Early High Court Decision 201Du1252 ( October 11, 2011)

The instant tax invoice is a processing tax invoice issued without a real transaction.

The tax invoice of this case is a processing tax invoice issued without a real transaction, and it is legitimate to dispose of the tax invoice as a bonus to the representative of the plaintiff on the ground that the difference between the processing sales and the processing sales was leaked out from the company, and its ownership is unclear.

Article 17 of the Value-Added Tax Act; Article 14 of the Framework Act

Article 67 of the Corporate Tax Act; Article 106 of the Enforcement Decree of the Corporate Tax Act

2012 disposition of revocation of imposition of value-added tax

AA Corporation

Head of Sungnam Tax Office

November 2, 2012

November 30, 2012

1. The plaintiff's claim is dismissed.

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

On October 2, 2010, the Defendant imposed value-added tax of 00 won on the Plaintiff for the year 2007 and revoked the notice of change in income amount of 000 won for the year 2007 (written complaint on October 6, 2010), and the Plaintiff sought to revoke the refund of value-added tax of 000 won for the first period of 2007. However, this is also a clerical error.

1. Details of the disposition;

A. The Plaintiff, a company engaged in manufacturing and wholesale sales of electronic and electronic equipment, issued a tax invoice of KRW 000 and KRW 000 (hereinafter “instant sales tax invoice”) in total to BB (hereinafter “BB”) during the second taxable period of value added tax, and received a tax invoice of KRW 000,000 in total value from BB during the second taxable period of value added tax (hereinafter “instant purchase tax invoice”), and combined with the instant sales tax invoice in 207.

B. The Plaintiff included the supply value according to the purchase tax invoice of this case in deductible expenses, filed a tax base and tax amount return for the business year 2007, while filing a tax return for the amount of corporate tax in accordance with the sales tax invoice of this case and the purchase tax invoice of this case, and filed a tax return for the first and second input tax amount based on the sales tax invoice

C. On October 2, 2010, the Defendant: (a) considered the instant tax invoice as a processing tax invoice received without a real transaction; (b) excluded the output tax amount from the tax base; or (c) did not deduct the input tax amount from the output tax amount; (b) returned KRW 000 on October 2, 2007 to the Plaintiff; and (c) notified the Plaintiff of the change in the amount of income that the amount of the value-added tax for the first period of value added tax for the second period of 2007 was changed to the bonus amount of KRW 00 (hereinafter “instant disposition”); and (d) notified the change in the amount of income for the year 2007 as a bonus (hereinafter “instant notice of change in income amount”; and (c) combined with the instant disposition

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection on November 30, 201, and filed an appeal with the Intellectual Property Tribunal on March 23, 201, but was dismissed on October 11, 201.

[Ground of Recognition] The non-sured facts, Gap evidence 1 to 4, Gap evidence 2, Eul evidence 1 to 3, Eul evidence 1 to 3, and Eul evidence 1 to 4, and Eul evidence 1 to 14, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the instant tax invoice is a tax invoice received according to the normal transaction, the instant disposition and notice of change in the amount of income are unlawful. Even if the instant tax invoice can be seen as a tax invoice different from the facts, and as the person to whom the said income belongs exists, it should be treated as a "other outflow from the company, not a "contribution to the representative".

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

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

(A) Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 8826 of Dec. 31, 2007) provides that input tax shall not be deducted from the output tax in cases where the entries of a tax invoice are different from the facts. It means that the entries of a tax invoice are different from the facts, and where there is a person to whom a tax invoice belongs, and where there is another person to whom a tax invoice belongs, the person to whom the tax invoice belongs shall be liable for tax and the person to whom the tax invoice actually supplies the goods or services, and the person who actually supplies the goods or services shall be deemed as having the legal relationship between the person to whom the goods or services are actually supplied or supplied and the person to whom the tax invoice is supplied and the person who actually supplies the goods or services, including those who actually supplies the goods or services, regardless of the form of the transaction contract made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

(B) Based on the above legal doctrine, the following circumstances are comprehensively taken into account, based on the health stand, Eul evidence Nos. 2, Eul evidence Nos. 4-1, Eul evidence Nos. 6, and Eul evidence Nos. 7, and the overall purport of the arguments and arguments, and the instant tax invoice is deemed to be a processed tax invoice issued without a real transaction, i.e., a tax invoice different from the facts. The Plaintiff’s allegation in this part is without merit.

① The item column of the instant tax invoice is written only as “computer peripheral devices,” while the Plaintiff presented a transaction statement at the time of the tax investigation, and asserted that the transaction item was monitoring, but did not present any more objective data, such as the head of the sales office related to the sales or purchaser, and the head of the inventory office.

② On April 20, 201, the former director of the tax office received processed tax invoices and accused the Seoul Southern District Public Prosecutor’s Office of Punishment of Tax Evaders (hereinafter “Seoul Southern District Public Prosecutor’s Office”). At the time of the tax investigation, KimCCC, the representative of BB, stated, “The Plaintiff was engaged in the intermediate distribution of the Plaintiff, real transactions, issued only the sales tax invoice, and received payment only from the Plaintiff.” In light of the above statement, BB is recognized as having received tax invoices between the Plaintiff and the intermediate distribution company while making actual transactions with the Plaintiff.

③ At the time of the first police interrogation, KimCC stated that “at the time of the first police interrogation, all of the instant tax invoices were processed,” and that “BB employee received purchase tax invoices from DD upon request of the Plaintiff’s employee.” Furthermore, the Plaintiff did not submit objective data to support the actual transaction of the instant tax invoices in conformity with the instant tax invoices. Furthermore, it is difficult to reverse the said tax investigation or the statement of KimCC at the first police interrogation, solely on the ground that the KimCC denied the receipt of the processed tax invoices between the Plaintiff and the Plaintiff at the time of the second police interrogation, which was substituted by the Plaintiff’s representative director, at the time of the second police interrogation.

(2) Whether notice of change in the income amount of this case is lawful

The disposal of income as stipulated in Article 67 of the former Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007) stipulates that the amount included in the calculation standard of corporate tax has been reserved in the inside of the corporation or has been leaked to the outside of the corporation, and if the amount has been leaked to the outside of the company, the amount included in the calculation standard of the income under the tax law which specifies to anyone to whom the income belongs and determines the type of the vested person and the income. The amount included in the calculation standard of the income under the tax law which determines the type of the vested person and the income shall be deemed as the bonus, etc. according to the provisions of each subparagraph of Article 106 (1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008) is not clear. The plaintiff's receipt of the tax invoice for processing without actual transaction is not clear, and thus, the plaintiff's disposal of the income amount is not justified.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.