, the Defendant, on the premise that the Plaintiff directly carried out the instant construction by leasing the construction business name of ○○ Construction, was illegal.

∴ 원고의 대표이사인 김BB은 서AA과 중학교 동창관계에 있는데, 서AA이 2004. 1.경 김BB을 찾아와 자신이 ○○건설에 150,000,000원을 투자하여 사실상 사장의 지위에 있으니 이 사건 공사 중 일부를 ○○건설에게 도급 줄 것을 부탁하였다. 이에 원고와 ○○건설은 이 사건 공사와 관련하여 도급계약을 체결하였는데, 그 내용을 살펴보면, 토목공사, 조경공사, 엘리베이터 및 주차타워 설치공사는 ○○건설에 도급주지 않고 원고가 직접 시행하기로 하는 내용의 특약이 포함되어 있는바, 만일 원고가 ○○건설의 명의만을 빌려 이 사건 공사를 시행할 계획이었다면 굳이 위와 같은 내용의 특약을 할 필요가 없다.

∴ 원고는 이 사건 공사와 관련하여 공사비용 중 4,618,000,000원을 서AA의 개인 계좌로 실제 송금하였고, 서AA은 원고로부터 송금 받은 위 금원으로 하도급업자들의 공사대금을 지급하였다.

(b) Fact of recognition;

1) On January 2004, the Plaintiff and the ○ industry drafted a contract agreement on construction works (hereinafter referred to as “instant contract agreement”) relating to the instant construction works, and the main contents thereof are as follows.

∴ 공사기간

Commencement: February 1, 2004, November 30, 2004

∴ 도급금액 : 사십육억일천팔백구십만 원(￦4,618,900,000 )

Value: Won 4,199,000,000 won (Won 4,199,000,000)

Value-added tax: Won 419,900,000 won (Won 419,900,000)

∴ 특약사항

- - Payment in cash on a monthly basis, free of charge.

- With the exception of the cost of construction for civil engineering works, landscaping works, elevators and parking ground installation works on drawings, the owner shall directly place an order.

2) On June 29, 2006, Western filed a lawsuit claiming the payment of the acquisition amount against the Plaintiff (U.S. District Court Decision 2067rr1664, hereinafter referred to as "the lawsuit claiming the payment of the acquisition amount in this case") against the Plaintiff on the ground that ○○ Construction Co., Ltd. (hereinafter referred to as ** Electric Fire Fighting Corporation) partially implemented the instant construction under the instant contract, and ○○ Construction Co., Ltd. (hereinafter referred to as 'electric Fire Fighting Corporation') made a claim against the Plaintiff for the payment of the acquisition amount (Seoul District Court Decision 2006rr1664, hereinafter referred to as 'the lawsuit claiming the payment of the acquisition amount in this case'). While recognizing that the Plaintiff prepared a written contract of this case with ○○ Construction Co., Ltd. (hereinafter referred to as 'electric Fire Fighting Corporation'), it was prepared in the form of tax treatment, in fact, the Plaintiff agreed to lend only the construction business license for ○ Construction Co., Ltd.

[Ground of recognition] The whole purport of each of the arguments stated in Gap's non-contentious private theory, Gap's 2, 7, 8, 9, Eul's evidence 6 (including each of the natural disasters in the case of additional numbers)

C. Determination

The Plaintiff asserted that ○○ Construction awarded a contract for part of the instant construction to ○○ Construction, and that ○○ Construction actually implemented part of the instant construction in accordance with the contract concluded with the Plaintiff. However, in light of the circumstances revealed in the above facts, namely, the Plaintiff asserted that the instant contract was made formally in order to treat taxes, and that the Plaintiff was actually performing the instant construction by leasing only the name of the construction business from ○○ Construction, and that the Plaintiff’s assertion was accepted based on Kim Jong-tae’s testimony, etc., which is the representative director of ○○ Construction, and that the claim for the instant construction was dismissed. In light of the fact that the Plaintiff did not have contracted part of the instant construction to ○○ Construction, and that ○○ Construction did not supply the goods or services to the Plaintiff, ○○ Construction issued a false tax invoice and delivered the instant tax invoice to the Plaintiff, and there is no other evidence to acknowledge that the instant tax invoice was genuine merely based on the testimony of ○○ Construction, ○○ Construction, and the testimony of ○○○ Construction, witness.

Therefore, in this case where the plaintiff asserted that ○○ Construction implemented part of the construction of this case under the contract of this case, i.e., the tax invoice issued by ○○ Construction, and that the amount stated in the tax invoice should be deducted as the input tax amount, inasmuch as it is true, it is legitimate for the instant disposition imposing the value-added tax without deducting the amount stated in the tax invoice as the input tax amount, on the ground that the defendant did not believe that the tax invoice of this case was a false tax invoice, and that the tax invoice of this case was a false tax invoice.

3. Conclusion

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