Early High Court Decision 2015Du4806 ( October 10, 2016)

If the evidence has not been received even though the obligation to receive the evidence has been endeavored to do so, it falls under the grounds for exemption from additional tax.

A tax invoice written differently from the actual amount is subject to the additional tax for receiving documentary evidence, but if it is intended to perform the obligation to receive documentary evidence, but it is not attributable to the failure to receive documentary evidence, there is a justifiable reason that it is not attributable to the failure to perform the obligation.

2016Guhap1067 Revocation of Disposition of Corporate Tax Imposition

(State) New○

○ Head of tax office

November 25, 2016

December 16, 2016

1. Of the instant lawsuit, the part concerning the claim for revocation of additional dues, corporate tax, etc. shall be dismissed, respectively.

2. Each disposition of imposition of corporate tax of KRW 17,432,520 for the year 2013 against the Plaintiff on June 5, 2015 and corporate tax of KRW 52,240 for the year 2014 shall be revoked.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

On June 5, 2015, the Defendant revoked the disposition of imposition of corporate tax of KRW 17,432,520, corporate tax of KRW 2,196,490, corporate tax of KRW 52,240,350, corporate tax of KRW 1,18,870, and corporate tax of KRW 52,240,350, and corporate tax of KRW 1,18,870, each of which is imposed against the Plaintiff.

1. Details of the disposition;

A. The Plaintiff is a corporation that runs the same line manufacturing business at ○○○-ri, ○○○○, ○○-ri, ○○○○.

B. The Plaintiff’s shares during the taxable period of value-added tax from the second to the first period from 2013 to 2014

○○로부터 공급가액 1,626,473,000원, 주식회사 △△으로부터 공급가액 1,487,470,000원, 주식회사 ▢▢로부터 369,701,000원 상당의 매입세금계산서(이하 이들을 합하여 '이 사건 세금계산서'라고 하고, 위 매입처들을 '이 사건 매입처들'이라 하며, 위 매입처들을 개별적으로 지칭할 때는 명칭에서 주식회사를 생략한다)를 교부받았고, 위 과세기간의 부가가치세 신고 당시 위 매입세액을 매출세액에서 공제하는 한편, 2013년, 2014년 귀속 법인세 신고 당시 위 매입금액을 손금으로 계상하였다.

C. As a result of the investigation into data on the instant purchaser, the head of ○○○ Tax Office, etc. confirmed that the said purchaser received the processed tax invoice without a real transaction, and notified the Defendant of the taxation data related thereto. On June 5, 2015, the Defendant conducted an investigation into the Plaintiff based on the investigation, and subsequently notified the Plaintiff of the amount of value-added tax for the two-year period of 2013 as KRW 152,325,350, and the amount of value-added tax for the first year of 2014 as KRW 42,293,00, and the amount of value-added tax for the first year of 2014 was adjusted and notified as KRW 42,293,00, respectively. For the same reason, the said amount of value-added tax was recognized as deductible expenses, but the Plaintiff was subject to additional tax for corporate tax for the year 2013, KRW 52,240,350 (hereinafter “instant taxation disposition”).

D. On March 10, 2016, the Tax Tribunal revoked the disposition imposing value-added tax on the grounds that it is difficult to deem the Plaintiff’s negligence because the Plaintiff was unaware of the fact that the Plaintiff was a disguised business operator. On the other hand, on the ground that the supplier of the instant tax invoice stated differently from the fact, the Plaintiff determined that the imposition of value-added tax on the evidence not received was lawful and dismissed the claim for revocation of the instant tax disposition.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The part on the claim to revoke the additional dues

1) On June 5, 2015, the fact that ex officio the part concerning the claim for the revocation of the additional dues in the instant lawsuit is lawful is no dispute between the parties, among the amount paid by the Plaintiff pursuant to the Defendant’s notice as of June 5, 2015, 2,196,490 won, and 1,188,870 won for the corporate tax reverted to the year 2014.

2) The surcharge or increased surcharge under Articles 21 and 22 of the National Tax Collection Act is naturally created pursuant to a law without a final procedure by the competent tax office, if national taxes are not paid by the due date, and thus, notification of the surcharge or increased surcharge cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2000Du2013, Sept. 22, 2000). Therefore, the part on the claim for revocation of the above surcharge is unlawful.

B. Claim for refund of corporate tax

On the other hand, the so-called lawsuit demanding the defendant, who is an administrative agency, to perform certain acts, is not allowed under the current Administrative Litigation Act (see, e.g., Supreme Court Decision 92Nu1629, Nov. 10, 1992). Of the lawsuit in this case, the part demanding the refund of corporate tax, etc. already paid is unlawful since it seeks the administrative agency to perform its duties.

3. Whether the instant taxation disposition is legitimate

A. The plaintiff's assertion

1) The Plaintiff was actually engaged in the instant purchase transaction with the instant purchaser, and thus, the instant tax invoice is not a false tax invoice.

2) Even if it is not so, it is unreasonable to impose additional tax on supporting documents for the same transaction even though the disposition of value-added tax was revoked because the Plaintiff was deemed to have transacted with the purchaser in good faith and without negligence.

3) The imposition of the additional tax on the receipt of evidence is unlawful on the ground that there are justifiable grounds that the Plaintiff could not receive the documentary evidence from the actual supplier.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether each of the tax invoices of this case is false

A) Relevant legal principles

The meaning that the tax invoice under the Value-Added Tax Act differs from the fact is that the necessary entries in the tax invoice refer to the case where the contents of the requisite entries in the tax invoice do not coincide with the actual subjects, prices, and timing of the supply or the supply of the goods or services, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). The burden of proving that the entries constitute the tax invoice different from the fact is the principle that the tax authority bears the burden (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11,

B) In the instant case:

In light of the above legal principles, in full view of the following circumstances acknowledged by comprehensively taking into account whether the entries in the tax invoice of this case are different from the facts, the tax invoice delivered by the Plaintiff from the purchaser of this case constitutes the tax invoice prepared differently from the actual ones, in light of the following circumstances, it is reasonable to deem that the Plaintiff’s agent who supplied the closed Dong, etc. constitutes the tax invoice prepared differently.

① The representative of the purchaser of the instant case did not have been engaged in the past business, and it is difficult to deem that the purchaser of the instant case has the ability to operate the closed-dong wholesale business in consideration of its asset holding situation.

② ○○○, the representative of ○○○○, was convicted of facts constituting a crime of evading taxes, such as value-added tax, in collusion with Kim○, Kim○, and Kim○, which is his/her siblings, by soliciting the name name holders of the signboard companies and pretending transactions between the signboard companies (Seoul High Court Decision 2014Gohap199 and Seoul High Court 2014No2869).

③ ▢▢는 비철영업을 위한 사무실, 전기통신시설, 계근대 등의 시설을구비하지 않았고, 개업 후 단기간 내에 상당한 규모의 매출액을 발생시켰음에도 그에 대한 부가가치세를 신고하지 아니한 채 무단 폐업하였다.

④ ○○, △△이 그 매입처들로부터 세금계산서를 수취하고 매입한 거래는 각 99.2%, 93%가 실물거래 없이 이루어진 것으로 확인되었고, ▢▢는2014년경 매입 없이 상당한 규모의 매출세금계산서만 발급하였다.

⑤ There are circumstances to deem that the ○○○ and △△△ have made a false statement of transfer, such as remitting the non-stock amount received from the seller to the purchaser, immediately withdrawing the cash.

2) Whether the imposition of additional tax on the failure to receive evidence is legitimate

A) Relevant legal principles

Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, a taxpayer’s intent or negligence is not considered as administrative sanctions imposed as prescribed by the Act. Provided, That where a taxpayer is not unaware of his/her duty or it is unreasonable for him/her to expect the fulfillment of his/her duty, etc., and there is a justifiable reason to believe that it is unreasonable for him/her to do so (see, e.g., Supreme Court Decision 2004Du930, Nov. 25, 2005).

(b)whether the additional tax on the reception of evidence is subject to

According to Article 76 (5) of the Corporate Tax Act, where a corporation receives goods or services from an entrepreneur in connection with its business and fails to receive evidentiary documents prescribed in Article 116 (2) of the Value-Added Tax Act, such as tax invoices under the Value-Added Tax Act, or receives false evidentiary documents, the head of a tax office having jurisdiction over the place for tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid or false amount, to the corporate tax, except in cases where the proviso to Article 116 (2) of the same Act is applied, and where a corporation receives legal evidential documents from a person who is not a "person who has conducted a transaction in supplying goods or services" (see Supreme Court Decision 2010Du24654, Apr. 26, 2012). Thus, where a corporation receives another tax invoice due to a disguised transaction, it shall be subject to imposition of additional tax under the proviso to Article 116 (2) of the Corporate Tax Act, Article 158 (2) of the Enforcement Decree of the Corporate Tax Act, and Article 79 of the Corporate Tax Act (hereinafter referred to “Special Tax Act”).

However, the tax invoice delivered by the Plaintiff from the purchaser of this case constitutes a tax invoice prepared differently from the actual fact by the supplier of this case, and there is no evidence to deem that the transaction between the Plaintiff and the purchaser of this case constitutes a case where the special provision on the receipt of the documentary evidence applies. Thus, the Plaintiff is subject to the additional tax on the receipt of the documentary evidence.

C) the existence of justifiable grounds

In light of the following circumstances, which are acknowledged as a comprehensive consideration of the purport of the entire pleadings in Gap evidence Nos. 7 through 16, it is reasonable to deem that it was difficult to expect that the plaintiff will fulfill his obligation to receive documentary evidence, as the plaintiff did not know that the purchaser of this case was a disguised business operator without negligence, thereby receiving a tax invoice from the above purchaser, and thus it was difficult to expect that the plaintiff will receive a tax invoice with the "person who actually traded goods or services" as the supplier.

(1) The Corporate Tax Act imposes an obligation to receive documentary evidence, such as tax invoices, on a corporation provided with goods or services in order to enhance transparency in the details of expenditure of the corporation and induce other business operators to cultivate their tax bases, and impose an additional tax on the corporation not provided with documentary evidence if it is not fulfilled.

② However, although the Plaintiff intended to receive tax invoices related to the transaction of waste Dong Dong, and perform the obligation to receive evidence based on corporate tax, the Plaintiff did not know that the purchaser of this case was a disguised business, even though he paid due care in connection with the transaction of waste Dong Dong, etc., and thus, did not perform the said obligation.

③ Meanwhile, upon the implementation of the system of value-added tax payment, the Plaintiff endeavored to perform its obligations related to closed trade by using the old interest transaction account to ensure that the value-added tax is fully paid regardless of disguised transaction, etc.

④ Therefore, it is unreasonable for the Plaintiff to expect that a tax invoice should be issued from the person who supplied the actual Dong, separately from the purchaser, without knowing that the purchaser was a disguised business operator. Therefore, there is a justifiable reason that the Plaintiff cannot be justified in neglecting his/her duty.

3. Conclusion

Therefore, the part of the claim for revocation of the additional dues and the part of the claim for refund of the corporate tax, etc. in the lawsuit of this case are unlawful, and each of them is dismissed, and the remaining claims of the plaintiff are justified, and it is decided as ordered