(영문) 서울행정법원 2007. 01. 19. 선고 2005구합39904 판결

The defendant's disposition of imposition of value-added tax of 151,482,800 won for the first period of 1998 against the plaintiff on December 1, 2003 and value-added tax of 391,527,430 won for the first period of 1999 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff received purchase tax invoices of KRW 1,082,00,000 (hereinafter “purchase tax invoices”) from ○○ in the first taxable period of value-added tax in January 1998. During the first taxable period of value-added tax, the Plaintiff issued zero tax invoices of KRW 19,576,372,064 (hereinafter “the instant sales tax invoices”) to ○○○○ Co., Ltd. (hereinafter “○○○”) during the first taxable period of value-added tax in 1999. The Plaintiff issued supply tax invoices of KRW 243,012,00 to ○○○ during the second taxable period of value-added tax in February 1999, and received the purchase tax invoices of KRW 1,128,878,000 from ○○ Co., Ltd.

B. In the taxable period of value-added tax from January 1, 1998 to February 2, 1999, the Defendant deemed that the Plaintiff sold and omitted 47,692,910 won to ○○ Industry Co., Ltd. (hereinafter “○○ Industry”), and then included it in the value-added tax base on the other hand, on December 1, 2003, by deeming that the purchase tax invoice, sales tax invoice, and purchase tax invoice related to ○○ Company were false tax invoices, and applying the input tax deduction and the additional tax for insincereing the aggregate tax invoice as value-added tax, etc. on December 1, 1998, the Defendant issued a revised notice of KRW 2,075,910 for the second period of February 1, 1998, and KRW 394,130,060 for the first period of January 1, 1999, and 2,00 for the first period of January 294, 1999;

C. The plaintiff appealed and tried on February 25, 2004. On September 13, 2005, the National Tax Tribunal decided to exclude sales revenue from the sales and purchase tax invoices received in the transaction of ○○ company, deduct the relevant input tax amount, exclude the application of additional tax, and revise the tax base and tax amount by excluding the sales and purchase tax invoices received in the transaction of ○○ company. Accordingly, on November 15, 2005, the defendant reduced all of the value-added tax for 2 years 1998 and 2 years 199 from the value-added tax originally notified on November 15, 2005 and reduced 394,130,060 won from the value-added tax for 391,527,435 won from the value-added tax for 199, the remaining part of the value-added tax for 198 years 19, 199.

[Ground of recognition] Evidence No. 1-6, Evidence No. 2-1, 2-2, Evidence No. 6-1 to 4, and Evidence No. 1-5

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff purchased gold normally from ○○ during the 1998 taxable period of the value-added tax, and paid the price, and received the purchase tax invoice of this case. The Plaintiff supplied the sales tax invoice of this case to ○○○○○○ through zero tax rate based on the purchase approval during the 1999 taxable period of the value-added tax. The transaction with the Plaintiff, ○○, and ○○○○○○ was normal, and even if the Plaintiff’s family affairs are so-called materials, the disposition of this case reported otherwise is unlawful.

(b) Related statutes;

○ Application of Article 11 of the Value-Added Tax Act

(1) The zero tax rates shall apply to the supply of the following goods or services:

1. Exported goods;

○ Tax amount paid under Article 17 of the Value-Added Tax Act

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

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be

○ Decision and Correction Article 21 of the Value-Added Tax Act

(1) The Commissioner of the National Tax Service or the Commissioner of the National Tax Service of the competent regional tax office having jurisdiction over the place of business shall determine or correct the tax base and amount of value-added tax paid or refunded during the relevant taxable period

3. Where the list of the total tax invoice by buyer or the total tax invoice by buyer is not submitted, or all or part of the list of the submitted list of the total tax invoice by buyer is not entered or entered differently

○ Article 22 of the Value-Added Tax Act

(3) Where an entrepreneur falls under subparagraphs 1 and 2, an amount equivalent to 1/100 of the value of supply not submitted or entered or entered differently from the fact in the list of the total tax invoice, and where falling under subparagraph 3, an amount equivalent to 5/1,000 of the value of supply shall be added to the payable tax amount or deducted from the refundable tax amount: Provided, That this shall not apply to the value of supply of those, the entry of which in the list of the total tax invoice by buyer is entered by mistake (excluding cases submitted under Article 20

2. Where the whole or part of the registration number or supply value by transaction partner from among the entries in the list of the total tax invoice by buyer submitted under Article 20 (1) and (2) is not entered or entered differently from the fact

(4) Where an entrepreneur falls under any of the following subparagraphs, an amount equivalent to 1/100 of the supply value corresponding to the input tax amount deducted under a tax invoice, not by the list of total tax invoices by customer, or the supply value declared excessively differently from the facts entered in the list of total tax invoices by customer submitted, shall be added to the tax amount payable or deducted from the tax amount refundable: Provided, That this shall not apply to the supply value of the portion, the transaction of which is verified

2. Where the list of the total tax invoice by customer under Article 20 (1) and (2) is not submitted, or the registration numbers or supply values by transaction parties in the submitted list of the total tax invoice by customer are not entered or entered differently from the fact: Provided, That the cases prescribed by the Presidential Decree shall be excluded

○ Scope of export Article 24 of the Enforcement Decree of the Value-Added Tax Act

(1) Exports provided for in Article 11 (1) 1 of the Act shall be as follows:

1. Shipping domestic goods (including the fishery products collected by Korean vessels) from a foreign country;

(2) The goods exported under Article 11 (1) 1 of the Act shall be deemed to include the following goods:

1. Goods supplied by a businessman by means of a local letter of credit or a written confirmation of purchase as prescribed by the Ordinance of the Ministry of Finance and Economy (excluding the gold);

○ Scope of local letters of credit, etc. under Article 9-2

(2) The term "purchase confirmations provided for in Article 24 (2) 1 of the Decree and Article 26 (1) 2-2 of the Decree means a confirmations issued by the head of a foreign exchange bank under Articles 38-2 and 116 (14) of the Enforcement Decree of the Foreign Trade Act within 20 days after the end of the taxable period to which the time of supply for goods or services belongs, corresponding to a local letter of credit referred to in paragraph (1) and on which the documents, such as the export letters of credit

(1) From June 23, 1993, while engaging in wholesale and retail business, the Plaintiff purchased a total of KRW 1,386 cases 248,610,047,035 in 198, and sold a total of KRW 5,705 cases 352,012,275,210.

(2) On September 2002, 2002, the Defendant started an investigation on the suspicion of the so-called “data sales” (hereinafter referred to as “data sales”) that issued the processed tax invoice by generating a large amount of sales without a short-term purchase data. In the first taxable period of value-added tax in 1998, ○○ reported sales amounting to KRW 243,872,00, and KRW 00, and 00, in the second taxable period of value-added tax in 1998, ○○ reported without filing a tax return during the second taxable period of value-added tax in 1998. As a result, ○○ confirmed the place of business of ○○○, upon entering into a lease contract with ○○○○ on a rent of KRW 150,000 per month between ○○ and ○○○ and ○○ on April 1998, it was revealed that the contact was cut down without paying at

(3) Meanwhile, as a result of the investigation into the sales office of ○○○, after confirming the details of the separate investigation from the trading company, Kim○○ issued false sales tax invoices 9,198,253,000 to August 30, 1998, and filed an accusation against the prosecution of ○○○ on the ground that the receiving company issued false sales tax invoices 9,198,253,000 to the Plaintiff, including the Plaintiff, without real transactions, and made an unfair deduction of the value-added tax amount. In addition, ○○○ was subject to additional taxation against ○○○○○, ○○, ○○○, ○○, ○○, and ○○○, Inc., upon receiving an investigation, at the time of the processing transaction, on the ground that the company’s business registration was conducted, and purchased money directly from the consumers who called for the phone number set out in the entrance of the business place for six months from April 1, 198 to August 30, 1998.

(4) The corporation, which started the business on February 1, 1999 and closed ex officio on March 31, 1999, received a processed tax invoice of KRW 1,061,625,00 at present from ○ Metal companies that were accused of material during the preliminary return period of the value-added tax of January 1, 199, and filed an accusation of KRW 1,061,625,00 with the ○○○○○ Office of Public Prosecutor's Office on June 30, 199 on the charge of issuing the processed tax invoice of KRW 1,061,625,00 to two companies and other companies during the same period.

(5) In January 1999, the Plaintiff sold 1,070 235,645,391,876 won to 60 or more enterprises, and during the period from April 21, 1999 to June 30, 199, the Plaintiff provided zero-rate tax rate of KRW 19,576,372,012 (46 items) as zero-rate tax rate of KRW 19,576,372,012 (46 items) to ○○○ during the period from April 21, 199 to April 29, 199 only submitted a certificate of subdivision of KRW 6,170,000.

(6) From April 21, 1999 to June 24, 1999, the settlement terms on the letter of promise to sell goods issued by the Plaintiff to ○○○○○, are cash settlement (the terms and conditions of a purchase approval) and customs duties (3%) are deposited at the time of receipt of the goods and are to be issued at the time of the delivery of the goods, and the average return rate of domestic gold bullion companies reaches about 0.5 to 1%.

(7) Of the sales offices of ○○ △△ ice, the ○○ ○○ Shee supplied the Plaintiff with an amount equivalent to KRW 17.9 billion now during the taxable period of the value-added tax in January 1999, and during the same period, ○ Doyang reported that the Plaintiff sold approximately KRW 5.8 billion at zero-rate tax rate from the Plaintiff.

(8) The head of ○○ Tax Office imposed value-added tax amounting to KRW 258,347,940 on July 31, 2002 by the due date for payment on the ground that the ○○○○ Family Tax Office had not paid value-added tax on September 30, 199 on the ground that the ○○○ Family Tax Office sold the ○○ Family Tax to the Plaintiff’s domestic waters without exporting it.

(9) On February 25, 2004, the National Tax Tribunal rejected the Plaintiff’s assertion on the ground that it is difficult to see the Plaintiff as a bona fide trading party in light of the following: (a) on September 13, 2005, the Plaintiff’s initial disposition of ○○ on September 13, 2005, the Plaintiff did not confirm that the purchase price was paid to Kim○, ○○, the representative of ○○○○, without endorsement on the party’s share sheet submitted by the Plaintiff; and (b) at the time of the investigation, the Plaintiff did not keep documents pertaining to ○○○’s business registration; and (c) the Plaintiff is difficult to regard the Plaintiff as a bona fide trading party in light of the fact that the Plaintiff was a business operator with no export performance, which caused high-amount

[Reasons for Recognition] Evidence No. 13-1 to 46, Evidence No. 38-1, 2, Evidence No. 40, 41, 42, Evidence No. 2, 3.6 through 10, Evidence No. 13, Evidence No. 17-1, 2, 3, Evidence No. 18-1, 2, and Evidence No. 24, and the purport of the whole pleadings

D. Determination

(1) As to part of value-added tax

As shown in the above facts, ① ○○ does not operate a business at the place where the business was registered, and abnormal forms of transaction are reported 0 to purchase prices compared to its sales prices. ② ○○○○○○, ○○○○○, ○○○○○○, ○○○○○, and ○○○○ Company, etc., among the transaction parties that received purchase tax invoices from ○○○○ and reported value-added tax by receiving only the processed tax invoices under the name of ○○, and reported value-added tax without real transactions. ③ It is difficult to easily understand that ○○○ was holding approximately KRW 10 billion in operating a business without an employee for a short period of about five months, and ④ It is difficult to view that ○○○○○○○○○○, a representative Kim○○, who was in charge of the processing transaction, had no suspicion that the transaction was conducted with the Plaintiff at the time of the actual purchase, and that it was difficult to deem that the transaction was conducted with the Plaintiff’s representative ○○○○.

Therefore, the part of the value-added tax that did not recognize input tax deduction, considering that the entries of the purchase tax invoice in the instant disposition are different from the facts, is legitimate.

(2) As to part of value-added tax

As shown in the above facts, ① a business operator who does not have the export performance on the data that generated high-amount processing sales and processing purchases at a short period of time, filed an accusation for tax evasion charges. ② In this case, the Plaintiff supplied zero-rate ju ju ju ju ju ju ju ju ju ju ju ju son ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju without paying value added tax again ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju ju’s.

3. Conclusion

Thus, the plaintiff's claim is dismissed for lack of reason.

Details of the survey

Name of the Supplier

Amount (,000 won)

Details of confirmation

○ ○○

10,497

Revised Report, Written Confirmation of Certificate (the time of processing and purchase)

○ ○○

4,450,510

Punishment for the violation of the Punishment of Tax Evaders Act;

Plaintiff

1,082,020

I explained that he is a normal transaction share, but presumed to be a processing transaction which is deferred under the circumstances.

(m)○○ Syon.

2,515,700

On September 30, 1998, no confirmation is made due to the death of the representative ○○○○○ on the part of the permanent closure, default 2,425 million won;

(m)○○ water acid

15,000

Written Confirmation (the date of processing or purchase)

(state)○ trade;

971,640

On July 1, 1998, the closure of business, the disposition on the disposal of the amount of 125 million won in arrears, and the representative's place of resident registration not to contact with him without permission.

○○ Korea

7,000

A letter of vindication sent but not replys

(m)○○ person;

11,000

On May 20, 1998, the closure of business, the disposition on the disposal of the amount of nine million won in arrears, and the contact is not made due to the representative Gangnam ○○ resident registration place without permission.

○

85,850

Written Confirmation (the date of processing or purchase)

(m)○○ commercial

25,664

Processing Purchasing is the time limit, but refuses to submit a written confirmation;

(m)○○

8,296

In spite of the submission of explanatory materials, documents proving actual transactions are not sufficient, and Kim ○-○ was not known.

○ Doz.

15,076

The principal is presumed to be a processing transaction, such as there is no evidence of payment, even though he has proved for normal transaction.