National High Court Decision 2006No3913 (Law No. 14, 2007)

Whether the purchase tax invoice of gold bullion constitutes a tax invoice for false false purchase

Since it is insufficient for the immediately preceding purchaser to be recognized as a bomban or a Do government-invested enterprise, it is illegal to impose tax by deeming it as a false tax invoice.

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

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

1. On December 1, 2005, the Defendant revoked each disposition of KRW 2,086,492,370 for the second period portion of value-added tax for the year 2003 against the Plaintiff, KRW 2,908,415,580 for the first period portion of value-added tax for the year 2004, KRW 190,141,800 for the second period portion of value-added tax for the year 2004, KRW 353,098,70 for the corporate tax for the year 2003, KRW 67,645,160 for the corporate tax for the year 204.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 21, 2003, the Plaintiff registered its business in ○○○○○○○○○○○○○ building on April 21, 2003, and moved its business place to 304 on April 23, 2004, ○○○○○ building on April 23, 2004, and closed down its business on December 15, 2006.

나. 원고는 2003. 7. 11.부터 2004. 11. 11.까지 사이에 ○○금은 주식회사(이하 '○○금은'이라고 한다) 등 8개 법인으로부터 공급가액 합계 52,342,612,840원 상당의 금지금(金池金, Gold Ingot, 이 사건에서는 '금괴⋅골드바 등 원재료 상태로서 순도가 1,000분의 995 이상인 금'을 말한다)을 매입하여 사용하거나 수출하고 ○○금은 등으로부터 받은 매입세금계산서를 수취하여, 위 매입세액을 매출세액에서 공제하여 각 과세기간에 부가가치세 환급 신고를 하였다.

C. The defendant was notified by the director of ○○ Regional Tax Office that the tax invoice amounting to KRW 46,85,212,420 of the tax invoice of this case (hereinafter "the tax invoice of this case") was part of the tax invoice of this case by false purchase between the actual supplier and the supplier listed in the tax invoice of this case, and the input tax amount of the tax invoice of this case was deducted as to the value-added tax, and as to the corporate tax, the amount of the tax invoice of this case was not received. On December 1, 2005, the defendant notified the plaintiff on December 1, 2005 of the imposition of value-added tax of KRW 2,086,492,370 for the second period of 203, value-added tax of KRW 2,908,415,580 for the first period of 204, value-added tax of KRW 190,141,800 for the second period of 204,353,7098,67

D. On May 14, 2007, the National Tax Tribunal dismissed the Plaintiff’s request for examination as to May 14, 2007.

[Grounds for Recognition] A.1-100, B.1,2 (including each number)

2. Whether the instant disposition is lawful

A. The parties' assertion

(i)The plaintiff's assertion

(A) The Plaintiff actually traded the same contents as the tax invoice of this case. The Plaintiff purchased and exported gold bullion, and paid gold bullion suppliers the price and value-added tax through bank branch, and the result of exporting gold bullion was also deposited in the Plaintiff’s deposit account accurately, all of the instant transaction is not a transaction using data on the place of normal transaction.

(B) The Defendant issued the instant disposition on the ground that the trading company with the Plaintiff is related to the bombane and the Dog enterprise, but there is no basis therefor.

(2) The defendant's assertion

In light of the fact that the gold bullion amounting to KRW 2,026,00,00 that the Plaintiff purchased from a stock company was all gold bullion via ○○ Trade Co., Ltd., a company with a wide carbon, and the ○○○ Co., Ltd. filed a complaint with the prosecutor's office under suspicion leading the systematic public offering for tax evasion, etc., the instant tax invoice does not constitute an act of supplying goods for creating added value, such as ordinary commercial transactions, but is merely a formal most effective act created to evade value-added tax under the public offering or implied agreement with a large coal company, etc.

(b) Related statutes;

○ Application of zero tax rate Article 11 of the Value-Added Tax Act

(1) zero tax rates shall apply to the supply of goods or services falling under any of the following subparagraphs:

1. Exported goods;

○ Article 17 of the Value-Added Tax Act

(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 “input tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “the output tax amount”): Provided, That where the input tax amount exceeds the output tax amount, it shall be the refundable tax amount (hereinafter referred to as the “tax

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:

1-2. 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

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

(1) The head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service shall determine or correct the tax base of value-added tax or tax amount

2. Where there are any mistakes or omissions in details of the final tax return;

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

○ Article 76 of the Corporate Tax Act

(5) In case where a corporation (excluding such corporation as prescribed by the Presidential Decree) is supplied goods or services with an entrepreneur as prescribed by the Presidential Decree in connection with its business and fails to receive the evidential documents falling under any of subparagraphs of Article 116 (2), the chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax the amount calculated by adding an amount equivalent to 2/100 of the amount not received, except for the case where the proviso of

○ Receipt and safekeeping of documentary evidence of expenditure Article 116 of the Corporate Tax Act

(1) A corporation shall prepare or receive documentary evidence for all business-related transactions for each business year and keep them for 5 years from the date of the expiration of the time limit for report under the provisions of Article 60.

(2) In cases falling under paragraph (1), where any corporation receives goods or services from a business operator prescribed by Presidential Decree and pays the price therefor, it shall receive evidential documents falling under any one of the following subparagraphs and keep them: Provided, That the same shall not apply to cases prescribed

2. Tax invoice under Article 16 of the Value-Added Tax Act;

Article 24 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19215 of Feb. 9, 2006) (the scope of export)

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

1. Goods supplied by an entrepreneur through a local letter of credit or a written confirmation of purchase prescribed by Ordinance of the Ministry of Strategy and Finance: Provided, That gold bullion supplied by a written confirmation of purchase shall

○ Scope of Article 9-2 of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 499 of March 17, 2006)

(2) The term "purchase confirmations under Article 24 (2) 1 of the Decree and Article 26 (1) 2-2 of the Decree means 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 under paragraph (1) and on which the documents, such as the export letters of credit, the number thereof, and the date of shipment,

○ Goods supplied under General Rules 11-24-9 of the Value-Added Tax Act by local letter of credit or letter of approval for purchase.

The leisure tax rate shall apply to goods supplied under a local letter of credit or a purchase approval as prescribed by the Foreign Trade Act, regardless of whether such goods are used for export after they are supplied.

○. Special taxation of value-added tax on gold bullion under Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005)

(1) The value-added tax shall be exempted until June 30, 2005 pursuant to the classification under paragraph (3) for the supply of gold bullion falling under any of the following subparagraphs (hereafter in this Article, referred to as the "tax-free gold bullion") that has the form, degree, etc. prescribed by Presidential Decree (hereafter in this Article, referred to as the "

1. Gold bullion supplied by the wholesalers and refiners of gold bullion prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold bullion wholesalers, etc.") to the gold craftsmen, etc. prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold craftsmen, etc.") after receiving tax-free recommendation from a person prescribed by the Presidential Decree (hereafter in this Article, referred

2. Gold bullion wholesalers, etc. and financial institutions prescribed by the Presidential Decree (hereafter in this Article, referred to as "financial institutions") supply or receive gold bullion supplied or redeemed through a loan for consumption of gold bullion by financial institutions exempted from the tax-free gold bullion trading recommendation;

3. Gold bullion supplied under the futures trading under the Futures Trading Act: Provided, That the same shall not apply to the case where any person other than gold craftsmen, etc. (including the financial institutions) takes over the actual objects of gold bullion.

(2) The value-added tax shall be exempted until June 30, 2005 for gold bullion imported by gold craftsmen, etc. and financial institutions upon receipt of tax-free import recommendation from persons prescribed by the Presidential Decree (hereafter in this Article, referred to as the "member of tax-free import").

(3) Special cases under the Value-Added Tax Act shall apply to the tax-free gold metals under the provisions of paragraph (1) in accordance with the following subparagraphs:

1. Where a financial institution supplies tax-free gold metals, Article 12 of the Value-Added Tax Act shall apply;

2. Where any entrepreneur other than financial institutions supplies the tax-free gold bullion, the relevant entrepreneur shall be deemed the value-added tax taxable entrepreneur and subject to the application of the Value-Added Tax Act. In this case, the value-added tax amount borne at the time of purchasing the relevant gold bullion in connection with the supply of the tax-free gold bullion shall not be deemed the input tax amount eligible for the deduction under Article 17 of the Value-Added Tax Act, and the tax-free gold bullion gold metals manufactured and supplied by the gold bullion refiner from among the gold bullion wholesalers, etc. and the value-added tax amount borne by

C. Determination

(1) The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority. As such, the defendant must prove that the tax invoice is not accompanied by real transactions on the basis of direct evidence or all the circumstances. However, in a case where a considerable degree of proof on this point has been made to the extent that the defendant reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy to present evidence and materials related to the plaintiff who is the taxpayer requesting the illegality of the defendant's disposition, the plaintiff who is the taxpayer, who is the taxpayer of the tax payment, is also a taxpayer (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

(2) The Defendant issued the instant tax invoice on the ground that the Plaintiff’s purchase of gold bullion received from ○○, etc. on the ground that the instant tax invoice was a tax invoice different from the fact. In order to be lawful from the instant disposition, the Defendant must prove that the purchaser, such as ○○, was a rush coal company or a rush company. However, it is insufficient to recognize the Defendant’s submission of the evidence that the purchaser, such as ○○, etc., was a rush coal company or a rush company, and there is no other evidence to acknowledge it as otherwise. [It is insufficient to recognize that the purchaser was a rush coal company or a rush company even if the purchaser was a rush coal company prior to the two or three stages of the purchase price approved by the Defendant, the mere fact that part of the purchaser was accused of violating Articles 9(1) and 11-2 of the Punishment of Tax Evaders Act.

(3) The gold bullion business is supplied as tax-free until the normally imported gold bullion is supplied to an exporter. The company collects value-added taxes at a price lower than the purchase price, and then the company closed its business without filing a return on the tax base and the amount of tax payable under the Value-Added Tax Act. The exporter discontinues its business without filing a return on the tax invoice and the amount of tax payable under the Value-Added Tax Act. The exporter purchases gold bullion from a one-person cuba or Do government enterprise that purchased the gold bullion from the bomban enterprise, and issues and issues the tax invoice at each transaction stage. If the gold bullion was actually exported from the importer to the exporter, the immediately preceding enterprise that issued and delivered the tax invoice to the exporter is not a bomban enterprise or Do government enterprise (the burden of proof in this case is at least the tax authority) and it cannot be deemed that the Plaintiff’s act constitutes an unlawful act of tax evasion in this case, even if the immediately preceding enterprise did not use it as a false tax invoice, and thus, it cannot be deemed that it constitutes an unlawful act of tax evasion.

(4) Therefore, the instant disposition, based on the premise that the instant tax invoice is false, was unlawful, for which the input tax amount was not deducted or the penalty provision that was not received as evidence was applied, was unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified, and it is so decided as per Disposition with the assent of all participating Justices.