Seoul Administrative Court 2007Guhap35654 ( October 27, 2008)

It is difficult to readily conclude a nominal transaction solely on the basis of the fact that there is a so-called wide carbon company in the middle stage of gold bullion transactions.

It is difficult to conclude that the instant transaction, which is one of the entire transactions, is not a supply of goods, solely on the sole basis of the fact that there is a so-called wide carbon company in the middle stage of gold bullion transactions, and thus, a disposition imposing an input tax deduction is unlawful.

209Nu6041 Revocation of Disposition of Imposition of Value-Added Tax

○○ Co., Ltd.

○ Head of tax office

Seoul Administrative Court Decision 2007Guhap35654 Decided March 27, 2008

Seoul High Court Decision 2008Nu11046 Decided September 24, 2008

Supreme Court Decision 2008Du18540 Decided February 12, 2009

3, 209.9

October 15, 2009

1. The defendant's appeal is dismissed.

The costs of lawsuit after the appeal shall be borne by the defendant in total after the remand.

1. Purport of claim

On December 1, 2005, the Defendant revoked the imposition of value-added tax of KRW 2,041, 227,570 for the second term of 2003, value-added tax for the first term of 2004, value-added tax of KRW 3,773,76,150 for the first term of 204, value-added tax for the second term of 2004, and value-added tax of KRW 464,518,740 for the second term of 204 (in addition to the above claim, the Plaintiff also filed a claim seeking revocation of the imposition of corporate tax of KRW 345,438,510 for the year 203, corporate tax of KRW 783,513,750 for the second term of 204, which became final and conclusive before

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Scope of the judgment of this court;

As stated in the purport of the claim, the part of the claim for revocation of corporate tax disposition among the claims of the Plaintiff and the instant case became final and conclusive by the remand judgment and excluded from the scope of the party members

2. Details of the disposition;

The relevant part of the reason shall be cited as it is.

3. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

The Plaintiff actually purchased gold bullion normally from each of the instant traders, and received each of the instant tax invoices thereafter, and subsequently exported them to a foreign country or sold them to a domestic trader, and thus, the instant disposition that was based on the premise that each of the instant tax invoices is false is unlawful.

(b) Related statutes;

The relevant part of the reason shall be cited as it is.

C. Determination

Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the delivery or transfer of goods shall be based on all contractual or legal grounds." In light of the fact that value-added tax has characteristics as multi-stage transaction tax, "Do or transfer, which is stipulated in Article 6(1) of the Value-Added Tax Act, includes all acts of causing the transfer of rights to use and consume goods, regardless of the existence of profits gained (see Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 201). In this case, the issue of whether a specific transaction among a series of transactions constitutes the supply of goods prescribed in the Value-Added Tax Act shall be determined based on the purpose and circumstances of each transaction, the ownership of profits, and the denial of payment relationship between the parties to the transaction, which is subject to value-added tax, under Article 6(2)14)2 of the Value-Added Tax Act.

In addition to the overall purport of each of the evidences of this case, the plaintiff purchased gold bullion 3,470.9k from July 30, 2003 to October 7, 2004 on credit from 14 business operators, including a stock company, and received the delivery of gold bullion, and then received each of the tax invoices of this case, the plaintiff can find the fact that the plaintiff exported the gold bullion to the Hong Kong import market located on the date of purchase and left considerable profits in the process.

Examining these facts and records in light of the legal principles as seen earlier, it is difficult to readily conclude that the instant transaction, one of the entire transactions of this case, is not the supply of goods subject to value-added tax because the instant transaction is nominal transaction, and is not the nominal transaction, solely on the following grounds: (a) most series of entire transactions until the instant gold bullion is imported and exported (hereinafter “the instant entire transaction”); (b) purchased gold bullion exempt from value-added tax at the intermediate stage; and (c) supplied gold bullion subject to value-added tax to a person not recommended for tax exemption; and (d) supplied gold bullion that did not pay the amount equivalent to value-added tax. Accordingly, the instant disposition otherwise reported is unlawful.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.