National Tax Service Review and other 2009-005 ( October 22, 2010)

It is difficult to see that gold bullion suppliers and actual suppliers are different from other tax invoices.

It is difficult to conclude that there are various circumstances in which it is difficult to obtain payment in the gold bullion transaction, on the sole basis of the fact that there are circumstances making it difficult to conclude that there was no supply of goods for the purpose of fostering back gold, and there is no other evidence to find this differently from the supplier and the actual supplier, and thus, it is difficult to deem that

1. The Defendant, on June 4, 2008, designated the Plaintiff as the secondary taxpayer of AAA and imposed the Plaintiff on the Plaintiff on the second taxpayer of AAA, and revoked the imposition disposition of each of the value-added tax of 2 years 2005, value-added tax of 1,200,200,208,230, 2,696,60,850, 2471,79,500, 2006 value-added tax of 2 years 2,471,79,50, 2006, 16,003,90, 200, 748,307, 380, 2007, 1307, 207, 2006, 309, 2007, 307, 2007, 307, 2007.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On October 5, 2005, the Plaintiff was established for the purpose of housing construction business, and after the report of business suspension was made on February 7, 2005, the Plaintiff took over BBB as a dormant corporation on October 5, 2005, and then changed the name of the corporation into AAAA (hereinafter referred to as "non-party corporation") and operated gold bullion wholesale business until the closure of business on May 8, 2008 (referring to gold bullion with the net rate of at least 995/100 in the state of raw materials, such as the tax withholding, gold bullion, and dud, etc.).

B. The non-party corporation reported the value-added tax for the second period to 2005 to 2007 and each corporate tax for the business year to 2005 to 2007. The sum of the supply values received from CCC, DD, FF, GGF, HHHHH, etc. (hereinafter “the purchase price”) was deducted from the total of 56,619,337,000 won and the purchase amount was included in the deductible expenses of the non-party corporation. The Seoul Regional Tax Office conducted a tax investigation on the non-party corporation. The Seoul Regional Tax Office: (a) deemed that the non-party corporation was a taxpayer for the second period from February 2, 2005 to 1, 2007 and that the non-party corporation purchased the tax invoice from the non-party corporation to the non-party corporation for the first period to 20 years to 370,420,000 won and notified the non-party corporation of the purchase tax invoice to the non-party corporation as if it actually purchased the purchase price.

D. Accordingly, on May 2, 2008, the Defendant deducted the purchase tax amount related to the instant transaction from the non-party corporation, imposed additional tax for receiving evidence, and imposed the value-added tax and corporate tax equivalent to the tax amount stated in Paragraph (1) of this Article. The non-party corporation did not pay the above value-added tax and legal seal by the deadline for payment. On June 4, 2008, the Defendant designated the Plaintiff as the second taxpayer of the non-party corporation and imposed the value-added tax and corporate tax as stated in Paragraph (1) of this Article on the Plaintiff (hereinafter referred to as the “instant disposition, including the above value-added tax and corporate tax imposition disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed a request for examination with the Commissioner of the National Tax Service on January 12, 2009, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on January 22, 2010.

[Grounds for Recognition: Facts without dispute, Gap 1, 2 evidence, Eul 1 through 3 (including each number), the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since the non-party corporation actually purchased gold bullion from the purchaser of this case and paid the price in full, the tax invoice of this case is not a "tax invoice different from the actual supplier entered differently from the supplier on the tax invoice." The defendant's disposition of this case made on a different premise is unlawful.

(2) Since the Plaintiff owned only 50% of the shares of the non-party corporation after December 29, 2005, it is not an oligopolistic shareholder of the non-party corporation. On a different premise, the Defendant’s disposition that designated the Plaintiff as the second taxpayer of the non-party corporation’s tax payment was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 1(1)1 of the former Value-Added Tax Act (amended by Act No. 8826 of Dec. 31, 2007; hereinafter referred to as the “former Value-Added Tax Act”) provides that “the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds.” In light of the fact that the value-added tax is a multi-level transaction, the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds. In light of the fact that the value-added tax is a multi-level transaction, it shall include all act of causing the transfer of the authority to use and consume goods regardless of the actual gains. In this case, whether a specific transaction constitutes the supply of goods prescribed in the Value-Added Tax Act among the series of transactions shall be determined by comprehensively taking into account all the circumstances such as the purpose and circumstance of the transaction as the transaction partner, the person to whom benefits accrue, and the relationship of payment for the goods, etc., and Article 6(1) of the former Value-Added Tax Act provides that the tax invoice is 20.

(2) In light of the above legal principles, in light of the following circumstances, the so-called large-scale coal company that discontinues its business without paying value at a series of stages until the instant transaction as alleged by the defendant, there is no safety device securing payment guarantee between customers, and there is no subsequent payment to some purchasing agencies, and there is no need for a supplier to obtain payment at a different level, unlike ordinary transaction, it is difficult to conclude that the instant transaction constitutes a different tax invoice from the Plaintiff’s actual supply of goods subject to value-added tax without any other evidence as stated in the Plaintiff’s argument that there is no other evidence as to the instant transaction.

① The Nonparty Company: (a) purchased gold bullion from the instant purchaser; (b) prepared a sales contract for goods and a specification of transaction; (c) received a certificate of acceptance of goods at the same time as the gold bullion was delivered from the instant purchaser; and (d) paid the price to the Internet banking; and (c) received the instant tax invoice.

② The non-party corporation received sales tax invoices after selling and delivering gold bullion purchased as above to the manufacturer. In addition, the non-party corporation entered the sales details of the instant transaction and purchased gold bullion in the commodity receipt book.

③ Although the Defendant was aware of the fact that most of the purchasing places traded with the Plaintiff were suspected of having been convicted of having been convicted of having been convicted of having evaded value-added tax by fraudulent means or other unlawful means, not only some of them (the representative director of the CCC) but also issued a false tax invoice, but also did not contain any content that the Defendant conspired with the Plaintiff (in addition, according to the above judgment, it is recognized that CCC sold gold bullion to the non-party corporation).

④ The Defendant asserted that the instant transaction was also a nominal transaction on the ground that the Plaintiff, prior to the Plaintiff’s acquisition of the non-party corporation, engaged in a bombing business using the gold bullion, while operating the gold bullion wholesale company, and was taxed by the Defendant. However, in a lawsuit seeking revocation of the said taxation disposition against the KR, the said taxation disposition was revoked and finalized on the ground that the said transaction cannot be readily concluded as a nominal transaction.

⑤ The director of the Seoul Regional Tax Office asserted that the non-party corporation and the plaintiff evaded value-added tax by fraud or other unlawful act in collusion with the purchase office of this case, and received false tax invoices as if they did not receive actual gold bullion from the purchase office of this case. The non-party corporation and the plaintiff filed an accusation against the non-party corporation and the plaintiff at the Seoul Central District Public Prosecutor's Office. However, on March 23, 2009, the non-party corporation and the plaintiff received the suspension of indictment on the alleged facts that the plaintiff participated in the act of tax evasion of the company's value-added tax by taking into account the fact that the degree of participation is insignificant and the profits from the act of tax evasion were not high. As to the alleged fact that the non-party corporation received false tax invoices from the purchase office of this case, there was no evidence to acknowledge that the non-party corporation did not have traded the actual gold bullion and received the tax invoice, but it did not separately indicate the order of the suspension of indictment as to the act of tax evasion.

6) Most of all, it is difficult for the purchaser of this case to entirely exclude the possibility that the non-party corporation would purchase gold bullion from it even though the purchaser of this case is a so-called bomb coal company or a Do government company for the evasion of value-added tax. It cannot be readily concluded that the so-called bomb coal business exists during a series of gold bullion transactions and thus it is a nominal transaction. The so-called bomb gold purchase is not a non-party corporation, but a whole stage company of the non-party corporation including the purchase of this case

3. Conclusion

The plaintiff's claim is justified and accepted.