early 2010 to 2390 ( October 28, 2012)

It is difficult to readily conclude that the first tax invoice of this case is a false tax invoice for the closed supplier.

In full view of the relevant verification and statement, delivery and measurement relations, the content of the account book, the form of closed trade, the relationship of payment, and the prosecution's non-guilty disposition against the supplier, etc., it is difficult to conclude that the first tax invoice of this case is a tax invoice different from the fact of the closed supplier.

Article 17 of the Value-Added Tax Act

2012Guhap2407 Disposition of revocation of Value-Added Tax Imposition

XX Kim

The Director of the National Tax Service

December 5, 2012

January 16, 2013

1. The imposition of value-added tax of 000 won for the first term of 2008 against the Plaintiff on April 16, 2010 and value-added tax of 000 won for the second term of 2008 shall be revoked.

2. The Defendant’s imposition of value-added tax of KRW 000 (including additional tax of KRW 000) on July 5, 2010 against the Plaintiff on the first half of 2009 shall be revoked.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of value-added tax of 00 won for the first term of April 16, 2010, 2008, 000 won for the second term of 2008, 000 won for the second term of 2008, and 000 won for the second term of 2008, and 000 won for the first term of 2009 shall be revoked.

1. Details of the disposition;

A. From June 15, 2001, the Plaintiff engaged in the manufacturing, wholesale and retail business, etc. of scrap metal, non-ferrous metals, etc. with the trade name of 'P metal' on the ground of XX 37 from 2001.

B. The Plaintiff, under the trade name of “Omers”, received 5 copies of purchase tax invoices of 000 won in supply price during the first half of 2008, 000 won in the supply price during the second half of 2008, 11 copies of purchase tax invoices of 000 won in the supply price during the second half of 2008, and 2 copies of purchase tax invoices of 000 won in the supply price during the second half of 2008 from the changedB, which runs the non-YM sales business (hereinafter “the purchase tax invoices of 18 above”), and paid the value of supply during the second half of 2008 (hereinafter “the first tax invoices of this case”). The Plaintiff deducted the input tax amount under each of the above tax invoices, and paid the value-added tax to the Defendant for the pertinent taxable period.

(C) However, on May 15, 2009 and May 17, 2009, the Defendant issued a false tax invoice from the Director of the Central Tax Office of Central Tax Office (so-called “OB data trade”), and received the Plaintiff’s notice that the first tax invoice of this case issued from OM and Y metal would be different from the fact, and imposed an additional tax related to the value-added tax by deducting the purchase tax amount from the corresponding input tax amount. On April 16, 2010, the Defendant issued 00 won for each of the above 0-year sales tax invoices (including additional tax of 00 won) and 00 won for each of the above 20-year sales tax invoices (including 00 won for each of the above 00-year sales tax invoices), and issued 100-year sales tax invoices for 200-year new sales tax invoices for 200-year sales tax invoices for 200-year old 200-year new sales tax invoices for 200-year supply price.”

E. However, the Defendant: (a) notified by the Director of the Central Tax Office of Small and Medium Business of the fact that all of the AA metal, BB metal,CC metal, and Y metal constitutes a disguised business or material commercial that issues false tax invoices without real transactions; (b) received the Plaintiff’s notice that the secondary tax invoices of this case received from the AA metal, BB metal,CC metal, and Y metal are tax invoices different from the fact; and (c) deducted the relevant sales tax amount from the sales tax amount and imposed an additional tax related to the value-added tax by deducting the relevant sales tax amount; (d) on July 5, 2010, the Plaintiff included the amount of value-added tax for the second period portion of 200 won (including additional tax of 00 won); and (e) the value-added tax for the first period of 200 won (including additional tax of 00 won; and (e) the notice of correction of value-added tax for the first period of 209,000 won (hereinafter referred to as “the Plaintiff’s notice of increase tax amount”).

F. On July 15, 2010, the Plaintiff appealed to the instant Disposition No. 1 and filed an appeal with the Tax Tribunal on September 30, 2010, respectively, to the Tax Tribunal. However, each of the instant Disposition was dismissed on February 28, 2012.

[Ground of Recognition] Facts without dispute, Gap's statements in Gap's 1 through 4, 7 through 10, 17, 21 through 25, Eul's evidence 8 (including each number), Gap's evidence 6-1 and 2, and the purport of the whole pleadings

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

A. The plaintiff's assertion

(1) In fact, the Plaintiff purchased waste Dongs equivalent to the value of supply stated in each of the instant tax invoices from Omera, etc., and remitted the price to each passbook under the name of KimA, etc., and the result of the Defendant’s tax investigation was not found to have been returned to the Plaintiff from KimA, etc., and each of the instant tax invoices does not constitute a false tax invoice.

(2) Even if Omers, etc. fall under the so-called data, the Plaintiff is a party to a transaction in the company, since the Plaintiff was unaware of such name and was negligent in not knowing such name.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the legitimacy of the first disposition of this case

In principle, the burden of proving that a specific transaction constitutes a tax invoice that is different from the fact under Article 17(2)1-2 of the Value-Added Tax Act where the input tax deduction is denied on the ground that it is a nominal transaction without actual delivery or transfer of goods (see Supreme Court Decision 2008Du9737, Dec. 11, 2008).

(6) In light of the overall purport of the pleadings in evidence Nos. 1, 2, 6, and 7, the following facts: ① O Mesa and Y metal are separate business registrations; ② the location of the place of business of O Mesa and Y metal is of an inappropriate structure to be used as a place where they are kept or sold as a storage of approximately 30-40 square meters; ② the closure operation was not actually kept in the above warehouse; ③ KimA and NAB did not own facilities and equipment such as those for high Mesa, vesa and vesab for high vesium transportation; ③ no O Mesa and vesaB had been engaged in the lave retail business before the YM opening, and no O-B was supplied with additional supplies from OE-B to 30% of the waste-free market; ④ No. 50% of the waste-free market products purchased from O-B-B-B-B-B-U. after the purchase of the list.

그러나, 갑 제13호증의 1, 2, 4, 5, 갑 제20, 27호증의 각 2, 갑 제28호증의 1, 2, 갑 제31호증의 각 기재, 갑 제6, 15호증의 각 1의 일부 기재, 증인 김AA, 변BB의 각 증언 및 변론 전체의 취지에 의하여 인정되는 다음의 사실 및 그로부터 추인되는 다음의 사정 즉, ㉠ 김AA 등은 이 사건 제1세금계산서 기재와 같이 원고와 YY금속 등 사이에 실물거래가 있었다는 취지의 확인서를 제출하였고, 이 사건에 증인으로 출석하여서도 폐동 구매처를 잘 아는 오EE로부터 폐동을 공급받은 것은 사실이나 오EE에게 1kg 당 50원씩 수수료를 지급하고 자신의 계산으로 이를 매입한 것이라고 진술하고 있는 점, ㉡ 김AA 등은 5톤 트럭의 차주인 구FF에게 화물운송을 의뢰하여 위 차량에 함께 동승하여 원고의 사업장으로 폐동을 배송하였고, 김AA 등이 구FF 에게 운임을 지급한 내역이 존재하는 점, ㉢ 폐동이 원고의 사업장에 도착하면 원고의 직원이 김AA 등이 입회한 자리에서 이를 계량한 뒤 김AA 등에게 계량증명서와 거래명세표를 교부하였고, 김AA 등은 원고에게 세금계산서를 교부한 점, ㉣ 김AA 등 이 작성한 장부에는 원고와의 거래에 부합하는 내용이 기재되어 있고, 그 금전출납부에는 매출처에 대한 잔고, 물품구입대금, 유류비, 용차비, 회식대금 등이 매우 구체적으로 작성되어 있는 점, ㉤ 피고는, 원고가 YY금속 등으로부터 계근표를 받지 않았거나 이에 관한 자료를 보관하지 않은 사정을 가공거래의 유력한 근거로 보고 있으나, 원고 는 거래처의 계근표를 믿지 않고 자신이 직접 계근한 자료만 신뢰하였다고 하고 있는 점, ㉥ 통상 폐동의 거래는 중간도매상들이 각지에서 폐동 등을 직접 수집하여 이를 자기의 사업장에 상 • 하차하지 않고, 운송비의 절감과 거래 편의상 중간 도매상들이 해당 납품처에 직접 폐동을 싣고 가서 그 납품처에서 계근과 대금 수령 및 세금계산서의 교부 등을 동시에 하는 것이 보통인데, 원고의 김AA 등과의 폐동 거래도 이와 같은 형태로 이루어진 점, ㉦ 김AA 등은 계좌로 입금된 폐동 대금을 오EE에게 지급한 것은 사실이나, 이는 오EE로부터 폐동 구매대금을 차용하여 지급하게 된 것이라고 진술하고 있는 점, ㉧ 김AA 및 변BB은 2011. 12. 6 서울북부지방검찰청으로부터 가공의 매출세금계산서를 작성하여 신고하였다고 볼 증거가 없음을 이유로 혐의없음 처분을 받은 점 등의 제반 사정을 종합하면, 앞서 본 ① 내지 ⑥ 등의 사정만으로 는 김AA 등이 교부한 이 사건 제1세금계산서가 사실과 다른 세금계산서라고 단정하기 어렵다 할 것이고, 달리 이를 인정할 만한 증거가 부족하다.

Therefore, the first disposition of this case where the input tax amount pursuant to the first tax invoice of this case is not deducted on different premises, and the value-added tax and the additional tax are illegal.

D. Determination as to the legitimacy of the second disposition of this case

(1) AA metal-related

(A) Whether a tax invoice is false

The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is the case where the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services or the price and time of the supply, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

In full view of the purport of the argument in the statement No. 3-1, No. 2, and the whole statement in the statement No. 6-2 of the evidence No. 3-1, No. 6-2, ① Places of business of AA metal (e.g., Namyang-si) play the role of withdrawing money deposited in the business account of AA metal after the business registration was completed at the request of EE, and the Plaintiff did not have full-time employees, and the Plaintiff did not have full-time employees, and ② The amount deposited in the GG account was deposited in the account of another material or partial cash withdrawal, and then deposited in the account of less than KRW 00 from the last distributed account, ③ The representative of AA metal takes the role of withdrawing money deposited in the business account of A.M. 516, and the Plaintiff’s submission of the tax invoice in the name of A.M. 2, etc., and the Plaintiff could not be deemed to fall under the Plaintiff’s supply of the above evidence, in light of the fact that the Plaintiff supplied the above evidence No. 27.

(B) Whether the plaintiff acted in good faith and without fault or not

An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the name, the person who asserts the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

In full view of the purport of the entire pleadings as to whether the Plaintiff was unaware of, and was unaware of, the title of the second tax invoice in the name of AA metal, and whether there was no negligence as to, whether the Plaintiff was aware of, the title of the tax invoice No. 11, No. 23 (including the paper number), and No. 30-1 of the evidence No. 1, the fact that the Plaintiff was issued a duplicate, etc. from A metal and the Plaintiff started the instant transaction, the Plaintiff received the second tax invoice from AA metal and remitted the money corresponding thereto to A metal, and there was no evidence to prove that there was insufficient evidence to support that the Plaintiff was unaware of the title of the tax invoice No. 11, No. 11, and No. 23 (including the paper number), and there was no other evidence to prove otherwise.

Rather, the following circumstances are acknowledged by the overall purport of evidence Nos. 1, 16, 21, and 23, Eul evidence Nos. 3 (including each number), and the entire pleadings, i.e., (i) the Plaintiff was engaged in the business of collecting and selling closed consent from 2001, and appears to have been able to know the structure, distribution route, general transaction behavior or method in the relevant industry, data transaction circumstances, and risks of transactions. (ii) The Plaintiff visited the place of business of Gap metal prior to the initial transaction with Gap metal, but the Plaintiff did not provide guidance, employees, etc. at the office of Gap metal, (iii) the Plaintiff was not aware of how to secure the volume of this GuGG, but was negligent in the Plaintiff’s transaction with this Gu metal Nos. 2, and (iv) the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff’s account no more than the Plaintiff.

(C) Therefore, insofar as the part related to AA metal among the Class 2 tax invoices of this case constitutes a false tax invoice, and the Plaintiff’s good faith and negligence are not acknowledged, the part related to the purchase tax invoice received from AA metal among the Disposition 2 of this case is lawful.

(2) relation toCC metal

(A) Whether a tax invoice is false

The following circumstances, which are acknowledged by each entry in the evidence No. 4, part of the evidence No. 6 evidence No. 6-2, and the purport of all pleadings, i.e., ① On November 6, 2007, Dongdaemun-gu Seoul Metropolitan Government 253-144, its place of business, representative HH, and business purpose non-explosive steel retail. ② The husband and JJ of KH first conducted small-scale business while handling yellow, etc. at the above office, while conducting the business at the first time around February 2009. ③ The place of business ofCC metal does not have any employees working at the level of office of 10 square meters, nor did it have been established at the level of 20G metal sales, nor did it be argued that the Plaintiff purchased the above part at the level of 90GM 20,000,000 no more than the 9GM 30,000,000,000.

(B) Whether the plaintiff acted in good faith and without fault or not

In full view of the purport of evidence No. 11-2, evidence No. 24 (including paper numbers), and evidence No. 30-1 of the whole pleadings, the Plaintiff may recognize the fact that the Plaintiff received the copy, etc. of passbook No. 11 fromCC metal to receive the corresponding part of the tax invoice No. 2 fromCC metal after commencing the transaction, and transferred the price toCC metal, and that the Plaintiff was subject to a disposition of non-guilty facts on the ground that there is insufficient evidence to support that the Plaintiff was aware of the fact thatCC metal was in material from the Daejeon District Prosecutors’ Office on July 30, 2012, but there is insufficient evidence to support this. However, the above facts alone are insufficient to deem that the Plaintiff was not negligent in not knowing the fact that the Plaintiff was in the name of the tax invoice No. 2, and there is no other evidence to support this.

Rather, the following circumstances are acknowledged by the overall purport of Gap evidence Nos. 24 and Eul evidence Nos. 24 (including paper numbers) and Eul evidence Nos. 4, i.e., (i) the Plaintiff was engaged in the business of collecting and selling the closed consent from around 2001, and appears to have been able to know the structure, distribution route, general transaction behavior or method in the relevant industry, data transaction mode and risk of the transaction; (ii) the Plaintiff visited the business establishment ofCC metal before conducting the first transaction withCC metal, but there was no relay, employee, etc. in the office ofCC metal, but did not hear the above business establishment without raw materials, but did not confirm it; and (iii) the Defendant was not aware of the fact that there was no fault on the part of the Plaintiff, taking into account all the circumstances, including the fact that the Plaintiff did not actually know of the fact that the Plaintiff suppliedCC metal.

(C) Therefore, insofar as the part related toCC metal among the secondary tax invoices of this case constitutes a false tax invoice, and the Plaintiff’s good faith and negligence are not recognized, the part related to the purchase tax invoice received fromCC metal among the dispositions of this case is lawful.

(3) BB metal-related

(A) Whether a tax invoice is false

According to the reasoning of Gap evidence No. 28-2, No. 3-2, Eul evidence No. 3-1.2, Eul evidence No. 5-1.2, and part of Gap evidence No. 6-2, and the purport of Gap evidence No. 6-2, the entire pleadings: (1) The business establishment of BB metal is inappropriate to keep the closed Dong, etc. with one of the two storage facilities of 60 square meters, and no relay, etc. was installed. (2) The KimCC leased the above business establishment for the registration of business in accordance with the direction of E in the second half of 2008, and no visiting the business establishment once after its registration. (3) The KimCC delivered the "unit price" to E, and if E is informed of the vehicle number by telephone, it can be viewed that the Plaintiff did not actually supply the closed metal to E, and it can be viewed that the Plaintiff did not have any other person to whom the tax invoice was issued, and the Plaintiff did not have any other person to whom the tax invoice was issued.

(B) Whether the Plaintiff is bona fide and without fault

According to the purport of Gap evidence No. 9, Gap evidence No. 22-3 and No. 31-2, each of the statements and arguments, the plaintiff started the instant transaction after obtaining a business registration certificate from BB metal and transferred money to the account in the name of BB metal, and ② on July 30, 2012, the plaintiff was subject to a disposition of suspicion for lack of evidence that the plaintiff knew that BB metal was material data, but the following circumstances are acknowledged by the purport of Gap evidence No. 22-1 as a whole, namely, (i) the plaintiff was deemed to have been well aware of the attitude of material transactions on the closed metal from around 201 to the same industry, and (ii) the plaintiff did not visit the place of business of BB metal, nor confirmed that BB metal was insufficient at the time of the transaction without knowledge of the first transaction price.

(C) Therefore, the part related to the purchase tax invoice received from BB metal among the disposition No. 2 of this case is also lawful.

(4)Y metal-related

C. As examined earlier, it is difficult to conclude that the part related to the purchase tax invoice received from YB is a false tax invoice different from the fact, and the part related to the above tax invoice in the disposition 2 of this case is unlawful.

E. Sub-committee

(1) Therefore, the No. 1 of this case relating to Omers and YM metal must be revoked in its entirety as unlawful.

(2) However, the part pertaining to AA metal and BB metal in the instant disposition pertaining to the two taxable periods in 2008 should be maintained lawfully. Of the instant disposition, the part pertaining to the taxable period in 2009 among the two taxable periods is legitimate, but the part pertaining to AA metal andCC metal is lawful, but the remaining part pertaining to the YY metal cannot be exempted from its revocation due to its illegality.

Meanwhile, the part falling under the first taxable period of January 2009 among the Disposition No. 2 of this case includes the portion of D non-ferrous metal, which the plaintiff filed an excessive return during the above taxable period, and according to the facts acknowledged by Eul No. 8-4, and the relevant Acts and subordinate statutes, among the Disposition No. 2 of this case, the input tax amount on the tax invoice for AA metal,CC metal and D non-metallic metal in the part related to the first taxable period of January 2009 are deducted, and the tax amount related thereto is calculated as shown in [Attachment 1] and [Attachment 2].

Ultimately, in the imposition disposition of the value-added tax of KRW 000 on the first half of 2009 among the disposition of this case, the part exceeding the tax amount of KRW 000 (including additional tax of KRW 000) such as the value-added tax should be revoked.

3. Conclusion

Therefore, the plaintiff's claim 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.