propriety of a disposition denying the zero tax rate under a written purchase approval

It is reasonable to see that gold bullion is not exported at the time of transaction. Thus, a disposition denying the application of zero tax rate under a purchase approval is legitimate.

Article 11 (Application of Value-Added Tax Act)

1. Revocation of a judgment of the first instance;

2. All of the plaintiff's claims are dismissed.

3. The costs of the lawsuit shall be borne by the plaintiff in the first and second instances.

1. Purport of claim

The Defendant’s disposition of imposing value-added tax of KRW 2,613,656,780 for the second year of 2001 against the Plaintiff on June 1, 2002, and KRW 1,366,113,850 for the first year of 2002, and the disposition of rejecting the application for refund of KRW 4,268,739,620 for the first year of 202 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act refer to the reasoning for the judgment of the court of first instance except for the dismissal as follows.

2. Determination

(a) The following facts may be acknowledged if Gap evidence 1-1, 2, 2-1 to 70, 3-1, 2, 4-1 through 29, 1-1, 2, 2-2, 2-2, and 4-1, 1-1, 1-2, 2-2 and 4 are added to the whole purport of the pleadings:

(1) The Plaintiff is a large gold distributor that distributes approximately 30% of the international gold markets, and has its head office in the UK. On June 4, 2001, the Plaintiff established a business office in the Republic of Korea on August 10, 2001, and run the import-sale business from the ○○ Bank located in the Australia, after completing the registration of the domestic business office on August 10, 2001 as well as the registration of the business as a service or other financial business.

(2) Before doing the instant transaction, the Plaintiff already sought advice to the domestic law office about the application of zero-rate tax rate to the value-added tax related to the transaction, and then received advice to the effect that the zero-rate tax rate shall apply when a written purchase approval is issued.

(3) Unless there are special circumstances, domestic prices are higher than international market prices, so there are almost no cases where domestic imports are not distributed domestically and exported as they are without being distributed domestically.

(4) Specific details of the instant transaction and current distribution channels are as follows.

Sales timing and sales volume

Buyer

Exporter

November 22, 2001 - 1,600 kilograms by weight on December 28, 2001

19,168,733,310 won

○○ Commercial

○ Metals

○ ○

○○○ ○○, ○○ juice

○○ Commercial

○ ○ Metal, ○○○ Trading

January 13, 2002 - The weight of 3,353 kilograms on March 27, 2003

43,335,799,544 won

○ ○ Trade

○ ○ Metal, ○○○ Trading

○○ Commercial

○ Metals

○ ○

○○○ ○○, ○○ juice

(5) Upon the Plaintiff’s present sales to the above buyers, the purchase certificate (as the certificate No. 2-1 to 53) or the purchase approval certificate (as the purchase approval certificate and the purchase approval certificate, hereinafter referred to as “purchase confirmation”) was presented, the instant transaction constitutes a transaction to which zero-rate tax is applied under the Value-Added Tax Act, and thus, did not collect an amount equivalent to the value-added tax from the above buyers.

(6) The purchase confirmation is issued by the head of a foreign exchange bank, and in detail, the contents of the purchase raw materials list include the HS code (in accordance with the International Convention on the Harmonized System for the Harmonized Commodity Description and Coding System, divided by type of exported and import goods and expressed in numbers), name and standard, unit and quantity, the date of purchase (supply), unit price, and amount, based documents and numbers, HS code, name and size, quantity, unit price, unit price, effective date, effective date, and date of shipment. The part of the purchase confirmation presented by the Plaintiff was written to the effect that the purchase confirmation is shipped and exported within 1-2 weeks from the date of purchase without processing, even if all the formal descriptions are written.

(A) Rather than the purchase date, the effective date and the shipment date are earlier (A evidence 20 10).

(B) there are items that are omitted in all the statements, such as the basis document for confirmation of purchase and its number, effective date and date of shipment (AB No. 11 to 38).

(C) There is a document written to the effect that the same date is exported as it is after the lapse of one to nine months from the date of purchase (No. 2-3,5,6,7,7,8,9).

(D) There is no indication on the date of purchase, but there is a statement to the effect that the same date is exported as it is, after the lapse of ten months from the date of the application for purchase confirmation (No. 29 to 59).

(E) there is a set of items (A) to the effect that they will be exported at a price lower than the purchase price (43,46).

(7) The defendant investigated the distribution process of the present market supplied by the plaintiff. Among them, the result of the investigation of the final purchaser (export company) is as follows.

① Although ○○○○○○ Gaco registered as a business on March 3, 2001. On March 21, 2002, the amount of KRW 19,964,00,000, which was purchased as raw materials for export with its official business closed by the head of the competent tax office on March 21, 2002, did not pay the relevant value-added tax after filing a statement of general sale. The export contract, which is the basis document for the purchase confirmation issued by ○○ Gaco, was identified as a false contract with ○○ Gaco, which appears to be a processing company. ② On December 1, 2001, it was clearly stated that the business registration was made on December 1, 200, which was purchased as raw materials for export in the first half of the value-added tax period, and was not paid for the pertinent amount of KRW 73,145,000,000 as general sales, and was also deemed to be a basis for the export declaration of KRW 200, 200.3.

B. According to Article 11(1)1 of the Value-Added Tax Act, and Article 24(1)1 and (2) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 30, 2002; hereinafter the same), the supply of exported goods shall apply to the zero-rate tax. Any goods supplied by an entrepreneur through a local letter of credit or a purchase confirmation as prescribed by the Ordinance of the Ministry of Finance and Economy shall be included in the above exported goods and subject to the zero-rate tax rate. Under the Value-Added Tax Act, the above zero-rate tax rate is to be applied only when it can be recognized in accordance with the principle of taxation of the consumption place as a prevention of double taxation in the international trade of goods or services, so it is reasonable to view that the goods supplied pursuant to the above purchase confirmation must be actually exported or scheduled to be exported or exported in addition to the mere formal requirements of the purchase confirmation. Therefore, even if a seller in collusion with the buyer to supply or purchase the goods through a false confirmation, it does not affect the seller’s order of collection.

However, according to the above facts, the Plaintiff appears to have been aware of the fact that the current domestic price is higher than the international market price and that it is impossible to export it as it is. (According to the purchase confirmation of this case, the purchaser is currently exporting the current price as it is), which is so prudent that the Plaintiff, who started domestic distribution business at a prudent time to get assistance from legal experts in connection with the zero-rate tax application system based on the purchase confirmation, stated that it is impossible to obtain payment if the Plaintiff is a general trader at this time, even though it is not stated that it would be difficult to obtain payment, since it is against the above fact that the Plaintiff would not use the zero-rate tax system for one month from November 22, 201 to 19,168,733, and 310 won in total, and thus, it should be determined on the basis of the fact that the Plaintiff would not be able to reasonably collect the zero-rate tax rate based on its experience and the purport of collecting the value-added tax for two months from January 13, 2002 to 3.

Therefore, the instant disposition is lawful on the premise that each of the instant transactions is not subject to zero tax rate under the Value-Added Tax Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the conclusion of the judgment of the court of first instance is unfair, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.