Seocho 2010west 1389 (201.05.09)

As long as the exclusion period is too excessive, the application of the provisions on the exclusion period may not be excluded even if it violates the principle of good faith.

It is reasonable to view the provision on the exclusion period under the Framework Act on National Taxes as a limited provision, and even if the exclusion period is so long as it violates the principle of good faith, the application of the provision on the exclusion period cannot be excluded. Thus, the imposition of value-added tax in this case is made after the exclusion period expires

Article 15 of the Framework Act on National Taxes, Article 26-2 of the Framework Act

Article 17 of the Value-Added Tax Act

2011Guhap2280 Disposition of revocation of Disposition of Imposition of Value-Added Tax

XX Stock Company

Head of the tax office;

May 23, 2012

June 15, 2012

1. The Defendant’s imposition of value-added tax for the first term of February 1, 2010 for the Plaintiff, KRW 000 for the second term of 2003, KRW 000 for the second term of 200, KRW 000 for the first term of 2004, and KRW 000 for the corporate tax accrued for the business year of 2003, and KRW 000 for the corporate tax accrued for the business year of 2004, respectively, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. From January 28, 2003 to June 9, 2004, the Plaintiff received 140 copies of purchase tax invoices equivalent to the amount of KRW 00 (00 for the first period period of 2003, KRW 000 for the second period of 2003, KRW 000 for the first period of 2004, KRW 00 for the first period of 2004, and KRW 140 for the purchase tax invoices in 2004, and paid value added tax and corporate tax to the Defendant by deducting the supply value of the input tax for the pertinent taxable period from the input tax amount.

B. On February 1, 2010, the Defendant: (a) on the ground that the instant tax invoice is “tax invoice different from the fact that it was delivered without a real transaction”; (b) (c) the Defendant withdrawn the assertion on the initial reason for disposition on the date of the first pleading, that “ even if the instant tax invoice is not “other than the fact”, it would go against the good faith principle; (d) however, this would not change the initial reason for disposition, but be deemed to have added a new reason for disposition regarding the imposition of value-added tax while maintaining the initial reason for disposition; (e) deducts the input tax amount pursuant to the instant tax invoice from the input tax amount; and (e) apply the additional tax amount not received for the said input tax amount to the Plaintiff, as described in the order, the Defendant imposed value-added tax (including the tax amount for the failure to file a return, the tax invoice, the sum of the tax invoices, the sum

C. On April 2, 2010, the Plaintiff filed an appeal seeking the revocation of the instant disposition, but was dismissed by the Tax Tribunal on May 9, 201.

[Reasons for Recognition] Class A 1, 2, and Category B 1, 2, and 18 (including paper numbers)

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Plaintiff

(A) The five-year exclusion period for imposition of the value-added tax and the corporate tax belonging to the business year 2003 is against the law.

(B) As to the penalty taxes in unfaithful and incomplete payment of the total tax invoices

Since the tax invoice of this case is not "tax invoice different from the fact", it is illegal to impose a penalty tax on the aggregate tax invoice. In addition, the penalty tax which is not received as evidence under the Corporate Tax Act is imposed when it is not received in the actual transaction despite the actual transaction, and the penalty tax which is not received as evidence is imposed on the ground that "the tax invoice of this case is a tax invoice which is received without the actual transaction." Thus, the imposition of penalty tax which

(2) Defendant

(A) If the exclusion period of imposition of the value-added tax and the corporate tax belonging to the business year 2003 recognizes the exclusion period of imposition of the corporate tax, it is to assist the realization of criminal proceeds from tax evasion, so the application of the provisions of the Framework Act on National Taxes concerning the exclusion period of imposition is excluded in accordance

2) Since a malicious entrepreneur acquired part of the output tax amount evaded as a profit by taking advantage of the malicious entrepreneur’s illegal transactions aimed at evading output tax amount and abusing the system of input tax deduction and refund, the exclusion period for imposition is 10 years, since it constitutes “Fraud or other unlawful acts.”

3) Since value-added tax was not substantially reported, the exclusion period for exclusion is seven years since it constitutes a non-reported tax.

4) According to Article 12-3(2)3 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010), where the deducted tax amount is collected due to nonperformance, etc., the date on which the cause for collecting the deducted national tax arises. Therefore, “the date on which the cause for collecting the deducted national tax arises” can be deemed as “the date on which the cause for collecting the deducted national tax occurred by taking advantage of the malicious entrepreneur’s illegal transaction aimed at evading the output tax amount in the gold transaction, thereby abusing the system for deducting and refunding the input tax amount.”

(B) On the violation of the good faith principle of input tax deduction and refund

Since a malicious entrepreneur’s illegal transactions aimed at evading the output tax amount, he/she has abused the input tax deduction and refund system, thereby taking part of the output tax amount evaded by a malicious entrepreneur as a profit, it cannot be allowed in violation of the good faith principle.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Form, etc. of gold bullion transactions for the purpose of evading tax;

(A) According to Article 11 (1) 1 of the Value-Added Tax Act (amended by Act No. 8826 of Dec. 31, 2007), the zero-rate tax rate shall apply to the supply of exported goods. In addition, according to Article 24 (2) 1 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827 of Dec. 30, 2002) Article 24 (2) 1 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827 of Jul. 1, 2003), the goods supplied by an entrepreneur through a purchase confirmation are also included in the "export goods". Since the gold bullion is not exception, the zero-rate tax rate may also apply to the supply of gold bullion from a gold bullion wholesaler who received a written confirmation of purchase from the head of a foreign exchange bank on the basis of the export documents. (amended by Act No. 7322 of Dec. 31, 2004)

(B) By abusing the above zero-rate or zero-rate tax exemption system, gold bullion is imported and distributed as zero-rate or zero-tax exemption through multiple stages wholesalers, and it is converted to the so-called so-called so-called so-called "large carbon business" (the company that has no economic ability but closes its business with the intention of evading tax, and is called "large coal business" as it discontinues its business with the intention of evading tax burden) and then exports the tax through multiple stages wholesalers, and the "large coal business" is exempted from the value-added tax collected in transactions, and the "large coal business" in the form of the so-called "large coal business" to be refunded the unpaid value-added tax to the precious metal business located in Jongno-gu Seoul from 202 to 202, and it is more detailed about the form of "large coal business" conducted under the value-added tax exemption system.

1) In appearance, gold bullion is distributed through the stages of ‘foreign company ? importer ? Tax-free wholesale company ? Tax-free wholesale company ? Tax-free wholesale company ? Tax-free wholesale company ? Tax-free wholesale company ? Tax-free wholesale company ? Tax-related wholesale company ? ? ? Export company ? Export company ? Foreign company ? the sales price is paid in sequence from the export company to the import company ? The sales price is paid in sequence from the import company to the import company, but in particular, taxation wholesalers issue tax invoices at the direction of a specific person or a specific company, and do not actually trade or transport gold bullion.

2) After purchasing gold bullion as tax-free gold and selling it as tax-free gold, "explosion business" evades the value-added tax by way of full withdrawal of profits and closing down business within a short period. "explosion business" sells gold bullion with the supply price lower than the purchase price. However, the supply price added to the supply price is higher than the purchase price and the value-added tax collected by adding the value-added tax is not paid. Accordingly, the difference between the supply price and the purchase price is expected to be significant. On the other hand, the value-added tax collected by the "explosion business" is successively transferred by the method of deducting the input tax by using the tax invoice received by the immediately preceding stage business after the export of gold bullion. Accordingly, the ultimate source of the import price for the value-added tax for which the "explosion business" has not been paid is the difference between the domestic sales price and the domestic sales price for the "explosion business" and the domestic sales price for the "explosion business" separately from the domestic sales price for the "explosion business".

3) In order to maximize profits, the term "large amount of gold bullion business" means distributing as much as possible gold bullions within a short period in order to maximize profits. ① In order to prevent disputes, loss of price, etc. among the participating companies that may arise therefrom, most of the same states (referred to as a person who prepares for the import fund of gold bullion in the first place from the outside of the wide carbon business network) operate both exporters and importers at the same time, ② to place an enterprise substantially controlled or trusted by the former state in direct transaction with a "large amount of carbon"; ③ to determine the volume, unit price, and margin of the transaction at each trading stage; ④ to ensure that the former state actually determines the volume of the transaction, unit price, and the number of transactions from the importer to the exporter is very short time, and ⑤ to immediately transport gold bullion to the exporting company without delay, most of them (it is nothing more than transportation for the first time in the ordinary transaction stage, even if it is a normal transaction).

(C) If the Special Tax Treatment Control Act was amended by Act No. 322 on December 31, 2004 in order to prevent tax evasion by the above method, and it is deemed necessary to preserve the value-added tax, the security for tax payment was newly established [Article 106-3(11) of the Restriction of Special Taxation Act (amended by Act No. 7322 of Dec. 31, 2004)] that allows gold bullion wholesalers, etc. to demand the provision of security to the gold bullion wholesalers, etc., and was enforced from April 1, 2005, and 268 tons of gold bullion import volume and 233 tons of export volume were reduced to 56 tons in import volume and 19 tons in export volume in 205 when the above security for tax payment was implemented.

(2) Circumstances of the Plaintiff’s gold bullion transaction

(A) The Plaintiff commenced gold bullion transactions from the business year 2001, but the H gift, which supplied gold bullion, discontinued gold bullion supply according to its internal policy, and suspended gold bullion trade. Accordingly, the Plaintiff’s sales of the non-ferrous metal team in the business year 2002 reduced by approximately 28% compared to the previous year.

(B) Around March 2002, KimA, an employee of the Plaintiff, confirmed that “after being appointed as the head of the non-ferrous metal team, the performance of which was lower than that of the previous year due to the suspension of gold export operations,” and ordered a newB to “re-signing the gold export business” from the previous date to “re-signing the gold export business,” which was in charge of gold bullion transactions at the non-ferrous metal team. NewB proposed a transaction with the KimA after being introduced from thisCC, an employee of the HH gift, and offered a recommendation for a transaction with the head of the Gu. KimA, along with the newB, visited the office of the XX, and visited the operator DooD directly. KimA started the transaction with the newD by considering that “S, global, H H department department, and directly manufactured and operated,” and that “SO, YO, YO, YO, YO, YO, YO, YO, and YO,” and that it was trusted.

(C) Although KimA was mainly in charge of gold export and import business after entry, it did not have been in charge of gold trading affairs, and it did not have been returned to the Republic of Korea after long-term overseas service at the time of the commencement of gold bullion transaction. KimA was prosecuted at the Seoul Central District Court (2008 Gohap139) on January 9, 2009, but was sentenced not guilty on the ground of criminal facts that "the value-added tax was evaded in collusion with the actual operators of wide-scale coal business, Doing business, floor business, etc.", but the judgment became final and conclusive by the Seoul High Court (2009No279) on May 14, 2009 and the judgment became final and conclusive as the judgment of dismissal of appeal on July 23, 2009 (299Do4517).

(D) Around July 2003, NewB resided in Hong Kong, which is the seat of the Plaintiff’s seller (hereinafter “PP”) and RR (hereinafter “R”), and actively participated in the act of evading value-added tax by purchasing gold bullion from AA, BB,CC metal, △△△△, DD, etc. and arranging a transaction of exporting gold bullion to PP and RR, and receiving the price from AD. Accordingly, the newB was sentenced to a stay of four years and six months after the retirement from Seoul High Court (2008No1587) for the crime of violating the Act on the Aggravated Punishment, etc. on the Aggravated Punishment, etc. of Specific Crimes of the Value-Added Tax (tax). This decision became final and conclusive by the final judgment of the Supreme Court on November 25, 2010 (209Do1872).

(E) At the time of the withdrawal of the newB, KimA, a representative director of the AA, Lee F, a representative director of theCC metal, and Lee F, who is expected to continue to engage in the business related to the export of the gold bullion in Hong Kong. In the future, Kim A, around November 2003, called "B, is scheduled to retire from NewB, and to continue to engage in the business related to the export of the gold bullion in Hong Kong," and called "B," and then, the Kim A, around November 2003, took a family trip in Hong Kong along with Park E and EF, and lent KRW 00,000,000,000,000,000,000,0000, around 2005 and 206, to NewB.

(3) Specific details of the instant gold bullion transaction, etc.

(A) During the instant taxable period, the Plaintiff purchased and exported a large amount of gold bullion from nearly every transaction day to almost 410km, and most of the gold bullion traded were imported. The gold bullion traded by the Plaintiff was exported from the import to the import without being processed only a day. The gold bullion exported by the Plaintiff was re-imported via SS (hereinafter “S”) and LL (hereinafter “LL”).

(B) The purchase price except the value-added tax of gold bullion traded by the Plaintiff was lower than the international market price, as well as the zero-rate or tax-free gold bullion without the value-added tax. The export price of gold bullion traded by the Plaintiff was lower than the international market price and import price. The Plaintiff stablely acquired 0.5% profit of the transaction amount. However, the phenomenon lower than the import price of gold bullion was revealed in other non-ferrous metal import and export transactions. Furthermore, the personnel in charge of gold transactions, such as AA, conducted a transaction by checking items, unit price, volume, etc. that can be traded in the PP, etc.’s place of sales, and then checking items, unit price, quantity, etc. that can be traded at the PP, etc.’s place of sales, and even if both transaction conditions are met, there were cases where the Plaintiff could not buy the transaction.

(C) In the course of the transaction with XX, KimA has entered his signature in part of the export contract with the seller, sent to XX via facsimile, and then has performed his duties in a somewhat exceptional manner, such as the receipt of the export contract with the seller’s signature from the seller, and then forwarded to XX. In addition, the Plaintiff also uses the export agency contract form for the purpose of purchasing gold bullion from XX, and the contract is liable for all issues relating to export goods payment. If the Plaintiff fails to refund the value-added tax on the scheduled date of refund of the value-added tax due to the cause attributable to the cause attributable to XX, the Plaintiff is obliged to refund the total amount of the already paid value-added tax by the following day.

(D) The transportation company of the gold bullion traded by the Plaintiff is only written in the signature of the employees of the GG, which is located in the transportation log of the GG, and there is no signature of the Plaintiff employees such as KimA.

(E) The Plaintiff purchased gold bullion from a purchaser, such as XX, and exported it to a seller, such as PP, and paid the purchase price to the purchaser after receiving the export price.

(F) Around March 2003, KimA had to temporarily suspend the export business of Aluminium and gold bullion, which are the main items of Alumin metal teams, due to the Plaintiff’s liquidity crisis. Accordingly, KimA had A andCC metal carry out the export business of Aluminium and gold bullion on a temporary basis, but resumed the export business around July 2003.

(4) The Plaintiff’s place of purchase, sales place, etc.

(A) The six companies, including XX, whose tax invoice was issued to the Plaintiff, are both running or under influence by newD. The above companies purchased gold bullion sold from the bombing companies through multiple Domin companies, and sold or exported directly to the exporting companies. The companies closed their respective business on May 20, 2005, and △△△△ was closed on March 12, 2008. An accusation was filed under the suspicion of tax evasion filed against the O and △△△.

(B) NewD has operated both exporters and subsidiaries, and imported large volume of gold bullion every day in gold markets, sold them through zero-rate or tax exemption, or purchased and exported them. Accordingly, NewD has been sentenced to five years of imprisonment with prison labor and a fine of 00 won in Seoul High Court (2008No157) for violating the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) at Seoul High Court (2008No157), and this judgment became final and conclusive as a judgment of dismissal of the Supreme Court on November 25, 2010 (209Do1872).

(C) PP and R have a place of business of approximately 7-8 square meters in Hong Kong, which is an empty citizen and a friendly zone, and the date, address, and representative of the establishment are all the same, and two female employees and one male employee are working for the company. The representative of the company has been invested in NewD and engaged in the business together. LL was subject to the disposition of revocation of the license for gold trading from the Hong Kong Financial Supervisory Service, and was closed on March 198, 198, and Hong Kong branch office was closed. MMM has been working for SS, and is actually adjusting the gold bullion trading.

[Ground of recognition] Facts without dispute, Gap evidence 3 through 7, evidence 9 through 13, Eul evidence 3 through 46 (including paper numbers), and the purport of the whole pleadings

D. Determination

(1) As to the exclusion period of imposition of the value-added tax and the corporate tax belonging to the business year 2003

(A) As to exclusion of exclusion period under the principle of good faith

In order to promptly determine legal relations, it is not desirable that legal relations under tax law are placed in an uncertain state at any time as well as legal relations under tax law, so Article 26-2 of the Framework Act on National Taxes provides that the exclusion period is set with respect to the authority to impose tax imposed by a tax authority that establishes a tax obligation upon meeting the taxation requirements under individual tax law and establishes the exclusion period, and if there is no disposition to impose tax within the said period, the tax obligation itself shall be extinguished (see Constitutional Court en banc Order 2000Hun-Ba82, Jun. 26, 2003). Where a false or deceptive return is filed or an intentional tax evasion is attempted as prescribed under the US Internal Tax Law, there are legislative cases excluding the exclusion period, but the Framework Act on National Taxes does not stipulate a long-term exclusion period without excluding the exclusion period even in cases where the national tax is evaded or refunded or deducted due to "Fraud or any other unlawful act," and Article 26-2 of the Framework Act on National Taxes stipulates that the exclusion period of the exclusion period should not be excluded from the exclusion period of the exclusion period.

(B) As to the application of the exclusion period by ‘Fraud or any other unlawful act'

(1) Even if the tax determination was made normally by issuing and issuing the relevant tax invoice, and submitting the tax standard and tax return, it is no different from the failure to report the value-added tax in substance when considering the whole and comprehensive tax assessment. Thus, it shall be deemed that the act constitutes a tax evasion stipulated in Article 9(1) of the Punishment of Tax Evaders Act (amended by Act No. 8138 of Dec. 30, 2006; hereinafter referred to as the "former Punishment of Tax Evaders Act") (see Supreme Court Decision 2005Do9546, Feb. 15, 2007). (2) As long as the act of the gold bullion operation itself is punished as tax evasion, even if the exporter purchased and received value-added tax pursuant to the purchase by the exporter company through the Cub or floor company, it shall be deemed that the act of the tax evasion itself constitutes a tax evasion under Article 9(1) of the Punishment of Tax Evaders Act in collusion with the exporter company in advance.

3. Article 9(1) of the former Punishment of Tax Evaders Act provides that "the person who evades a tax, obtains a refund or deduction of a tax by fraudulent or other unlawful act" shall be punished, and the Supreme Court interpreted as "the fraudulent or other unlawful act under Article 9(1) of the former Punishment of Tax Evaders Act" as "the fraudulent or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes" (see Supreme Court Decision 2007Do9689, Apr. 10, 2008; 207Do9689, Jan. 1, 2010)." Article 20 of the former Enforcement Decree of the Punishment of Tax Evaders Act provides that "the person who received a deduction or deduction of a tax by fraudulent or other unlawful act under Article 9(1) of the former Punishment of Tax Evaders Act shall not be punished by fraudulent or other unlawful act under Article 9(2) of the former Enforcement Decree of the Punishment of Tax Evaders Act," and Article 9(2) of the former Enforcement Decree of the Punishment of Tax Evaders Act provides that "the person subject to such fraudulent or other unlawful act shall be punished by Presidential Decree."

(C) As to the application of the exclusion period by filing a report without filing

According to Article 26-2(1)2 of the Framework Act on National Taxes, if a taxpayer fails to file a tax base return by the statutory due date of return, the exclusion period for imposition of the relevant national tax shall be seven years. Thus, the exclusion period for imposition under the report shall not apply unless the Plaintiff files a tax base return of value-added tax and corporate tax according to the

(D) As to the initial date

1) Article 12-3(2)3 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010) provides that “where the deducted tax amount is fixed due to nonperformance of obligation, etc., the date on which the cause for collecting the deducted national tax arises” as the initial date for exclusion from imposition of the Value-Added Tax Act. Articles 16(1) and 17(2)1-2 of the Value-Added Tax Act (amended by Act No. 8142, Dec. 30, 2006) provide that “where an entrepreneur registered as a taxpayer supplies goods, the entrepreneur’s registration number and name, registration number, value-added tax, date of supply (hereinafter “necessary entry”) shall be delivered to the recipient of the tax invoice.” Furthermore, Article 1(1)1 of the Value-Added Tax Act (amended by Act No. 976, Oct. 15, 2010; see Article 96(2) of the Value-Added Tax Act).

2) According to the above facts, the Plaintiff’s transaction of gold bullion was conducted only once a day through a series of companies from which it was imported and exported, and there was so-called wide-scale coal companies that prepared and issued a tax invoice and did not pay the amount equivalent to the value-added tax while supplying the gold bullion in the interim stage by converting the tax exemption amount into the taxation amount, and the purchase and sales unit price of gold bullion traded by the Plaintiff was lower than the international market price or domestic market price. However, it is difficult to readily conclude that the gold bullion transaction in this case is a nominal transaction, which is not the supply of the goods subject to value-added tax, solely on the basis of such circumstances, and there is no other evidence to acknowledge that it is a nominal transaction, and there is no other evidence to acknowledge that it is not a different transaction (i.e., purchase of gold bullion as indicated in the tax invoice in this case and settlement of the price thereof). Accordingly, the tax invoice received therefrom constitutes a legitimate tax invoice under Article 16 of the Value-Added Tax Act.

(e) Sub-committee

The imposition period of the value-added tax and the corporate tax belonging to the business year 2003 is five years. The imposition period of the value-added tax is the first term portion in 2003, the second term portion in 2003, the first term portion in 2004, the following day after the respective filing deadline of the value-added tax in 2004, the imposition period of the value-added tax from January 26, 2003, the imposition period of the corporate tax belonging to the business year 2003 from July 26, 2004 to July 26, 2004, and the imposition period of the corporate tax belonging to the business year 2003 should have elapsed five years from April 1, 2004, which is the day following the filing deadline of the corporate tax in this case. Thus, the imposition period of the value-added tax and the corporate tax belonging to the business year 203 shall be null and void after the exclusion period.

(2) As to the corporate tax accrued for the business year 2004

Article 76(5) of the Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006) provides that a corporation supplied with goods or services shall bear penalty taxes in cases where it fails to receive regular documentary evidence, such as tax invoices, is to enhance transparency in the expenditure of corporation expenses and induce other business operators to cultivate the tax base of the transaction partner, and thus, its justification is recognized, and it is difficult to achieve such legislative purpose merely imposes a duty of bona fide return on the transaction partner, which is subject to the training of tax bases, and imposes a duty of faithful return on the transaction partner. Therefore, it is subject to sanctions to require the corporation supplied with goods or services to receive regular documentary evidence and to additionally pay an amount equivalent to a certain percentage of the amount not received for the breach of such duty (see, e.g., Constitutional Court en banc Decision 2006Hun-Ba88, May 31, 2007). Therefore, the additional tax received without documentary evidence applies

Since the Plaintiff received the tax invoice of this case after actually purchasing gold bullion from the purchaser in XX, it is not possible to impose the additional tax for the 2004 business year out of the disposition of this case. Thus, the imposition of additional tax for the 2004 business year is unlawful.

3. Conclusion

Therefore, since the disposition of this case is unlawful, the plaintiff's claim is justified and it is decided as per Disposition.