early 2012 Gwangju 2354 (2012.06)

If a supplier receives a false tax invoice, the supplier’s good faith or negligence may not be recognized.

In light of the fact that the representative of the Plaintiff is engaged in the wholesale and retail business for not less than 10 years and seems to have been well aware of the actual condition of data trading and the risk thereof, the Plaintiff’s bona fide and without fault may not be recognized in light of the fact that the Plaintiff purchased a non-ferrous metal from a new customer and did not verify whether it actually supplies it, and that the Plaintiff did not confirm the business registration certificate.

Article 17 of the Value-Added Tax Act

2012 disposition of revocation of the imposition of value-added tax

AAAA

Head of Seogju Tax Office

April 25, 2013

June 20, 2013

1. The plaintiff's claim is dismissed.

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

On March 2, 2012, the Defendant revoked the imposition of the value-added tax OOOO on the first quarter of 2010 against the Plaintiff.

1. Details of the disposition;

A. From January 10, 2006, the Plaintiff is a company that runs wholesale and retail business, etc. as of now, and is issued one tax invoice (OOO won) on April 13, 2010 and one tax invoice (OOO won) on April 16, 2010 from the trade name (representative KimCC) BBB during the taxable period of value-added tax for the first quarter of the year 2010 and two tax invoices (hereinafter “each of the tax invoices in this case”). Each of the tax invoices in this case were deducted from the output tax amount, and reported the amount of value-added tax payable for the first quarter of 2010.

B. As a result of the tax investigation with respect to the Plaintiff, the Defendant determined that each of the instant tax invoices was written differently from the fact, and on March 2, 2012, the Plaintiff filed a request with the Tax Tribunal for revocation of the instant disposition on March 2, 2012, the Plaintiff dismissed the Plaintiff’s claim on September 6, 2012, for the correction and notification of the total amount of additional OOOE (=OOOOE + OOOOOE +) increased the amount of additional OOOE to the above input tax amount that is not deducted from the output tax amount pursuant to Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013; hereinafter “former Value-Added Tax Act”).

[Ground of Recognition] The facts without dispute, the entries in Gap evidence 1 through 5 (including household numbers, and hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) The Plaintiff purchased non-ferrouss from BB and received tax invoices, and each of the instant tax invoices is not a processing tax invoice that was issued without real transactions.

2) Even if the supplier listed in each of the instant tax invoices were written differently in fact, in view of the following: (a) the Plaintiff confirmed that the supplier was not in fact in currency with BBB on the part of BB, and confirmed that the Plaintiff’s order was issued to the employees of BBB who carried non-in metals; and (b) the Plaintiff was negligent in not knowing that the supplier listed differently in the instant tax invoices was entered in the account in the name of the entrepreneur, and thus, the amount stated in each of the instant tax invoices should be deducted as input tax amount.

B. Relevant statutes

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

(c) recognized private theory;

1) Tax investigation and criminal judgment on KimCC

A) Review of the findings by Busan Regional Tax Office from September 28, 2010 to October 26, 2010

In the case of OB BB's workplace, OO-type 19-1, there was no basic facility or equipment, such as open storages, lurries, and house straws for transporting scrap metal, and there was no knowledge that there was BB in the surrounding areas.

BBB compared to the issuance of the sales tax invoice by the OOO members during the period of the value-added tax in January 2010, 2010, there is no receipt of the purchase tax invoice and no reported purchase portion.

C) The amount transferred by the Plaintiff, etc. to the account BB was fully withdrawn in cash immediately after the transfer, and this is the same as the so-called “financial account tracking receipt” that appears typically to the so-called data.

D) On February 3, 2012, the Busan District Court rendered a judgment that sentenced KimCC to three years of imprisonment with prison labor and fines for the following criminal facts, etc. (the Busan District Court Decision 2011 High Court Decision 201Gohap718 (Joint)). KimCC appealed against this appeal, and the Busan High Court reversed the judgment of the court below on July 11, 2012, and sentenced KimCC to two years of imprisonment with prison labor (Seoul High Court Decision 2012No73). The above judgment became final and conclusive by the lapse of the period of appeal.

Accordingly, the Defendants conspired to file a value-added tax return by other unlawful means, and the Defendants evade the total amount of value-added tax by the lapse of the due date for the return and payment of the value-added tax base and tax amount on July 26, 2010.

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

No one shall issue a tax invoice under the Value-Added Tax Act without supplying any goods or service.

Nevertheless, the Defendants conspired in collusion with the EE office on February 1, 2010 for profit-making purposes and issued 85 copies of false sales tax invoices, including each of the instant tax invoices, which amount to the aggregate value of supply of OOOO in the same way 85 times from January 27, 2010 to June 30, 2010, as if the Defendants did not supply scrap iron to EEE in the BB as the representative of the Defendant KimCC, even though they did not supply scrap scrap metal to EE in the BB, the BB issued 85 copies of false sales tax invoices, which is equivalent to the aggregate value of supply value of OOOOO in the same way, including the instant tax invoices.

2) The details of the Plaintiff’s purchase of scrap metal

A) GG, the representative director of the Plaintiff, had been engaged in the wholesale and retail business from around 1998.

10.In light of the facts of the Gwangju Regional Tax Office, the taxpayer was investigated for suspicion of receipt of tax invoices different from the facts, and the taxpayer was recognized as OO in addition to the corresponding tax amount.

B) The Plaintiff entered into a verbal contract with a person claiming that he/she was aware of KimCC through the introduction of NN-related persons, and that he/she was an employee of BBB, without confirming his/her name and identity.

C) On April 13, 2010, the Plaintiff, at the time of arrival, purchased the said non-ferrousg on April 16, 2010, and the driver of the said vehicle set up on the spot the amount, unit price, and supply price on each of the instant tax invoices for which the business registration number of BBB is affixed, and provided the Plaintiff with the payment of the purchase amount. The Plaintiff transferred the relevant purchase amount to the account of BBBB, and failed to obtain the said purchase price registration certificate from BBBB.

[Reasons for Recognition] Facts without dispute, as well as evidence Nos. 1 through 7. The purport of the whole pleadings

D. Determination

1) As to the plaintiff's first argument

A) Article 17(2)2 of the former Value-Added Tax Act provides that input tax amounts shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. The meaning that it is different from the fact is that the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is nominal, and where there is another person to whom such tax invoice is in fact belongs, it refers to the cases where the contents of the requisite entries of the tax invoice coincide with those of the actual supplier, price, and fraud, etc. of the goods or service, notwithstanding the formal descriptions of the transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

B) Comprehensively taking into account the aforementioned facts and the purport of the entire arguments, and the Plaintiff may acknowledge that each of the instant tax invoices was issued in the name of BBB in the name of BBB even after purchasing the non-inform from KimD, which operated the EEE, and each of the instant tax invoices constitutes a false tax invoice.

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the second argument by the Plaintiff

A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the tax invoice in the name of the actual supplier, and that the person who received the tax is not negligent in not knowing the above fact, the person who asserts the deduction or refund of the input tax amount shall prove that the person who asserts the deduction or refund of the input tax amount is not negligent (Supreme Court Decision 2002Du2277 Decided June 28, 2002)

B) It is insufficient to acknowledge that the Plaintiff was not aware of the fact that each of subparagraphs 5 through 8 was unaware of the name of each of the tax invoices of this case, and that there was no negligence on the part of the Plaintiff, and there is no other evidence to acknowledge it.

Rather, the above facts are as follows, i.e., the whole purport of the argument as seen earlier, i.e., the Plaintiff’s representative, and YG, i.e., from around 1998 to 10 years from 198, engaged in the non-ferrous wholesale and retail business and engaged in the processing tax invoice receipt suspected, and were aware of the supply structure and distribution channels of the non-ferrous, the general forms and methods of transactions in the relevant industry, and the data transaction circumstances and risks. ii) The Plaintiff did not at all confirm whether BBBBB purchased non-ferrous for the first time from a new customer of BBB, i.e., the new customer of BB, but did not actually supply the non-ferrous; iii) the Plaintiff entered into a contract with the party asserting BBBB as an employee of the Non-Purchase; iv) the Plaintiff did not verify the Plaintiff’s business registration certificate, and (iii) the Plaintiff did not know the need to purchase the non-stock sales tax invoice in the process of purchasing it with a large number of collected tax invoices.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.