The propriety of the disposition of the tax invoice not to deduct the input tax amount received from the data (gold)

The burden of proving that the tax invoice is false, in principle, to the defendant, and there is no evidence to prove that the tax invoice is false according to the facts recognized, and thus, the imposition of the second and third taxes is illegal.

Article 16 (Tax Invoice)

Tax amount paid under Article 17 of the Value-Added Tax Act

1. Each disposition of the Defendant imposed value-added tax of 3,66,790 won on the Plaintiff on April 16, 2006 and value-added tax of 1,603,250 won on the first quarter of 204 and the second quarter of 2004 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 45% is borne by the Plaintiff, and 55% is borne by the Defendant, respectively.

The Defendant’s imposition of value-added tax of KRW 4,316,460 on Apr. 16, 2006, KRW 3,66,790 on Feb. 16, 2006, and KRW 1,603,250 on Feb. 2, 2004, each disposition of KRW 1,603,250 on the Plaintiff is revoked.

1. Details of the disposition;

A. The Plaintiff is a business operator who runs the wholesale and retail business of maternity food in the name of ○○-si ○○○-dong 00 ○○-dong 00 and ○○-dong 00.

B. The Plaintiff received the purchase tax invoice (hereinafter “market tax invoice”) and deducted the input tax amount at the time of filing a return on the value-added tax amount, as it received 30,000,440 won, 26,490,351 won, and 8,345,455 won during the value-added tax taxable period for the second half of 2004, and 3,715,453 won from the ○○ Aggregate Co., Ltd. (hereinafter “○○ Aggregate”) during the value-added tax taxable period for the second half of 2003.

C. When the defendant was found to have issued a false tax invoice by pretending that the representative ○○○○○ and Kim○○○○○○’s representative director in collusion with the Lee○○, etc. to trade gold bullion between 2003 and 2005, the defendant deducted the relevant input tax amount on April 16, 2006 by deeming that the plaintiff received all tax invoices received from ○○○ and ○○○○○○ from 2003 to 2004 without a real transaction, and then deducted the relevant input tax amount as a whole, and then deducted the relevant input tax amount from 203 to 4,316,460 won (hereinafter “the first disposition”), 3,66,790 won (hereinafter “the second disposition”), 204 to 3,66,790 won (hereinafter “the value-added tax”), 204 to 36,204 to 204 to 363,205, respectively (hereinafter “the disposition”).

(In fact that there is no dispute, Gap's No. 1-2, Eul's No. 1-3, 5, and 11, and the purport of the whole pleadings.

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

A. The plaintiff's assertion

The Plaintiff received gold bullion supplied at a normal price to ○○○ and ○○○○ World, and received the key tax invoice. However, it is because the Plaintiff paid some of the price in cash.

B. Defendant’s assertion

○○○ X-E and ○○ Gad were revealed as material. Inasmuch as the Plaintiff’s tax invoices received at the second half of 2003 from ○○ EX was identified as a false tax invoice without a real transaction, the instant disposition is lawful unless the Plaintiff proves the fact of transaction related to the issue tax invoices.

(c) Related statutes;

It is as shown in the attached Form.

(d) Facts of recognition;

The following facts can be acknowledged by comprehensively taking into account the above recognized evidences, Gap evidence Nos. 2, Eul evidence Nos. 6 to 10, the whole purport of the pleadings.

(1) The Plaintiff received the purchase tax invoice from ○○ EXE on November 15, 2003; 3 times, including November 15, 2003; 8, December 15, 2003; 17 times, including March 9, 2004; 20, March 20, 2004; 20, June 30, 2004; 30, July 5, 2004; 28, 2004; and 10 times, etc. on August 6, 2004; and the purchase tax invoice was received from ○ EXE on August 6, 2004.

(2) In February 2003, the Plaintiff’s transaction amount corresponding to the tax invoice received from ○○ EXE was deposited into ○○ EXE by means of transfer without passbook on each relevant transaction date. The deposit agent of the deposit without passbook is indicated as ○ ○ EXE’s representative director, and on the same day, the deposit agent of the deposit without passbook was withdrawn more than the deposit amount from ○ ○ EXEE’s account immediately before the deposit without passbook was made.

(3) The Plaintiff deposited most of the transaction amounts corresponding to the tax invoice received from ○○○○○ and ○○○○○○ integrated, through Internet withdrawal. It is confirmed that the transaction details were deposited in the Plaintiff’s account on the pertinent transaction date of the tax invoice received by the Plaintiff. Of the 17 occasions in which the tax invoice was received from ○○○○○○○○○○○○○○○○ received from the 17th time in 2004, 15 out of the 10 times in which the tax invoice was received from ○○○○○○○○○○○○○○○○○○○○○ integrated, 4 times in which the tax invoice was received from 10 times in 204, and 10 times in two times in which the tax invoice was received from ○○○○○○○○ and ○○○○○○ integrated, as well as the pertinent transaction date reported by the Plaintiff.

E. Determination

In the administrative litigation seeking the revocation of a taxation disposition on the ground of its illegality, in principle, the tax authority bears the burden of proving that the tax invoice is false (see, e.g., Supreme Court Decision 85Nu515, Mar. 24, 1987). However, the necessity of proving should be returned to the taxpayer only when it is reasonable to prove the taxpayer considering the difficulty of proof or the equity between the parties concerned. On the ground that some of the tax invoices were stated as false tax invoices, the burden of proving all of the tax invoices issued in the continuous transaction relationship between the parties to the transaction should be changed. Furthermore, in light of the issue of taxation and the taxable period, each individual disposition on the tax unit, which is separate from the tax item, becomes the subject matter of the tax litigation (see, e.g., Supreme Court Decision 83Nu31, May 29, 1984), the burden of proving that there exists a change in the total taxable period, only one of the aforementioned circumstances, can be recognized.

According to the above facts, it is reasonable to view that the transaction price was withdrawn from the account of ○○ EXE and deposited again into the account of ○○ EXEE with respect to the two-year transactions between the Plaintiff and ○ EXE, and therefore, it is legitimate to regard the tax invoice received at ○ EXE in 2003 as a tax invoice different from the fact.

However, in light of the facts that the Plaintiff received tax invoices from ○○ EX and ○ ○ EX from 2004 on January 1, 2004 and 2004 on February 15, 2004, there is no evidence to directly recognize that the tax invoices were false, and the representative director of ○ ○ EX and ○ ○ ○ EX was in collusion with a third party to issue a false tax invoice, it cannot be confirmed the above facts. Rather, as acknowledged in the above facts, in most of the tax invoices received from ○ ○ EX and ○ ○ ○ EX were received from ○ ○ EX, 15 times among the tax invoices received from 17th January 2004, 204, and 14 times among the 15th February 2004, and deposit details on the transaction date on which the pertinent tax invoice was not reported, it cannot be viewed that the Plaintiff’s ○ 20 EX and 14th 20 EX were unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of each disposition of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

Article 17 of the Value-Added Tax Act

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input tax amounts shall not be deducted from the output tax amount:

1. An input tax amount in case where the list of the total tax invoice by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or entered differently from the fact, in case where the whole or part of the registration numbers or supply values by transaction parties in the submitted list of the total tax invoice by customer is not entered or entered differently from the fact, except in such case as prescribed by

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

2. An input tax amount for expenditure not directly related to the business.

3. An input tax amount on the purchase and maintenance of small nonbusiness automobiles;

3-2. The purchase tax amount related to the disbursement of the entertainment expenses and similar expenses as prescribed by the Presidential Decree;

4. The input tax amount related to the business of supplying goods or services exempted from the value-added tax (including the input tax amount related to investments) and the land-related purchase tax amount as prescribed by

5. The input tax amount before the registration as prescribed in Article 5 (1): Provided, That those as prescribed by the Presidential Decree shall be excluded.