Changwon District Court 2014Guhap20122

The tax invoice of this case is prepared differently from the facts by the actual supplier.

The tax invoice of this case is prepared differently from the fact that the supplier actually supplied the scrap metal, while, in the case that the supplier is different from the fact, the supplier is entitled to the deduction of the input tax in the taxable period to which the time of supply belongs and the transaction thereof is confirmed, or it is difficult to deem that there is a reasonable reason to grant preferential preference

Article 16 of the Value-Added Tax Act, Tax Invoice and Tax Amount paid under Article 17

2014Nu11093 and revocation of disposition of imposing the value-added tax and the corporate tax

○ Company ○ Steel

○ Head of tax office

Changwon District Court Decision 2014Guhap20122 Decided July 11, 2014

oly 2015.13

oly 2015.10

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The defendant's imposition of value-added tax for the first period of 201x 167,671,250 won and corporate tax for the business year of 201x 20,356,310 won (additional Tax on no Evidence) shall be revoked on July 1, 201x.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as follows, except for adding the following provisions to the corresponding parts of the judgment of the court of first instance. Accordingly, this Court’s explanation is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. The addition;

A. Summary of the plaintiff's assertion

1) The Defendant issued the instant disposition under the premise that the instant tax invoice is a tax invoice prepared differently from the fact by the actual supplier, but did not specifically prove whether the supplier is different from the fact and who is the actual supplier.

2) According to Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201; hereinafter the same) and Article 60(2)5 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 23595, Feb. 2, 2012; hereinafter the same), even if a tax invoice issued by an entrepreneur was written differently in the requisite entries, the tax invoice was issued in the taxable period to which the time of supply for goods or services belongs, and (2) where the transaction is confirmed, the tax invoice is excluded from the grounds for non-deduction of the input tax amount and becomes subject to deduction. The instant tax invoice falls under the foregoing and ought to be deducted from the input

3) In the case of gold-related transactions and copper scrap transactions, the Special Provision for Payment of Value-Added Tax is newly established to establish a transaction account as prescribed by the President and operate a purchaser payment system that provides for the scope of business operators who are subject to use of the transaction account, deposit method of the transaction account, handling of deposited value-added tax, etc. In such a case, under the circumstances where the aforementioned system is not introduced, the Plaintiff is obligated to investigate and confirm the transaction partner and determine that the Plaintiff is not a bona fide or a person without fault violates the economic equality clause under the Constitution and the purport of the Framework Act on National Taxes that the taxpayer’s property rights should not be unduly infringed.

For the foregoing reasons, the instant disposition that did not deduct input tax amount by deeming the instant tax invoice as a false tax invoice as a false tax invoice is unlawful.

B. Determination

1) In full view of the purport of the entire pleadings in the statement No. 9, the actual operator of ○○○○○○’s statement is acknowledged as having lent only the name to Do○○○○○. Therefore, the actual supplier of the scrap metal, even though Do○○, was the supplier, who actually supplied the scrap metal, was drafted differently from the fact by the supplier who actually supplied the scrap metal.

2) Article 17(2)2 of the former Value-Added Tax Act provides that an input tax amount shall not be deducted or refunded from the output tax amount in cases where a necessary entry under Article 16(1)1 through 4 is entered differently from the fact in the tax invoice delivered, but the cases prescribed by Presidential Decree shall be excluded. The relevant statutes are as follows:

【The former Value-Added Tax Act

Article 9 (Transaction Time)

(1) The time of supply for goods shall be the time provided for in the following subparagraphs:

1. Where moving goods is required: The time when the goods are delivered;

2. Where moving goods is not required: The time when the goods are made available;

(3) Where an entrepreneur receives all or part of the price for goods or services before the time stipulated under paragraph (1) or (2) and simultaneously issues a tax invoice under Article 16 or a receipt under Article 32 for the price received, the time when such issuance is made shall be deemed the time of supply of the goods or services, respectively.

(4) Matters necessary for the timing of supply under paragraphs (1) and (2) shall be prescribed by Presidential Decree.

Article 16 (Tax Invoice)

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, he/she shall issue an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply, as prescribed by Presidential Decree, at the time specified in Article 9 (referring to the time specified otherwise by Presidential Decree, if any). In such cases, a tax invoice may be revised and issued, as prescribed by Presidential Decree, if any ground prescribed by Presidential Decree, such as error or correction, occurs after the issuance of the tax invoice:

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation;

5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.

(2) Notwithstanding paragraph (1), corporate entrepreneurs and individual entrepreneurs prescribed by Presidential Decree shall issue tax invoices by electronic means (hereinafter referred to as "electronic tax invoices") prescribed by Presidential Decree: Provided, That corporate entrepreneurs may also issue tax invoices other than electronic tax invoices by December 31, 201, and individual entrepreneurs by December 31, 201.

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the "in-house tax amount") from the tax amount on the goods and services supplied by him/her (hereinafter referred to as the "the output tax amount"): Provided, That in cases of an input tax amount exceeding

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

1. An input tax amount where a list of total tax invoices by customer is not submitted under Article 20 (1) and (2), or an input tax amount on the portion not entered or differently entered from the fact, where the whole or part of the registration numbers or supply values by transaction parties is not entered or differently entered from the fact, from among the entries on the list of total tax invoices by customer submitted: Provided, That the input tax amount in such cases as prescribed by Presidential Decree

2. An input tax amount, in cases where a tax invoice under Article 16 (1), (2), (4) and (5) is not issued, or all or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as "necessary matters to be entered") are not entered or differently entered from the fact on the tax invoice issued: Provided, That the input tax amount in cases prescribed by Presidential Decree shall be excluded;

【former Enforcement Decree of the Value-Added Tax Act

Article 60 (Scope of Purchase Tax Amount)

(2) "Cases prescribed by Presidential Decree" in the proviso to Article 17 (2) 2 of the Act means any of the following cases:

1. Where a business operator who has applied for business registration pursuant to Article 7 (1) has been issued with a resident registration number of the relevant business operator or his/her representative for a transaction until the date of issuance of business registration certificate under

2. Where the fact of transaction is confirmed in view of the fact that part of necessary entries in a tax invoice issued under Article 16 of the Act is mistakenly entered, but the relevant tax invoice is deemed other necessary entries or discretionary entries in the relevant tax invoice;

3. A tax invoice issued after the time of supply for goods or services is supplied within the taxable period to which the time of supply belongs;

4. Where the issuance of an electronic tax invoice issued under Article 16 (2) of the Act, but has not been transmitted to the Commissioner of the National Tax Service, is confirmed;

5. Where a tax invoice, other than an electronic tax invoice under Article 16 (2) of the Act, is issued in the taxable period whereto the time of supply for goods or services belongs, and the transactions are confirmed also

Article 60 (2) 5 of the former Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as "Article 60 (2)" in subparagraph 5 of the same Article) is newly established as a result of the implementation of the electronic tax invoice system from January 1, 2010, from the former Enforcement Decree (amended by Presidential Decree No. 21304, Feb. 4, 2009; effective January 1, 2010). If an electronic tax invoice is issued, the tax invoice is issued under Articles 9 and 16 (1) of the former Value-Added Tax Act, the date of issuance of the tax invoice under Article 17 (2) of the same Act, the term "excluding the input tax deduction of other tax invoices" under Article 16 (2) of the same Act, and Article 60 (2) of the Enforcement Decree of the same Act, it is reasonable to view that there is a reasonable reason to issue the relevant tax invoice as an input tax amount if it is based on a specific tax invoice or an electronic tax invoice issued only on the other necessary basis after the time of supply.

3) Although the current collection system for gold and copper scrap has been converted into a purchaser’s payment system, it constitutes an exceptional system under the Value-Added Tax Act, which adopts the tax credit system for the predevelopment stage, and even if the aforementioned system has not yet been introduced for transactions such as scrap scrap, etc., it cannot be deemed that the Constitution is inconsistent with the legal principle that the input tax amount can be deducted only when there are circumstances such as where the business operator did not know the fact of the use of name and did not know the fact of the use of name, and where there

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

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.