Supreme Court Decision 2008Du12665 ( October 26, 2009)

Cho High Court Decision 2006Du0025 ( August 25, 2006)

It is difficult to readily conclude it as a processing transaction solely with the fact that there is a wide carbon company.

It is difficult to conclude that a series of transactions until gold bullion is imported and exported is conducted on a day or on a short period of time, and there is a so-called "bomb" in the middle stage of such transactions that it is not a supply of goods subject to value-added tax, solely on the sole basis of the fact that there is a so-called "bomb" company.

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition disposition of KRW 870,83,370 for the first term portion of 2004 against the Plaintiff on October 1, 2005, each disposition of KRW 175,516,210 for the second term portion of 2004 against the Plaintiff, and KRW 29,24,200 for the second term portion of 204, and corporate tax for the business year of 2004 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of imposition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account each entry in Gap evidence 1, Eul evidence 2-1, Eul evidence 2-2, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 2-3, Eul evidence 12-1, Eul evidence 17, Eul evidence 19-2, Eul evidence 22 and 25.

A. On April 2, 2004, the Plaintiff is a company established for the purpose of manufacturing, wholesale, export and import business, etc. of gold bullion, etc. with the 000 ○○○○○○-dong 00 ○○○-dong 00 ○○○-dong, △△△-dong, △△△-dong.

나. 원고는 2004. 4. 13.부터 같은 해 9. 20.까지 주식회사 ▷▷골드, 주식회사 ◁◁ 골드, 주식회사 ▽▽골드, 주식회사 ◆◆쥬얼리, ♣♣쥬얼리 주식회사, 주식회사 ★★으로부터 공급가액 합계 7,978,009,800원 상당의 금지금(이하 '이 사건 금지금'이라고 한다)을 매입하고 당일 이를 인도받은 다음 그 대금을 모두 지급하였고, 위 공급자들로부터 매입거래에 따른 별지 1.세금계산서 내역 기재의 세금계산서 15장(이하 '이 사건 세금계산서'라고 한다)을 교부받았다. 원고는 위 매입한 이 사건 금지금을 2004. 4. 13. 부터 같은 해 9. 20.까지 홍콩 소재 외국회사인 □□골드에게 가액 합계 8,066,102,600원에 수출하였다.

C. Based on the instant tax invoice and the aforementioned export facts, the Plaintiff filed each of the first term portion in 2004, and the second term value-added tax in 2004, and the tax standard and tax amount of corporate tax for the business year 2004, respectively.

D. However, from June 28, 2005 to July 8, 2005, the director of ○○○ Regional Tax Office decided the tax invoice of this case as "tax invoice different from the facts" and notified the defendant thereof. Accordingly, the defendant made a non-public offering of input tax as to the value-added tax, and applied the additional tax for the corporate tax to the plaintiff on October 1, 2005. On October 1, 2005, on the first period of value-added tax of 870,83,370 won for the first period of 2004, value-added tax of 29,24,200 won for the second period of 204, and the corporate tax of 175,516,210 won for the business year of 204 (hereinafter collectively referred to as the "disposition imposing disposition of this case").

E. On December 2, 2005, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the National Tax Tribunal on December 2, 2005, but the National Tax Tribunal dismissed the Plaintiff’s appeal on August 25, 2006.

2. Whether the imposition disposition of the instant case is lawful; and

A. The plaintiff's principal

In purchasing the instant gold bullion, the Plaintiff: (a) confirmed that the name and the place of business recorded in the certified copy of the corporate register and the business registration certificate of the trader are identical and actually operating the business; and (b) received the instant tax invoice and gold bullion at the same time; and (c) subsequently made normal transactions by transferring the relevant goods price to the account of the trader, the instant tax invoice which the Defendant deemed to be a different tax invoice and imposed by the Defendant is unlawful.

(b) Related statutes;

Attached Form 2. The entry is the same as the relevant laws;

(c) Fact of recognition;

The following facts may be acknowledged in light of the above evidence and evidence Nos. 4-1, 2, 5-1 through 18-1, 5-1, 3, 7, 8-1, 8-2, 9-1 through 3, 10, 11 of Eul, 17 of Eul, 18, 21 of Eul, 23, 24 of Eul, 26, 28 of Eul, 27-1 through 6 of Eul evidence Nos. 34-1 and 2 of Eul, and the whole purport of arguments in the statements No. 8-1, 2 of Eul

(1) Money returned to ○○○ from around 202 to December 31, 2004 before the amendment of the Restriction of Special Taxation Act.

Between affiliated companies, they abuse the zero-rate or tax exemption system of value-added tax, and distribute gold bullion after importing it through various stages of zero-rate or tax exemption. The so-called so-called wide carbon enterprises (an enterprise that evades value-added tax by purchasing gold with a tax exemption, selling it with a tax exemption, and withdrawing, concealing, and closing its profit within the short-term period after selling it with a tax exemption) and then converting it into a taxation amount. In other words, it is exported by a large carbon company to distribute it as a taxation through a multiple stages of wholesalers, while exporting it, it does not pay value-added tax, and

The so-called wide-scale carbon business has been extended in the form of refund.

(2) 원고가 매입한 이 사건 금지금 또한 모두 외국으로부터 수입되어 면세금으로 유통되던 중 과세금으로 전환된 것으로, 수입업체로부터 원고에 이르기까지 총 6-8단계의 도매업체들을 거쳤는데, 위 모든 단계의 거래는 대부분 해당 금지금의 수입일로부터 1일 내에 이루어졌고, 또한 이 사건 금지금의 거래단계에는 주식회사 ◇◇◇◇, 주식회사 ☆☆☆, 주식회사 ★★★ 등 부가가치세를 무신고 또는 무납부하고 도주하는 소위 폭탄업체가 반드시 관여되어 있었으며, 과세전환 후 이 사건 금지금은 전부 원고에 의하여 홍콩에 있는 □□골드로 수출되었다.

(3) According to the statement of the transportation invoice, etc. kept by the Plaintiff and the trader, there may be cases where gold bullion was imported, and there is a false statement that it had already been transported to the related companies before the import declaration was made, and there is also a case where the payment of gold bullion is terminated in order from the Plaintiff, the exporter, at the time when gold bullion was released, to the importer, and the Hong Kong's Hong Kong, which has imported the gold bullion from the Plaintiff, made an advance payment of the export price before the gold bullion was sent domestically, without any particular security provided by the Plaintiff, while importing the gold bullion first on April 13, 2004.

(4) On December 3, 2003, Hong Kong, a company established mainly for the purpose of trading business, such as precious metals, etc., and the National Tax Service’s staff member, during the on-site visit of the National Tax Service, refused to submit specific data related to the transaction or to respond to the Korean address, etc. In entirety. The Plaintiff’s actual manager did not know about the location of the export place, the trading partner, and how the first export negotiation was made at the time of the investigation into the criminal offense of the ○○ Regional Office.

(5) The Plaintiff filed an application for refund of customs duties pursuant to the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (the import price was imposed by 3%) with respect to the customs duties paid at the time of the export of the instant case

D. Determination

Article 1(1)1 of the Value-Added Tax Act provides for "the supply of goods subject to value-added tax" and Article 6(1) provides that "the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the characteristics of value-added tax as multi-stage transaction tax, delivery or transfer under 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 actual profits (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 201; 99Du9247, Mar. 13, 2001; 200.1). In such a case, the issue of whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act shall be determined on the grounds that there is no specific transaction under Article 24(1)2 of the Value-Added Tax Act, including the purpose and attitude of each transaction, ownership, and the owner of goods.

In this case, as acknowledged earlier, the Plaintiff purchased and received the gold bullion in this case, and paid all the price. The Plaintiff purchased the gold bullion in this case and then exported it to Hong Kong again, and made a series of transactions from class to export of the gold bullion in this case within a short period of time. In light of the above, the Plaintiff supplied gold bullion exempt from value-added tax at the middle stage to the person who did not obtain any recommendation for tax exemption and prepared and issued a tax invoice and did not pay the amount equivalent to the value-added tax, and there are other circumstances that make it difficult to obtain various kinds of payments as seen earlier in the course of the transaction of the gold bullion in this case, it cannot be concluded that the goods are not subject to value-added tax because only the tax invoice was issued and received without the actual transaction, or the gold bullion was delivered and paid for the purpose of undermining the actual transaction, and only the appearance of the gold bullion paid is not subject to value-added tax. Therefore, the tax invoice in this case cannot be deemed to constitute the fact of receiving the gold bullion in this case.

The defendant asserts that the gold bullion transaction of this case was conducted in collusion with a bombing company for the purpose of refund of value-added tax, and thus, the input tax amount cannot be deducted as it is invalid or illegal under Article 103 of the Civil Act. However, in light of the above circumstances, the gold bullion transaction of this case cannot be deemed null and void or illegal, and there is no other evidence to acknowledge this differently,

In addition, the defendant's assertion that a value-added tax shall be imposed on the export transaction of the gold bullion of this case, since it constitutes a outflow of national origin to export at lower prices than import prices, the plaintiff's assertion that the value-added tax shall be imposed on the export transaction of the gold bullion of this case, but the plaintiff's assertion that the application of zero-rate tax shall be determined according to the export price of the goods has no legal basis

Furthermore, in light of the transaction process and transaction price of the gold bullion of this case, the Defendant asserts that the value-added tax was not actually collected at the time of the gold bullion of this case, and thus, the tax invoice of this case constitutes a false tax invoice. In this sense, the Defendant asserted that the tax invoice of this case constitutes a false tax invoice. However, the above circumstances and the evidence submitted by the Defendant alone are insufficient to regard the supply price and value-added tax in the tax invoice of this case as false, and there is no other evidence to acknowledge this differently, without merit

Therefore, the imposition of value-added tax and the imposition of corporate tax based on the non-paid additional tax, on the premise that the tax invoice of this case falls under a "unlawful tax invoice" shall be deemed unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance which has different conclusions is unfair, and it is so revoked, and it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the disposition of this case.