Seoul Administrative Court 2006Guhap15523 ( April 18, 2008)

National High Court Decision 2005No2320 (No. 25, 2006)

Whether it constitutes a false tax invoice concerning gold bullion

It is difficult to readily conclude that the supply of goods subject to value-added tax is not a nominal transaction for the purpose of disguised the actual transaction of a bombing business, solely on the circumstance that gold bullion is imported and exported, and that there is a bomb in the middle stage, such as the Plaintiff’s wife, etc.

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

1. The part of the judgment of the first instance against the plaintiff shall be revoked.

The Defendant’s imposition of value-added tax for the second period portion of 2002 against the Plaintiff on March 2, 2005, each disposition of KRW 3,635,409,170, value-added tax for the first period portion of 2003, KRW 1,560,62,150, value-added tax for the second period portion of 203, KRW 29,543,280, and KRW 3,940,438,440 for the business year of 203, shall be revoked.

2. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant's second quarter value-added tax for the year 200 for the plaintiff on March 2, 2005; 3,451,640 won; 807,296,520 won of the first quarter value-added tax for the year 2001; 294,364,230 won of the second quarter value-added tax for the year 2001; 6,824,140,40 won of the first quarter value-added tax for the year 2002; 3,635,409,170 won of the second quarter value-added tax for the year 2003; 1,560,62,150 won of the first quarter for the year 203; 29,543,280 won of the corporate tax for the business year 200; 104,57,230,529,301 of the corporate tax for the business year 2004,3041.

2. Purport of appeal

A. The plaintiff is as ordered.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation portion is dismissed.

1. The court's reasoning with the exception of the conclusion in this case is that "the appellate court (Supreme Court Decision 2006Do3706) has been pending in the court of first instance." "The appellate court (Seoul High Court Decision 2007No2915) has pending in the appellate court (Seoul High Court High Court Decision 2007No2915)" in the 7th sentence of the court of first instance, "The appellate court (Seoul High Court Decision 2006Do3706) has been dismissed and finally acquitted", "The appellate court (Seoul High Court Decision 2007No2915) has lodged an appeal against this case on the ground of unfair sentencing, and sentenced 4 years of suspension of execution and 17 billion won to the appellate court (Seoul High Court Decision 2007No2915). The appellate court's subsequent appellate court's dismissal of the appeal and the above appellate court's dismissal of the appeal became final and conclusive as it is, Article 13, 13, 4 through 162).2 of the plaintiff's first appeal and second appeal.

2.2) As to the Plaintiff’s suspicion of processing and purchase

Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the delivery or transfer of goods shall be based on all contractual or legal grounds." In light of the fact that value-added tax has characteristics 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 authority to use and consume goods, regardless of the existence of profits actually acquired (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001; 9Du9247, Mar. 13, 2001; 201; 3.0.2.6.

However, in full view of the evidence of the first instance trial and the testimony of Kim Jong-chul of the party witness, the plaintiff purchased each of the instant gold bullion from April 1, 2004 to October 1 of the same year from 6 business operators, including New Maurs, Co., Ltd., Ltd., the purchaser of the instant gold bullion, and immediately paid the price (hereinafter referred to as "the instant transaction"), and received the purchase tax invoice from the purchaser of the instant case from the purchaser of the instant case (the representative director of the Ga Gakrae or Syked, who is part of the purchaser of the Plaintiff, was punished as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) due to the act of evading value-added tax on the premise that there was a real transaction of gold bullion), and thereafter, it is recognized that the plaintiff sold the instant gold bullion after receiving the price from other buyers again.

In light of the fact that gold bullion was actually distributed and traded from the importer to the plaintiff in real form, it is difficult to conclude that the transaction of this case, one of the series of transactions of this case, is not a supply of goods subject to value-added tax even if it was issued only, or actual gold bullion was delivered or paid, and it is difficult to conclude that the purchase tax invoice of this case received from each of the transaction of this case is a different description from the supplier and the actual supplier on the invoice (if the plaintiff conspired with the supplier of value-added tax in advance, it can be acknowledged that the purchase tax invoice of this case, which was received from each of the transaction of this case, is an accomplice).

Ultimately, the part of the non-deduction of input tax amount is unlawful on the premise that the purchase tax invoice of this case is false.

3.4) Sub-decisions

Therefore, among the dispositions of this case, the part on the basis of the suspicion of " card tin" and "processing Purchase" is unlawful, and the remaining part of "non-data transaction" shall not be deemed to be unlawful as alleged by the plaintiff. Thus, among the dispositions of this case, the part on the imposition of value-added tax for the second period from 200 to 2003 and the imposition disposition of corporate tax for each business year from 200 to 2003 should be revoked.

As a result, the imposition of value-added tax for the second period of 200 among the above dispositions subject to cancellation, the first to the second period of 2001, the second period of 2002, the second period of 2003, and the imposition of value-added tax for the second period of 2003, and the second period of 200 to 2002 shall be revoked in its entirety as it is unlawful. <2> The imposition of value-added tax for the first period of 2003, which includes non-data transaction, and the imposition of corporate tax for the business year 2003, are illegal, and some of them must be revoked. However, the legitimate amount of tax to be imposed cannot be calculated lawfully except for the unlawful portion. Each of the above dispositions shall also be revoked in its entirety.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the part against the plaintiff in the judgment of the court of first instance is unfair, so it is revoked, and all of the dispositions which have not been revoked in the court of first instance shall be revoked, and it is so decided as per Disposition.