Seocho 2017Ch 3927 ( November 29, 2017)

Whether the instant tax invoice was a processed tax invoice received without a real transaction

The plaintiff's request for construction fund shall include the name of an individual who is not the other party to the transaction in the tax invoice No. 1, and the other party to the transaction in the tax invoice No. 2 shall be deemed to constitute a false tax invoice according to the fact

Article 16 of the Value-Added Tax Act

2018Guhap5920 Revocation of Disposition of Imposition of Value-Added Tax, etc.

The A.A.D. Construction

OO Head of the tax office

October 10, 2019

October 29, 2019

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of value-added tax of KRW 109,506,490 (including additional tax) and corporate tax of KRW 205,085,620 (including additional tax) for the second year of 2011 against the Plaintiff on January 13, 2017 shall be revoked in entirety.

1. Details of the disposition;

A. The Plaintiff was a corporation running a soil construction business, etc., and was closed on June 30, 2013, and was deemed dissolved pursuant to Article 520-2(1)1 of the Commercial Act on December 11, 2017.

나. 원고는 2011. 9. 7. OO산업개발 주식회사(이하 'OO산업개발'이라 한다)로부터 공급가액 300,000,000원의 세금계산서(이하 '이 사건 제1 세금계산서'라 한다)와 2011. 12. 12. 주식회사 XX네트웍스(이하 'XX네트웍스'라 한다)로부터 공급가액 266,203,353원의 세금계산서(이하 '이 사건 제2 세금계산서'라 하고, 이 사건 제1 세금계산서와 합하여 '이 사건 각 세금계산서'라 한다)를 각 수취하여 이를 기초로 2011년 제2기 부가가치세 및 2011 사업연도 법인세 신고를 하였다.

C. The Defendant conducted an investigation with the Plaintiff from October 17, 2016 to December 26, 2016, and issued a revised and notified each of the instant tax invoices to the Plaintiff on January 13, 2017 on the grounds that each of the instant tax invoices constitutes a false tax invoice without real transactions (including additional taxes) and corporate tax of KRW 109,506,490 (including additional taxes) and KRW 205,085,620 (including additional taxes) for the business year 2011 (hereinafter “each of the instant dispositions”).

D. The Plaintiff filed an objection against each of the instant dispositions and filed an appeal with the Tax Tribunal, but was dismissed on November 29, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, each of the dispositions of this case is unlawful.

1) Regarding the first tax invoice of this case

From the PP Construction (hereinafter referred to as the "PP Construction"), the Plaintiff was awarded a contract for the part of the OOO OO apartment reconstruction project (hereinafter referred to as the "the construction of this case"). The Plaintiff entered into a contract for the development of the O industry as it requires large-scale soil and sand removal from the civil engineering project. In relation to the 1 tax invoice of this case, the Plaintiff was actually provided with soil and sand transportation services, and the transaction between the Plaintiff and the OO industry development was made by the OV, which was the representative director of the OO industry development, stated that the OV was a tax invoice different from the fact, even if the OV, which was the representative director of the OO industry development, stated that the OV was a tax invoice of this case.

2) As to the tax invoice No. 2 of this case

원고가 XX네트웍스에 자재를 발주하면, XX네트웍스가 주식회사 RR리젠트(이하 'RR리젠트'라 한다)에 자재를 다시 발주하고, RR리젠트는 주식회사 다MM(이하 '다MM'라 한다)에서 자재를 구입하여 다MM로부터 원고의 공사현장에 바로 납품되었다.

In particular, the Rage is in a special relationship with the Plaintiff, and the tax invoice No. 2 of this case cannot be deemed as a false tax invoice on the ground that there is no real delivery of materials due to the nature of the transaction to the company that purchases materials required by the Plaintiff.

3) Regarding the imposition of corporate tax on the tax invoice No. 2 of the instant case

설령 이 사건 제2 세금계산서가 사실과 다른 세금계산서라고 하더라도 원고와 XX네트웍스 사이의 거래로 인하여 원고의 부채가 증가하고 증가된 부채가 다시 원고에게 입금되어 원고의 손익에는 영향을 주지 않으므로 이 사건 제2 세금계산서와 관련된 금액을 익금에 가산할 수 없다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the tax invoice No. 1 of this case

A) Facts of recognition

(1) The main contents stated in the tax investigation process on July 10, 2014 are as follows.

The principal dealt with general affairs related to the O industry development, such as fund management, business management, customer management, etc.

○ The representative in the form of the OO industry development was KimM, but KimM was the main role of his work support.

The amount of 864,786,000 won stated in the sales tax invoice is different from fact, half of the tax invoice issued in the second half of the year is excessively issued at the request of the colon, and the amount is from 200,000 to 300,000 won.

○ As above, the reasons for issuing the tax invoice are by the request of Cho Byung-X.

(2) On October 1, 2014, the head of Gangnam District Tax Office: (a) deemed the instant tax invoice for the development of the O industry as a false tax invoice; and (b) notified each of the secondary value-added tax amounting to KRW 39,59,980 (including additional tax) and corporate tax amounting to KRW 73,450,740 (including additional tax) in 2011; and (c) did not dispute the development of the O industry.

(3) From the financial account of the Plaintiff or the Plaintiff’s representative director, 330,000,000 won, including the value of supply and the amount of tax, was transferred from the time when the Plaintiff received the first tax invoice of this case, does not exist.

(4) According to the Plaintiff’s comprehensive statement of construction status (Evidence A0), the sum of the supply value of the cost of ex officio construction for ex officio from August 201 to October 201 is KRW 400,680,00 (i.e., the sum of supply value for ex officio construction costs from August 10 to September 8, 2011) (i.e., KRW 272,040,000, and KRW 272,040,000 from September 16, 2011 to September 30, 2011; KRW 68,640,000, and KRW 68,640,000 from October 1, 201 to October 31, 201; KRW 37,000,000; KRW 10,001 to October 11, 201; KRW 30,000.

(5) The agreement entered into in relation to the removal of earth and sand of the instant construction works is written by the contractor as the Plaintiff and the Cho X.

[Ground of recognition] Facts without dispute, Gap evidence 7, 10 evidence, Eul evidence 6, 7, 17 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

B) Determination

(1) Article 17(2) of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201; hereinafter the same) provides that the following input tax amounts shall not be deducted from the output tax amount, and where a tax invoice under the main sentence of Article 16(1), (2), (4) and (5) is not issued, or where all or part of the necessary entry items under Article 16(1)1 through 4 (hereinafter the necessary entry items) are entered in the tax invoice issued:

An input tax amount is referred to as "in the case of a failure or a false statement."

Meanwhile, in the event that a tax invoice on a part of the expenses reported by a taxpayer has been prepared in a false manner without a real transaction, which is proved to a considerable extent by the tax authority as to whether it is an actual cost, and the purpose of the expenses claimed by the taxpayer and the other party to the payment thereof have been proved to a considerable extent, a taxpayer who is easy to present data, such as books and evidence, as to the fact that such expenses have been actually paid, need to prove it (see, e.g., Supreme Court Decision 2007Du1439, Aug. 20,

(2) The above legal principles are as follows. ① MaximumV, which operated the development of the O industry, stated to the effect that the tax invoice of this case was issued differently from the fact without any transaction request of OX. ② OO industry development was levied on the ground that the tax invoice of this case was a tax invoice of this case, but the OO industry development did not dispute it. ③ OCC, which was the Plaintiff or the representative director of the Plaintiff, did not transfer the amount of the tax invoice of this case. ④ Even according to the current construction situation list submitted by the Plaintiff, it is difficult to acknowledge that the total amount of supply price for the OO industry development of this case was KRW 40 million, which was 74,3930,000,000 won, which was 00,0000 won, and it is difficult to acknowledge that the Plaintiff’s tax invoice of this case did not constitute the Plaintiff’s 00,000 won, 300,0000,000 won, 000,0000 won,000.

2) Determination as to the tax invoice No. 2 of this case

A) Facts of recognition

(1) XX네트웍스는 B2B 전자상거래 중개업체이고, 이 사건 제2 세금계산서와 관련된 거래는 B2B 대출보증을 이용한 거래로, 원고와 같은 구매기업이 XX네트웍스와 같은 전자상거래 중개업체를 통하여 RR리젠트와 같은 판매업체에 주문을 하게 된다.

그 과정에서 원고는 기업은행과 같은 금융기관으로부터 구매자금을 대출받고, 대출자금은 XX네트웍스를 통하여 RR리젠트에 지급되는데, 이때 전문건설공제조합 등이 보증을 한다.

(2) 원고는 2011. 12. 12. XX네트웍스를 통하여 RR리젠트에 H빔 등의 건축자재를 발주하였고, 그 과정에서 기업은행으로부터 거래대금을 대출받아 기업은행은 같은 날 XX네트웍스에 292,823,687원을 지급하였다. 이후 XX네트웍스는 같은 날 RR리젠트에 수수료 1,456,831원을 제외한 291,366,856원을 지급하였다. 한편 RR리젠트는 XX네트웍스에 공급가액 264,878,960원의 세금계산서를 발급하였고, XX네트웍스는 원고에 대하여 공급가액 266,203,353원의 세금계산서(이 사건 제2 세금계산서)를 발급하였다.

(3) On December 13, 201, the RRG deposited KRW 290,000,000 into an enterprise bank account in the name of the Plaintiff.

(4) The Roglye is a juridical person with a special relationship with the Plaintiff, and the composition of shareholders as of December 31, 201 is as follows:

Name

Ratio of Shares

Relationship with JeonCC

Jinay

PriorCC

25%

Principal

Relocation Representative

S

25%

-

Vice President;

JeonK

25%

Punishment;

Stockholders

lL

25%

mother

Stockholders

(5) RR리젠트와 원고 사이에서 XX네트웍스를 통한 거래는 이 사건 제2 세금계산서 관련 거래만이 존재한다.

(6) XX네트웍스는 2017. 4. 11. 이 사건 제2 세금계산서가 사실과 다른 세금계산서에 해당함을 이유로 원고에 대한 매출세액을 감액하고, RR리젠트에 대한 매입세액을 감액하여 2011년 제2기 부가가치세를 수정신고하였다.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 2, 9 through 11, and 20, the purport of the whole pleadings

B) Determination

살피건대, 위 인정사실 및 변론 전제의 취지에 비추어 인정되는 다음과 같은 사정 즉, ① 원고가 기업은행으로부터 대출받아 XX네트웍스를 통하여 RR리젠트에 지급된 대금은 291,366,856원인데, RR리젠트는 그와 같은 대금을 지급받은 다음 날 290,000,000원을 원고의 계좌로 다시 송금한 점, ② RR리젠트는 원고와 특수관계가 있는 법인으로 B2B 대출보증을 활용하지 않더라도 원고가 추후에 대금을 지급할 것을 조건으로 건축자재를 구입하는 것이 불가능하다고 보이지는 않는 점, ③ RR리젠트와 원고 사이에 XX네트웍스를 통하여 이루어진 거래는 이 사건 제2 세금계산서와 관련된 거래만 존재하는 점, ④ XX네트웍스는 이 사건 세금계산서가 사실과 다른 세금계산서에 해당한다는 이유로 수정신고를 하기도 한 점 등에 비추어 보면, 이 사건 제2세금계산서는 실물거래가 없이 발급된 사실과 다른 세금계산서에 해당한다고 봄이 상당하다. 따라서 원고의 이 부분 주장은 이유 없다.

3) Determination on the portion of corporate tax on the tax invoice No. 2 of this case

On the other hand, the supply value related to the fact that the tax invoice 2 of this case was issued without real transaction cannot be viewed as the costs incurred in relation to the Plaintiff’s business, and thus, should be excluded from deductible expenses. The Plaintiff asserts that the substance of the transaction related to the tax invoice 2 of this case is a transaction in which the Plaintiff received a loan from a financial institution and the amount of such loan was paid to the Plaintiff and does not affect the profit and loss. However, it is difficult to view that the Plaintiff reported the loan to the Plaintiff as deductible expenses in relation to the tax invoice 2 of this case solely because it was reported

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.

1) In case where the Minister of National Court Administration has announced in the Official Gazette that a company for which five years have passed after the last registration of its head office should report its intention that it would not yet discontinue its business to the court having jurisdiction over the seat of its head office, and where the company fails to report as prescribed by the Presidential Decree within two months after the last registration of its head office was publicly announced as a company which has passed five years after the last registration of its head office, it shall be deemed to have been dissolved at the expiration of the reporting period: Provided, That this shall not apply to the company