[1] Whether a person who supplies goods or services has a judicial right to directly collect the value-added tax amount from a person who receives the supply based on Article 31 of the Value-Added Tax Act (negative)

[2] In a case where there is a separate agreement on the burden of value-added tax between the parties to the transaction, whether a business operator can directly claim the amount equivalent to the value-added tax against the supplier (affirmative), and the timing

[1] Article 31 of the Value-Added Tax Act / [2] Article 31 of the Value-Added Tax Act, Article 105 of the Civil Act

[1] [2] Supreme Court Decision 99Da33984 decided Nov. 12, 1999 (Gong1999Ha, 2497) Supreme Court Decision 2002Da38828 decided Nov. 22, 2002 (Gong2003Sang, 154) / [1] Supreme Court Decision 96Da40677, 40684 decided Apr. 25, 1997 (Gong1997Sang, 1570) / [2] Supreme Court Decision 2003Da49153 decided Feb. 13, 2004 (Gong204Sang, 513)

Lee Jong-sung, Inc. (Attorney Kim Sung-sung, Counsel for the defendant-appellant)

Defendant

Suwon District Court Decision 2015Na31206 decided April 7, 2016

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Where an entrepreneur supplies goods or services, Article 31 of the Value-Added Tax Act provides that an amount equivalent to the value-added tax shall be collected from the person who receives the goods or services, provided that the entrepreneur will ultimately bear the amount of the value-added tax by transferring it in sequence to the person who receives the supply of the goods or services from the business operator (see Supreme Court Decision 96Da4067, 40684, Apr. 25, 1997). However, if there is a separate agreement between the parties to the transaction to bear the value-added tax, the business operator may directly claim the amount equivalent to the value-added tax from the person who receives the goods or services, and the said agreement on the burden of value-added tax is valid even if the goods or services are not necessarily required at the time of the supply of the goods or services, and it may be done in an implied form, not necessarily explicitly nor explicitly (see Supreme Court Decision 9Da3984, Nov. 12, 199).

In addition, in a case where there is a difference between the parties regarding the interpretation of a contract, and the interpretation of the intention of the party expressed in the disposition document is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, motive and background of the agreement, the objective to be achieved by the agreement, the parties’ genuine intent, etc. (see Supreme Court Decisions 2004Da6065, May 27, 2005; 2006Da15816, Sept. 20, 2007, etc.).

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. On December 27, 2013, the Plaintiff and the Defendant entered into a scrap metal contract (hereinafter “instant contract”) with the content that ① the Defendant carried out the scrap metal generated at the site of the 5, 6th phase of the 5, and the 6th phase of the 5, and the 6th phase of the 5th phase of the 5th phase of the 5th phase of the 2013th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 5th phase of the 2013 phase of the 370 million

B. In the instant written contract, “one copy of the written estimate” is written as attached, and the written estimate attached to the instant written contract (hereinafter “written estimate”) contains a blank space, but the sum of the supply value and the tax amount is written as the sum of the values and the tax amount. The written statement is written as the name file, standard kg, unit price 370 won, and tax amount. The supplier’s column includes the Defendant’s business registration number, trade name, name, place of business, type of business, type of business, and the Defendant’s seal.

C. The Defendant paid KRW 300 million to the Plaintiff with deposit money on December 30, 2013, and paid KRW 150 million on January 28, 2014.

D. On February 12, 2014, the Plaintiff, who was supplied with the Defendant, issued an electronic tax invoice of KRW 4950 million in total and KRW 450 million in value, and KRW 450 million in value, and paid KRW 45 million in value-added tax.

3. Examining the above facts in light of the legal principles as seen earlier, the following is determined.

The instant contract merely provides that all expenses for the treatment of scrap metal shall be included in the unit price (370 won per kilogramme) and the instant quotation attached as part of the instant contract shall be divided into the value of supply and the tax amount, and the said amount shall be specified as KRW 370 per kilogramme for the calculation of the value of supply, while the said amount of tax shall be stated as separate amount, it appears to the purport that the said unit price is an amount calculated without including the tax amount.

In addition, the Defendant’s business registration number is indicated in the written estimate of this case prepared by the Defendant as the supplier pursuant to Article 8 of the Value-Added Tax Act. The content of this case’s contract is the transaction subject to value-added tax as a transaction of goods supply. After the Plaintiff received a total of KRW 450 million from the Defendant, the Plaintiff issued an electronic tax invoice of KRW 450 million with the value of supply and KRW 450 million with the amount of KRW 450 million with the amount of KRW 450 million with the amount of KRW 450 million with the amount of KRW 450 million with the Defendant, and it does not appear that the Defendant clearly raised an objection thereto. Therefore, the “tax amount” stated in the written

Therefore, it is reasonable to view that the Plaintiff and the Defendant agreed to pay the value-added tax on the basis of the scrap metal transaction under the instant contract, separate from the supply value of scrap metal calculated at 370 won per kilogramme when entering into the instant contract.

4. Nevertheless, the lower court determined that it cannot be deemed that there was an agreement between the Plaintiff and the Defendant to bear the value-added tax solely on the grounds of the circumstances indicated in the written estimate of this case, notwithstanding the foregoing wording. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of the disposition document, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)