early 208Gu2790 ( November 07, 2008)

Although the period of filing a lawsuit for an examination or a request for adjudication has expired, it is possible to file an administrative litigation.

If a request for examination or a request for a trial is illegal due to the lapse of the period for filing a lawsuit, it cannot be deemed that the required transfer procedure as prescribed by the Framework Act on National Taxes has been completed, and thus, it cannot be deemed that an administrative litigation has been instituted, and even if a substantial decision was made with respect to a trial with the period for filing an administrative appeal,

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

Article 3 (Taxable Period)

Article 9 (Transaction Time of Value-Added Tax Act)

1. Of the instant lawsuit, the part of the claim for revocation of the imposition of value-added tax for the second period of April 25, 2008 and the first period of January 2007 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Each disposition of imposition of value-added tax of 4,747,150 won and value-added tax of 12,926,910 won for the second period of 206, which the Defendant rendered as of April 25, 2008 to the Plaintiff, and each disposition of refusal of refund of value-added tax of 163,636,370 won for the second period of 207, which was made as of May 6, 2008 by the Defendant, shall be revoked.

1. Circumstances of the disposition;

가. 원고는 근린상가신축ㆍ판매업 및 부동산분양ㆍ임대업 등을 영위하는 회사로서 2007. 1. 23. 소외 주식회사 ☆☆건설(이하 '☆☆건설'이라고 한다)에게 대구 수성구 ★★동 10-7 외 21필지 지상의 지하 2층, 지상 9층 규모의 시지퍼스트(이하 '이 사건 건물'이라고 한다) 신축공사를 12,125,190,000원(공사대금 11,022,900,000원 + 부가가치세 1,102,290,000원)에 도급주는 민간건설공사표준도급계약을 체결한 후, 위 공사의 기성 고에 따라 ☆☆건설에게 기성고대금과 그에 따른 부가가치세를 지급해 오던 중, 2007. 11. 30. ☆☆건설로부터 기성고대금 15억 원(공급가액 1.363.636.363원 + 부가가치세 136,363,637원)의 세금계산서(이하 '이 사건 세금계산서'라고 한다)를 발행ㆍ교부받고, 2007. 12. 18. 기성청구를 받아 같은 날 기성검사를 완료한 후 2007. 12. 28. ☆☆건설에게 위 기성고대금 15억 원을 지급하였다.

B. On January 25, 2008, the Plaintiff filed a final tax return for the second half-year value-added tax for the year 2007, and filed a tax return for the input tax amount of KRW 136,363,637 on the instant tax invoice by deducting the value-added tax from the output tax amount as the input tax amount, thereby filing a tax return of KRW 251,72

C. Accordingly, on May 6, 2008, the Defendant rejected the refund by deducting the input tax amount equivalent to the value-added tax from the amount of the above refund return tax (hereinafter “instant disposition”) on the ground that the instant tax invoice was issued prior to the time of supply and the payment was made in excess of seven days from the date of delivery, and constitutes a false tax invoice.

(d) On November 8, 2006, the Plaintiff entered into a sales agency contract for the instant building with Nonparty ○○○○○&D Co., Ltd. (hereinafter referred to as “○○○○○○○&D”), and issued and delivered a tax invoice of KRW 50 million (value 45,454,545 + value 4,555 won + value 4,5555 won) on November 17, 2006, and received a tax invoice of KRW 50,000 from Nonparty ○○○○○○&D Co., Ltd. (hereinafter referred to as “○○○○○○&D”), KRW 4,545,455 won from the input tax amount for the second half-year period of 206, and received a refund of KRW 150,000,000 (value 136,365,365,6365,6365,6365,6365, etc.) from Nonparty 207, the said tax invoice.

E. Accordingly, on Nov. 17, 2006 and April 15, 2007, the Defendant issued a tax invoice from ○○MD constitutes a tax invoice issued prior to the time of supply, and constitutes a false tax invoice by paying the price exceeding seven days from the date of delivery. A tax invoice delivered from Dui constitutes a false tax invoice after the time of supply, and on April 25, 2008, the Defendant notified the Plaintiff of the amount of value-added tax for the second term of February 2006 and the amount of value-added tax for the first term of January 2007, 207, including additional tax, for the reason that it constitutes a tax invoice different from the fact that the tax invoice was issued after the time of supply, and appropriated the amount of value-added tax for the second term of May 6, 2008.

F. The Plaintiff, on June 5, 2008, filed a claim for correction with the Defendant on November 17, 2006, the supply price of KRW 92,727 as common input tax amount related to the exempted business, out of KRW 4,545,45, prior to the notice of the above value-added tax. On April 15, 2007, the Plaintiff claimed that the input tax amount was 6,818,182, out of KRW 13,636,365, which was 13,67, 207, which was 205, 207, 207, 207, 207, 306, 205, 207, 207, 206, 306, 205, 207, 206, 207, 205, 206, 207.

G. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 5, 2008, and the Tax Tribunal dismissed the appeal on November 7, 2008.

[Ground of recognition] Facts without dispute, Gap evidence l through 8, 11 through 14 (including numbers; hereinafter the same shall apply), Eul evidence 1 to 14, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

ex officio, this paper examines the legitimacy of the claim for revocation of the imposition of value-added tax for the second term of 2006 and the first term of 2007.

Article 56(2) of the Framework Act on National Taxes provides that an administrative litigation against a disposition under tax-related Acts shall not be filed unless a request for examination or adjudication is made and a decision thereon is made. Thus, unlike the discretionary transfer principle of administrative litigation that applies to the general administrative litigation, an administrative litigation seeking the revocation of a disposition of national tax is subject to the requisite transfer principle that must be made through a request for examination or adjudgment as prescribed by the Framework Act on National Taxes. In this case, a request for examination or adjudgment is lawful. Thus, if a request for examination or adjudgment is unlawful due to the lapse of the period for filing a lawsuit, it cannot be deemed as having gone through the necessary transfer procedure as prescribed by the Framework Act on National Taxes, and it is unlawful. This does not change even if an administrative agency made a substantial adjudication on an illegal or unlawful trial with the lapse of the period for filing an administrative appeal (see Supreme Court Decision 90Nu8091, Jun. 25, 19

However, Article 68(1) and (2) of the Framework Act on National Taxes provide that a request for a trial shall be filed within 90 days from the date on which the pertinent disposition is known. According to the above facts of recognition and the aforementioned evidence, the defendant served on the plaintiff on April 25, 2008 a notice of imposition of value-added tax and value-added tax for the second term period of 2006 and the first term of 2007 on the same day. The plaintiff perused the above notice on the electronic mail date and becomes aware of the above disposition, and it can be recognized that the plaintiff filed a request for a trial on August 5, 2008 after the 90 days from this date. Thus, this part of the request for a trial is illegal since it is not legitimate that the request for revocation of the disposition of value-added tax for the second term of 2006 and the first term of 207 on the same day among the lawsuit in this case is unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Even if a tax invoice is prepared differently from the time of supply for goods or services, as long as it was made within the same taxable period as the time of supply for goods or services, the mutual verification function as a tax invoice and the legal principles on the value-added tax system shall be ensured, without impairing the said tax invoice. Such circumstance is not different depending on whether the tax invoice was made before the time of supply for goods or services or whether it was made after the time of supply for the goods or services. As such, in the case of a tax invoice made after the time of supply for goods or services, it shall be deemed that it is legitimate under Article 60 (2) 3 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 20516, Dec. 31, 2007; hereinafter referred to as the “Enforcement Decree of the Value-Added Tax Act”). Thus, if a transaction of a tax invoice was confirmed even before the time of supply for goods or services, it shall be deemed that it is unlawful to dispose of this case by deducting the input tax amount from the fact.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 16(1) of the Value-Added Tax Act (amended by Act No. 8826, Dec. 31, 2007; hereinafter “the Act”) provides that where an entrepreneur registered as a person liable for tax payment supplies goods or services, he/she shall deliver an invoice stating the registration number and name of the entrepreneur, the registration number, the price of supply, the value of supply, the date of preparation of value-added tax, etc. of the supplier to the person liable for tax payment. Article 9(2) and (3) of the Act provides that where the service is provided or the goods, facilities, or rights are used and the tax invoice, etc. is delivered upon receipt of all or part of the price for the service before the expiration of the period, the time of delivery shall be deemed the time of supply of the service.

Meanwhile, according to Article 17 (2) 1-2 of the Act, in case where the tax invoice under Article 16 (1) of the Act is not delivered, or all or part of the items to be entered under Article 16 (1) 1 through 4 are not entered or entered differently from the fact on the delivered tax invoice, the input tax amount shall not be deducted, but in case where the whole or part of the items to be entered under Article 16 (1) 1 through 4 are not entered or entered differently from the fact, and under Article 60 (2) 2 and 3 of the Enforcement Decree of the Act, some of the requisite items to be entered in the tax invoice delivered under Article 16 (1) of the Act are entered erroneously, but the fact of transactions is confirmed by considering the pertinent tax invoice as other necessary items or discretionary items (subparagraph 2), and in case where the tax invoice was delivered after the time of supply for goods or services and is delivered within the taxable period to which the pertinent time of supply belongs, the input tax

In addition, Article 54 (2) of the Enforcement Decree of the Act provides that if an entrepreneur issues a tax invoice before the time of supply for goods or services arrives and receives the price within seven days from the date of issuance of the tax invoice, the entrepreneur who pays the price shall be deemed to have issued a tax invoice under Article 16 (1) of the Act. Article 54 (3) of the Act provides that if the entrepreneur who pays the price satisfies all the requirements of each subparagraph (the period and time of payment shall be separately stated at the time of request for the price in a contract, etc. between the parties to the transaction, the person who is supplied the goods or services after being issued the tax invoice at the time of request for the price, and the period between the time of request for the price and the time of payment shall be within 30 days), the entrepreneur shall be deemed to have issued the tax invoice before the time of supply for the goods or services arrives, and even if he receives the price after

(2) Regarding this case, since the tax invoice of this case was delivered prior to the arrival of the time of supply and was entered differently from the fact that it was paid seven days after the said time of supply, the tax invoice of this case is required to be deducted from the input tax amount under Article 54 (2) or (3) or Article 60 (2) 2 or 3 of the Enforcement Decree of the Act. First, since the tax invoice of this case was delivered prior to the time of supply, it does not fall under Article 60 (2) 3, since it does not fall under Article 60 (2) 3, since the tax invoice of this case was paid at the time of supply, and it does not fall under Article 54 (2) as the plaintiff, who is an entrepreneur paying the price, failed to meet all the requirements of each subparagraph of Article 54 (3) (it shall be kept in the private resource management system).

In addition, if the tax invoice of this case falls under a case where there is a reason under Article 60 (2) 2 of the Enforcement Decree of the Act, part of the necessary entry of the tax invoice must be deemed to fall under the case where the necessary entry of the tax invoice is erroneously entered. There is no evidence to acknowledge that the requisite entry of the tax invoice of this case was entered by mistake, and rather, even according to the plaintiff's assertion, the tax invoice of this case was first delivered, and the payment was made late on the wind due to financial shortage and the inspection delayed, barring any special circumstance, and thus,

(3) In addition, even if a tax invoice is prepared before the time of supply for goods or services, the tax invoice is treated as legitimate tax invoices under Article 60(2)3 of the Enforcement Decree of the Act, as well as the Plaintiff’s assertion that if transactions are confirmed, it shall be deemed legitimate tax invoices as provided in Article 60(2)2 of the Enforcement Decree of the Act, as well as to ensure the truth of documentary evidence to establish value-added tax. Moreover, in the current VAT system adopting the Act on Tax Credit at a pre-development stage, the tax invoice system has a function of mutual verification between taxpayers that facilitate the delivery of income tax and corporate tax, and thus, even if the tax invoice is prepared and issued differently from the actual time of supply, the tax invoice should be denied unless there is any reason prescribed in Article 50(2)3 of the Enforcement Decree of the Act, and if the tax invoice is issued at the same time after the actual time of supply to the seller, the purchaser is not entitled to receive the additional tax within the same time of supply under Article 60(2)30 of the Act.

(4) Therefore, since the instant tax invoice is written differently from the facts, the instant disposition is lawful since the input tax deduction should be denied.

4. Conclusion

Therefore, the part of the lawsuit of this case which revoked the disposition of imposition of value-added tax for the second term of February 2006 and the first term of January 2007 is unlawful, and thus, it is dismissed. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.