In cases where a supplier under a tax invoice is different from the actual supplier, whether the content constitutes a "tax invoice different from the fact" under Article 17 (2) 1 of the Value-Added Tax Act (affirmative)

According to Article 17 (2) 1 of the Value-Added Tax Act, Articles 60 (2) and 16 (1) 1 of the Enforcement Decree of the same Act, where a supplier and a supplier on a tax invoice are different from an actual supplier, the relevant tax invoice shall not be deducted or refunded unless there are special circumstances that the person provided with the tax invoice "other than the facts" under the main sentence of Article 17 (2) 1 of the same Act was unaware of the fact of misrepresentation of the name of the relevant tax invoice, and the additional return for the return shall also be paid.

Article 17 (2) 1, Article 16 (1) 1, Article 60 (2) of the Enforcement Decree of the Value-Added Tax Act

Attorney Lee Dong-chul, et al., Counsel for the defendant-appellant

Head of Namyang District Tax Office

Seoul High Court Decision 87Gu951 delivered on May 3, 198

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below found the following facts based on evidence that the non-party same-sex Industries corporation provided the goods of this case as a security for transfer to 17 creditors, including the non-party, etc., but again transferred the goods to the creditor group instead of paying obligations, and that the above creditor group established the plaintiff company separately and transferred the goods to collect the amount of claims by efficiently utilizing the goods of this case, but it could not deliver the tax invoice because the above creditor group was not registered as the business operator, and issued the tax invoice under the name of the non-party company to the plaintiff company for convenience, and accordingly paid the input tax amount on the tax invoice. In light of these circumstances, the court below determined that even if there is a difference between the issuer of the above tax invoice and the supplier of the goods, the contents of the tax invoice under Article 17 (2) 1 of the Value-Added Tax Act, which can confirm the facts of transactions as stated therein, did not constitute a false tax invoice.

However, according to Article 17 (2) 1 of the Value-Added Tax Act and Article 60 (2) of the Enforcement Decree of the same Act, where all or part of the requisite entry items are not entered or are different from the facts, the input tax amount shall not be deducted if the necessary entry items in the tax invoice submitted are not entered or are entered differently from the facts. However, in a case where some of the requisite entry items in the tax invoice received exceptionally are entered erroneously, the transaction is confirmed in view of the requisite entry items or voluntary entry items in the tax invoice, the content thereof shall not be included in the tax invoice. According to Article 16 (1) 1 of the same Act, the registration number and name or name of the entrepreneur who supplies the tax invoice as one of the necessary entry items in the tax invoice. In a case where the tax invoice is different from the actual supplier under the above provisions, such tax invoice cannot be deducted or refunded unless there is any special circumstance that the person who was supplied with the tax invoice is unaware of the nominal entry items in the tax invoice.

Furthermore, according to the evidence Nos. 3 through 6, it does not seem that the plaintiff company was supplied with the goods of this case from the above creditors' group, not as a taxpayer of value-added tax, and that it was unaware of the fact in the issuance of a tax invoice which entered the supplier in the tax invoice as a non-party company.

Nevertheless, the lower court determined that the instant disposition was unlawful on the grounds as indicated in its holding, by misapprehending the legal doctrine on the deduction of input tax amounts and the erroneous payment for the return, thereby adversely affecting the conclusion of the judgment. The allegation contained in this

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all Justices.

Justices Song Man-man (Presiding Justice)