early 208 Heavy1392 ( August 20, 2009)

Any disposition that excludes the application of zero tax rate on the ground that no purchase certificate is attached;

Any provision that stipulates that a preliminary return of value-added tax shall be accompanied by documents proving that the zero-rate tax is subject to the application of the zero-rate tax is unlawful for the mere formal reason that a purchase certificate, etc. is not attached on the grounds that it can be seen as a voluntary provision that imposes a taxpayer's duty to cooperate with the government

1. Each disposition of imposition of value-added tax for the second period of 2006 against the Plaintiff on January 2, 2008 (including additional tax) and value-added tax for the first period of 2007 on January 2, 2007 (including additional tax) shall be revoked.

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

It is the same as the order (the date of the imposition disposition stated in the complaint, which was January 14, 2008).

1. Circumstances of the disposition;

A. The plaintiff is a business operator engaged in the manufacturing of medical appliances with the trade name of "Seoman-kinck". The plaintiff supplied Pricheon Papex Co., Ltd. (hereinafter referred to as "the business operator of this case") to the branch of the Republic of Korea (hereinafter referred to as "the business operator of this case") for the taxable period of the value-added tax in February 2006 and January 2007 (hereinafter referred to as "the taxable period of this case") and filed a return by applying the zero-rate tax rate at the time of filing the value-added tax return.

B. As a result of the fact-finding survey on the refund of value-added tax against the Plaintiff, in order for the Plaintiff to be subject to zero-rate tax on the supply of the instant goods, the transaction between the Plaintiff and the instant transaction parties is a domestic transaction that manufactures the instant goods and supplies them to the instant transaction parties, which are exporters, and thus, the Plaintiff must submit a local letter of credit or purchase confirmation as an accompanying document in the value-added tax return, but the Plaintiff did not submit the said documents. On January 2, 2008, the Defendant imposed a disposition of imposing value-added tax on the Plaintiff for the supply of the instant goods on the ground that the Plaintiff did not submit the said documents, and on January 2, 2008, the value-added tax was set at KRW 91,743,540 (including additional tax), the value-added tax was set at KRW 74,747,120 (hereinafter referred to as the “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Director of the Tax Tribunal on March 28, 2008, but was dismissed on August 20, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2 (including each number, hereinafter the same shall apply), Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

(1) Violation of the no taxation without law

The instant disposition, which excluded the application of zero-rate tax rate on the sole ground that the purchase certificate was not attached, is in violation of the principle of no taxation without law, because there is no explicit provision for exclusion of zero-rate tax rate.

(2) Violation of substance over form principle

The export price of the instant goods manufactured and supplied by the Plaintiff is confirmed by an export declaration certificate, etc., and the instant disposition, which excludes the application of zero tax rate solely based on the formal requirements of non-submission of a purchase declaration, violates the substance over form principle.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Even if an entrepreneur fails to submit a zero-rate tax base upon filing a preliminary or final return of value-added tax at the time of filing a return on the zero-rate tax base, if the relevant tax base is verified to be subject to zero-rate tax (see, e.g., Supreme Court Decision 2004Du8224, Feb. 18, 2005).

(2) In light of the overall purport of the oral argument, the Plaintiff supplied the instant transaction parties with an increase of special vaccination for medical use before and after the instant taxable period, and exported all of them to a foreign country through the instant transaction parties. Except for the instant taxable period, the Plaintiff may recognize the fact that the exported goods were submitted a purchase certificate and submitted a purchase declaration, and the fact that the instant goods were exported to a foreign country through the instant transaction parties does not dispute between the parties. If the facts exist, the supply of the instant goods satisfies the substantive requirements for applying the zero-rate tax. If the zero-rate tax is applied under Article 64(3) of the Enforcement Decree of the Value-Added Tax Act, the provision that the Plaintiff shall submit a preliminary return of the value-added tax along with documents proving that the goods are subject to zero-rate tax can be deemed to be a voluntary provision that imposes a duty to cooperate with the government, and if in light of the legislative purpose of the provision on the export of the value-added tax and the legislative purpose of the provision on the zero-rate tax and the legal principles as seen earlier, the disposition of substantial taxation is unlawful.

(3) The Supreme Court Decision 2007Du22863 Decided April 9, 2009 asserted by the Defendant was actually exported in that it is a case concerning gold bullion business operators who evaded value-added tax by pretending the export through false or defective purchase approval, but it is different from this case where only purchase approval was not issued. Thus, it is inappropriate to invoke this case.

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition.