propriety of a disposition that deducts input tax amount by deeming it a false tax invoice;

In light of the facts pertaining to the type of business, contract contents, transaction details, written confirmations, etc., it is reasonable to deem that the actual supplier according to the instant tax invoice is not ○○, but ○○, and there is no data to deem that the actual construction price has been paid, as well as that the contract document was prepared formally.

Article 16 of the Value-Added Tax Act

Article 17 of the Value-Added Tax Act

1. Details of disposition;

The following facts are recognized by comprehensively taking account of each entry of evidence Nos. 1, 6, 1 through 3, 5-1, 2, and 6-1 of evidence Nos. 6.

A. The Plaintiff is running a wholesale business in the name of ○○-dong ○○-dong ○○○-dong ○○○-○○.

B. The Plaintiff received respectively a tax invoice of KRW 220 million from March 20, 2003 from ○○ Machinery (Representative○○○), and a tax invoice of KRW 160 million from May 21 of the same year (hereinafter referred to as the “tax invoice of this case”) of KRW 160,000,000,000 from ○○ Machinery (Representative○○) and filed a return of value-added tax for the first period of 2003 by deducting the amount equivalent to the said tax amount as the input tax amount.

C. As a result of the investigation, the Defendant: (a) opened on June 26, 2001, and received, delivered, and notified the Plaintiff that he received, and received, a false tax invoice from the head of ○○ Tax Office until the closure of the business on April 30, 2004; and (b) on October 4, 2005, the actual supplier pursuant to the instant tax invoice was not the ○○○○, but the Plaintiff issued the new construction of a factory and office building (hereinafter “instant construction”) after being awarded a contract from the Plaintiff; and (c) on the ground that it constitutes a false tax invoice on the ground that the value-added tax amount equivalent to the value of supply was not deducted from the input tax amount for the first half of January 2003 to the Plaintiff.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) The Plaintiff entered into a contract for construction work with ○○ Machinery, and ○○○○ is merely the field supervision of ○○ Machinery, and the instant tax invoice was received in the name of ○○ Machinery that actually performed the instant construction work, not the actual tax invoice.

Even if she was a disguised business operator, the Plaintiff who traded ○○○ was a bona fide business operator prior to the instant construction work and confirmed the business registration certificate of the ○○ Machinery, and believed ○○○ as the site supervision of the ○○ Machinery, shall be protected as a bona fide trading party.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts

In addition to the descriptions and shapes of Gap's evidence 2 through 5, Eul's evidence 4, Eul's evidence 6-2, Eul's evidence 8, 9, Eul's evidence 10-1 through 3, Eul's evidence 11-1 through 10, the following facts are acknowledged.

(1) ○○○○’s representative is a business entity engaged in manufacturing machinery, wood structure, etc., and does not carry on construction business. On the other hand, with respect to the instant construction project, the construction contract was written on November 30, 2002 and April 1, 2003 in the name of the Plaintiff and ○○○○○○. As seen above, the part of each of the instant contract was signed in the name of the Plaintiff and the Plaintiff, and the type of business is affixed with the rubber of the ○○ Machinery indicated as the manufacturing industry, and the design drawing or specific contract terms and conditions are written only in a simple manner and only in a simple manner. Moreover, the instant tax invoice also puts the same rubber seal on the ○○ Machinery.

B. ○○○ was prosecuted on charges of violating the Tax Punishment Act by issuing Chapter 13 of the false sales tax invoice amounting to KRW 756 million in total the value of supply to nine businesses including the Plaintiff.

Referencely, the Plaintiff paid most of the construction cost of the instant case to ○○○○ on April 19, 2004. Of them, the receipt that was issued by another person to ○○○○○ on the receipt is indicated as “○○ Development ○○○.” Meanwhile, there is no evidence suggesting the existence of an employment relationship between the two parties, such as the payment of wages, etc. to ○○○○○○○. However, each of the instant tax invoices issued by the Plaintiff on the Plaintiff’s account book stated as the payment of all the construction cost in cash on the issuance date of each of the instant tax invoices.

In the confirmation document prepared by the Defendant at the time of the investigation by the Defendant on the Plaintiff, ○○○ confirmed that ○○ had issued a tax invoice in the name of ○○○, a subsequent ○○○○○, the Plaintiff performed the instant construction by contract, and ○○ also signed and sealed the confirmation document stating that the instant tax invoice against the Plaintiff was issued without a real transaction at the time of the investigation on ○○ Machinery.

(v) the ○○ Steel Co., Ltd. that sold steel products necessary for the instant construction has submitted a written confirmation to the effect that “○○○ Co., Ltd. has sold steel products with no material in return for the promise to issue a tax invoice after the date of the receipt of the instant construction but it is impossible to register the business.”

D. Determination

(1) Determination as to the above A. (1) argument

㈎ 위에서 본 바와 같은 ○○기계의 업종, 도급계약내용, 거래내역, 확인서의 기재 등에 관한 사실관계에 비추어볼 때. 이 사건 세금계산서에 따른 실제 공급자는 ○○기계가 아니라 ○○○라고 봄이 상당하고, 이에 어긋나는 갑2 내지 4호증, 갑8호증의 1,2의 각 기재 및 증인 ○○○,○○○의 각 증언은 믿기 어려우며 달리 볼 만한 증거가 없다.

㈏따라서 위 주장은 이유 없다.

She. Judgment on the Doshe's argument

㈎ 실제 공급자와 세금계산서상의 공급자가 다른 세금계산서는 공급받는 자가 세금계산서의 명의위장사실을 알지 못하였고 알지 못한 데에 과실이 없다는 특별한 사정이 없는 한 그 매입세액을 공제 내지 환급 받을 수 없으며, 공급받는 자가 위와 같은 명의위장 사실을 알지 못한 데에 과실이 없다는 점은 매입세액의 공제 내지 환급을 주장하는 자가 이를 입증하여야 한다(대법원 2002. 6.28. 선고 2002두2277 판결참조).

㈏ 이 사건에 관하여 보건대, 원고가 이 사건 세금계산서의 실제 공급자가 ○○○가 아닌 ○○○였다는 사실을 몰랐고 그러한 사실을 모른 데 과실이 없었다는 점에 부합하는 듯한 갑9호증의 기재와 증인 ○○○,○○○의 각 증언은 믿기 어렵고, 갑1 내지 3호증의 각 기재만으로는 이를 인정하기에 부족하며 달리 이를 인정할 증거가 없다. 오히려 앞서 본 사실관계에 따라 인정하기에 부족하며 달리 이를 인정할 증거가 없다. 오히려 앞서 본 사실관계에 따라 인정되는 다음과 같은 사정, 즉 ○○○가 운영하는 ○○기계는 건축업이 아닌 기계제작 등 제조업체였으며, 이는 ○○기계의 사업자등록증이나 이 사건 공사와 관련된 각 도급계약서, 이 사건 세금계산서에도 명백히 나타나 있는 점, 원고는 이 사건 공사대금 대부분을 어음 등으로 ○○○에게 지급하였는데, 그 어음이 다시 ○○○에게 교부된 흔적을 전혀 찾아 볼 수 없는 점, 원고가 공사대금을 지급하고 교부받은 영수증 중에는 ○○○가'○○개발'이라는 자신의 이전 상호를 기재한 것도 들어 있는 점, 이 사건 공사에 관한 도급계약서는 형식적으로 작성되어 있을 뿐만 아니라 실제 공사대금이 그 기재내용대로 지급되었다고 볼 만한 자료가 없는 점 등에 비추어 볼 때, 원고는 이 사건 공사를 실제 수급한 자가 ○○기계가 아닌 ○○○라는 사실을 이미 알고 있었거나, 설혹 이를 알지 못하였다 하더라도 그와 같이 알지 못한 데 과실이 있다고 봄이 상당하다.

㈐ 따라서 이와 다른 전제에서 나온 위 주장 또한 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Relevant statutes

Value-Added Tax Act

Article 16 (Tax Invoice)

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, the supplier shall deliver an invoice stating the following matters (hereinafter referred to as “tax invoice”) at the time provided for in Article 9 to the person who reflects the supply as prescribed by the Presidential Decree: Provided, That in cases prescribed by the Presidential Decree, the delivery period may vary

1. Registration number, name or denomination of the businessman to be supplied;

2. Registration number of the supplier;

3. Amount of supply and value-added tax.

4. Date of preparation.

5. Matters as prescribed by the Presidential Decree other than those under subparagraphs 1 through 4.

Article 17 (Tax Amount to be Paid)

(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) through 4 (hereinafter referred to as a “necessary entry items”) 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 be excluded;

**: Busan High Court 2007Nu0245 (2007.09.07) - Flash

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of value-added tax of KRW 54,708,60 on October 4, 2005 against the Plaintiff on October 4, 2005 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1, Gap evidence 6, Eul evidence 1, Eul evidence 2, Eul evidence 5-1, Eul evidence 5-2, Eul evidence 6.

A. The Plaintiff is running the Rodrum wholesale and recycling business in the trade name of ○○○-dong ○○○○○○○-dong ○○○○○.

B. On March 20, 2003, the Plaintiff received each tax invoice of 2200 million won in supply value from '○○ Machinery (Representative Kim○○○)', and on May 21, 2003, one tax invoice of 160 million won in supply value (hereinafter referred to as 'the tax invoice of this case' in combination with two tax invoices of 160 million won in supply value (hereinafter referred to as 'the tax invoice of this case') from '○○ Enterprise', and filed a return of value-added tax for the first period of 2003 with the Defendant by deducting the equivalent amount of tax from the input tax amount.

C. On June 26, 2001, the Defendant received and delivered a false tax invoice from the head of ○○ Tax Office until the closure of the business on April 30, 2004, and notified the Plaintiff that the Plaintiff received a false tax invoice from the “○○ Machinery” and that the Plaintiff received a false tax invoice from the “○○ Machinery,” and the Plaintiff’s tax investigation was conducted with respect to the Plaintiff. On the other hand, the Plaintiff was not the “○○ Machinery,” but the actual supplier under the instant tax invoice constitutes the case where the Plaintiff received a false tax invoice by receiving the tax invoice in the name of the “○○ Machinery,” while the Plaintiff was also the actual supplier under the instant tax invoice. On October 4, 2005, the Defendant issued a revised and notified the Plaintiff (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff actually contracted the construction of the above new construction to ○○ Machinery, and this ○○○ is only the field supervision of the ○○ Machinery, so the tax invoice of this case is a real transaction with ○○ Machinery, and even if it is not a transaction with ○○ Machinery, the plaintiff is a bona fide trading party who trades ○○○ Machinery with ○○ Machinery with ○○ Machinery's site supervision. Thus, the disposition of this case on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or are recognized in full view of each of the aforementioned evidence, evidence No. 2, evidence No. 3, evidence No. 4, evidence No. 10, evidence No. 2, evidence No. 3, evidence No. 3, evidence No. 6-2, evidence No. 7-1, No. 2, 3, evidence No. 8, evidence No. 9, evidence No. 13, and evidence No. 1 of evidence No. 13, and evidence No. 1 of the first instance trial and the witness No. 13, evidence No. 200, and evidence No. 3 of the first instance trial

(1) During the physical color of the company that will perform the said new construction, the Plaintiff introduced Kim○, the representative of the '○○ Machinery' through this○○, and entered into a construction contract with the '○○ Construction Machinery' on November 30, 2002, on which the construction period was 220,000,000 (excluding value-added tax) for a factory building during the said new construction project from November 30, 2002 to March 30, 2003; and on April 1, 2003, with respect to a building during the said new construction project from April 3, 2003 to May 20, 2003, the construction period was 160,000 won (excluding value-added tax).

(2) On November 30, 2002, the construction contract on the factory building as of November 30, 2002 was concluded at the office of the Plaintiff’s “○○ enterprise” during the attendance of the Plaintiff, Kim○, and Lee○○○. At the time, Kim○ introduced Lee○ as the general manager at the construction site, and the Plaintiff paid the down payment of KRW 20,000,000 to Kim○○ as a promissory note on the day.

(3) However, in fact, ○○○ is not an employee employed by ○○○, but a construction contract was concluded in the name of ○○○○ Construction Work in the name of ○○○ Construction Work if ○○○○○ orders the construction work to be executed on the basis of the relationship between ○○ and ○○○○ and ○○○ without business registration, and an agreement was reached to distribute the profit after performing the construction work under the responsibility of ○○○○○ Construction Work. Accordingly, the said construction work was allowed to lend the name of ○○○○

(4) As above, the Plaintiff paid the remainder of the construction cost other than the down payment that was paid to Kim○○ as cash or promissory note to Lee○○. This, without going through Kim○, was used by the Plaintiff by directly paying the construction cost that was paid by the Plaintiff to the customer as the material cost.

(5) Meanwhile, on April 28, 2005, Kim ○ was sentenced to a suspended sentence of two years for 8 months by imprisonment with prison labor for a violation of the Punishment of Tax Evaders Act from the Busan District Court (2005Kadan883) on April 28, 2005, and the above judgment became final and conclusive.

(6) In the confirmation document prepared at the time of the tax investigation with respect to the Plaintiff, the ○○○ issued a tax invoice in the name of the Plaintiff, a senior Kim○, after being awarded a contract for the said new construction, and Kim○ also signed and sealed the confirmation document stating that the instant tax invoice was issued without a real transaction at the time of the tax investigation with respect to the ○○○’s “○○ Machinery”.

D. Determination

(1) Article 17(2)1-2 of the Value-Added Tax Act provides that "in case where all or part of the requisite entry items in the tax invoice are entered differently from the fact, the input tax amount shall not be deducted from the output tax amount." The meaning of "the other fact" refers to the case where the requisite entry items in the tax invoice do not coincide with the actual supplier, the supplier, and the supplier of the goods or services, the price, and the timing of the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). The other tax invoice is a supplier and the supplier under the tax invoice, barring special circumstances where the supplier was unaware of the nominal entry of the tax invoice, and the supplier was not negligent in not knowing the above nominal entry, and the person claiming the deduction or refund of the input tax amount shall prove it (see, e.g., Supreme Court Decision 2002Du22777, Jun. 28, 2002).

(2) According to the above facts, the person who actually performed the construction work between the plaintiff and the plaintiff is not "○○," but "○○," and the tax invoice in this case consists of "○○," so it constitutes a tax invoice written differently from the facts.

(3) However, the following circumstances revealed in the above facts, i.e., ① the construction contract for a factory building among the above new construction construction works was concluded while Kim○○ was present, and the down payment was paid directly by the Plaintiff to Kim○○○○. ② At the time Kim○○ introduced this ○ to the Plaintiff as a general manager at the construction site, it appears that the Plaintiff would have paid the remainder of the construction work payment to this ○○○ without trusting it and without going through Kim○○. ③ The Plaintiff did not know the content of the agreement on the use of the name of business registration between Kim○ and Lee○○, and it was difficult for the Plaintiff to know that the actual contractor was using the name of the ○○ Construction as this treatment, and it was hard to view that the Plaintiff did not know that there was any negligence on the part of the ○○○ Construction in preparing the above new construction work without knowing that the ○○○ Construction work was a contractor who did not know about the disadvantage caused by receipt of the tax invoice. ④ In the course of this case’s tax investigation, it was unlawful for the Plaintiff to issue the above new construction work.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked, and it is so decided as per Disposition.