In a case where the actual date of the tax invoice and the actual date of transaction belong to a different taxable period, whether the input tax amount is deducted (negative)

[1] Articles 16(1)4 and 17(2)1-2 of the Value-Added Tax Act, Article 60(2)3 of the Enforcement Decree of the Value-Added Tax Act

Supreme Court Decision 89Nu7528 delivered on February 27, 1990 (Gong1990, 822) Supreme Court Decision 90Nu993 delivered on April 26, 1991 (Gong1991, 1545), Supreme Court Decision 91Nu6610 delivered on October 8, 1991 (Gong1991, 2750), Supreme Court Decision 92Nu4574 delivered on February 9, 1993 (Gong193Sang, 107Sang, 105Du634 delivered on August 11, 1995 (Gong195Ha, 3140), Supreme Court Decision 95Do1301 delivered on June 14, 1996 (Gong1994, 205Du13084 delivered on June 14, 201).

[Defendant-Appellee] The Head of Si/Gun/Gu Office

Gangwon-gu Director of the District Office

Seoul High Court Decision 2003Nu15753 delivered on August 25, 2004

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

1. The judgment of the court below

Article 17 (2) 1-2 of the Value-Added Tax Act (hereinafter referred to as the "Act") provides that the input tax amount shall not be deducted from the output tax amount in case where all or part of the items to be entered under Article 16 (1) 1 through 4 are entered differently from the fact on the delivered tax invoice, but the input tax amount shall not be deducted from the output tax amount in case where the Presidential Decree prescribes that the input tax amount shall be excluded from the case where the Presidential Decree prescribes that the input tax amount shall be one of the requisite entry items under Article 16 (1) 4, and Article 60 (2) 3 of the Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as the "Enforcement Decree of the Value-Added Tax Act") provides that the date of preparation shall be one of the necessary entry items, and Article 60 (2) 1-2 of the Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as the "instant provision") provides that the tax invoice after the time of supply is delivered within the relevant taxable period.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and held that the tax invoice may be deducted by the tax invoice after the time of supply for goods or services is invalid. Accordingly, the plaintiff's assertion that the disposition based on the above provision is unlawful, and thus, the tax invoice may be interpreted as invalid if it is interpreted as the plaintiff's constitutional assertion that the tax invoice violates the plaintiff's unconstitutional provision, but it cannot be interpreted as invalid even if there are special circumstances that make it difficult to see the taxpayer's failure to receive the tax invoice within the taxable period to which the actual date of the transaction belongs. In such a case, the uniform denial of the input tax deduction goes against the essence of the value-added system and the principle of substantial taxation, and it is contrary to the principle of tax equality, as it infringes on the taxpayer's property right, and thus, violates the provisions of Article 23 of the Constitution on Guarantee of Property Rights of the Republic of Korea.

2. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

In order to avoid undermining the function of mutual verification by issuing a tax invoice under the current Value-Added Tax System that adopts the Act on Tax Credit prior to the establishment of the instant issues clause, it shall be deemed that the exemption of the input tax amount under Article 60(2)2 of the Enforcement Decree is limited to the case where the taxable period to which the date of the actual preparation of the tax invoice belongs belongs is the same (see Supreme Court en banc Decision 2002Du5771, Nov. 18, 2004). Such a legal principle is the same even after the instant issues clause was newly established (see Supreme Court Decision 2003Du5853, Nov. 26, 2004).

However, according to the facts established by the court below, the plaintiff received the tax invoice of this case, which was prepared on August 19, 200 after the expiration of the taxable period to which the time of supply of the goods belongs, with respect to the real estate of this case, the time of supply for which the time of supply belongs, and applied for the deduction of the input tax amount. Thus, the input tax amount in this case shall not be deducted from the output tax amount, even if there are special circumstances asserted by the plaintiff that the plaintiff did not receive the tax invoice within the taxable period to which the time of supply belongs.

Nevertheless, the court below determined that the input tax amount should be deducted under the tax invoice of this case. The court below erred by misapprehending the legal principles as to "where necessary entries in the tax invoice are entered differently from the facts" under Article 17 (2) 1-2 of the Act, which affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)