Cho High Court Decision 2009J387 ( November 23, 2009)

Whether a tax invoice different from the facts related to a construction contract construction project has been received

Although the purchaser was confirmed by the data that only lent a construction license without supplying the actual construction services and issued the tax invoice, it is difficult to regard the fact as a false tax invoice in light of the fact that the investigation report was not verified as to whether there was an investigation related to this case.

1. The Defendant’s imposition of value-added tax of KRW 100,859,850 on August 19, 2009 against the Plaintiff on the first term of 2007, the second term of 2007, and KRW 22,530,150 on the second term of 2007, and the corporate tax of KRW 14,40,000 on the business year of 207 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. Since its establishment on February 24, 2006, the Plaintiff entered into a contract for construction works (hereinafter referred to as "the contract of this case") for the new construction of factory buildings (hereinafter referred to as "construction works") on the ground (hereinafter referred to as "the construction works of this case") on July 18, 2006 with the AACCC Co., Ltd. (hereinafter referred to as "Non-Party Co., Ltd.") and on the ground (hereinafter referred to as "Non-Party Co., Ltd.") on July 18, 2006, the Plaintiff received the tax invoice for the supply price of 300 million won on March 22, 2007, the supply price of 150 million won on May 17, 2007, the supply price of 1350,000 won on June 27, 2007, the supply price of the non-party Co., Ltd. and the supply price of the non-party Co., Ltd. (hereinafter referred to as "the above tax invoice").

B. The Central Regional Tax Office conducted a tax investigation with respect to the non-party company, and confirmed it on the data that only lent construction licenses and issued tax invoices without actual provision of construction services, and notified the Defendant that the instant tax invoice was false. Accordingly, the Defendant, on August 19, 2009, issued a revised and notified the Plaintiff of KRW 100,859,850 of value-added tax for the first period of August 19, 2007 on the ground that the instant tax invoice was false, and subsequently, corrected and notified the Plaintiff of KRW 22,530,150 of value-added tax for the second period of 207, and KRW 14,400,000 of corporate tax for the business year of 207 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 1, 2, Eul 1 through 4, 8, 9, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

After entering into the instant contract with the non-party company, the Plaintiff received a loan from the Small and Medium Business Corporation (hereinafter referred to as the “Corporation”) in accordance with the said contract, and paid the construction cost to the non-party company and received the instant tax invoice. Therefore, the instant disposition based on the premise that the instant tax invoice is false is illegal.

(b) Fact of recognition;

(1) With respect to the instant construction project, the Plaintiff entered into the instant contract with the following terms on July 18, 2006.

Contract amount: 90,000,000 won (value of 900,000,000,000, value-added tax amount of 90,000,000)

Period: Commencement on September 25, 2006, and completion on June 25, 2007

The time and method of the completed portion: It shall be substituted by the loans of the Corporation.

Defect Security Period: 2 years

Warranty bond rate: 3/100

The rate of liquidated damages: 3/1000

(2) If the plaintiff and the non-party company submit an application for progress payment for construction work to the Corporation after confirming the progress progress rate of the construction work in this case from the supervisor in charge, the Corporation shall confirm the fact that they send the employees to the site and deposit the construction cost (facility loan) with the account of the non-party company as follows ( ① 300,000,000 on March 29, 2007; ② 150,000,000 on May 22, 2007; ③ 135,00,000,000 on June 29, 2007; ④ 135,00,000,000 on July 31, 2007).

(3) However, until the Corporation deposited its loans on March 29, 2007 into the account of the non-party company, the Plaintiff paid the construction cost to the account of the non-party company or paid the direct construction cost to the non-party company at the request of the non-party company, and the amount is KRW 138,580,000. Upon the deposit of the first installment, the Plaintiff was returned from the non-party company KRW 118,42,00 out of the above amount.

(4) On the ground that an on-site agent of the non-party company did not work properly at the construction site of the instant construction site, the Plaintiff, on April 2007, had ParkCC manage the said site.

(5) On July 25, 2007, the Plaintiff received a written waiver of the construction work from the non-party company to waive the case.

(6) Meanwhile, on July 6, 2006, the Plaintiff obtained a building permit for the instant building from the Namyang market, and commenced October 16, 2006 and obtained approval for use on October 18, 2007.

(7) [Grounds for recognition] The facts without dispute are as follows: Gap 1 to 7,9, Eul 3 to 9, witness ParkCC, and the purport of the whole pleadings.

C. Determination

Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) provides for the burden of proving that a tax invoice received from a certain transaction constitutes a “unlawful tax invoice” under Article 17(2)1-2 of the former Value-Added Tax Act, where the deduction of an input tax amount is denied on the grounds that such transaction is a nominal transaction without actual delivery or transfer of goods (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008).

The Central Regional Tax Office conducted a tax investigation on the non-party company, and confirmed only as data on the construction license and the issuance of a tax invoice without actual supply of construction services. According to each of the evidence Nos. 3 and 5, it can be acknowledged that the Corporation deposited the construction price from the non-party company to the account of the non-party company on the day or after 1-3 days, withdrawn and paid as the subcontractor or material price, and that the plaintiff did not file a claim for damages against the non-party company's breach of contract terms, such as delay of construction work.

However, the facts acknowledged earlier are as follows: (a) the Plaintiff was granted a loan of facility funds to the account of the non-party company after confirming the validity rate of the construction project of this case, and received the tax invoice of this case stating the amount of supply corresponding to the amount paid by the non-party company; (b) the person receiving the tax invoice of this case, items, and amount; (c) if the non-party company was urged to pay the construction cost from the subcontractor, it would normally be paid the construction cost deposited from the Corporation; and (d) If the non-party company was under the demand of the subcontractor to pay the construction cost, it would normally be paid the above subcontractor or material price; and (d) In full view of the fact that there was an investigation related to the tax invoice of this case by the non-party company of the non-party company of the Jungbu District District Tax Office, and the Plaintiff or the non-party company could not be accused, each of the above facts alone is insufficient to acknowledge that the tax invoice of this case is different from the facts, and there is no evidence supporting this.

Therefore, the instant disposition based on the premise that the instant tax invoice is a false tax invoice is unlawful.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.