Suwon District Court 2008Guhap6067 (O. 22, 2009)

Whether a processed tax invoice which is not a real transaction related to cargo transport service was received

In light of the fact that the representative director of the purchasing agency is subject to criminal punishment for a violation of the punishment of a tax offense by filing a complaint with the processing tax invoice via 58 times, it is reasonable to see that the ○ enterprise is only a person who forms a nominal legal relationship in relation to the transportation of cargo and that the person who actually provided the service to the Plaintiff is a separate business partner.

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

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. Each disposition of the Defendant imposed value-added tax of KRW 19,368,800 for the first term of 2002 against the Plaintiff on July 1, 2007, and value-added tax of KRW 21,141,550 for the second term of 202 shall be revoked.

1. Quotation of judgments of the first instance;

The reasoning for the court’s explanation concerning this case is as stated in the judgment of the court of first instance except for the parts written by the court as stated in Paragraph (2). Thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2.Terpared parts

Of the judgment of the court of first instance, the fifth and seventh parts of the judgment are as follows.

D. Determination

(1) Whether the ○○ enterprise is the actual supplier of the instant service

(A) In Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act, a tax invoice shall be issued to an entrepreneur who supplies or receives goods or services, such as a person who delivers or provides services on account of contractual causes, and a person liable to pay value-added tax shall not be a person who establishes a nominal legal relationship with an entrepreneur who supplies or is supplied, but a person who actually receives or is supplied goods or services from an entrepreneur who actually supplies or is supplied with goods or services (see Supreme Court Decision 2002Do4520, Jan. 10, 2003).

(B) However, in this case, although the Plaintiff entered into the instant cargo transport contract with ○○ enterprise on March 31, 2002 and received purchase tax invoices under the name of ○○ enterprise, it can be recognized by comprehensively taking into account the aforementioned recognized facts and the overall purport of the arguments, i.e., ○○ enterprise is a corporation in the form of a corporation, ○○ enterprise is a private entity in the U.S., the U.S. representative director of the Plaintiff, and the U.S.A. which entered into the instant contract with ○ enterprise was not in the position of the representative director of the ○ enterprise at the time. (ii) the Plaintiff transferred all of the instant cargo transport prices except for the current supply prices, to the Plaintiff under the name of ○ enterprise in the name of ○○ enterprise. From 2002.6.25, 2002.3rd of all receipts were delivered to the Plaintiff under the name of ○ enterprise in the name of ○ enterprise.

(2) Whether the plaintiff acted in good faith and without fault

(A) In the absence of special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the tax invoice in the name of the supplier, and that the person who received the tax shall prove that there was no negligence on the part of the supplier in the failure to know the above fact of deception (Supreme Court Decision 2002Du2277 Decided June 28, 2002).

(B) The plaintiff asserts that the plaintiff is a bona fide party who has entered into a contract with the ○ enterprise, received a tax invoice under the name of the ○ enterprise, and the United StatesA was holding the name of the ○ enterprise and confirmed the ○ enterprise's business registration certificate.

However, the circumstances examined in the above (1) (b) and the following circumstances recognized by the overall purport of evidence and oral argument, i.e., (i) at the time of entering into the instant cargo transport contract, the U.S.A. was not the representative director of the ○○ enterprise, but it was difficult to view the ○○ enterprise as identical to the ○○ enterprise by attaching additional documents to the contract to the effect that the ○ enterprise actually exercises its rights on behalf of the ○○ enterprise, the representative director at the time of entering into the instant cargo transport contract. (ii) At the time of entering into the instant contract, the Plaintiff appears to have failed to verify the ○ enterprise’s business registration certificate, and if confirmed, the ○ enterprise’s representative director at the time of entering into the instant contract. (iii) Notwithstanding the third forum, the Plaintiff could not be deemed to have been aware of the fact that the ○○ enterprise was not the ○ enterprise’s representative director at the time of entering into the instant contract, and that it was difficult to recognize the Plaintiff’s negligence on the part of the ○ enterprise under its name.

(3)Indivates

Therefore, notwithstanding the fact that the actual service provider under the contract of this case was △ Cargo, the tax invoice of this case prepared in the name of ○ enterprise constitutes a false tax invoice, and the plaintiff is insufficient to recognize the special circumstance that the plaintiff is bona fide and negligent. Thus, the disposition of this case which did not deduct the input tax amount pursuant to Article 17 (2) 1-2 of the Value-Added Tax Act (wholly amended by Act No. 7007 of Dec. 30, 2003) is legitimate.

3.In conclusion

The judgment of the first instance is just and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.