Suwon District Court 2006Guhap3938 ( April 22, 2008)

National High Court Decision 2005J3831 (Law No. 13, 2006)

Whether the tax invoice purchased gold bullion is different from the fact

Even if it is deemed that gold bullion was a type of external sales, such as delivery of gold bullion and payment of the price, etc., between the purchaser, it is reasonable to deem that it is a name for disguised actual transactions. Therefore, a disposition imposing value-added tax

The contents of the decision shall be the same as attached.

Article 17 of the Value-Added Tax Act [Payable Tax]

Article 11 of the Value-Added Tax Act [permanent Tax Rate]

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

The Defendant’s imposition of value-added tax for the first term of 2004 against the Plaintiff on September 24, 2005, of KRW 1,530,685,560 for the second term of 2004, of KRW 107,276,190 for the second term of 204, and of KRW 373,031,050 for the second term of 2004, and the rejection of refund of KRW 545,085,20 for the second term of 204 for the second term of 204 is revoked.

1. The court's explanation concerning the instant case is identical to the statement of the reasons for the judgment of the court of first instance, and thus, citing it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the

2. If so, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Korean District Court Decision 2006Guhap3938 ( April 22, 2008)]

1. The plaintiff's claim is dismissed.

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

Purport of Claim

The defendant imposed value-added tax on the plaintiff on September 7, 2005 (which seems to be a clerical error in September 13, 2005), KRW 1,530,685,560 for the first term of 204, KRW 107,276,190 for the second term of 204, and KRW 373,031,050 for the business year of 2004, respectively, and the disposition of refusing to refund value-added tax amounting to KRW 545,085,20 for the second term of 2004 is revoked.

1. Details of the disposition;

A. From April 1, 2004 to October 1 of the same year, the Plaintiff purchased gold bullion of KRW 16,95,95,957,000 for supply value from Ga○○○○○○, Inc., Ltd., Ma○○○○○○○○○, Inc., Da○○○○○○○○, New ○○○○○, Inc., ○○○○○○○○, Inc., ○○○○○○○, Inc., hereinafter referred to as “instant purchaser”), and received KRW 51 copies of the purchase tax invoice (hereinafter referred to as “purchase tax invoice of this case”). The details of purchase are as follows.

Classification of Purchase Offices

Tax Invoice

Quantity (kg)

Purchasing(s)

Value of supply (cost)

(an)New ○○○○

969

36

14,178,202,000

(j)○○○○

65

4

938,410,000

(m)Alley ○○○

45

3

651,465,00

(A)O○○○○

40

5

602,010,000

(z)Efficacy;

20

1

288,000,000

(z)effective ○○○

10

1

144,000,000

Japan ○○○ (main week)

10

1

153,870,000

Total

1,159

51

16,955,957,000

B. After exporting the entire gold bullion purchased as above to Wring○○○○ Ltd (hereinafter “instant export center”), the Plaintiff, a purchaser of Hong Kong, filed a return of value-added tax for the pertinent taxable period at the time of filing a return of value-added tax, applying the zero tax rate to the calculation of the output tax amount, and as an input tax amount, filed a return of value-added tax by deducting the amount based on the value

C. In the investigation of the tax offense against the Plaintiff, the director of the ○○○○ Regional Tax Office: (a) publicly recruited gold bullion wholesalers in the first and second taxable periods from the Plaintiff to the export; (b) traded gold bullion imported as originally exempted from tax in the state of no additional processing or manufacturing process; and (c) made a transaction in the state of no additional processing or manufacturing process of gold bullion imported as originally exempted from tax in the form of no additional processing or manufacturing process; (b) made the transaction at will of converting gold bullion into taxation at will in the middle of the transaction stage at will; and (c) made the so-called so-called ‘large carbon company' or ‘data company' in the transaction role at a lower level than the purchase price and repeatedly exported gold bullion transacted by putting them into the purchase price.

D. On September 13, 2005, the Defendant: (a) considered the Plaintiff’s purchase tax invoice that was received by fraud or other improper means; (b) deducted the input tax amount of value-added tax; and (c) applied the corporate tax burden to the Plaintiff on September 13, 2004, by applying the corporate tax evidence payment for the proceeds of supply; (d) notified the Plaintiff of KRW 1,530,685,560, value-added tax for the year 2004; (c) KRW 107,276,190, value-added tax for the year 2004; and (d) refused to refund KRW 373,031,05,200 for corporate tax for the year 204 (hereinafter “instant disposition”).

E. On October 17, 2005, the plaintiff appealed against the disposition of this case and filed an appeal with the National Tax Tribunal. On July 13, 2006, the plaintiff filed the lawsuit of this case on August 22, 2006.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, and Eul 1

2. The assertion and judgment

A. The plaintiff's assertion

The Defendant’s disposition of this case without deducting the input tax amount from the output tax amount is unlawful, on the ground that the Defendant filed an accusation against the above purchaser based on the material facts, even though it had the substance of the transaction with the above purchaser, it cannot be deemed that the purchase tax invoice of this case was a false tax invoice, and thus, the Defendant’s disposition of this case was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The transaction indicated in the purchase tax invoice of this case was conducted in a way that the Plaintiff purchased gold bullion and exported it to a foreign company by purchasing it to a foreign company after undergoing a few stages of transactions, if the importing company, including Geum○, etc., imports gold bullion subject to tax exemption from a foreign company.

2) An enterprise that purchased gold bullion as a tax exemption and sold it after converting it to the transaction subject to value-added tax (stock companies 200, 200, 200, 2000) is liable to pay the total value-added tax, including the added value arising from the previous transaction, but actually closed the business without having paid the value-added

3) The Plaintiff purchased gold bullion from the instant purchasing agencies and exported it to the Hong Kong again. The transaction was conducted by the first importer such as Geum○○○○, etc. from around 10:0 a.m. to around 3:00 a.m. on the same day by the distribution process and payment process at 6-7 p.m. in Korea from around 3:00 a.m. on the same day, and then exported to Hong Kong at a price lower than the import unit and domestic notice at 7 p.m. on the same day. In fact, the Plaintiff’s employees transferred gold bullion directly to the exporting company at the Hong Kong airport and recovered the price after the next day, and the credit, contract, etc. with the exporting agency was not prepared.

4) As the instant gold bullion was distributed at each stage, the parties to the transaction, including the Plaintiff, did not receive at all the “division certificate under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export to refund 3% of customs duties while exporting gold bullion.”

5) Of the Plaintiff’s purchasing places, ○○○, the representative director of ○○○○○, who is the so-called “data,” was finally convicted of the violation of the Punishment of Tax Evaders Act, and the judgment of conviction on the violation of the Punishment of Tax Evaders Act has become final and conclusive, and the former ○○○○○, the latter ○○○, who is another purchasing place, was in the state where the decision of suspension of witness was issued due to the escape of the relevant persons.

6) Comparing the unique number of gold bullion as indicated on the import pages of (ju) gold bullion ○○○, (ju), ○○○○○○, and (ju) ○○○○○○○○○○, the customs clearance of gold bullion 1,467 out of total 4,086 and the number of gold bullion 35.9%, when the same gold bullion identification number was cleared at least twice in 2003 to 2004, and the customs clearance of gold bullion 15 times in the case of gold bullion 8270.

[Reasons for Recognition] Class B 2,3,4,5,7,8,9,10,13

D. Determination

1) We examine whether the purchase tax invoice of this case constitutes a different tax invoice from the fact.

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be imposed on the person who has imposed the tax, but if it is revealed that the facts of taxation requirement are presumed in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party is an unlawful disposition that fails to meet the taxation requirement, unless the other party proves that the facts in question were not eligible for application of the empirical rule (Supreme Court Decision 2002Du6392 Decided November 13, 2002).

The following facts revealed in the above facts: ① purchased gold bullion 1,159 kilograms from the purchaser of this case and exported it to the export of this case without any additional manufacture or processing; even if the gold bullion was traded at 6-7 stages in the distribution process, abnormal export was continuously made that the export price was lower than the initial import unit; ② the transaction with the plaintiff and the exporter did not receive the sales price at the same time, but did not prepare a letter of credit, contract, etc. that can ensure the collection of the price even if the export price was collected after the following day; ③ the trade of this case is a trade in the gold bullion itself (in addition to added added value for processing, etc.), and the trade of this case was conducted at least 3% of the total import price of the gold bullion, and thus, it is not reasonable for the plaintiff to take account of the fact that there was a false purchase or sale of gold bullion at the same time within 6% of the total import price of this case, and thus, it is not reasonable for the plaintiff to take part in the trade within 3% of the total import price of this case.

Therefore, in this case, the entry of the purchase tax invoice is different from the facts, and the disposition of this case is justified under the premise that the input tax amount entered in the above purchase tax invoice is not deducted from the output tax amount. Therefore, the plaintiff's above assertion is without merit.

2) The Plaintiff alleged that the gold bullion in this case was traded on the premise that it is not for export, but for domestic source cost, and thus, the Plaintiff failed to file an application for refund of customs duties at the stage of purchasing the said gold bullion. However, considering that most of the gold bullion in this case were exported to Hong Kong on the date of import again on the date of import, it is difficult to deem that it was a domestic source cost, and the "division certificate" is transferred from the seller to the buyer in each transaction stage after the importer who paid the customs duty received the customs duty from the Korea Customs Service and then transferred the gold bullion along with the real gold bullion, and the details of payment of gold bullion are written in detail. Since the contents were entered by the National Tax Service’s electronic computer system, it seems that there was sufficient reason for the Plaintiff to avoid the normal delivery of the above installment certificate even if he renounced the customs duty by 3%.

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.

annex. Relevant statutes

◯ 영세율적용

(1) The zero tax rates shall apply to the supply of the following goods or services:

1. Exported goods;

◯ 납부세액

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter referred to as the “paid tax amount”):

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The input tax amount under the following subparagraphs shall not be deducted from the output tax amount:

1. An input tax amount in case where the list of the total tax invoice by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or entered differently from the fact, in case where the whole or part of the registration numbers or supply values by transaction parties in the submitted list of the total tax invoice by customer is not entered or entered differently from the fact, except in the case as prescribed by

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a "necessary entry item") is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded